R. v. Leger

2016 BCSC 293 R. v. Leger IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Leger, 2016 BCSC 293 Date: 20160205 Docket: 59534‑2 Registry: Chilliwack Regina v. Gilles Robert Leger Restriction on Publication: Pursuant to s. 486.4(2) C.C.C. Restricted Access Before: The Honourable Mr. Justice Joyce Oral Reasons for Sentence Counsel for the Crown: G.R. Lindsey Counsel for the Accused: A.S. Jaswal (as Agent for V. Michaels) Place and Date of Hearing: Chilliwack, B.C. January 29, 2016 Place and Date of Judgment: Chilliwack, B.C. February 5, 2016 Introduction [1] On October 1, 2011, Mr. Leger, his stepdaughter, and his stepdaughter's friend went on a camping trip at the Fraser River near Chilliwack, British Columbia. Mrs. Leger was to join them the next day. As part of the camping trip, they intended to spend time riding their quads. [2] After having some supper, consuming some alcohol, and riding the quads, they gathered around a large campfire where a number of other people were congregated. That evening, Mr. Leger drank beer and the two girls drank Bombay coolers that Mr. Leger had purchased for them. At some point in the evening, Mr. Leger and his stepdaughter's friend left the campfire and went for a short ride on Mr. Leger's quad. [3] Later, they again left the large group at the campfire and went for another ride on Mr. Leger's quad. They were gone for a lengthy period of time, likely over three hours, according to the evidence at trial. During the time that they were on the ride, Mr. Leger engaged in sexual misconduct with his stepdaughter's friend, who was then under the age of 16 years. [4] Following a trial, I found that the Crown had proven all of the elements of the offences with which Mr. Leger was charged, namely sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C‑46, and sexual interference contrary to s. 151 of the Criminal Code. [5] Both defence and Crown counsel submitted that in the circumstances, it would be appropriate to enter a conditional stay with respect to the sexual assault charge and enter a conviction only with respect to the sexual interference charge, which I accepted. [6] Mr. Leger is now before me to be sentenced for the conviction on the sexual interference charge. Circumstances of the Offence [7] The victim, who had been drinking to the point of intoxication, did not have a clear and precise recollection of how the sexual misconduct began or ended, or the precise order in which Mr. Leger committed various sexual acts, or the precise time period over which those acts took place. She recalled that the assaults took place in the back of the quad and testified that the acts consisted of cunnilingus, vaginal intercourse, and anal intercourse. [8] The victim's evidence of vaginal intercourse was supported by evidence of a forensic nurse examiner of some minor injury to her vaginal area and hymen. The victim testified that the attack caused bleeding of her anus, but declined an anal examination. There was some evidence of bruising consistent with an attack. [9] Overall, however, the independent evidence, while supporting the victim's evidence that a sexual assault took place, was not consistent with it having caused severe or long‑lasting physical injuries. The psychological effect of the assaults is a different matter. [10] While Mr. Leger testified at trial, his evidence was that he could not remember anything about the ride. While he could not believe that he could have committed the acts, his complete lack of memory left him unable to put forth a denial, as such. Victim Impact [11] The victim read a lengthy victim impact statement in which she described the effects of this event on her and her life. She described that before the incident, she was a friendly, outgoing, happy teenager. Afterwards she became angry. She had difficulty sleeping and found herself waking from nightmares. She felt ostracized from her friends and felt bullied at school. She became severely depressed and was suicidal for a time. She had to resort to sleeping pills, antidepressant medication, and psychotherapy in order to cope with her life. She continues to experience flashbacks and haunting memories of the event. Trying to deal with her memories of the event and the stress of the court proceedings has interfered with her studies. [12] The victim's mother also read a victim impact statement in which she described how this event has changed her daughter and her family. She described her daughter before this assault as a sweet and easygoing child with a huge smile and contagious laugh. All that has gone. She described how the household changed to a place of anger. The victim's mother is now fearful of encountering Mr. Leger. She spoke of how the trauma to her daughter affected her relations with her husband. She described how her daughter can no longer tolerate hugs from others, including her grandfather, because of what happened, and the sadness that came upon the whole family as a result of this incident. Fortunately, she believes her family is a strong unit and will move on. [13] A victim impact statement prepared by the victim's father was filed. In it he wrote of the anger and hatred that he