R. v. M.K.M.

2024 BCSC 575 R. v. M.K.M.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. M.K.M., 2024 BCSC 575 Date: 20240124 Docket: 111265-3 Registry: Kamloops Rex v. M.K.M. Restriction on Publication: Pursuant to 486.4(2) C.C.C. Before: The Honourable Madam Justice Donegan Oral Reasons for Sentence Counsel for the Crown: L.A. Drake Counsel for the Accused: J. Killoran Place and Date of Trial/Hearing: Kamloops, B.C. January 9, 2024 Place and Date of Judgment: Kamloops, B.C. January 24, 2024 Introduction.. 2 Circumstances of the Offence. 3 Impact on K.W. 5 M.K.M.'s Circumstances. 6 Legal Principles. 8 Positions of the Parties. 14 Application of the Principles to this Case. 16 Mitigating Factors. 16 Aggravating Factors. 17 Primary Objectives. 18 Gravity and Responsibility. 19 Sentence. 22 Ancillary Orders. 30 Victim Fine Surcharge. 30 Weapons Prohibition. 30 DNA Order 31 Sex Offender Information Registration Act 31 Section 726.3 of the Code. 35 [1] THE COURT: To begin, I will confirm the publication ban in place regarding the identity of the complainant. I have determined on a previous occasion that this restriction on publication applies to the identity of the accused and the witnesses in this case, given the relationships between them. Introduction [2] M.K.M. is a 23‑year‑old Indigenous first‑time offender who committed a serious sexual crime against a vulnerable young woman who was his friend at the time.

Following a trial, I convicted M.K.M. of sexually assaulting K.W. contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. He is here today to be sentenced. [3] Crown counsel, Ms. Drake, submits that a sentence of two years incarceration followed by a lengthy probationary period would be an appropriate sentence, along with a number of ancillary orders. Defence counsel, Mr. Killoran, submits that a two‑year‑less‑a‑day conditional sentence order ("CSO") followed by three years probation, is appropriate. He agrees with the imposition of all but one of the ancillary orders sought. [4] Crafting a proportionate sentence in accordance with the purpose, principles, and objectives the law requires in each unique case is governed by statutory provisions and common law principles. Although the legal principles, factors, and objectives that guide the court are clearly defined, sentencing nonetheless involves, by definition, the exercise of a broad discretion in balancing all of the relevant factors in order to meet the objectives being pursued in sentencing: R. v. Lacasse, 2015 SCC 64 at para. 1. [5] Fundamental to my task is to ensure the sentence I impose today is proportionate to the gravity of this offence and the degree of responsibility of M.K.M. Circumstances of the Offence [6] The circumstances of this offence are detailed in my Reasons for Judgment at trial, indexed

at 2022 BCSC 1870 (the "Trial Reasons"). My reasons today should be read in conjunction with the Trial Reasons. I will only summarize the circumstances of this offence here. [7] M.K.M. and K.W. had been good friends for some time prior to the offence. Their relationship had never been a sexual one. K.W. viewed M.K.M. like a sibling. The two enjoyed spending time together on occasion, particularly in the company of their dogs. [8] On the night in question, M.K.M. went to K.W.'s home to pick her up, and her dog. K.W. was uncertain if she had eaten that day and had consumed a glass of wine before leaving her house. They went to M.K.M.s' home. She had never been to his house before. After they visited for a time, M.K.M. went to his bedroom and started watching a movie from his bed. K.W. joined him and the two lay on his bed. M.K.M. left the room, brought her a tall can of Captain Morgan's spiked root beer. K.W. drank it very quickly and soon began to feel very intoxicated. She felt dizzy, anxious, and confused. [9] As they lay on the bed watching the movie, M.K.M. touched K.W.'s hip with his hand, but she brushed him away and they continued to watch the movie. K.W.'s intoxication caused her to begin to roll in and out of consciousness. Her next recollection was M.K.M. unbuttoning her pants and beginning to take them down, along with her underwear, telling her that she would "not be

needing these". K.W. pulled her clothing back up and said "no" and laid back down. She felt frozen, unsure of what to do. M.K.M. sighed and laid back down as well. [10] K.W.'s next recollection was feeling M.K.M.'s hand on the back of her skull, pulling her head toward his genital region. She resisted against his hand and said, "No, no", and either said, "I am too tired" or "I am too drunk." M.K.M. replied, "It's okay, just do it," and said other similar encouraging phrases. [11] K.W.'s next recollection was opening her eyes to M.K.M. on top of her, having unprotected vaginal intercourse with her. She was shocked and could not move. She did not say anything because he had ignored her earlier protests so she thought she should just "take it" and "wait for him to be done", because she knew he was not going to take "no" for an answer again. Her eyes rolled back in her head and she lost consciousness again. [12] When she regained consciousness, M.K.M. was still having vaginal intercourse with her. She felt a tear fall from her eye, saw the dogs hovering above her face, and heard M.K.M. tell the dog, "It's okay, Mommy's okay," before she lost consciousness again. [13] When she next regained consciousness, M.K.M. was pulling up his jeans. There was no conversation. He left the room. K.W. managed to locate her phone and lock herself in the bathroom where she corresponded with others,

including sending a text message to her friend, Ms. A., saying she needed help, and she sent a pinned location to M.K.M.'s home. [14] When Ms. A. picked her up, she found K.W. was hysterical. She had to grab K.W. as she walked to her car in order to prevent her from collapsing to the ground. During the drive home, Ms. A. held her hand. She felt her hand go limp from time to time, and saw K.W.'s eyes roll back in her head. She observed K.W. going in and out of consciousness. How Ms. A. saw K.W. would have been how M.K.M. saw K.W. during the sexual encounter. [15] Ms. A. took K.W. to the Merritt hospital and then to the Kamloops hospital that night for a sexual assault examination to be performed. Once it was completed, Ms. A. drove her back home to Merritt. K.W. took Plan B in order to prevent a potential pregnancy. She began vomiting and ended up staying in bed for about the next week. [16] In short, M.K.M. had unprotected vaginal intercourse with K.W. without her consent. K.W. both did not consent to the sexual activity and, at times when she fell into unconsciousness, was incapable of consenting to the sexual activity. M.K.M. was not under the influence of intoxicants and had his faculties about him at the time. He knew she was both not consenting and, during the time she was unconscious, that she was not capable of consenting. Impact on K.W. [17] Although K.W. has not

