R. v. Porcher

2025 BCSC 669 R. v. Porcher

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Porcher, 2025 BCSC 669 Date: 20250306 Docket: 186577-1 Registry: Victoria Rex v. Matthew Arlen Porcher Restriction on Publication: Pursuant to s. 486.4(2) of the Criminal Code of Canada restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant referred to in this judgment Before: The Honourable Justice Morley Oral Reasons for Sentence Counsel for the Crown: S. Green Counsel for the Defence: O. James Place and Date of Trial/Hearing: Victoria, B.C. February 21, 2025 Place and Date of Judgment: Victoria, B.C. March 6, 2025 [1] THE COURT: The following is an edited version of reasons for sentencing originally given orally. Overview [2] On November 21, 2024, I found Matthew Porcher guilty of one count of sexual assault and one count of sexual interference of the complainant, J.R. On February 21, 2025, I entered a conditional stay of the sexual assault count pursuant to the principles set out in R. v. Kienapple, [1975] 1 S.C.R. 729 and convicted him of sexual interference contrary to s. 151 of the Criminal Code. [3] Today I pronounce sentence. [4] At the time of the offence, J.R. was a 14‑year‑old boy in the care of the Ministry of Children and Families. Mr. Porcher was employed as a resident support worker in two homes in which J.R. lived. In the early morning of April

25, 2022, when he thought J.R. was asleep, Mr. Porcher touched the complainant's testicles, penis and buttocks. J.R. was in fact awake and was terrified. After a period of several minutes, J.R. pretended to wake up. Mr. Porcher tried to get him to go back to sleep but when he would not, Mr. Porcher left. [5] The complainant is here today. I want to start by saying how important it was for J.R. to come forward. I appreciate his participation in the trial and in this hearing. J.R. was extremely vulnerable as an Indigenous youth in the care of the Ministry of Children and Families. He has submitted a victim impact statement which sets out the damage Mr. Porcher's actions has had on his ability to trust, to laugh and to make a start in life. Since the sexual interference he has developed problems with alcohol and has entered into the criminal justice system. Mr. James's cross‑examination of him was completely professional and totally appropriate, but it was not an easy experience for J.R. He showed resilience and a commitment to seeing that justice was done. [6] Like everyone else, J.R. deserved a childhood free of sexual violence. Mr. Porcher took that from him. As the Supreme Court of Canada has said, his sentence must reflect the profound wrongfulness and harmfulness of sexual offences against children. In the words of the Criminal Code, his sentence must be proportionate to the

gravity of the offence, which reflects both the profound immorality and long-term lasting harm of sexual violence against children. [7] Along with the gravity of the offence, the Criminal Code also directs that sentencing be proportionate to the responsibility of the offender. This includes the moral wrongness of sexual violence and the circumstances of Mr. Porcher. Mr. Porcher was in a position of authority with respect to J.R. He was also a very young man. He had just turned 21 at the time of the offence. He has no other criminal record. [8] At the sentencing hearing, both the Crown and the defence agree that a proportionate sentence requires a term of imprisonment to be served as a fully custodial sentence; in other words, not as a conditional sentence to be served in the community under s. 742.1 of the Code. The principal disagreement between them was about how long an appropriate term of imprisonment should be. [9] The Crown asks for a penitentiary sentence between 42 and 48 months. The defence submitted that the appropriate length of the term of imprisonment should be between 20 and 24 months with three years of probation. Both the Crown and defence agree the custodial sentence should be adjusted for time served at a 1.5 credit, or one-and-a-half days per day served. At the conclusion of the sentencing hearing, I stated I needed time to consider the submissions and set

today's date to announce my decision. [10] I have come to the conclusion that the appropriate term of imprisonment is two years less a day adjusted for time served. There will be a three-year term of probation upon release and ancillary orders. Circumstances of the Offence [11] From the fall of 2021 to April 2022, Mr. Porcher worked as a resident support worker employed by a company that operated homes for youths in the care of the Director under the Child, Family and Community Service Act. The complainant was one of those youth in care and lived in two different homes at which Mr. Porcher worked at various times. Mr. Porcher and the complainant developed an emotional bond, one cultivated by Mr. Porcher. [12] This country has had a long and painful history of sexual abuse of children and youth in institutions that are supposed to care for them. This was part of the devasting legacy of the Indian Residential School system, which continues to impose intergenerational harms on Indigenous people, and I note that the complainant is Indigenous. It is also part of the disturbing history of many other institutions that were supposed to care for children and youth and keep them safe. In the 21st century all organizations providing care to children and youth are aware of the potential of sexual exploitation and have policies to address these risks. [13] As I noted in my findings on

guilt, IDM Youth Services Inc., the company that employed Mr. Porcher, had such polices. It forbade its staff from having personal contact with youth in IDM's care outside of work. They were not to communicate with those youth other than using the company phone. They were not to touch youths except for reciprocating hugs for emotional support. They were not to enter a youth's bedroom unless invited with the youth fully clothed and the door open. Youth were to be fully clothed in the common areas. Residential support workers were not to remain in or visit the homes after their shifts and were to get approval for extension of those shifts. [14] Mr. Porcher violated virtually all of these polices. He texted and met with the complainant outside of work. He engaged in roughhousing and gave him massages while the complainant was shirtless. He repeatedly gave the complainant backrubs in his room with his shirt off. Although his employer did not know all of what Mr. Porcher was up to, they became concerned that the relationship had become unprofessional and decided Mr. Porcher and the complainant should be separated for at least three months. [15] On the evening of April 24, 2022, Mr. Porcher was given time to tell the complainant about the separation. He stayed well past the time he was supposed to, ultimately putting the complainant to bed in the early morning of April 25th. As he

