R. v. Williams

2021 BCSC 705 R. v. Williams IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Williams, 2021 BCSC 705 Date: 20210409 Docket: 25252 Registry: Smithers Regina v. Derrick Williams Restriction on publication: A publication ban has been mandatorily imposed pursuant to s. 486.4 of the Criminal Code of Canada restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Murray Oral Reasons for Sentence Counsel for the Crown: A. K. Reed Counsel for Accused: I. B. Lawson Place and Date of Hearing: Smithers, B.C. April 8, 2021 Place and Date of Judgment: Smithers, B.C. April 9, 2021 Introduction [1] On December 9, 2020 I found Mr. Williams guilty of three charges: sexual assault and sexual touching of A.L., a person under the age of 16, and communicating with A.L. via telecommunication (in this case electronic messaging) for the purpose of facilitating same. The sexual assault and sexual touching counts are alleged to have happened July 12, 2018; the communicating between July 12 and 14, 2018. [2] Sentencing was adjourned to allow for the preparation of pre-sentence and Gladue reports. Neither report was completed as Mr. Williams, after having failed to attend several meetings, advised that he was not interested in participating in the process. [3] Yesterday, I heard sentencing submissions on the basis that if satisfied that the fit and appropriate sentence is over two years, I should impose sentence today. If however I am satisfied that the fit sentence is one of two years or less, we would adjourn for Mr. Williams to bring a constitutional challenge to s. 742.1(c) of the Criminal Code, R.S.C., 1985, c. C-46. [4] After considering all of the circumstances, the sentencing submissions, and the law, I am satisfied that the appropriate sentence is more than two years. Accordingly, I am prepared to sentence Mr. Williams this morning. Background [5] The facts are set out in full in my reasons for judgment indexed at 2020 BCSC 1983. I will reproduce the pertinent facts here. [6] On July 12, 2018, A.L was babysitting for her young cousin. When she arrived to babysit on July 11, 2018 at about 11:00 p.m. Mr. Williams was there with her aunt. A.L. has known Mr. Williams since she was very young as he was a friend of A.L.'s mother. Mr. Williams and the aunt then went out. [7] Several hours later, at 3:34 a.m. Mr. Williams started messaging A.L. The messages were entered as exhibits at the trial. He began by telling A.L. not to look outside as there were "30+ kids playing manhunt" outside. He asked A.L. if she smoked. He told her that he had left his charger at the aunt's house. At 5:31 a.m. he texted "Get to bed before I spank you", then "Wicked spanks coming" "LOL". At 5:54 a.m. he texted "Should i keep you compney [sic]". A.L. replied "I am bored". Mr. Williams asked "What do you want to do... Movie". A.L. replied "Yes". [8] Mr. Williams showed up a few minutes later. He sat beside A.L. on the couch. When she tried to move away, he would move closer. He then got "touchy" by "tickling" and "bugging" her. It made her uncomfortable. He put his hand on her thighs and pulled her closer to him. He started kissing her on the lips. She showed how Mr. Williams put his hand on top of her head and twisted her head toward him to kiss her. A.L. told police that she tried to tell him to stop but he did not listen. [9] Mr. Williams started asking A.L. to go into another room. She said "I can't, I'm babysitting here". She described how she was able to put the accused off for a while by saying that and watching TV and eating. Eventually Mr. Williams took her hand and led her into a bedroom. In the room he took off the bottom part of A.L's clothes and all of his clothes. Then he had sexual intercourse with her, without a condom. A.L. described that she was lying on her back and Mr. Williams was on top of her. A.L. told police that she was "too scared to tell him no cause you never know what he might be capable of". It ended when Mr. Williams ejaculated all over A.L's chest and abdominal area. Mr. Williams put his clothes on then watched as she did the same. A.L. tried to wash the ejaculate off her then went to the living room with Mr. Williams to pretend like nothing happened. Mr. Williams finally left. [10] He returned while she was sleeping. He came in through the back door. He cuddled her and told her that he came to see her before he went to work. She got out of bed. He left the house. A.L.'s aunt got home around noon. [11] Later that day Mr. Williams started texting asking if she wanted to come over and watch a movie. She said no. She explained in her testimony that she knew what he meant. [12] On July 13, 2018 at 4:20 a.m. Mr. Williams messaged A.L. "Come join me. Come here lol. To wrestle lol." On July 14, 2018 at 4:09 a.m. he messaged "Come visit if you can" then "Hugs. Hugs hugs". [13] Months later A.L.'s mother, L.S. noticed that Mr. Williams was messaging her daughter. She asked A.L. why he was sending her messages. A.L. replied she did not know. L.S. then messaged the accused attaching copies of the messages asking what he meant by them. The accused responded that A.L. smokes weed. L.S. responded "no she does not". L.S. then took A.L to the police station to find out what really happened. [14] Turning to the background of the accused. The Accused [15] Mr. Williams is 40 years old. He was born in Hazelton and raised in Kispiox. He is a member