provided the Crown with a formal victim impact statement and the Crown does not seek an adjournment in order to obtain one, I have evidence about the effects of this crime upon K.W. from her testimony at trial. Although it was some time ago, I recall her testimony well. [18] K.W. was emotional at times when she testified. She required a support dog at her feet. She conveyed quite clearly through her evidence that she felt betrayal, disbelief, and shock at what had occurred. M.K.M. was one of her only friends at the time. In the immediate aftermath of what she experienced, she described the effect of this crime as feeling like her whole world was crashing down around her. [19] K.W. was further subjected to an invasive sexual assault examination at the hospital as a result of this crime. She had to attend two hospitals in the middle of the night. When she eventually got home, she took Plan B. She became ill and stayed in bed for the following week. All of this evidence about the effect upon K.W. that night was consistent with what Ms. A. saw as well. K.W. was continuing to be emotional years later at trial. [20] From all of the evidence, I am satisfied that this crime had a significant negative impact on K.W.'s sexual, physical, and emotional integrity. M.K.M.'s Circumstances [21] M.K.M. is 23 years old. He is Nłeʔkepmxc and a member of the Lower Nicola Indian Band. His mother is

a member of the Cooks Ferry Indian Band, and his father, G.M., is a member of the Lower Nicola Indian Band. [22] These communities have been significantly impacted through policies relating to the Indian Act, in particular, the residential school system. In fact, all four of M.K.M.'s grandparents, who are now deceased, attended residential schools, which included St. Joseph's Mission in Williams Lake, St. George's Indian Residential School in Lytton, and the Kamloops Indian Residential School. M.K.M.'s paternal grandfather was a veteran of World War II. After recovering from battle, he enlisted for a second time. He, like many others like him, had land stripped away from him when he enlisted due to the disenfranchisement under the Indian Act. [23] M.K.M. has three younger half‑siblings through his mother. He had an older half‑brother through his father, but he was tragically murdered in 2009. [24] M.K.M.'s mother struggled with alcohol addiction through his childhood. She left the family when M.K.M. was very young, around the age of two. Her family, that is M.K.M.'s mother's family, has extensive multi‑generational alcoholism that is directly connected to their residential school experiences. [25] M.K.M. was, therefore, raised primarily by his dad. His father had attended what was referred to as the Indian Day School as a child, but he left school early. Other than about a

nine‑month period of time when his father was incarcerated when M.K.M. would have been about eight years old, and he bounced from home to home, M.K.M. has lived mostly with his father. [26] While he was growing up, G.M. had difficulty helping his son with homework as he had not completed his education, and still struggles with reading and writing. M.K.M.'s father attributes his difficulties in this regard in part to a brain injury he suffered when M.K.M.s' mother threw a knife at him. M.K.M. had to fend for himself a lot as a child. He and his father are currently very close and have what I would characterize as a mutually supportive relationship. [27] Despite these challenges in his early years, M.K.M. developed socially, worked hard academically, and finished school. One of his former teachers described the grit and determination that M.K.M. demonstrated in graduating high school, writing in her letter to the court that she was not sure she "had ever been prouder of a student, as I watched him cross that stage and receive his diploma." [28] M.K.M. has been working and/or volunteering since the age of 13. He is employed at [location omitted]. He has been there since May of 2022 and, from what I gather, operates his own business as well. Having been inspired by his attendance at the Bald Eagle Program for Aboriginal Youth at Canada's Forces Base Wainwright at the age of 16, his

original goal had been to pursue a career in the military like his grandfather, but an injury has now prevented this career path. [29] Unfortunately, M.K.M.'s father is ill. He has been diagnosed with metastatic cancer. M.K.M. assists him daily, caring for him, financially supporting him, taking him to appointments, and driving him for treatments in Kamloops. M.K.M.'s father relies on his son a great deal. They are characterized in the materials, fairly I think, as being the best of friends. [30] Ms. Lara, the Gladue report writer, has identified a number of Gladue factors that are present in M.K.M.'s case, which I will be reviewing in more detail later. I have read Ms. Lara's report a number of times now. I have drawn on some of her observations in relating M.K.M.'s background here. These details, the ones that I have related, and the summary I will be referring to later in these reasons, do not do justice to her thorough review, comprehensive interviews and her insights into the profound intergenerational trauma and suffering that M.K.M. and his family have endured. [31] M.K.M. has excellent family and community support. I have letters from friends, teachers, employers, and others all attesting to his good character, his community involvement, and the pro-social life that he leads. He is now in a long‑term committed relationship. He and his spouse have launched their own

company selling hats, clothing, and belts. He leads classes with children, adults, and elders through cultural practices and leather craftmanship. They have already established a large clientele with their business and it has been a success. [32] M.K.M. is involved with his community as well. As is evident in Ms. Lara's report, he recognizes the benefits of working with, and for, elders, knowledge keepers, and other community members. He is highly motivated to engage in any restorative justice options offered to him, such as those outlined by Ms. Lara in her report. [33] Other than the matter that brings him before this court, I am satisfied that M.K.M. is a young man of good character. He works hard. He is a valuable, contributing member of society. He has a very bright future. Legal Principles [34] An offence under s. 271 of the Code, when the Crown proceeds by indictment as it has in this case, carries a maximum sentence of ten years imprisonment. There is no mandatory minimum sentence. There is no statutory bar to imposing a CSO for this crime. [35] The determination of a just and proportionate sentence is a highly individualized exercise that goes beyond any mathematical calculation. Imposing a just and proportionate sentence involves a careful balancing of a variety of factors in the context of a particular set of circumstances and in respect of a particular offender.

This balancing process occurs within the legislative framework informed by common law principles. That framework is set out in s. 718 of the Code. [36] Section 718 of the Code provides that: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [37] The paramount objectives in a serious sexual assault case such as this are denunciation and deterrence: R. v. G.M., 2015 BCCA 165. [38] The objectives of sentencing are given a sharper focus in s. 718.1 of the Code, which mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. This proportionality principle is fundamental in Canadian law. Therefore, whatever

weight I may wish to accord to the objectives in s. 718, the resulting sentence must respect the fundamental principle of proportionality: R. v. Nasogaluak, 2010 SCC 6 at para. 40. [39] The Supreme Court of Canada explained proportionality in R. v. Lacasse, 2015 SCC 64, instructing that proportionality is to be determined both on an individual basis, that is in relation to the offender himself, and to the offences committed by that person, and by comparison with sentences imposed for similar offences committed in similar circumstances. The concepts of individualization and parity of sentence must be reconciled for a sentence to be proportionate: para. 53. [40] I also take guidance from R. v. Bissonnette, 2022 SCC 23, when the Court explained the proportionality principle this way: [50] But sentencing must in all circumstances be guided by the cardinal principle of proportionality. The sentence must be severe enough to denounce the offence but must not exceed "what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence" (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42; see also R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37). Proportionality in sentencing is considered to be an essential factor in maintaining public confidence in the fairness and rationality of the criminal justice system. The