had done on a number of previous occasions, he gave the complainant a back massage as the complainant was supposed to fall asleep. [16] In my reasons for conviction, I found that the Crown proved beyond a reasonable doubt that when the complainant appeared to fall asleep, Mr. Porcher touched the complainant's testicles, penis and buttocks for his sexual gratification. The complainant says he endured this for a lengthy period of time, estimating 20 minutes. While it would be difficult for a child in this situation to give a reliable estimate of the precise length of the event, clearly this sexual touching was prolonged as opposed to momentary. After that period of time, J.R. pretended to wake up. Again, Mr. Porcher tried to get him to go back to sleep but he would not, and Mr. Porcher, as I have said before, left. [17] The next day the complainant disclosed to one of the workers at the home that one of the other workers had sexually touched him, without naming Mr. Porcher. Mr. Porcher used his access to his employer's database to access a report that contained that disclosure. That report did not name Mr. Porcher because J.R. had not disclosed his name. Mr. Porcher used Snapchat and text messages to try to get J.R. not to name him. Even after he was warned by the police not to contact J.R., he continued to do so, and on one occasion in a text message that I previously

characterized as using emotional manipulation to try to get J.R. to recant. Victim Impact [18] The complainant filed a victim impact statement and attended the sentencing hearing by video. The victim impact statement attests to his strong feelings of anger towards Mr. Porcher. He says he feels stressed and anxious about seeing Mr. Porcher again in the hearing. The complainant says he suffers from low mood, his happiness is gone, and he does not laugh as often as he did before the assault. He says he cannot stop thinking about the incident and that this has impacted his ability to sleep and his self-esteem. [19] The complainant reports resorting to alcohol following the incident. He has gotten into trouble with the criminal justice system. He says this has significantly impacted his life. He also attributes his difficulty holding a job to sleep problems arising out of the incident. The complainant has concerns about what would happen to him if he saw Mr. Porcher again. The incident has made him fearful and distrustful of people generally and authority figures in particular. He says he finds it hard to trust new people. [20] I note that the Supreme Court of Canada has emphasized the special vulnerability of children in foster care to the harms attended on sexual violence in the case of R. v. Friesen, 2020 SCC 9 at paras. 60, 71. Although women and girls are disproportionally

impacted by sexual violence, victimization can be particularly shameful for boys because of sexual expectations that males are supposed to appear tough. Embarrassment, humiliation and homophobia form a particularly toxic and stigmatizing combination for male child victims: Friesen at para. 69. [21] The complainant is Indigenous. As the Supreme Court of Canada has also noted, Indigenous youth experience sexual violence at a disproportionate level and the legacy of colonial policies and their overrepresentation in the child welfare system make them specifically vulnerable: Friesen at para.

70. Circumstances of the Offender [22] Mr. Porcher is a young man from a supportive family. He had just turned 21 at the time of the offence. Mr. Porcher's ambition was to be a police officer. He attended the Justice Institute right out of high school to further that ambition. Mr. Porcher has volunteered in assisting the homeless. He has volunteered at Our Place on Pandora Street. According to a letter provided on behalf of him from his parents, he received a commendation from the City of Victoria after saving two people overdosing in Centennial Square. Attitude to the Offence/Efforts Towards Rehabilitation [23] Mr. Porcher continues to deny his guilt and so it cannot be said that he exhibits remorse. I emphasize that this is not an aggravating factor, just the absence of a mitigating factor. Letters of Support [24] Mr. Porcher's parents provided a letter of support. They gave him a loving upbringing and continue to support him. Mr. Porcher also received a letter of support from his friend, Titas Uzdavinys, who describes him as a "kind, gentle and supportive friend". Criminal Record [25] Mr. Porcher has no criminal record other than this incident. [26] The Crown properly advised me of allegations that he had breached the terms of his release by coaching boys' basketball teams after he was released on an undertaking. These allegations, however, have not been proven beyond a

reasonable doubt and therefore cannot be taken as an aggravating factor being the basis for imposing a harsher sentence. They do, however, undermine any suggestion that his volunteer activity with young people is evidence of good character. Risk [27] I have no expert opinion on the risk that Mr. Porcher will reoffend. As a fact‑finder, I am not prepared to conclude that he is at an increased or decreased likelihood of reoffending by comparison with another person of his age convicted of a similar offence. [28] The defence has indicated that even though Mr. Porcher continues to maintain his innocence, he will participate in programming against sexual offending as directed. [29] Everyone has the possibility of rehabilitation. Mr. Porcher has advantages not everyone has, a stable family upbringing and considerable reserves of intelligence. These do not determine moral character. Mr. Porcher has impulses that cause great harms to others if he gives way to them. If he takes advantage of counselling and education aimed at sexual offence prevention, he could address these impulses. Whether he actually does that depends on the choices he makes and I cannot be sure what those will be. General Principles of Sentencing [30] The principles governing sentencing are described in Part XXIII of the Criminal Code. The fundamental principle, set out in s. 718.1, is that a sentence must be

proportionate to the gravity of the offence and the degree of responsibility of the offender. In other words, the severity of the punishment should increase with the seriousness of the consequences of the offences and the moral blameworthiness or culpability of the offender. [31] As explained in R. v. Parranto, 2021 SCC 46, two secondary principles, individualization and parity, although apparently contradictory, in fact express this fundamental principle of proportionality. "Parity" implies that it is important to look at other cases and appellate guidance to ensure that sentences are similar to those imposed on similar offenders for similar offences committed in similar circumstances, as mandated by s. 718.2(b) of the Code. [32] The "individualization" principle, on the other hand, recognizes that no two situations are exactly the same. While I should pay heed to the need for greater consistency, ultimately regard must be had to all the unique circumstances of the offence and of the offender and the needs of the community in which the offence occurred: R. v. Nasogaluak, 2010 SCC 6 at paras. 43-44. Sentencing is always about the seriousness of the specific offence and the blameworthiness of the specific offender before the court: in this case, Mr. Porcher. [33] The objectives of sentencing are set out in s. 718 of the Code: a) to denounce unlawful conduct and the harm done to

