2018 BCCA 100 R. v. Cadman

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	R. v. Cadman,
	2018 BCCA 100

Date: 20180319

Docket: CA43546

Between:

Regina

Appellant

And

Robert Edwin Cadman

Respondent

Restrictions on Publication: A publication ban has been mandatorily imposed under s. 486.4(2) of the Criminal Code restricting the publication, broadcasting, or transmission in any way of evidence that could identify a complainant or a witness. This publication ban applies indefinitely unless otherwise ordered.

Section 16(4) of the Sex Offender Information and Registration Act: This section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA.

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Goepel

On appeal from: An order of the Supreme Court of British Columbia,
dated February 26, 2016 (sentence) (R. v. Cadman, 2016 BCSC 474,
Vancouver Registry No. 26579).

Counsel for the Appellant:	T. Shaw M. Scott
Counsel for the Respondent:	M. Klein, Q.C. R. Thirkell
Place and Date of Hearing:	Vancouver, British Columbia January 15, 2018
Place and Date of Judgment:	Vancouver, British Columbia March 19, 2018
Written Reasons by:
The Honourable Mr. Justice Goepel
Concurred in by:
The Honourable Madam Justice Newbury The Honourable Mr. Justice Groberman

Summary:

The Crown appeals the imposition of a conditional sentence order (CSO) in an historical sexual assault case. CSOs were not available when the offences were committed, nor at the time of sentencing, but only for a period of time in between. The sentencing judge determined s. 11(i) of the Charter applied and imposed a CSO. On appeal the Crown argued a CSO was not available, and alternatively was not a fit sentence in the circumstances. Held: appeal dismissed. If the sentence is otherwise fit, an accused is entitled to benefit from a lesser sentence if the sentence was varied at any time between the commission of the offence and sentencing. The sentencing judge did not err in imposing a CSO in the circumstances.

Reasons for Judgment of the Honourable Mr. Justice Goepel:

INTRODUCTION

[1] The Crown appeals the imposition of a conditional sentence order (CSO) in an historical sexual assault case. The sentence was imposed following a jury trial. The sentencing judge’s reasons are indexed at 2016 BCSC 474.

[2] CSOs did not exist when the offences were committed (1993–94). They became available in late 1996 but as a result of subsequent legislative amendments have not been available since 2007. The sentencing in this case took place in 2016.

[3] The Crown’s position is that the sentencing judge did not have the legal authority to impose a conditional sentence. Alternatively, the Crown submits that if a conditional sentence was available in the circumstances of this case, the sentencing judge should not have imposed one.

[4] The respondent, Mr. Cadman, submits that the reasons for sentence are free from error. He submits the sentencing judge correctly held that a CSO was an available sentencing option. He further submits that in the circumstances of this case, a CSO was a fit sentence.

[5] For the reasons that follow, I would dismiss the appeal.

BACKGROUND

[6] Mr. Cadman was convicted by a jury on both counts of the following indictment:

Count 1:

At or near Vancouver, in the Province of British Columbia, and at or near Calgary, in the Province of Alberta, between the 1st day of October, 1993 and the 31st day of December, 1997, did sexually assault B.R.S., contrary to Section 271 of the Criminal Code.

Count 2:

At or near Whistler, in the Province of British Columbia, and at or near Calgary, in the Province of Alberta, between the 1st day of October, 1993 and the 31st day of December, 1997, did sexually assault B.R.S., contrary to Section 271 of the Criminal Code.

[7] The indictment alleges the offences occurred over the course of four years. However, as explained in more detail below, for the purposes of sentencing, the judge found the offences occurred in 1993 and 1994. At that time, the victim, B.R.S., was a 13 to 14-year old boy in the middle of a family breakup. He became friends with an older boy, N.P., and would often visit his house. It was at N.P.’s house that the victim met Mr. Cadman, who was then around 30 years old. Mr. Cadman was a friend of N.P.’s family and worked with the ski patrol at Whistler. The victim and N.P. were allowed by their parents to participate in various activities with Mr. Cadman, including hiking and skiing.

[8] At the sentencing hearing the facts were in dispute. At trial the victim testified to a total of seven distinct incidents, described in detail in the sentencing reasons by location and incident number, starting with an incident at Mr. Cadman’s UBC dorm room in October 1993. The victim described two incidents at UBC which took place in 1993, two incidents at Whistler, one which took place in 1993, one in 1994, and three incidents in Alberta in 1995. The sentencing judge at paras. 12–30 set out the particulars of each alleged incident.