application of this principle assures the public that the offender deserves the punishment received (Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533, per Wilson J., concurring). [51] It follows that "a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending" (Nur, at para. 45). In a similar vein, Vauclair J.A. aptly stated that [translation] "striving for exemplarity to the detriment of evidence of the merit of rehabilitation objectives is incompatible with the principle of individualization" (Lacelle Belec v. R., 2019 QCCA 711, at para. 30 (CanLII), citing R. v. Paré, 2011 QCCA 2047, at para. 48 (CanLII), per Doyon J.A.). Proportionality has a restraining function, and in this sense serves to guarantee that a sentence is individualized, just and appropriate. [41] Section 718.2 of the Code provides a non‑exhaustive list of secondary sentencing principles that I must consider, including: the aggravating and mitigating circumstances; the principle of parity; the principle of totality, if applicable; that an offender should not be deprived of liberty if less‑restrictive sanctions may be appropriate in the circumstances; and that I must consider all available sanctions, other than imprisonment, that are reasonable in the circumstances. [42] Regarding the principle of parity,

while it is important to respect this principle, I am aware that I am not to lose sight of the individualized nature of the assessment before me today, an assessment that requires me to weigh the objectives of sentencing in a manner that best reflects the circumstances of this case, this offence, and this offender: Nasogaluak at para. 43. [43] Section 718.2(d) and (e) emphasize the need for restraint in the use of imprisonment. These provisions require that an offender not be deprived of liberty if less‑restrictive sanctions are appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Indigenous offenders. [44] Given M.K.M.'s Indigenous heritage, s. 718.2(e) of the Code has special importance. Justice Karakatsanis recently discussed this in R. v. Sharma, 2022 SCC 39: [114] The overrepresentation of Indigenous people in Canada's prisons is a present-day product of this country's colonial past. As Indigenous incarceration rates have climbed, and those of Indigenous women have soared, some have compared Canadian correctional facilities to residential schools . . . Like residential schools before it, this overincarceration is an ongoing source of

intergenerational harm to families and communities. It is a striking sign of the discrimination that Indigenous peoples experience in "all parts of the criminal justice system" . . . And it remains a poignant obstacle to realizing the constitutional imperative of reconciliation [references omitted]. [45] Parliament took an important step toward addressing the longstanding gross over-representation of Indigenous Canadians in the prison population when it enacted s. 718.2(e) of the Code in 1996: R. v. Townsend, 2020 BCSC 63 at para. 90. [46] In R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada made it clear that s. 718.2(e) is remedial and is intended to deal with this continuing crisis. It is a crisis driven by the alienation, poverty, substance abuse, lower educational attainment, lower rates of employment and prejudice experienced by Indigenous people in Canada: R. v. Kehoe, 2023 BCCA 2 at para. 36. [47] Justice Marchand, now Chief Justice of British Columbia, discussed the principles that animate the application of s. 718.2(e) and how Gladue and Ipeelee transformed the approach to sentencing Indigenous offenders recently in Kehoe. He wrote, in part: [37] Sentencing judges are to take judicial notice of how Canada's colonial history and post-colonial assimilationist policies have translated into these terrible outcomes: Gladue at para. 83; Ipeelee at para.

60. These systemic and background factors do not excuse or justify criminal conduct. Rather, they provide the necessary context for understanding and evaluating case‑specific information during the sentencing exercise: Ipeelee at para. 83. [38] Systemic and background factors affect the incidence of crime and recidivism for all offenders. However, as the Supreme Court recognized, the circumstances of Indigenous offenders are different from other offenders because many Indigenous people are "victims of systemic and direct discrimination" and "dislocation" and are "substantially affected by poor social and economic conditions": Gladue at para. 68. [39] The over‑representation of Indigenous people in Canada's prison population is tied to broad societal issues. Nevertheless, the Supreme Court in Gladue and Ipeelee recognized that culturally attuned sentencing for Indigenous offenders has a role to play in addressing this crisis: Gladue at para. 65; Ipeelee at paras. 64-70; R. v. Mero, 2021 BCCA 399 at para. 68. [40] Accordingly, Gladue and Ipeelee transformed the approach to sentencing Indigenous offenders. As with all offenders, a judge sentencing an Indigenous offender must take a holistic approach to imposing a fit sentence that is proportionate to the seriousness of the offence and the moral blameworthiness of the offender: Ipeelee at para.

37. However, since the circumstances of Indigenous offenders are "significantly different" from those of non-Indigenous offenders, the judge must pay particular attention to two factors: 1. The unique systemic or background factors that may have played a part in bringing the particular Indigenous offender before the courts; and 2. The types of sentencing procedures and sanctions that may be appropriate for the offender in the circumstances given their particular Indigenous heritage or connection. See Gladue at para. 66; Ipeelee at para. 59. [41] In considering systemic and background factors, the judge must take account of all the surrounding circumstances, including "the unique circumstances of the offender as an aboriginal person," and display sensitivity to and understanding of the "difficulties aboriginal people have faced with both the criminal justice system and society at large": Gladue at para. 81; Ipeelee at paras. 59-60, 75. [42] It is not necessary to establish a direct causal link between systemic and background factors and the offence at issue. How the complex interplay of historical factors impacted a particular Indigenous offender may be difficult or impossible to establish. Nevertheless, the specific systemic or background factors at play are critically important. They may help the court assess the moral blameworthiness of the offender or identify appropriate sentencing objectives: Ipeelee at paras. 81-83; Hamer at para. 98. [43] As for the appropriate sanctions, while restorative sentences may be more appropriate for Indigenous offenders, applying Gladue principles will not necessarily lead to a reduced sentence. There is no automatic heritage-based discount: Gladue at para. 88; Ipeelee at paras. 71, 75; Mero at para.

73. Generally, the more serious or violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non‑Indigenous offender: Gladue at para. 33; R. v. Wells, 2000 SCC 10 at paras. 42-44; Ipeelee at paras. 84-85; Mero at para. 73. [44] That said, no offence is so serious that it negates the need for a sentencing judge to consider s. 718.2(e) of the Code and Gladue principles: Ipeelee at paras. 84-85. In fact, absent an informed waiver, sentencing judges have a duty to consider s. 718.2(e) and Gladue principles in every case involving an Indigenous offender: Gladue at para.