of the Gitxsan First Nation. [16] Mr. Williams was raised by his paternal aunt as both his mother and father were severe alcoholics. Mr. Williams says that his father attended a residential school but says that his father has never talked of it. [17] Mr. Williams' mother died 18 years ago. Mr. Williams currently shares a house with his father although he reports that they have a difficult and strained relationship and he, Mr. Williams, stays mostly in his room. [18] Mr. Williams states that at age 19 he had a girlfriend who cheated on him. Since then Mr. Williams says that has been unable to trust women and has not had any other relationships. [19] With respect to the offence Mr. Williams says it "just happened". Since then he says that it has been eating him up and he has completely isolated himself. I will return to this. Positions of Counsel [20] The Crown and defence submit that the convictions on count 1, sexual interference and count 2, sexual assault, are the same and that the court should direct a stay on count 2 on the basis of the Kienapple principle. I agree. I therefore direct a judicial stay on count 2. [21] With respect to sentencing the Crown seeks a total sentence of three and a half years. In addition it seeks a number of ancillary orders as well as some s. 161 orders. [22] The defence submits that jail is not necessary but if it is, it should be under two years to allow Mr. Williams to challenge the constitutionality of the unavailability of a conditional sentence order. The defence stresses that Mr. Williams' moral culpability is diminished because of his Gladue factors. Principles of Sentencing [23] The duty of a sentencing judge is to fashion a just and appropriate punishment that addresses the principles of sentencing and is proportionate to the culpability of the offender. [24] Section 718 of the Criminal Code sets out the fundamental principles of sentencing as follows: 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. [25] Section 718.01 is a special rule that applies when a child under the age of 18 years is abused. In such a case the primary considerations are denunciation and deterrence. [26] Section 718.2 mandates that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender". Applicable to this sentencing are the following circumstances which shall be deemed aggravating: 1) That the offender abused a person under 18 (s. 718.2(a)(ii.1)); 2) That in committing the offence the offender abused a position of trust (s. 718.2(a)(iii)). [27] In addition, s. 718.2 states that: (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. The Law [28] In April 2020, the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 sent a clear message that sentences for the sexual abuse of children must increase. Of particular import to this sentencing are the following passages: 1) "Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected": para. 42; 2) "To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause": para. 50; 3) "Canadian government policies, particularly the physical, sexual, emotional, and spiritual violence against Indigenous children in Indian Residential Schools, have contributed to conditions in which Indigenous children and youth are at a heightened risk of becoming victims of sexual violence We would emphasize that, when a child victim is Indigenous, the court may consider the racialized nature of a particular crime and the sexual victimization of Indigenous children at large in imposing sentence": para. 70; 4) "The fact that the victim is a child increases the offender's degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable": para. 90. [29] As our Court of Appeal has instructed, pre-Friesen precedents are of limited, if any, assistance: R. v. Alfred, 2021 BCCA 71 at para. 33. Discussion [30] Many aggravating factors arise from the circumstances: 1) A.L. was 14-years old at the time of the offence. The evidence was that Mr. Williams had known her since she was a little girl, so he was aware of her age; 2) Mr. Williams was 37 at the time; 24 years older than A.L.; 3) The sexual acts were planned. Mr. Williams messaged A.L. while she was at her aunt's house. He knew she was alone there with her young niece, was babysitting and could not leave. He knew that her aunt would not be home when he went over. He started touching her legs and tickling her. When she turned her face to avoid being kissed he put his hand on her head and spun her face toward him. He then asked her to go to the bedroom. He did not heed her rebuffs/attempts to put him off. He finally took her hand and led her to the bedroom where he removed the bottom of her clothes and all of his and had unprotected sexual intercourse with her. He then returned later that morning to cuddle with her before he went to work; 4) The fact that he had unprotected intercourse with A.L. is a serious aggravating factor; 5) Mr. Williams, through his friendship with A.L.'s aunt and mother, was a person in a position of familiarity/trust to A.L. Without those relationships Mr. Williams would not have had access to A.L.; 6) A.L. is an Indigenous girl from the same small community as Mr. Williams. She is unsophisticated and very young for her age; 7) Although A.L. did not wish to provide a victim impact statement, she made clear in her videotaped statement and in her evidence that she was afraid of Mr. Williams. A.L.'s facial expression and body language