[9] Mr. Cadman testified at the trial. He categorically denied all acts of sexual abuse. He has not resiled from that position.

[10] The sentencing judge found that the basis of the jury’s verdict was unclear. Pursuant to the principles set out in R. v. Ferguson, 2008 SCC 6, the sentencing judge had to make his own independent determination of the facts required for sentencing that remained consistent with the jury’s verdict. Having set out in detail the allegations, the sentencing judge found for the purpose of sentencing that the circumstances of the offences were that Mr. Cadman had committed one act of sexual assault involving masturbating B.R.S. at UBC in 1993, and a second act of sexual assault involving masturbating B.R.S. at Whistler in 1994. The Crown does not challenge those findings on the appeal.

[11] The sentencing judge reviewed the circumstances of the offender. He noted that Mr. Cadman was 54 years old at the time of sentencing. His parents were elderly and lived in Whistler. Mr. Cadman obtained his Bachelor of Education in 1985 and obtained a Doctorate in Medicine and Education in 1996. He worked as a teacher in the Vancouver area until 1998 when he moved to Australia where he continued his teaching career. He taught at a number of educational institutions in Australia, including schools and universities. He returned to British Columbia in 2012 to help care for his father, who had suffered serious health issues. He had resided with his parents at the family’s cabin in Whistler since that time.

[12] B.R.S. submitted a written victim impact statement that referred to the significant emotional consequences of the offences, including the inability to maintain relationships and the need for extended counselling. Because of the offences, B.R.S. stated he suffered from sexual dysfunction and a confused sexual identity. His statement indicated that he had become addicted to drugs and alcohol in order to numb the pain caused by the offender. B.R.S. also said that he was affected financially and struggled to keep employment for fear of becoming close to other men. He has had treatment for drug and alcohol dependency that included an 11-month residency program between September 2009 and August 2010.

THE SENTENCING REASONS

[13] The sentencing judge first considered whether a conditional sentence was available. The Crown argued a conditional sentence was not an option because that form of sentence was not available either at the time of the offences nor the time of sentencing. In R. v. Yusuf, 2011 BCSC 626, Madam Justice Griffin, as she then was, had found that a conditional sentence was available in a similar factual situation. The sentencing judge was of the view that Yusuf was a considered decision by a justice of the Supreme Court and applying the principles set out in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.), concluded that a conditional sentence was available to this offender.

[14] At the sentencing hearing the Crown argued that an aggravating circumstance was that Mr. Cadman was in a trust-like relationship with the victim. The sentencing judge noted that aggravating circumstances must be established by the Crown beyond a reasonable doubt. He found that a trust-like relationship did not exist. In this regard, he reasoned:

[80] Ms. S.’s evidence is that she trusted the offender and allowed her son to be with him because she trusted N.P.’s parents and knew that they trusted him. While that is a factor in the analysis, it is not sufficient, in my view, of and by itself to establish a relationship of trust in the legal sense. In fact the evidence appears to indicate that N.P. and the offender allowed B.R.S. to “tag along” with them as they pursued the type of activities that had been longstanding between them.

[15] The sentencing judge found, at para. 82, the following mitigating circumstances to exist:

· the absence of a criminal record;

· by all accounts a positive lifestyle, both personal and professional prior and subsequent to the offences, and the offender’s contributions to his family and the community both in Australia and British Columbia. These are shown by the many cards given to the offender by both parents and students in Australia and the reference letters from the schools where he taught. There are also the letters of support from his immediate family.

[16] In his reasons the sentencing judge referred to numerous authorities which had been placed before him. At the sentencing hearing, the Crown sought a custodial term of three to four years. The Crown’s submission was premised on the sentencing judge finding that all or most of the incidents alleged formed the basis of the jury’s verdict.

[17] The sentencing judge found that the offences were grave and the offender’s moral blameworthiness was quite clear. He cited R. v. Proulx, 2000 SCC 5, for the proposition that in proper circumstances, a conditional sentence can satisfy the primary factors of denunciation and deterrence. In that regard, he noted that in the circumstances of this case, the offender would serve his sentence in a relatively small community where he and his family had been well-known for many years. The judge noted that the notoriety of Mr. Cadman’s actions and conviction may well be greater than were he to be incarcerated. While the sentencing judge recognized that all incidents of sexual assault against children are serious, most of the authorities relied on by the Crown related to circumstances more egregious than the facts he had found in this case. The sentencing judge found Mr. Cadman was not a paedophile. He also found his employment record as an educator of students of various ages for many years, his community service, and the length of time that had elapsed from the time of the offences until now, without incident, some 22 years, signified that Mr. Cadman was not in need of rehabilitation. He also found the public was not at risk if Mr. Cadman served his sentence in the community.