victims or to the community that is caused by unlawful conduct ("denunciation"); b) to deter the offender and other persons from committing offences ("deterrence"); c) to separate offenders from society, where necessary ("incapacitation"); d) to assist in rehabilitating offenders ("rehabilitation"); e) to provide reparations for harm done to the victim or the community; and f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [34] There is a principle that an offender should not be deprived of liberty if less restrictive sanctions are appropriate, and that available sanctions other than imprisonment should be considered if consistent with the harm done to the victims or the community. These are set out in ss. 718.2(d) and 718.2(e). They can together be referred to as the "restraint principle". We should not punish more than is necessary to fulfill the objectives of sentencing. While 718.2(e) states that particular attention should be given to the circumstances of Aboriginal offenders, the restraint principle applies to all offenders. Specific Principles of Sentencing for Sexual Violence Against Children [35] Section 718.01 of the Criminal Code states that the court shall give primary consideration to denunciation and deterrence when the offence involves the abuse of a child under the age of 18 years old. This

does not meant the other objectives of sentencing such as rehabilitation cannot be considered at all, but it does mean that they must not be given more weight or even equal weight to denunciation and deterrence. [36] Section 718.2(a)(ii.1) states that it is an aggravating circumstance that the offender abused a person under the age of 18 years. Section 718.2(a)(iii) makes it an aggravating factor that the offender in committing the offence abused a position of authority in relation to the victim. [37] In addition to what the Code says, the Supreme Court of Canada in the 2020 Friesen case set out in great detail the principles that all courts must use in sentencing crimes involving the sexual abuse of children and youth. As a result of Friesen, pre-2020 sentencing cases no longer provide a guide for a fit sentence. [38] I have considered all the principles laid out in Friesen. I specifically draw attention to the following, but this is not intended to be an exhaustive statement of everything in Friesen: a) Everyone deserves a childhood free of sexual violence. Offenders who deny children and adolescents these childhoods must be subject to sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children: Friesen at para. 1. b) All sexual offences against children are violent crimes. They cause far‑reaching and ongoing

harm to children, their societies and society at large -- their families and society at large. Sentences must accurately reflect the inherent wrongfulness of this violence and the extent of this harm: Friesen at para. 5. c) Protecting children from becoming victims of sexual offences is a core value of Canadian society vital to a free and democratic society: Friesen at para. 42. d) As a sentencing judge, I have an obligation to properly understand the wrongfulness of sexual offences against children and the profound harm they cause. This means avoiding stereotypical reasoning or the misapplication or misidentification of aggravating and mitigating factors: Friesen at para. 50. e) The prime interests that the legislative scheme of sexual offences against children are designed to protect are the personal autonomy, bodily integrity, sexual integrity, dignity and equality of children. For children, personal autonomy means the right to develop to adulthood free from sexual interference and exploitation by adults: Friesen at paras. 51-52. f) The modern law of sexual offences against children reflects an understanding that the focus of a sexual offence scheme must not be on sexual propriety but sexual integrity. The criminal law is designed to protect against violations of trust, humiliation, objectification, shame and loss of self‑esteem: Friesen at paras. 53-55. g) The focus should

therefore be on emotional and psychological harm, not merely physical harm. These emotional and psychological harms include shame, embarrassment, unresolved anger, reduced ability to trust others, and fear of future abuse. Sexual violence can interfere with children's self‑fulfilment and health and autonomous development to adulthood. Even a single incident can permanently alter the course of a child's life. h) This does not mean accepting as a stereotype that a child who is a victim of sexual offence is "forever broken". It is important to acknowledge their strength and that resilience and that has been indicated by J.R. in that he has come forward in the circumstances and participated in this trial. An offender cannot rob their victims of their strength or the resolve to take back their lives. But at the same time, we have to recognize that victims, their families and society as a whole have the right to expect the criminal justice system to denounce and deter the wrongfulness of these offences and the harm they cause and how extensive that harm can be: Friesen at paras. 56-59. i) An important harm of sexual offences against children is damage to the children's relationship with their families and with their communities. As the Supreme Court of Canada noted, children may lose trust in the communities and people they know, and in this case we know that the effect of this has

been to change fundamentally J.R.'s ability to relate to authority figures in his life: Friesen at para. 61. j) In addition to harm to the child victims, these offences cause harm to their families and to the broader community: Friesen at paras. 62-64. k) Sexual violence against children is especially wrongful because offenders treat children as objects whose inherent vulnerability can be exploited by more powerful adults: Friesen at para. 65. l) This wrongfulness is exacerbated when the offender is in a position of trust and when, as in this case, the victim is particularly vulnerable; for example, by being in government care: Friesen at para. 71. m) As I noted before, J.R. is Indigenous. I do not have evidence that the nature of this particular crime is racialized but I must consider the sexual victimization of Indigenous children at large and the impact Canadian government policies have had in contributing to the conditions in which Indigenous children and youth are at a heightened risk of becoming victims of sexual violence: Friesen at para. 70. n) In considering the gravity of the offence, I must consider the inherent wrongfulness of the violence inherent in applying force of a sexual nature to a child. The sexual context does not remove the violence but aggravates its wrongfulness. Courts must always give effect to the wrongfulness of the exploitation inherent in the