when she described how Mr. Williams ejaculated on her chest and abdomen captured the discomfort that she felt. Mr. Williams' assault will no doubt have significant long-term consequences for A.L.; and 8) Mr. Williams tried to have sex with A.L. again- a number of times. Even 14-year-old A.L. knew that that is what he meant when he asked her to watch a movie. [31] With respect to mitigating factors, Mr. Williams has no criminal record and has been gainfully employed, albeit on a part-time basis, for 15 years. I note that Mr. Williams has debilitating arthritis but I am not persuaded that that is a mitigating factor. [32] What is the fit and appropriate sentence in this case? [33] In urging this Court to find that a non-custodial sentence is appropriate, Defence counsel submits that Gladue has been a failure. He argues that judges pay "lip service" to Gladue factors and yet routinely sentence Indigenous offenders to jail. [34] That misses the point of Gladue, the objective of which is for courts to impose fit sentences for Indigenous offenders taking into account the unique challenges and realities facing them. While that may mean a non-custodial sentence is appropriate in some circumstances, it does not follow that that will be appropriate in every case. As was explained by Marchand J., as he then was, in R. v. West, 2020 BCSC 352: [40] Gladue and Ipeelee changed the way Indigenous offenders are sentenced, though not necessarily the result. In sentencing an Indigenous offender, a sentencing judge must consider two factors: 1. The unique systemic or background factors which may have played a part in bringing the particular offender before the courts; and 2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances. [41] According to Gladue and Ipeelee, a sentencing court must take a holistic approach to imposing a fit sentence. A fit sentence is one that is proportional and appropriately balances the seriousness of the offence with the moral blameworthiness of the offender. [42] In striking the appropriate balance, the unique systemic or background factors that may have played a part in bringing the particular offender before the court speaks to the moral blameworthiness of the offender. While a causal connection between the systemic and background factors need not be established, a link may be important or helpful in finding a fit sentence. [43] Finally, restorative sentences may be more appropriate for Indigenous offenders, but taking a restorative approach will not necessarily lead to a reduced sentence. 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. [35] In addition, our Court of Appeal has stated that the Gladue approach to sentencing is not served by sentences that do not sufficiently deter violence against Indigenous children (R. v. Nahanee, 2021 BCCA 13 at para. 85). [36] This is a serious violent crime. Contrary to what Mr. Williams says, this offence did not "just happen". He made it happen. In doing so he abused the relationship of familiarity/trust he had with A.L. and her family. He carefully executed the sexual acts over a period of time, completely undeterred by A.L.'s refusals and efforts to put him off. And then he tried to make it happen again. [37] In my view, Mr. Williams' moral blameworthiness is high. Conclusion [38] Having considered all of the circumstances, submissions of counsel and the law, I am satisfied that a fit sentence is three years imprisonment for count 1, sexual interference, and one year for count 3, communicating via telecommunication to facilitate the commission of a sexual offence. In my view, however, a total sentence of four years for a first time offender would be excessive. Therefore having regard to the principle of totality, I order that the sentences be served concurrently for a total of three years. During your time in jail Mr. Williams I hope that you will avail yourself of the programming available. You have been a contributing member of your community. You like helping people. You say that this has been eating you up. Get the help you need. You can move forward. [39] Pursuant to s. 743.21(1) of the Criminal Code, while you are in jail you must have no contact or communication with A.L. [40] In addition, I make the following ancillary orders: 1) Section 109- pursuant to s. 109 of the Criminal Code, you are prohibited from possessing: a. 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, and b. any prohibited firearm or restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. 2) DNA Order- as both counts 1 and 3 are primary designated offences, pursuant to s. 487.051(1) of the Criminal Code, I authorize the taking of samples of bodily substances from you. The samples will be taken from you while you are in custody and you must submit to the taking of the samples. 3) Sex Offender Registry- pursuant to ss. 490.012 and 490.013(2.1) of the Criminal Code, you are required to comply with the Sex Offender Information Registration Act for life. 4) Section 161 prohibition- pursuant to s. 161 of the Criminal Code, you are prohibited for 10 years commencing on the date you are released from prison from: a. being within two kilometers of any residence, school or workplace of A.L.; and b. having contact or communicating by any means with a person who is under the age of 16 years except in the immediate presence of an adult who is aware of this order. "The Honourable Madam Justice Murray"