[18] In the result, he sentenced Mr. Cadman to a CSO of two years less a day. Conditions of the sentence included that he would remain under house arrest 24 hours a day subject to exceptions for medical emergency, employment, and other exceptions as might be permitted by the conditional sentence supervisor.

POSITIONS ON APPEAL

[19] Mr. Cadman appealed his conviction and the Crown appealed the sentence. The conviction appeal was dismissed on May 30, 2017: 2017 BCCA 204. Mr. Cadman’s subsequent application for leave to appeal to the Supreme Court of Canada was also dismissed: [2017] SCCA No. 321.

[20] On this appeal, the Crown argues that a CSO was not a legal sentence. This submission requires consideration of s. 11(i) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter] which grants offenders the following right:

11. Any person charged with an offence has the right

(i) if found guilty of the offence and if the punishment for the offence had been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

[21] The Crown submits that s. 11(i) only applies in circumstances where a sentence was increased after the commission of the offence or where a decreased sentence is available at the time of sentencing as compared to the time of commission. The Crown submits the section does not apply in the scenario that exists in this case: that after commission of the offence, the sentence range decreased but was subsequently restored back to its original level.

[22] Alternatively, the Crown submits that in the circumstances of this case, a CSO, even if legally available, was not a fit sentence. In that regard, the Crown submits the sentencing judge erred in failing to recognize Mr. Cadman’s position of trust. The Crown further submits that the sentencing judge did not take into account the aggravating circumstance that Mr. Cadman met with and actively sought to dissuade the victim from coming forward.

[23] The Crown does concede, given the sentencing judge’s findings that there were but two incidents, that a sentence in the Provincial range is appropriate. The Crown submits a proper sentence would be incarceration in the mid-to-upper Provincial range.

[24] Mr. Cadman submits that the Crown’s interpretation of s. 11(i) is flawed. He submits that on a plain reading of s. 11(i), a conditional sentence is available any time the punishment has been varied between the commission of the offence and sentencing. He argues that if the variation results in a lesser sentence, the offender is entitled to the benefit of that lesser sentence.

[25] Mr. Cadman further submits that a CSO in this case is a fit sentence. He says the judge’s finding that there was no trust-like relationship is a question of fact, that absent palpable and overriding error, which Mr. Cadman says the Crown has not established, this Court should not reverse. Further, and in any event, he says that even if there was a trust-like relationship, a conditional sentence is in any event a fit sentence and this Court should not interfere.

[26] Mr. Cadman further submits that it is too late for the Crown to raise the question of whether there was an attempt to have the victim sign a retraction of his allegations. He submits that evidence was disputed at trial, the Crown did not raise that issue at the sentencing hearing, and it is too late to do so now. Mr. Cadman points out that resolution of that issue would have required the sentencing judge to make findings of fact as to whether or not the event in question took place.

STANDARD OF REVIEW

[27] The fitness of a sentence is subject to appellate deference. An appellate court may only impose a different sentence where: (a) the sentencing judge erred in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor, and the error appears to have impacted the sentence; or (b) the sentence is “demonstrably unfit” in that it represents a marked and substantial departure from sentences customarily imposed for similar offenders committing similar offences, and therefore amounts to an unreasonable departure from the principles of proportionality: R. v. Lacasse, 2015 SCC 64 at paras. 11, 39–44, 51–53.

[28] As to factual errors, an appellate court may only interfere where there has been a palpable and overriding error. A palpable and overriding error is an error that is obvious or plainly seen: Housen v. Nikolaisen, 2002 SCC 33 at paras. 5–6, 10.

[29] The question of whether a conditional sentence was available for this offence raises a question of law. It is reviewable on a correctness standard.

DISCUSSION

A. Availability of Conditional Sentence

[30] The Crown forcefully submits that a conditional sentence is not in these circumstances a legal sentence. This question turns on the interpretation of s. 11(i) of the Charter.

[31] The Crown submits there are three possible scenarios to which s. 11(i) might apply. The first is where the sentence is increased after the offence is committed. In that circumstance, the Crown acknowledges it would be unfair to retroactively impose a greater punishment, because the offender is presumed to have considered his or her jeopardy before acting.