power imbalance between adults and children and the wrongfulness of treating children not as persons with equal dignity but as sexual objects: Friesen at paras. 77‑78. o) I must take into account a contemporary understanding of the harms, both potential and already realized, from sexual violence against children. There is substantial social science evidence of the long-term nature of these harms which can include difficulty forming loving adult relationships, the possibility of being more prone to engage in sexual exploitation themselves, creating an intergenerational cycle, and a greater propensity to a variety of mental health problems: Friesen at paras. 79-84 (potential harm) and para. 85 (actual harm). In J.R.'s case, as I will discuss, there is evidence that the offence contributed to substance abuse and trouble with the criminal justice system. p) Intentional sexual exploitation and objectification of children is highly morally blameworthy because children are inherent vulnerable. Offenders, especially those like Mr. Porcher, do not suffer from cognitive limitations, are aware of this and target precisely that vulnerability. The moral blameworthiness increases with the degree of vulnerability that the offender is aware of: Friesen at paras. 87-92. q) Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children must be

respected: Friesen at paras. 101-105. Sexual offences against children merit more severe punishment than sexual offences against adults, and for sentencing purposes there is no significant distinction between sexual assault against a child and sexual interference: Friesen at paras. 115-120. r) Likelihood to reoffend is an important factor. Rehabilitation may weigh in favour of a reduced term of imprisonment followed by probation since the community environment is often more favourable to rehabilitation in prison. However, this depends on the offender's risk of reoffending and in some cases the only way to provide for protection of children is a lengthy sentence: Friesen at paras. 122-124. s) All other things being equal, an offender who abuses a position of trust should receive a lengthier sentence than an offender who is a stranger to the child. There is a spectrum of positions of trust. The court should not reinforce the myth that frames sexual violence as the product of a handful of stranger predators as opposed to largely coming from people that the child knows: Friesen at paras. 125-130. t) Duration and frequency of the abuse are both important at sentencing. An assault that goes on for an extended period of time as opposed to a one touching incident as here will lead to a higher sentence. Multiple assaults against the same child, a factor not present here, will also lead

to a longer sentence: Friesen at paras. 131-133. u) The younger the victim the more significant the sentence. At the same time, it is important not to understate the harm and moral blameworthiness of offences against adolescents: Friesen at paras. 134-136. v) The degree of physical interference is a factor but it is a complicated factor. The Supreme Court of Canada cautions sentencing judges against downgrading the wrongfulness of the offence where the sexually violent conduct does not involve penetration, fellatio or cunnilingus, but instead touching or masturbation: Friesen at para.

144. Sexual violence is wrongful and exploitive even where physical interference is less pronounced: Friesen at para. 145. w) Increases in the degree of physical interference do increase the wrongfulness of the sexual violence and the type of physical act is relevant to the degree of physical interference. However, there is no "hierarchy" of physical acts that determine the degree of physical interference which depends on the circumstances of the case: Friesen at para. 146. x) Participation of a child victim is not a relevant factor on sentencing. It is up to adults not children to prevent sexual activity between children and adults. Grooming is an aggravating factor: Friesen at paras. 148‑154. [39] The maximum sentence for a breach of s. 151 when the Crown proceeds by indictment is 14 years, and Parliament did enact a minimum punishment of one year but that was struck down by the Court of Appeal in R. v. Scofield, 2019 BCCA 3. [40] One effect of Friesen is that there is no sentencing range that I can just apply here. The effect of Friesen was to invalidate previous sentencing ranges sentenced by provincial courts of appeal. At para. 5, the Supreme Court of Canada said plainly that "sentences for these crimes must increase". See also para. 107(1). It specifically criticized the prior sentencing regime in British Columbia; Friesen, at paras. 111 and 137, criticizing in this

respect R. v. Williams, 2019 BCCA 295, and R. v. Scofield, 2019 BCCA 3. [41] But I also note that the Supreme Court of Canada did not take up the invitation of the Crown counsel before it to "create a national starting point or sentencing regime for sexual offences against children". Instead it left setting of a range to provincial courts of appeal in recognition of legitimate regional differences; Friesen at para. 111. [42] For that reason, I consider it important to read para. 114 of Friesen, carefully and in context. While the Supreme Court of Canada stated there, "mid‑single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances", it was expressly not setting a range and I would be falling into error if I treated that statement as a range or a starting point. [43] So far, at least, the British Columbia Court of Appeal has refrained from creating an established range for sexual offending against children post-Friesen, see R. v. Nystrom, 2023 BCCA 232 at para. 45, and R. v. C.K., 2023 BCCA 468 at para.

98. It has, however, provided guidance, particularly about the general lack of appropriateness of conditional sentences, that they may be available but only exceptionally: R. v. J.F.D.V., 2025 BCCA 4, which is also referred to as J.F.V.D. Application of Principles to this Case Aggravating and Mitigating Factors [44] I find that the following aggravating factors have been proven by the Crown: a) J.R. was under 18 years old when the offence occurred, which is a statutory aggravating factor pursuant to s. 718.2(a)(ii.1) of the Code. b) Mr. Porcher was in a position of trust and authority in relation to J.R., which is also a statutory aggravating factor: s. 718.2(a)(iii). c) The offence has had a significant impact on J.R. considering his age and personal circumstances: s. 718.2(a)(iii.1). d) Although it is difficult to say what the exact duration of the offence was, it was clearly prolonged as opposed to momentary. e) The offence occurred in J.R.'s home where he was entitled to feel safe. f) In the leadup to the offence, Mr. Porcher repeatedly broke his employer's rules put in place to prevent sexual exploitation of children, including J.R. g) After the offence, Mr. Porcher continued to contact J.R., including after being advised not to by police. h) Mr. Porcher tried to dissuade J.R. from identifying him, thereby attempting to subvert justice. Mr. Porcher had police training and

so would have been particularly aware of this. [45] The Crown asks me to find, as a fact, that Mr. Porcher engaged in a pattern of "grooming" J.R. I was unable to find a precise definition in the case law of what "grooming" means but I take it to imply a premeditated campaign designed with a sexual object. [46] While that is a possible interpretation of Mr. Porcher's conduct in his cultivation of an emotional bond and outside of work contact with J.R., an aggravating factor must be proven beyond a reasonable doubt: R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R.