82. As the Court explained in Ipeelee at para. 87, a failure to do so constitutes an error in principle justifying appellate intervention: [87] The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [48] The range of sentences for sexual assaults involving intercourse is between two to six years imprisonment: G.M. citing R. v. B.S.B., 2010 BCCA 40 and R. v. Pouce Coupe, 2014 BCCA 255. [49] Of course, the Supreme Court of Canada has instructed in R. v. Parranto, 2021 SCC 46, Lacasse and others that these sentencing ranges are guidelines, not hard‑and‑fast rules. An individualized analysis must be conducted. The sentence must reflect the gravity of the offence, the offender's degree of responsibility, and the offender's unique profile. Departing from a range is appropriate where required to achieve

proportionality, and exceptional circumstances are not required. [50] Conditional sentences are a type of incarceration provided for under s. 742.1 of the Code. Such sentences permit offenders who meet statutory criteria to serve their sentences under strict surveillance in their communities, rather than in jail: Sharma at para. 7. [51] Like s. 718.2(e), Parliament's principal objectives in enacting the conditional sentencing regime, also in 1996, was to reduce sentences of imprisonment and to expand the use of restorative justice principles in sentencing: Sharma at para. 9. [52] Section 742.1 provides the prerequisites that must be met before a conditional sentence may be imposed. As summarized in R. v. Proulx, 2000 SCC 5 and Sharma, they are as follows: 1. the offender was not convicted of an offence that is excluded by s. 742.1; 2. the court would otherwise impose a term of imprisonment of less than two years; 3. the safety of the community would not be endangered by the offender serving the sentence in the community; and 4. such a sentence would be consistent with the fundamental purpose and principles of sentencing, as set out in ss. 718 to 718.2 of the Code. [53] Conditional sentences are capable of achieving denunciation and deterrence: Proulx at para.

67. There are, however, certain circumstances where the need for denunciation is so pressing that incarceration is the only suitable way in which to express society's condemnation of the offender's conduct: Proulx at para.

106. Positions of the Parties [54] The Crown submits that a proportionate sentence in this case is two years imprisonment followed by a lengthy period of probation. Ms. Drake's position, which is at the lowest end of the range identified by our Court of Appeal for this type of crime, fairly takes into account the recognition of the Gladue factors that are applicable in this case and M.K.M.'s otherwise good character. [55] Ms. Drake argues that this is a serious offence and that M.K.M.'s moral blameworthiness remains high. He sexually assaulted his friend, someone who trusted him, during a time where she was weaving in and out of consciousness. He exhibited careless indifference to his friend's physical and emotional state and his actions, she emphasizes, had a profound negative impact on her sexual, physical, and emotional integrity. A conditional sentence order, while available for consideration by the court, cannot, Ms. Drake argues, meet the primary sentencing objectives of denunciation and deterrence in a case of penetrative sexual assault of an unconscious victim. A two‑year term of imprisonment followed by lengthy community supervision is, Ms. Drake submits, the least restrictive sanction that properly accounts for M.K.M.'s personal circumstances as well as the circumstances of this offence. [56] The defence submits that a two‑year‑less‑a‑day CSO, followed by three years

probation is a proportionate sentence in this case. Mr. Killoran's position reflects what he argues is M.K.M.'s reduced moral blameworthiness occasioned by his background circumstances and by several mitigating factors, including his client's otherwise good character, his youth, his lack of criminal history, his excellent community and family support, and his low risk to re-offend. [57] Although recognizing that denunciation and deterrence are the sentencing objectives to be given primacy here, Mr. Killoran submits that specific deterrence has already been accomplished through his conviction and its related stigma. He urges me not to lose sight of other important objectives such as rehabilitation, reparations for harm done, promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims or the community. Mr. Killoran asks that I give real effect to the principles underlying s. 718.2(e) and emphasizes that M.K.M. is willing and able to engage in community‑based healing plan options and counselling. [58] In the circumstances of this case and this offender, Mr. Killoran argues that all of the objectives, including the two that must be given emphasis, can be met and are consistent with the imposition of a CSO. The safety of the community would not be endangered, he says, by the imposition of a CSO in this case. [59] The Crown identified several

authorities that may assist me in crafting a fit sentence in this case: R. v. Narcisse, 2017 BCSC 2485 (two years less a day jail followed by three years probation); R. v. Crystal, 2021 ONCJ 178 (22 months jail followed by three years probation); and R. v. T.S.C., 2022 SKCA 1 (two years jail followed by 18 months probation). [60] The defence also identified several authorities: R. v. Carlson, 2022 BCPC 315 (one year CSO); R. v. C.K.A., 2019 BCPC 285 (two years less a day CSO); R. v. Tayo Tompouba, 2020 BCSC 308 (90-day intermittent jail sentence and 36 months probation); and R. v. Witvoet, 2020 BCPC 128 (mid-trial joint submission for 18-mnth CSO followed by two years probation). [61] I have carefully reviewed all of these authorities and do not feel it necessary to summarize them here. Counsel summarized them thoroughly in their submissions. While I find them helpful for their general principles, I find they all have distinguishing features, some more than others. Those authorities with sentences well under the two‑year mark have, to my mind, the most distinguishing features. Application of the Principles to this Case Mitigating Factors [62] I am satisfied the following mitigating factors are present in this case: [63] M.K.M. is a young man with no prior criminal record. I find his conduct in committing this offence was out of character. [64] M.K.M. is a contributing member of

his community and society at large. He works, he volunteers, he cares for his ailing father and his family. He is connected now to his community and he is a significant source of support for a number of people. He has excellent family and community support as well. [65] I find that M.K.M. is a low risk to re-offend. While there is no formal risk assessment in this case, as Marchand J., as he then was, observed in Tayo Tompouba, trial judges are often required to assess risk without the benefit of expert evidence: para. 76. [66] I base this conclusion, that is the conclusion that M.K.M. is a low risk to re-offend, on his otherwise good character, his lack of criminal record, and all of the other positive qualities he has consistently displayed. I had the benefit of seeing M.K.M. testify and have formed impressions of him through the course of these protracted proceedings, and they have been protracted. [67] While I rejected his evidence at trial and found it did not raise a reasonable doubt, I also concluded that even if I had accepted his evidence entirely, his own testimony disclosed a sexual assault. On his own testimony, he did not take any steps to ascertain whether K.W. was consenting. It is clear to me that at the time of the offence and at the time of trial, M.K.M. had no clear understanding of the critical importance of obtaining affirmatively communicated consent to