[32] The second scenario is where a lesser sentence is available at the time of sentencing as compared to the time the offence was committed. The Crown agrees that in that case an offender is entitled to the lower but currently accepted sentencing standard rather than the remnants of past legislation. The Crown says that result ensures similar offenders that are being sentenced at the same time receive like sentences.

[33] The third scenario arises when the sentence range decreases after the commission of the offence but is then subsequently increased before the offender is sentenced. That is the situation in this case. The Crown submits that s. 11(i) should not apply in this situation because it does not advance the fairness principle from the first scenario, as the intervening change did not inform the offender’s conduct. Further, the Crown submits it would undercut the objective of the second scenario which is to apply current and not repealed sentencing standards. The Crown submits that there is no purposive justification for allowing the offender to benefit from the lesser sentence in the third scenario.

[34] The Crown submits its approach is consistent with the French wording of s. 11(i), which reads “entre le moment de la perpétration de l’infraction et celui de la sentence” [underline added]. The French word “moment” translates into English as “moment” or “time”: Jean-François Allain, Laurence Larroche & Janet Gough, eds., Collins Robert French Dictionary, 8th ed., (Toronto: HarperCollins Publishers Ltd., 2006) sub verbo “moment”. It is defined in French as an “espace de temps limité” [a short period of time]: Paul Robert, Le Petit Robert: Dictionnaire alphabétique & analogique de la langue française (Paris: Société du Nouveau Littré, 1972) sub verbo “moment”. The Crown submits that “moment” is a punctual term, not one that suggests a continuous search for lesser, repealed penalties during a larger interval.

[35] The Crown submits that by comparing the English and French versions of s. 11(i) and the overlapping scope of “time” and “moment”, the meaning that both versions share is a point-to-point comparison between two precise dates. In the case of bilingual enactments, including the Charter, the interpretation that should be adopted is the shared meaning most in keeping with the enactments objectives: R. v. S.A.C., 2008 SCC 47 at paras. 14–16; Michel Bastarache et al., The Law of Bilingual Interpretation (Markham: LexisNexis Canada Inc., 2008) at 96–101.

[36] Mr. Cadman submits that on its plain wording, s. 11(i) of the Charter applies in the circumstances. He submits that the Crown’s interpretation overemphasizes the word “time” in the phrase “if the punishment for the offence has been varied between the time of commission and the time of sentencing”. Mr. Cadman submits that this interpretation misses the point of this section. In his submission, the key to s. 11(i) is the word “between” Mr. Cadman argues that if the sentence has been varied at any time between the commission of the offence and the date of sentencing, and the variation results in a lesser sentence, the offender should receive the benefit of that lesser sentence.

[37] The Crown’s submission has not found support in the authorities. In Yusuf, the offender was convicted in 2011 of having committed sexual assault causing bodily harm in 1993. The offender had not re-offended since the time of the offence and both the Crown and defence supported a conditional sentence. In considering that submission, the sentencing judge had to determine whether a conditional sentence was legally available. As in this case, at the time the offence was committed the conditional sentencing regime had not yet been put in place and by the time of the sentencing it was no longer available for the offence for which Mr. Yusuf had been convicted. The sentencing judge held that a conditional sentence was available. She reasoned:

[30] Mr. Yusuf committed his offence in 1993. Charter rights are to be interpreted liberally. Reading s. 11(i) of the Charter liberally and in favour of the accused, it is clear that the punishment for Mr. Yusuf’s crime has varied between the time of commission of offence and the time of sentencing, such that between this time period there was once available the lesser punishment of a conditional sentence. I therefore conclude that the conditional sentencing regime is available to Mr. Yusuf if I otherwise find it to be appropriate.

[38] The Ontario Superior Court reached a similar conclusion in R. v. Bent, 2017 ONSC 3189. Mr. Bent was found guilty in 2016 of the indecent assault of a male person. The offence was committed in 1982. The sentencing judge, Mr. Justice Hill, had to determine whether, as part of the sentence, a weapons prohibition order was mandated. At the time of the offence, the Criminal Code required a mandatory weapons prohibition order. From 1991 to 1995, the imposition of a weapons prohibition order was discretionary. In 1995 legislative amendments again made the weapons prohibition order mandatory and that legislation remained in place at the time of the sentencing.