368. I do not think the evidence establishes beyond a reasonable doubt that Mr. Porcher had a premeditated sexual plan. [47] The Crown concedes, as mitigating factors: a) Mr. Porcher's young age at the time of the offence (he had just turned 21). b) The fact that he had no criminal record at all. [48] The defence argues that the following mitigating factors are also made out: a) Mr. Porcher has positive community supports. His parents have provided him a stable family structure and prosocial values. He has and is a loyal friend. These community supports were accepted as a mitigating factor by Madam Justice Shergill in R. v. Gerrard, 2021 BCSC 1219, at para. 59(b). I do accept that that mitigating factor has been established. b) Mr. Porcher is "willing to engage in counselling" and "accepts the consequence" of his sentence. The Crown objects to treating this as a mitigating factor, arguing that it is just acceptance of the inevitable and should not be conflated with remorse or the taking of responsibility. [49] I agree with the defence that positive community support is a mitigating factor and follow my colleague Justice Shergill in this respect. I note that this factor goes to the fact that positive social networks enhance the likelihood of rehabilitation. Rehabilitation is a sentencing objective, albeit one that in the context of sexual offences against children, cannot be

given equal weight with deterrence and denunciation. [50] I agree that willingness to participate in counselling or education is a mitigating factor since it increases the likelihood of rehabilitation. On the other hand, I agree with Ms. Green that merely accepting the consequences of sentence is not the same thing as remorse and in itself is a neutral factor. So I take as mitigating the fact that he will and he has stated his willingness to participate, and I take that to mean participate fully in counselling and other programming against sexual offending. Collateral Consequences [51] An issue arose as to whether to take into account the media attention to this case. This is a difficult question. It is at least arguably a "collateral consequence" of my finding of guilt in published reasons that named Mr. Porcher that did lead to widespread publicity for this case. [52] The leading case on collateral consequences is R. v. Suter, 2018 SCC 34 [Suter]. Mr. Suter killed a child as a result of a driving accident. He was distracted but he was not in fact impaired. Relying on bad legal advice, he refused to provide a breath sample. As a result of the publicity around the case, Mr. Suter was attacked by vigilantes who cut off his thumb with pruning shears. One issue that arose in that case was whether those events could be taken into account to reduce his sentence as the trial judge

did and as the Court of Appeal in that case said was an error. [53] The Supreme Court of Canada reversed the Court of Appeal on this point, holding that the trial judge could take it into account as a collateral consequence. As the court explained, a "collateral consequence" includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. It need not be imposed by the state: Suter, at para. 47. [54] This is what the Court said about "collateral consequences": [48] Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the "personal circumstances of the offender" [citation omitted]. The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral

consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit. [55] As I interpret this, a "collateral consequence" is not truly a mitigating factor, but in some cases ignoring one would offend the principle that like offenders should be treated alike, the "parity principle". If a collateral consequence exists in one case but not in another, the person without the collateral consequence ends up in effect with a more lenient sentence for the same level of culpability and same circumstances of the offence and offender. [56] However, the Supreme Court of Canada struck a note of caution: [58] That said, this particular collateral consequence should only be considered to a limited extent. Giving too much weight to vigilante violence at sentencing allows this kind of criminal conduct to gain undue legitimacy in the judicial process. This should be avoided. ... [57] In this case, fortunately, Mr. Porcher has not been subject to vigilante violence. Instead he has been publicly shamed and his reputation is permanently affected. But there is an important difference with the situation in which an offender suffers from vigilante violence, or (in an example the Court also referred to), in which an offender in a motor vehicle offence has been injured in the accident. Being shamed and having a negative reputation because of a finding reached on a

beyond reasonable doubt standard that a person has committed a sexual offence against a minor are deserved. The community should be aware of Mr. Porcher's conduct. As Ms. Green indicated, there is some evidence that the media attention provided a protective function as it appears to have made parents of teens that Mr. Porcher was coaching aware of what happened. By contrast, no one deserves vigilante violence or, for that matter, serious injuries in motor vehicle accidents. [58] Deserved consequences can still be collateral consequences, but the distinction should be kept in mind. [59] I also want to emphasize it is important that there be no suggestion that the media should not cover matters like this so that it might result in a lower sentence. [60] Nonetheless, it is true that there is in effect a discrepancy in punishment when one sexual offender is widely identified and another, committing similar crimes, is not. As a result of the need to protect the identity of complainants, it is often the case that the identity of an accused in cases of sexual offences against children will also be shielded. This is an unfortunate byproduct of an important public policy. It would, however, create differences under the "parity principle" if this factor was completely ignored. [61] I note that Madam Justice Shergill in Gerrard took "stigma" and "publicity" into account at para. 59(c).