sexual activity. While I did not convict him on those facts, I am satisfied that it is now abundantly clear to M.K.M. that he committed a crime. I am also satisfied that this was an isolated incident for which he wants to make amends and that he is capable of doing so. [68] M.K.M.'s background is mitigating as well. It is mitigating in the sense that it attenuates his moral blameworthiness, and I will discuss that a little bit more in a moment. Aggravating Factors [69] I have discussed these, but will summarize them here. I am satisfied beyond a reasonable doubt that the circumstances of this offence have aggravating features. As I have explained, M.K.M. ignored his friend when she said no. He then had unprotected vaginal intercourse with her while she was in and out of consciousness, while she was incapable of providing consent. This not only demeaned K.W. and showed a callous disregard for her sexual, emotional, and physical integrity, it also exposed her to risks of pregnancy and sexually transmitted infections. This is an additional violation of her sexual, emotional, and physical integrity. [70] As well, I am satisfied that this offence had a significant impact on the victim. She suffered real and continuing harm, as I have already explained. This is a statutorily‑aggravating factor set out in s. 718.2(a)(iii.1). [71] I am not satisfied beyond a reasonable doubt that the

other statutorily aggravating factor the Crown seeks to establish, set out in 718.2(a)(iii), has been proven. The Crown argues there is sufficient evidence for me to conclude that M.K.M., in committing this offence, abused a position of trust or authority in relation to the victim, albeit Ms. Drake concedes on the low end of the trust spectrum as described by the Supreme Court of Canada in Friesen. [72] I find that this is clearly, and no one argues otherwise, not a case which could be characterized as a classic breach of trust case, such as those cases involving offences against a child by family members, caregivers, teachers, or doctors, for example. Nor, I find, is this a case that could be properly characterized as a trust relationship on the spectrum of trust positions, as articulated by the court in Friesen. [73] M.K.M. and K.W. were peers. They were friends. To be sure, they were close friends and good friends, and K.W. trusted M.K.M., but I find that this falls short of establishing beyond a reasonable doubt that a trust relationship between them, as that term has been explained and defined in the legislation and jurisprudence, exists. Primary Objectives [74] Denunciation and deterrence are the primary sentencing objectives here. The law requires it and the circumstances demand it. Specific deterrence, while important, is not a significant objective given the adverse

consequences to M.K.M. as a result of this court process and his conviction. M.K.M. has, I find, accepted responsibility. I see that. I see that through him informing his family, his spouse, his community, his friends, his employers, his teachers, and others about his conviction. [75] I see it in the Gladue report where he clearly indicates that he wants to make amends as he can. In these circumstances, the objective of specific deterrence plays a lesser role. While emphasizing denunciation and deterrence, specifically general deterrence, I cannot lose sight of M.K.M.'s personal circumstances, including all of the mitigating factors in this case. Rehabilitation, providing reparations for harm done, promoting responsibility, and acknowledging harm done must also play a role. There is no need to separate M.K.M. from society. [76] I find that restraint, of course, is also important, particularly in light of the fact that I find his level of moral blameworthiness is reduced as a result of the application of Gladue principles. Gravity and Responsibility [77] I am to impose a proportionate sentence that reflects the gravity of M.K.M.'s offence, as well as his degree of responsibility. [78] There is no question his offence is grave. He victimized a vulnerable young woman, a friend who trusted him. She was highly intoxicated, did not consent, and at times was incapable of doing so. She

suffered actual harm. [79] Turning now to moral blameworthiness. I am satisfied that Gladue principles have a meaningful role to play in sentencing M.K.M. I have no difficulty concluding that his unique systemic and background factors and their complex interplay played a part in bringing him before the court. This reduces his otherwise high level of moral blameworthiness. [80] Ms. Lara, the Gladue report writer, observed a number of Gladue factors impacting M.K.M. and his family. She summarized them: · the impacts of colonialism (residential and day school, loss of land, loss of status through disenfranchisement); · loss of access to ceremonies and healing practices (loss of traditions such as high scraping, smudging, sweat lodge, water ceremony); · lack of opportunity and isolation from community (loss of land, on reserve); · victimization/offenders of violence (parents' exposure to physical violence); · lower education levels or irrelevance of education (parents' lower educational attainment, challenges with reading and writing); · feelings of loneliness, abandonment, dislocation from culture, community, and family (disconnection between residential school generation and parents' generation, lack of love); · foster care (extended family when his father was incarcerated); and · significant alcohol and substance misuse in the case of his grandparents' and parents'

generations. [81] While his father did his best to provide a supportive home for M.K.M. in his formative years, there really can be no question that M.K.M. was raised in an environment marred by substance misuse, abandonment, violence, and disconnection. His mother, suffering from her own traumas, could not, and did not, play a role in his life. His extended family were suffering with their own trauma arising from Canada's colonial history and assimilationist policies as well. Some of them stepped into care for him when his father was incarcerated, but he was bounced around. When M.K.M. would have been about ten years old, his older brother was murdered. His father raised him for the most part and was there for him as much as he could, but he too struggled as a result of his own suffering arising from intergenerational trauma. [82] I know that M.K.M. and his father are now very close and support one another, and I mean no disrespect to either of them when I say this, but the reality of M.K.M.'s background is that he was deprived of stable and consistent parenting and connection with his community, which in turn contributed to the immature and terrible, terrible decisions he made that night at the age of 19, when he was barely an adult. I am convinced in this case, to borrow some of the words of Marchand J.A. at para. 69 in Kehoe, that "in the absence of policies specifically

designed to disconnect Indigenous people from their communities, cultures, and supports", that M.K.M.'s parents would have stood a "much better chance of raising him in a stable and functional environment where his heritage was celebrated", and where he would have experienced much greater stability, connection, and positive role modeling. [83] I also consider it significant that M.K.M., throughout these last years that I have seen him before this court, has not only led a pro-social life, exhibiting good family and community values and participation, he has come to recognize the important role that restorative justice initiatives can play in not only his, but his community's collective recovery process. [84] Again, quoting the Court in Kehoe, the "hardest sentencing decisions involve offenders who have committed serious offences but have a reduced level of moral blameworthiness': para.