[39] Mr. Justice Hill noted that the most common application of s. 11(i) of the Charter involved two points in time, with an offender receiving the benefit as of the date of sentencing of the more favourable sentencing regime that existed at the time when the offence was committed. He noted, however, that the matter before him, as in the case at hand, engaged consideration of three points in time: (1) the date of the commission of the offence; (2) an intervening statutory regime; and (3) the date of sentencing. He concluded that Mr. Bent was entitled to the discretionary weapon ban. He explained:

[79] The text of s. 11(i) of the Charter suggests a potentially broader and more liberal interpretation favouring the offender's submission. Although the provision’s reference to “the lesser punishment”, as opposed to the “least harsh punishment”, could be said to demand an interpretation limited to addressing the punishment which is the lesser of 2 available options, the text reading “punishment ... has been varied between the time of commission and the time of sentencing” as opposed to “varied as of the date of sentencing”, favours the broader context argued for on the offender’s behalf.

[80] The court was referred to jurisprudential authority relating to conditional sentences in circumstances of cases where (1) a sexual crime was committed when the conditional sentence option had yet to be enacted, followed by (2) an intervening period when such a disposition was for some time an available sentence, with (3) the sentencing then occurring when a conditional sentence was statutorily excluded from consideration – these cases holding that a conditional sentence was an available option as of the sentencing date – see, for example: R. v. P.(D.), 2014 ONSC 386 (Crown conceding conditional sentence legally available); R. v. Holt, 2017 ONCJ 51, at paras. 13–17, 156, 169–170; R. v. Mehanmal, 2012 ONCJ 681; R. v. Cadman, 2016 BCSC 474. At least implicitly, this approach was also accepted by the courts in Brown, at para. 14; R. v. Vautour, 2016 BCCA 497, at paras. 28–53, and in R. v. Leroux, 2015 SKCA 48, at para. 72, where the only basis for refusing conditional sentences was stated to be the basis of unfitness, not jurisdictional grounds.

[81] Applying this body of caselaw to the punishment of a weapons prohibition order, the offender here would be deserving of consideration for a discretionary departure from being subject to such an order taking into account the more lenient regime existing in the 1991–1995 time period.

[40] The Quebec Court of Appeal is the only appellate court that has considered this issue. R. v. Belzil, [1989] R.J.Q. 1117 (C.A.) arose in the context of convictions in 1982 for first-degree murder. The murder was committed in July 1973. At the time the offence was committed, the sentence for murder was death. Between January 1, 1974 and July 25, 1976, the punishment was life imprisonment, with eligibility for parole after serving between 10 to 20 years in prison. After 1976, the mandatory parole ineligibility was extended to 25 years. The accused were convicted and made subject to the 25-year parole ineligibility. The appeal was allowed. The Court of Appeal reasoned at 1139 that the least severe punishment as contemplated by s. 11(i) of the Charter, was that which would have been imposed had the accused been charged and convicted between January 1, 1974 and July 25, 1976. As such, the accused, with respect to the first-degree murder conviction, were entitled to a sentence of life imprisonment, with parole eligibility after serving 10 years in prison.

[41] R. v. R.P., 2018 QCCA 21, concerned convictions on two counts of gross indecency and one count of sexual assault in regard to events that took place between 1979 and 1987. At the time of sentencing, R.P. was in his early 80s and suffered serious health problems. The sentencing judge addressed s. 11(i) only briefly. He noted conditional sentences were not available until September 1996 and therefore did not exist when the offences occurred. However, the judge said that by virtue of s. 11(i), an accused has the right to benefit from the least severe sentence if the sentence has changed between the time of the commission of the offence and the time of sentencing. Without further analysis, the judge said a conditional sentence was therefore a possible sentencing option.

[42] On the appeal, the Crown argued that R.P. was entitled only to the lesser of the sentences available at the time the offence was committed and at the time of sentencing. In particular, the Crown asked the court to reconsider its interpretation of s. 11(i) in Belzil. The court refused. It found that the sentencing judge did not err in imposing a conditional sentence. The court discussed s. 11(i) at para. 33 and held that it protects an accused from more serious sentences arising as a result of legislative changes made after the commission of the offence. The court noted that in Belzil it was determined that an offender was entitled to benefit from a sentence that did not exist at the time the offence was committed, nor at the time of sentencing but rather was available only for a period of time in between. The court affirmed this interpretation of s. 11(i), which guarantees an accused the benefit of the least severe sentence available, even if there has only been a temporary softening of the sentence between the time of the offence and the imposition of the sentence.