Mr. Gerrard, like Mr. Porcher, was publicly identified in a sexual offence against a child. I follow my colleague in that respect and consider widespread publicity involving the actual name of the accused in an offence of this nature to be a collateral consequence that can be taken into account. That being said, I do not place great reliance on it. The coverage was perfectly appropriate and I would not, as I mentioned, want to suggest that the media organization should not publicize these cases. Comparison With Other Cases [62] As I mentioned, parity is one of the sub-principles for determining a proportionate sentence. In this case I do not have the tool of a sentencing range set out by the Court of Appeal, so I have to look at other cases and specifically sentencing decisions with most weight put on those made in British Columbia, and I can only consider those and I only do consider those made after Friesen. [63] My consideration of these cases, of course, keeps in mind the individualization principle that no two cases are ever identical and it is always a matter of finding a fit sentence for this offence and this offender. [64] The Crown points to the following cases: a) R. v. Anglin, 2024 BCSC 364 involved a 62-year-old offender convicted of sexual offences against the nine-year-old Indigenous daughter of the woman he was dating. There were four instances of assault, all of

them in the victim's home. One of them involved anal penetration in her bedroom. Mr. Anglin received a six‑year imprisonment term. I note that the offender was substantially older than Mr. Porcher. The victim was younger, there were multiple assaults and the physical interference was obviously extremely invasive. So I cannot put a lot of weight on that case as a comparator. b) In R. v. C.K., 2023 BCCA 468, the offender abused his stepbrother over a period of two years. The Court of Appeal overturned a conditional sentence order and imposed a 42-month imprisonment term. Like Mr. Porcher, the offender in C.K. had no other criminal record and was young at the time of the abuse. Unlike Mr. Porcher, he pled guilty and took rehabilitative steps. On the other hand, the abuse differs in that it was repeated and continued for more than two years. c) In R. v. J.N.P., 2020 BCSC 570, a 46-year-old offender was convicted of a single instance of a sexual assault offence against his 15-year-old niece at his home. He received a three-year sentence of imprisonment. One significant difference with Mr. Porcher was the age of the offender. However, there were also mitigating factors arising out of the offender's Indigenous heritage pursuant to Gladue. d) In R. v. Levins, 2024 BCSC 1387, a 53-year-old offender was sentenced to three years' imprisonment for one instance of sexual interference

against a 14-year-old child. Like J.R., she was abused in her home. The offender had no criminal record, but did commit the offence in breach of a recognizance. Unlike most of these cases, the offender was not in a position of trust or authority, which Mr. Porcher is. At the same time he was significantly older than Mr. Porcher and there was the factor of a breach of recognizance. e) In R. v. Crawford, 2020 ONCA 790, the offender was sentenced to six years' imprisonment for engaging in intercourse with a developmentally delayed 11-year-old girl. I do not consider that case particularly comparable. It was in another jurisdiction, the circumstances of the offender are difficult to determine from the reported decision, and the circumstances of the victim were quite different. f) R. v. R.B., 2025 ONSC 97 is another Ontario case. There the offender received a sentence of three years. He was 70 at the time of the offence in the home of the grandfather to the victim who was 12. g) In R. v. A.A.F.P., 2024 MBKB 151, the 56-year-old offender received a four-year sentence for engaging in cunnilingus with an eight-year-old family member. This offender also had no criminal record but was substantially older than Mr. Porcher. [65] With the exception of J.N.P. and perhaps Levins, I am not persuaded that most of these cases are particularly comparable to Mr. Porcher's situation. [66] The

defence relies on the following cases: a) In R. v. D.R.H., 2024 BCPC 233, the 26-year-old offender was the nine‑year-old victim's uncle and lived in the same home as her. He put his hand down her pants and touched her vulva. The offence occurred in her bedroom. Unlike Mr. Porcher, the offender immediately took responsibility and exhibited remorse. The assault also could be said not to be as prolonged as the one against J.R. On the other hand, while he was young, the offender was not as young as Mr. Porcher, and the victim was only nine years old, which is I think significant. Judge Cutler sentenced the offender to one-year imprisonment followed by two years of probation. b) In R. v. D.A., 2021 BCPC 317, the offender was 40 years old and was the uncle of the nine to 10-year-old victim. He engaged in three incidents of sexual touching with the victim in a treehouse in her yard while babysitting involving touching of his and her genitalia. Unlike Mr. Porcher, the offender entered a guilty plea but this was undercut to some extent by his tendency to shift the blame to the victim as revealed in the pre-sentencing reports. He was sentenced to 20 months in custody and a 30-month probation term. c) In R. v. Gerrard, 2021 BCSC 1219, the offender was a trusted family friend in his mid-30s at the time of the offence. As with J.R., the offence occurred while the offender believed the

victim to be asleep. The victim was at a sleepover with the offender's daughter. He entered the room and began placing his hands on her body and kissing her neck. He placed his hands inside her underwear when the offence was interrupted because he bumped into the night table and woke his own daughter. Mr. Gerrard had no other criminal history. Like Mr. Porcher, Mr. Gerrard continued to deny he had committed the offence at the time of sentencing. Justice Shergill sentenced him to 20 months' imprisonment and two years' probation. This case is somewhat analogous to this case, although I would say Mr. Porcher had more of a role of trust and authority than in the case of Gerrard, but was also substantially younger at the time of the offence. d) R. v. T.J., 2021 ONCA 392 involved a single sexual offence when the victim was six or seven. The offender put the victim's hands on his penis and invited her to fellate him. She pulled away and left the room. The offender had no prior criminal record, although there had been diversion in the case of domestic assault. The Ontario Court of Appeal overturned a nine-month sentence by the trial judge as unfit, but accepted that there should not be a penitentiary sentence and instead imposed 24 months plus probation. This case is, of course, an Ontario case, and one aspect of that is that there were issues involving the significance of COVID-19 in