72. In all of the circumstances of this case, I find a proportionate and fit sentence is two years less a day imprisonment, followed by a period of three years probation. The real question here is whether a CSO is appropriate. [85] There is no mandatory minimum sentence, and I am satisfied that a term of imprisonment of less than two years is a proportionate sentence, as I have found. I am also satisfied that the safety of the community would not be endangered by M.K.M. serving his sentence in the community. I have concluded that M.K.M. poses a low risk to re-offend. I have no concerns about his compliance with court orders and, frankly, I have no concerns about him ever being before the court again. [86] The central issue for my determination is whether a CSO would be consistent with the fundamental purpose and principles of sentencing as set out in 718 to 718.2 of the Code. [87] Gladue and Ipeelee require me to not only pay particular attention to the unique systemic or background factors that may have played a role in M.K.M.'s offending, as I have already done. I am also to pay particular attention to the types of sentencing procedures and sanctions that may be appropriate for him in the circumstances, given his particular Indigenous heritage or connections. Restorative sanctions, such as those outlined by Ms. Lara in her report, I find are appropriate for M.K.M. His

participation in such programs will promote restoration of his disconnection and will provide him with opportunities to learn from elders, to learn from knowledge keepers and other senior members of his community. Learning from them and serving his community at the same time will not only promote his sense of responsibility for this crime, it will provide acknowledgment of and reparations for harm done to the victim and to the larger community. All of this, I find, promotes the fundamental purpose of sentencing: to protect society, contribute to respect for the law and the maintenance of a just, peaceful, and safe society. Incarcerating M.K.M. would, in my view, run counter to these purposes. [88] I am satisfied, in this unique case, that a CSO would be consistent with the fundamental purpose and principles of sentencing. The Court in Proulx observed that while incarceration will generally provide more denunciation and deterrence than a CSO, the Court also held that a CSO can achieve those objectives, particularly if sufficiently onerous conditions are attached: paras. 102, 103 and 107. I am satisfied that this is such a case. There will be sufficiently onerous conditions imposed. House arrest will be among them. [89] M.K.M., I am going to ask you to stand, please. Sentence [90] I sentence you to two years less a day imprisonment to be served as a CSO, followed by three years

probation. [91] I am satisfied that this sentence is commensurate with the gravity of this offence and your degree of responsibility, as I have outlined. I am satisfied it is a sentence that recognizes the individualized nature of this offence and this offender, but also respects the principle of parity. It is a sentence that is carefully crafted to achieve the primary objectives of denunciation and deterrence, while not losing sight of the other important objectives that I have discussed. I think it also balances the serious nature of the offence, the specific harm it has been proven to have caused, and the other aggravating factors with your high but reduced moral responsibility, the mitigating factors, and gives the Gladue principles that are at play in this case their appropriately meaningful role. I see it as a just sanction that reflects both perspectives on proportionality, but does not elevate one at the expense of the other. [92] Sir, you can have a seat while I outline the conditions of these orders, following which I will address the ancillary orders. I am going to have some questions for you after I impose the orders, so I am going to ask you to pay careful attention to them, okay? [93] THE ACCUSED: Okay. [94] THE COURT: You must comply with a conditional sentence order for a term of two years less a day. The conditions are as follows: · You must keep the peace and

be of good behaviour; · You must appear before the court when required to do so by the court; · You must notify the court or your conditional sentence supervisor in advance of any change of name or address, and promptly notify the court or supervisor of any change in employment or occupation; · You must remain in British Columbia, unless you have prior written permission from the court or your conditional sentence supervisor to leave the province; · You must report in person to a conditional sentence supervisor at Merritt, British Columbia located at Unit 201, 2090 Coutlee Avenue, by 3:00 p.m. tomorrow, January 25, 2024. After that you must report where, when, and in the manner directed by your supervisor; · You must have no contact or communication, directly or indirectly, with K.W.; · You must not go to any place where K.W. lives, works, attends school or worships, or happens to be. If you see her, you must leave her presence immediately without any words or gestures; · When first reporting to your conditional sentence supervisor, you must provide them with the address where you will live and your phone number. You must not change your address or phone number without prior written permission from your supervisor; · When first reporting to your conditional sentence supervisor, you must provide them with the details of your employment status. You must inform your supervisor

within two business days of any change in your employment status. · You must obey house arrest by being inside your residence, or on its lot, 24 hours a day, every day; · You must present yourself immediately at the door to your residence or answer the phone when a peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest; · You may be away from your residence during the house arrest with the written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other compelling reasons. Other compelling reasons will include, but not be limited to, the following ‑- travelling to and travelling from and attending at counselling appointments, community work service including restorative justice programs to which you are referred, and your father's health‑related appointments; · You must carry the permission with you when you are outside the residence. [95] Before I go on, counsel, Mr. Killoran, any submissions about additional exceptions? I wanted to capture counselling, community work service, restorative justice, which I will be imposing, and anything that M.K.M. needs to do for his father. [96] CNSL J. KILLORAN: Just given what you've said, Justice, perhaps cultural ceremonies or events as approved by your conditional sentence supervisor, given the role that might play in

rehabilitation. [97] THE COURT: Ms. Drake, any submissions about that or any or the other exceptions? [98] CNSL L. DRAKE: No, no issue with that. The other thing I had thought was I can't immediately recall whether or not the Bald Eagle program remained on the table or not, but perhaps an educational component to mirror the employment component as well. [99] THE COURT: So it will be worded: · You may be away from your residence during your house arrest with written permission of your conditional sentence supervisor. Such permission is to be given only for educational, employment, or other compelling reasons. Other compelling reasons will include, but not be limited to: travelling to or from and attending at cultural ceremonies or events, counselling appointments, community work service including restorative justice programs to which you are referred, and your father's health‑related appointments; · You must carry the permission with you when you are outside your residence. [100] This condition is going to require you to be in close touch with your conditional sentence supervisor. You must make sure that you outline exactly the dates and times when these things occur. · You may also be away from your residence during the house arrest hours while at, or going directly to, or returning directly from, a healthcare facility because of a medical emergency related to you or to any

member of your family. If asked, you must provide your conditional sentence supervisor with proof of your attendance at the facility. · Because this is a jail sentence that you are serving in the community, I am going to order you not to possess or consume alcohol or controlled substances as defined in the Controlled Drugs and Substances Act, or any other intoxicating substance, except with a medical prescription. · You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business from which minors are prohibited at any time by the terms of a liquor licence; · You must attend, participate in, and complete any intake, assessment, counselling, or education program directed by your conditional sentence supervisor. This may include, but is not limited to, counselling or programming for sexual offence prevention; · You must complete 100 hours of community work under the direction of your conditional sentence supervisor. This can include, but is not limited to, work service and restorative justice programs as arranged by Mandy Cormier, the Director of Social and Community Development for Cook's Ferry Indian Band, or her designate, and/or work service and restorative justice programs as arranged through Christopher Stokes, the Restorative Justice Coordinator at the Nicola Valley Community Justice Society, or his designate; · Your