[43] I would note that both Belzil and R.P. are based on the French version of s. 11(i) of the Charter.

[44] The Crown’s interpretation of the wording of s. 11(i) focuses on the word “time” and in French “moment”. The Crown argues that the French and English versions share a meaning of a point-to-point comparison between two precise offence and sentencing dates. However, as Mr. Cadman points out, this analysis ignores the word “between”, or “entre” in French, which requires looking at the continuum of time between two moments. The Crown argues that s. 11(i) could have been written without the word “time” so that it applies to all variations between the two moments. However, similarly, s. 11(i) could have been drafted without the word “between” to refer more precisely to the discrete moments of commission and sentencing. As pointed out by Justice Hill in Bent, in circumstances like the case at bar, there are in fact three points in time to be considered.

[45] The Crown’s concern that the offender may receive a lesser punishment than the present sentencing regime requires is exactly what s. 11(i) contemplates. In this regard, I note the comments of Justice MacKenzie in Liang v. Canada (Attorney General), 2014 BCCA 190, leave to appeal ref’d [2014] S.C.C.A. No. 298:

[59] Changes to sentencing – including increasing an offender’s period of incarceration – may be considered important. However, the Charter specifically requires that if punishment has changed between offence commission and sentencing, the offender is entitled to the lesser punishment. As noted above, the fact the offender will receive a lesser punishment, and perhaps one that does not meet the objectives of the present sentencing regime, is exactly what s. 11(i) contemplates. This does not in any way prevent the government from making what it considers to be important changes to sentencing standards or to the parole system – it only precludes the application of changes to those who committed an offence before the changes came into effect, where those changes would result in greater punishment. [Emphasis added.]

[46] I agree with the sentencing judge that in the circumstances of this case, he could lawfully impose a conditional sentence. I would dismiss this ground of appeal.

B. Did the Sentencing Judge Err in Imposing a Conditional Sentence?

[47] The Crown submits that a conditional sentence was not a fit sentence for this offender. It says the sentencing judge failed to take into account significant aggravating factors. In this regard, it points to the judge’s finding that Mr. Cadman was not in a position of trust and the judge’s failure to take into account Mr. Cadman’s attempt to have the victim withdraw his allegations. Aggravating factors must be established beyond a reasonable doubt.

[48] Dealing first with the submission that Mr. Cadman attempted to have the victim withdraw his allegations, it is important to note that this submission was not made to the sentencing judge. The alleged interaction between Mr. Cadman and the victim took place in or around 2001. What occurred at that time is a matter of some dispute. The sentencing judge was not asked to resolve the dispute nor was he asked at the sentencing hearing to find what occurred in 2001 to be an aggravating circumstance. In my view, it is too late for the Crown to raise this issue for the first time on appeal.

[49] Whether Mr. Cadman was in a position of trust is a question of mixed fact and law. Justice D. Smith, as she then was, summarized the applicable principles in R. v. Poncelet, 2008 BCSC 202. The sentencing judge in the case at hand reviewed the evidence and concluded on the facts that the Crown had failed to establish beyond a reasonable doubt that Mr. Cadman was in a position of trust with the victim. That finding is subject to deference. To interfere this Court must find a palpable and overriding error. No such error has been shown.

[50] Further, I would note that even if the sentencing judge erred in determining that Mr. Cadman was not in a position of trust, the imposition of a conditional sentence would not necessarily render the sentence unfit: R. v. Bremner, 2000 BCCA 345; R. v. Chen, 2017 BCCA 426.

[51] Proulx set out the four criteria that must be considered when assessing the appropriateness of a conditional sentence (at para. 46):

(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(2) the court must impose a term of imprisonment of less than two years;

(3) the safety of the community would not be endangered by the offender serving the sentence in the community; and

(4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[52] The Crown concedes on the appeal that the sentence should be for a term of less than two years. It does not challenge the sentencing judge’s findings that Mr. Cadman is not in need of rehabilitation and that the public would not be at risk if he served the sentence in the community. As noted in Proulx, a conditional sentence can satisfy the primary factors of denunciation and deterrence. In all of the circumstances in this matter, I cannot find that the sentence imposed by the sentencing judge was unfit.

[53] I would dismiss the appeal.

“The Honourable Mr. Justice Goepel”

I AGREE:

“The Honourable Madam Justice Newbury”

I AGREE:

“The Honourable Madam Justice Groberman”