jail which, first of all, do not apply in the circumstances here with Mr. Porcher now, and also were handled differently in Ontario. e) In J.F.D.V. (or J.F.V.D.), the Court of Appeal overturned the sentencing judge's decision to provide a CSO in a case of a sexual abuse against a child, but it did uphold the non-penitentiary term of imprisonment of two years less a day. In that case the offender was the 39-year-old uncle of the 12-year-old victim. She grew up with him in the household of her grandmother and who was also his mother. There were separate incidents, one involving pressing his penis against her and two touching her on her vagina. The victim was Indigenous and suffered from disabilities. The Crown sought a penitentiary sentence in the Court of Appeal, although this was not the focus of its submission. I note that this Court of Appeal referred to the length of the sentence as at the low end but it did not interfere with it. As with Mr. Porcher, there was no guilty plea and no Gladue factors. f) In R. v. Taylor, 2024 BCPC 130, a 40-year-old "uncle" of the nine-year-old victim engaged in multiple touchings over a period of time. When interviewed by the police, Mr. Taylor admitted to the offences. He had previously pled guilty to being in possession of child pornography. It was found that he was "highly motivated" to address his unwanted intrusive sexual thoughts about

children. He was sentenced to two years and six months to be served in a federal penitentiary. Compared with Mr. Porcher, the offender was older, and had a prior related record. Conclusion of Analysis for Duration of Imprisonment [67] Taking all these into account, I think a non-penitentiary term is within -- I hesitate to use the term "range" -- within what could be considered comparable cases. [68] I accept completely that a custodial sentence is necessary in this case to provide adequate denunciation and deterrence of Mr. Porcher's crime against J.R. He betrayed J.R.'s trust and committed a serious act of violence against him that reverberates to this day and may reverberate for the rest of J.R.'s life. He ignored the policies of his employer that had been put in place to protect children under his care. He tried to dissuade J.R. from seeking justice. This is behaviour that requires denunciation by society and the kind of denunciation that only a term of imprisonment can provide. And by a "term of imprisonment", I mean one that is not served in the community. [69] I do not, however, agree with the Crown that appropriate denunciation requires a penitentiary term. The parity cases relied on by the defence establish to my satisfaction that society's interest in denunciation can be met by a sentence at the higher end of what we might call "provincial time". I also consider that

this will meet the needs of general and specific deterrence. Mr. Porcher's life was indeed changed when he was convicted, and I do not believe that additional time in a federal penitentiary would enhance the specific deterrence effect of a custodial sentence. Nor do I think a penitentiary term is necessary for general deterrence. Unfortunately the reason offenders against children are often undeterred is the difficulty of detection, not the difference between a provincial and penitentiary term. That, of course, does not mean that penitentiary terms are unnecessary for general deterrence in some cases but I do not think this is one of those cases. [70] Since I think a term of imprisonment of two years less a day plus three years' probation would be sufficient for deterrence and denunciation, I can consider rehabilitation as an objective, albeit one that cannot be given equal or greater weight to deterrence and denunciation. [71] As the Supreme Court of Canada observed in Friesen at para. 124: [124] ... Rehabilitation may also weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourable to rehabilitation than prison. ... [72] In light of Mr. Porcher's youth at the time of the offence and his lack of other criminal record, I think this is one of those cases. I cannot be confident that Mr. Porcher will take

advantage of rehabilitation opportunities but I think it will be better accomplished in the community with the supports that he has and with the guidance of a probation officer after an appropriate term of imprisonment. [73] As the Supreme Court of Canada noted in Friesen -- and this is in the context of a case that clearly was asserting the need to increase sentences for sexual offences against children -- rehabilitation provides long‑term protection in circumstances where incapacitation cannot go on forever. So it is advantageous to have the possibility of a considerable probation term. [74] Those are my reasons for the two years less a day plus three years' probation. Credit for Pre-Sentence Custody [75] Mr. Porcher was taken into custody when I found him guilty on November 21, 2024. As I confirmed with counsel today, that means he has served 106 days of pre‑sentence custody. [76] Sections 719(3) and (3.1) set out the law in the amount of credit an accused person will get for pre-sentence custody. Subsection (3) says: (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. (3.1) Despite subsection (3), if the circumstances justify it, the maximum is

one and one-half days for each day spent in custody. This is the current pre-sentence custody credit regime in the Criminal Code. [77] Both the Crown and the defence agree that the circumstances in this case justify the maximum credit of one-and-one-half days for each day in custody. I agree. In light of what Mr. Porcher has been found guilty of, he is not in the general population. As a result he has had to spend an unusual amount of time in his cell. I accept that his pre-sentencing custody is harsher than what will be the case once his long-term custody is arranged. The 1.5:1 ratio is therefore warranted in the circumstances here. [78] As a result, and again I invite counsel to address my math. I calculate Mr. Porcher will receive a 159-day pre-sentencing custody credit. I note that in this respect I was assisted by the calculations of counsel at the sentencing. Conditions of Probation [79] The defence submitted that the terms of probation should be similar to those found in para. 94 of Gerrard. I agree. Mandatory Ancillary Orders [80] Section 151 of the Code is a designated offence under s. 487.04(a). Therefore, pursuant to 487.05(1), an order for the taking of Mr. Porcher's DNA is mandatory, and one will be made. [81] Section 109 of the Criminal Code makes a weapons prohibition order mandatory and one will be made, as well. [82] Section 490.012(3) makes an order requiring

Mr. Porcher to comply with the Sex Offender Information Registration Act mandatory, subject to exceptions that do not apply here and which Mr. Porcher has not attempted to establish. Therefore, that order will go. [83] Section 743.21 empowers me to issue an order prohibiting Mr. Porcher from communicating directly or indirectly with J.R. during his custodial period. This is obviously appropriate given J.R.'s well-founded fear of Mr. Porcher. Mr. Porcher does not oppose. That order will also go. [84] Finally, I must turn my mind to the s. 161 order that is requested. In R. v. R.J.H., 2021 BCCA 54, the Court of Appeal emphasized the need for sufficiency of reasons for s. 161 orders. [85] There was initially some disagreement about the duration and nature of a s. 161 prohibition order between the defence and Crown, but these disagreements were narrowed in the course of oral arguments, and the order I am going to impose today is one that the Crown and defence ultimately agreed on. [86] I note that a s. 161 order should be carefully tailored to the circumstances of the offender and the risk the offender poses to children upon release into the community: R.J.H. at para.