community work service must be completed within the first 18 months of this order. [101] Those are the terms of your CSO. There is a requirement in the Code that, having reviewed your conditions, I must also tell you and advise you about how you can apply to vary those conditions. I am also required to advise you about the procedure if you breach this conditional sentence order. [102] With respect to an application to vary, either you or your conditional sentence supervisor or the prosecutor may propose changes to your conditions. If your supervisor wants to change your conditions, he or she needs to tell you that he or she is doing so in writing. If you receive this type of written notice from your supervisor, you have seven days to ask the court to schedule a hearing which, if requested, will be held within about 30 days. If you do not ask the court to schedule a hearing, the proposed changes will take effect 14 days after the supervisor has filed that written notice with the court. [103] You do not have to commit all this to memory now, you will be told about it again, but I am obligated to tell you. [104] You and your counsel, of course, or the prosecutor are also able to apply for a change in your conditions. To do this, you have to file a notice to that effect at the court registry and serve a copy of that notice on the Crown. In your written notice, you should state the

proposed changes and explain why you are seeking those changes. Then, a hearing before the court will be held within 30 days in relation to your request. [105] Turning now to the procedure upon breach. If you are charged with a breach of your CSO, you will be brought to court to answer to that allegation. You may be held in custody, but you will be given an opportunity to have a bail hearing. You will ultimately have a hearing on that breach allegation, which will take place within 30 days or as soon thereafter as practicable. [106] If at that hearing the court finds, on a balance of probabilities, that you did breach a condition of this order, the court can do a number of things, depending on the nature of the breach and the other circumstances before the court. The court can take no action; can change your conditions; and can also commit you to custody. It can do so for a period of time or for the remainder of your entire sentence. [107] Do you understand all that I have explained to you here? [108] THE ACCUSED: Yes, I do. [109] THE COURT: Following the expiration of your CSO, you must comply with a probation order for a term of three years. The conditions are: · You must keep the peace and be of good behaviour; · You must appear before the court when required to do so by the court; · You must notify the court or your probation officer in advance of any change of name or

address, and promptly notify the court or the officer of any change of employment or occupation; · You must report in person to a probation officer at Unit 201, 2090 Coutlee Avenue, Merritt, British Columbia, within two business days after completing your conditional sentence, unless you have obtained, before the completion of your conditional sentence, written permission from the probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by your probation officer. [110] Some of these conditions will be the same as those imposed under your CSO. · You must have no contact or communication, directly or indirectly, with K.W.; · You must not go to any place where K.W. lives, works, attends school or worships, or happens to be. If you see her, you must leave her presence immediately without any words or gestures; · When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without prior written permission from your probation officer; · You must attend, participate in, and complete any intake, assessment, counselling, or education program directed by your probation officer. This may include, but is not limited to, counselling or programming for sexual offence prevention. [111] You will not be subject to house arrest or

a curfew condition on your probation order. [112] The only other condition is more community work service. · You must complete 100 hours of community work service under the direction of your probation officer. This can include, but it is not limited to, work service and restorative justice programs as arranged by Mandy Cormier, the Director of Social and Community Development for the Cook's Ferry Indian Band, or her designate, and/or work service and restorative justice programs as arranged through Christopher Stokes, the Restorative Justice Coordinator at the Nicola Valley Community Justice Society, or his designate. Your community work service must be completed within the first 18 months of this order. [113] You have a significant number of community service hours to perform, under both orders. [114] Also under the Code, having reviewed the conditions of your probation order with you just now, I am obligated to advise you about how to apply to vary those, and the consequences if you breach any of the orders or are convicted of another offence while on probation. I will do that now. [115] Either you, your probation officer, or the prosecutor, may apply to the court to make changes to your probation conditions. If that happens, a hearing will be set. You will be entitled to make submissions at the hearing. After the hearing, the court can make changes to your conditions,

relieve you of your conditions, or shorten your probation order. [116] If you are convicted of any offence while on probation, the court has the authority to revoke the order and impose a jail sentence or make changes to conditions. If you breach or fail to comply with the probation order, you can be charged with an offence, a separate criminal offence. If the Crown proceeds by indictment and you are convicted, you could face up to four years in custody. If the Crown proceeds summarily and you are convicted, you could face up to 18 months in jail and a fine, or both. The fine is up to $5,000. [117] Do you understand all of what I have told you? [118] THE ACCUSED: I do, yes. [119] THE COURT: Thank you. Turning now to the ancillary orders. Ancillary Orders Victim Fine Surcharge [120] You must pay a victim fine surcharge in the amount of $200, pursuant to s. 737(2)(b) of the Code. It must be paid within 60 days. Weapons Prohibition [121] Pursuant to s. 109(2) of the Code, you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition, and explosive substance for a period of 10 years commencing today. You are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [122] Section 113 of the Code allows me,

when imposing such an order, to make an order authorizing a Chief Firearms Officer to issue an authorization for the purpose of sustenance to a person prohibited from possessing weapons. I am satisfied that such an order is appropriate in this case. [123] I authorize the Chief Firearms Officer or the registrar of firearms to issue an authorization, a licence, or a registration certificate, as the case may be, to M.K.M. for sustenance and/or employment purposes in accordance with the following terms and conditions: the firearm or ammunition may only be possessed on the way to and from and in the course of a legal hunt, and you must not possess the firearm or ammunition if you are intoxicated. DNA Order [124] This is a primary designated offence with respect to the provision of DNA. Pursuant to s. 487.05(1) of the Code, I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purposes of registration in the DNA National Data Bank. For that purpose, you must attend at the RCMP detachment in Merritt on February 15, 2024 at 9:00 a.m., and submit to the taking of the samples. [125] THE COURT: Do you know where that is? [126] THE ACCUSED: Yes. [127] THE COURT: This order is valid until executed. Sex Offender Information Registration Act [128] The Crown seeks an order under s. 490.012 of the Code requiring M.K.M. to comply with the Sex

Offender Information Registration Act, S.C. 2004, c. 10 [SOIRA]. Any SOIRA order imposed on M.K.M. in the circumstances of this case would be for a period of 20 years: s. 490.013(2)(b) of the Code. [129] On October 26, 2023, Parliament enacted Bill S‑12, which amended the Code provisions related to SOIRA. [130] Bill S‑12 was enacted as a result of a R. v. Ndhlovu, 2022 SCC 38, in which the SOIRA reporting provisions were struck down as unconstitutional as breaching Charter rights under s.