felt. He described seeing the change in his daughter's life. He feels guilty for not protecting his daughter. That is probably understandable for any father, but I hope he has come to realize that none of this is his fault, just as it is not his daughter's or his wife's fault. They truly are the victims. [14] I have also considered a victim impact statement from the victim's aunt on her mother's side, and she described how she was devastated when she learned of the assault on her niece. She described how her niece, while remaining strong in many respects, has become withdrawn and reclusive. She has lost the close relationship she used to have with her. Circumstances of the Offender [15] The following information is drawn from what is, on the whole, quite a favourable pre-sentence report. The author of the report, however, wrote that Mr. Leger is unable to accept that he committed the offence and consequently unable to express responsibility for it, but feels sympathy for those who are victims of such a crime. He reported that Mr. Leger told him that he accepts that he should have remained sober while camping with those for whom he was responsible, and says that if he had done so, he would not be in this situation. [16] Counsel for Mr. Leger stated that this aspect of the pre-sentence report to which I have just referred is not entirely accurate. He informs me that his client accepts the findings of the court and accepts that he committed these acts, even though he still has no memory. He is dismayed or bewildered that he committed the offence, but accepts that he did so and is remorseful for what he has done. [17] With respect to Mr. Leger's background, he is 47 years old and was therefore 43 at the time of the offence. He is the eldest of four children and grew up in New Brunswick in a positive family environment. He attended school until Grade 8 and stopped because he was dyslexic, although that condition had not been diagnosed at the time. [18] Mr. Leger is a carpenter by trade and owned his own construction company. He lost most of his clients as a result of these charges. Mr. Leger has been able to rebuild and now has a contract with a company in Alberta and earns between $6,000 and $10,000 per month. [19] Mr. Leger's mother has passed away and his father is ill with cancer and at least partially dependent on Mr. Leger. Mr. Leger goes to New Brunswick on a regular basis to see his father, who resides in a home that Mr. Leger owns. [20] Mr. Leger was married to a partner for eight years before divorcing. He has two adult children from that marriage, but does not have contact with these children. [21] Mr. Leger met his present wife in 2001 and they were married in 2004. Mrs. Leger has two children from a previous relationship: a step-son, now 22; and a step-daughter, the victim's friend, now 19. [22] Both Mr. Leger and Mrs. Leger describe their marriage as good before this event. Mrs. Leger denies any sort of abuse by Mr. Leger. Mr. Leger and his stepchildren had a good relationship. Unfortunately, Mr. Leger and Mrs. Leger have separated as a result of these charges and the family unit has been destroyed. [23] Mr. Leger denies any abnormal sexual desires or practices. Mrs. Leger confirms that he has never made any strange sexual requests of her and has never been forceful with her. [24] Mr. Leger says that he is a social drinker and denies any kind of drug use. His wife confirms that he drank only when camping. [25] Mr. Leger has reported on bail as required without any incident or suggestion of any breaches of his bail conditions. He has not consumed alcohol since he was arrested on these charges. [26] Mr. Leger has a dated criminal record, his last offence being in the year 2000, for criminal harassment for which he received a suspended sentence and probation of 18 months, which he completed without incident. The harassment was in the context of his then failing marriage when he made persistent telephone calls to his wife with regard to a custody battle. [27] Mr. Leger has rebuilt his career, has a strong work ethic, and intends to resume work in the same field when he completes his sentence. Position of the Crown [28] The Crown seeks a sentence of four years' imprisonment. The Crown also seeks a 20‑year SOIRA order, a DNA order, a 10‑year firearms prohibition under s. 109 of the Criminal Code, and an order under s. 743.21 of the Criminal Code prohibiting any contact with the victim, her mother, father and sister, during the custodial portion of his sentence. [29] Crown referred to a number of case authorities. . They are as follows: R. v. Herman, [1994] B.C.J. No. 277 (C.A.); R. v. Corson, 2003 BCCA 430; R. v. Florence, 2010 BCSC 1010; R. v. Rand, 2012 ONCA 731; R. v. Pouce Coupe, 2014 BCCA 255; and R. v. G.M., 2015 BCCA 165. [30] I do not think it helpful or necessary for me to review those cases as to their individual facts and particular sentences. I think it sufficient to say that they support the Crown's submission that deterrence and denunciation are of paramount consideration in cases of sexual assault against children and support a range of sentence of between two and six years where the offence involves