18. The scope and duration of probation is informed primarily by the nature and extent of the risk with emphasis on the risk factors particularly to the offender and the pool of potential victims. The duration should also take into account the length of the sentence, the age of the offender upon release into the community, and the prospects for rehabilitation. [87] J.R. has a right to protection from contact with Mr. Porcher and Mr. Porcher has no reason to contact him. I am therefore persuaded it is abundantly appropriate to impose a 10-year order prohibiting Mr. Porcher from being within 100 metres of any residence, school or workplace of J.R.'s or of having any contact with him. [88] Given Mr. Porcher's offence, and the fact of his disregard of employer policies designed to prevent such offences, it is also appropriate to have a 10-year order after the completion of his sentence prohibiting him from working with children under 16 years of age. [89] The Crown is asking for a 10-year order prohibiting contact with "any other person under the age of 16 years unless done under the supervision of a person who the court considers appropriate or subject to other conditions that the court directs". I am going to give that order. It is difficult to know exactly what Mr. Porcher's circumstances will be at the end of his term of imprisonment. However, I am persuaded there needs to be

either conditions or supervision if he is to have contact with children. A variation of the exact terms of this order is possible under s. 161(3) of the Criminal Code if that should become appropriate. Conclusion [90] I want to emphasize the moral wrongness and harm to J.R. and to the community as a whole of what Mr. Porcher has done. That moral wrongness and that harm must be denounced and it must be deterred. I am of the view that this can be dome with a sentence of two years less a day plus three years of probation, and that such a sentence is consistent with the direction of Parliament, the Supreme Court of Canada in Friesen, and with the parity principle in light of other sentencing decisions brought to my attention by counsel. [91] Mr. Porcher, please stand up. [92] I pronounce the following sentence on you. [93] You will serve a term of imprisonment of 729 days less time served. Time served prior to sentencing is set at 106 days. Time served is calculated with a credit of one-and-one-half days for each day in pre-sentencing custody, or 159 days. Your remaining custodial sentence is therefore is 570 days. [94] This term of imprisonment will not be served in the community under s. 742.1 of the Criminal Code. It will be a fully custodial sentence. [95] On the conclusion of your term of imprisonment, you will have a three-year term of probation with the following

conditions. · First, 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 have no contact or communication with the complainant, J.R. · You must not go with 100 metres of any residence, school or workplace of the complainant, J.R. · You must report to a probation office within 48 hours of release from prison. Unless you obtain written approval to attend a different probation office, you must attend the Victoria Community Corrections office at 836 Courtney Street, which is just close to here. After that you must report as directed by your probation officer. · On first reporting, you must provide your probation officer with your legal name, your address and any employment or occupation. · You must notify your probation officer in advance of any change of name, address or employment. · You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer, including any counselling or education program aimed at prevention of sexual offending. [96] In addition, there will be the following ancillary orders: · There will be an order in Form 5.03 authorizing the taking of samples of bodily substances from you as reasonably required for the purpose of forensic DNA analysis. · There will be an order prohibiting you from possessing any

firearm, any crossbow, restricted weapon, ammunition or explosive substance for a period of 10 years; and an order prohibiting you from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life. · There will be an order in Form 52 requiring you to comply with the Sex Offender Information Registration Act. · There will be an order pursuant to s. 743.21 of the Criminal Code, that you not have contact with the complainant, J.R., during your custodial sentence, While you are in prison you cannot communicate with him. · There will be an order pursuant to s. 161 of the Criminal Code that for a period of 10 years you are prohibited from doing any of the following: ○ First, being within 100 metres of any residence, school or workplace of the complainant, J.R. ○ Second, seeking, obtaining or continuing any employment whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. You cannot take any job like that. ○ You are prohibited from having any contact including communication by any means with the complainant. ○ You are prohibited from having any contact including communication by any means with any other person under the age 16 years unless done under the supervision of a person whom the

Court considers appropriate or subject to other conditions that the Court directs. [97] Do you understand? [98] THE ACCUSED: Yes. [99] THE COURT: A prohibition order will be prepared by the appropriate authority and served on Mr. Porcher. I delegate to the authority the preparation of the order and the duty to inform Mr. Porcher of the consequences of violating it. [100] Is there anything arising? [101] CNSL O. JAMES: I think, Justice, given the sentence you have pronounced, I just ask that you consider the victim fine surcharge as Mr. Porcher will be spending some time away from the community and he will have difficulty paying that. [102] CNSL S. GREEN: I have no submission, Justice. [103] THE COURT: I waive the victim fine surcharge. [104] THE CLERK: Is there a time for the SOIRA order? [105] CNSL S. GREEN: Justice, if I may address that -- that question from the clerk. It is not discretionary. It is a 20‑year order. [106] THE COURT: All right. So the SOIRA order will be for 20 years. [107] CNSL O. JAMES: Nothing to add, Justice. [108] THE COURT: All right. Thank you. "J. G. Morley, J." The Honourable Justice Morley