7. The Court found the provisions were overbroad. [131] The provisions currently in force and applicable to M.K.M. are: (3) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence in circumstances in which neither subsection (1) nor (2) applies, or when the court renders a verdict of not criminally responsible on account of mental disorder for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act unless the court is satisfied the person has established that (a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or (b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act. [132] Pursuant to s. 490.012(4) of the Code, in determining whether to make such an order, the court is required to consider the following: (a) the nature and seriousness of the designated offence; (b) the victim's age and other personal

characteristics; (c) the nature and circumstances of the relationship between the person and the victim; (d) the personal characteristics and circumstances of the person; (e) the person's criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence; (f) the opinions of experts who have examined the person; and (g) any other factors that the court considers relevant. [133] The onus is on the offender to establish, on a balance of probabilities, that they fall within either of the two exemptions established by s. 490.012(3)(a) or (b). M.K.M. seeks an exemption. [134] The offender establishes the first exemption if there is no connection between the registration of the offender's information under SOIRA and its purpose of helping the police prevent or investigate crimes of a sexual nature. [135] In this case, I have concluded that M.K.M. poses a low risk to re-offend. While the nature and seriousness of the designated offence is high in all of the ways the Crown argues, the other factors I am to consider weigh in M.K.M.'s favour. As I have explained in some considerable detail over the last hour, I have concluded that M.K.M. poses a low risk to re-offend. His personal circumstances and the circumstances of the offence convince me that it is very improbable that he will

ever re-offend again, or as I have said, that he will ever be before the court again. [136] M.K.M. and the victim were friends. That friendship, and their contact, is now long over. I am satisfied M.K.M. has accepted responsibility for the terrible crime he committed and is determined to continue on the positive path he has been following ever since. The lack of expert evidence about this issue does not undermine this finding. The resolution of this issue is highly contextual and does not always require expert evidence. [137] In these circumstances, and in light of M.K.M.'s unique systemic and background factors, as I have taken some care to explain, I am satisfied that the registration of his information under SOIRA has no connection to SOIRA's purpose of preventing and investigating crimes of a sexual nature: Ndhlovu at para. 85. [138] Accordingly, I find that M.K.M. has satisfied his burden here. He is not required to comply with SOIRA, as he has established the exemption under s. 490.012(3)(a). [139] I would also find that M.K.M. is exempt from complying under s. 490.012(3)(b) as well, because the impact of a compliance order on his privacy and liberty would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature. [140] The conditions of the SOIRA regime were described in Ndhlovu

at paras. 39-42: [39] Registered offenders are subject to many reporting requirements. Following an order made pursuant to s. 490.012(1), offenders must report in person to a registration centre, which are police stations designated with administering the registry in a geographic region. At the centre, the offender must provide extensive personal information, including their name, date of birth, gender, the address of their principal and secondary residences, the address of every place of employment or volunteer location, the name of their employer or volunteer supervisor and a description of the work done, the address of every educational institution at which they are enrolled, their height and weight, a description of every physical distinguishing mark that they have, and the licence plate number, make, model, body type, year of manufacture and colour of every vehicle registered in their name or that they use regularly (SOIRA, s. 5(1)). They must also report a contact phone number for each location where they can be reached and every mobile phone and pager in their possession (s. 5(1)(f)). They must supply information relating to all driver's licenses and passports they may hold. The registration centre may take their photograph and record their eye colour and hair colour. [40] Offenders must update their information in person yearly (ss. 4(3) and 4.1(1)). They must also

report in person at the registration centre any changes in primary or secondary address and name. They must also report in person if they receive a driver's licence or passport (s. 4.1(1)). [41] Moreover, offenders must notify the registration centre within seven days of any change regarding their employment or volunteering information (ss. 5(1)(d) and 5.1). They must also notify the registration centre if they intend to be away from their primary or secondary residence for seven or more consecutive days (s. 6(1)). Specifically, offenders must notify the registration centre, before departure, of their departure and return dates and of every address or location at which they expect to stay, whether the addresses or locations are in or outside Canada (s. 6(1)(a)). Similar reporting requirements are imposed on offenders who decide, after departure, not to be at their primary or secondary residence for seven or more consecutive days (s. 6(1)(b)). [42] Failing to comply with SOIRA brings serious consequences for offenders. The Criminal Code makes it an offence for an offender to fail to comply with SOIRA's reporting obligations without "reasonable excuse" (s. 490.031(1)). Non-compliance with any of these conditions may result in prosecution, with penalties of up to 2 years' imprisonment, up to $10,000 in fines, or both (s. 490.031(1)). The risks are clearly high for offenders if

they fail to adhere to SOIRA's numerous requirements. [141] Requiring M.K.M. to comply with the highly onerous requirements imposed by SOIRA would, again in what I find to be the unique circumstances of this case and this particular offender, be grossly disproportionate to the public interest in preventing and investigating crimes of a sexual nature when there is no increased risk here that M.K.M. will re-offend. [142] For all of the reasons given, pursuant to s. 490.012(3) of the Code, M.K.M., you are not required to comply with the SOIRA. Section 726.3 of the Code [143] Counsel I neglected to ask you about s. 726.3 of the Code at the hearing, so if you need a moment, we can take a break. Section 726.3 is a recent amendment to the Code, now in force. It has added a requirement that I ask the prosecutor if reasonable steps were taken to determine whether the victim wants to receive information regarding the sentence and its administration and, if known, enter the victim's wishes into the record of proceedings. [144] I do not want to put you on the spot, Ms. Drake, I do not know if you are able to answer that right now. [145] CNSL L. DRAKE: I can. [146] THE COURT: Okay. [147] CNSL L. DRAKE: I can advise the court that I have been in constant contact with Merritt Victim Services, and they have made their absolute best ‑- they are in communications with K.W.'s mother, and without

disclosing too much information about K.W.'s health status, she is not doing well. And so her mother is of the view, and I tend to concur, that ‑- I have taken reasonable steps to advise her of all of the proceedings, but the decision has been made that, in her best interests, she is not to personally receive them right now. [148] THE COURT: Good, then we will leave it. Nothing will be entered into the record of proceedings. Thank you very much for that. [149] All right, the last thing I want to do, unless counsel have anything further ‑- no, nothing? [150] CNSL J. KILLORAN: Nothing from the defence. [151] THE COURT: Ms. Drake, is there anything further? [152] CNSL L. DRAKE: No. [153] THE COURT: I would like to extend my sincere appreciation to counsel, both of you, for your excellent work and advocacy through this very difficult matter. Thank you. [154] CNSL J. KILLORAN: Thank you, Justice. [155] THE COURT: Thank you, and good luck to you, M.K.M. "S.A. Donegan J." DONEGAN J.