sexual assault with intercourse. [31] The Crown emphasizes that this was a violent sexual assault committed on a young, vulnerable victim by a person who was much older than she and was in a position of trust towards her. The Crown also emphasizes that while the physical injury may not have been severe, the emotional impact on the victim has been serious and long‑lasting. [32] The defence seeks a sentence of two years to be followed by a period of probation. The defence accepts that denunciation and deterrence are primary factors and that the appropriate range of sentence is two to six years. Counsel for Mr. Leger submits, however, that unlike some of the cases, this case does not involve grooming or predatory conduct. Rather, it is a case that should be viewed as opportunistic conduct where the defendant, who had too much to drink, was presented with and took advantage of an opportunity to sexually assault the victim, an action that was totally out of his character and normal behaviour, even when consuming alcohol. [33] Defence submits that a sentence of two years plus probation will appropriately meet the principles of denunciation and deterrence and will provide an opportunity for longer‑term supervision to protect against future offending of this nature. Analysis [34] I have found this a very troubling case. [35] A young, vulnerable woman went on a camping trip with her best friend and her best friend's father, expecting to have nothing but a good time. She should have been kept safe. Instead, after consuming alcohol to the point of intoxication, with alcohol provided by Mr. Leger, and going for a ride on his quad, she was subjected to a serious sexual assault which has devastated her and her family. One can only hope that with time and further professional help, as may be appropriate, they can move on with their lives and not let this terrible tragedy burden them unduly forever. [36] The assault by the defendant appears to be, from all accounts, totally out of his character. The only plausible explanation emerging from the evidence is that the defendant was drunk, so drunk that apparently he has no recollection of the event. The case is troubling and difficult to understand, in particular because the defendant has no history of blackouts from drinking and no prior history of improper sexual behaviour, whether he has been drinking or not. [37] This case has resulted in two families having been torn apart. [38] Regardless of how difficult it is to make sense of why the defendant acted as he did, the fact is that he committed a very serious offence deserving of a significant sentence. The sentence must adequately address the principles of denunciation and deterrence, while being measured and no more harsh than is appropriate. The sentence must take into account the fact that Mr. Leger was in a position of trust towards the victim and seriously abused that position of trust. Adults who assume responsibility for the care and protection of children owe a particularly high duty to ensure that those children are not exposed to harm from others and, most particularly, from their own actions. [39] I have concluded that this offence in these circumstances requires a moderate penitentiary sentence in order to achieve the sentencing principles that are involved. An unduly harsh sentence would put Mr. Leger's future completely at risk, which I do not think is in the public interest. While the sentence that I propose to impose does not permit an additional term of probation, I do not believe that Mr. Leger requires a period of probation. I do not believe he is likely to commit a similar offence in the future. He has been abstinent since this event, and if he remains careful about any consumption of alcohol in the future, he is, in my view, unlikely to act again in a way that is out of his general good character, a character that he displayed for over 20 years prior to this offence. [40] Mr. Leger, would you please stand: Mr. Leger, for the offence of sexual interference contrary to s. 151 of the Criminal Code, I sentence you to a term of imprisonment of three years. Thank you, you may be seated. [41] In addition to the custodial sentence, I make the following ancillary orders: an order under the Sex Offender Information Registry Act, S.C. 2004, c. 10, for 20 years; a DNA order; an order under s. 109 of the Criminal Code prohibiting the possession of firearms and other materials described in that section; and an order under s. 743.21 of the Criminal Code prohibiting contact with [K.W.1], [K.D.2], [K.D.3] and [D.W.] during the custodial portion of Mr. Leger's sentence. [42] MR. LINDSEY: Two things, My Lord, I have provided the draft SOIRA order. [43] THE COURT: Yes. [44] MR. LINDSEY: And the intention is a 10‑year firearms? [45] THE COURT: Ten‑year firearms, yes. [46] MR. LINDSEY: Thank you. [47] THE COURT: There is, I think, the matter of the victim impact surcharge, but it appears to me that Mr. Leger has been, as I understand it, working throughout his period of bail and has been earning quite a good sum of money and owns property. I see no reason to do anything about that other than let the law prevail. "B.M. Joyce J."