2008 BCSC 1526 R. v. B.S.B.

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*R. v. B.S.B.,*
	2008 BCSC 1526

Date: 20081107
Docket: X070471
Registry: New Westminster

Regina

B.S.B.

Ban on disclosure of the name of the complainant
pursuant to s. 486.5 of the Criminal Code.

This judgment is subject to the non-disclosure provisions
of s. 16(4) of the Sex Offender Information and Registration Act
and has been edited.

Before: The Honourable Mr. Justice S.R. Romilly

Reasons for Sentence

Counsel for the Crown	Alaistair G. Baird Susanne E. Elliott
Counsel for the Accused	Michael D. Sanders
Date and Place of Hearing:	October 24, 2008
	Vancouver, B.C.

TABLE OF CONTENTS

Section		Paragraph(s)
A.	NATURE OF THE PROCEEDINGS	1 – 2
B.	GENERAL OBSERVATIONS ABOUT SENTENCING PROCEEDINGS	3 – 5
C.	POSITION OF THE PARTIES	6 – 16
	i. Position of the Crown	6 – 12
	ii Position of the Defence	13 – 16
D.	BACKGROUND OF THE ACCUSED	17 – 19
E.	VICTIM IMPACT STATEMENT	20 – 22
F.	THE LAW	23 – 63
	i. Fundamental Principles of Sentencing	23 – 30
	ii. Range of Sentences for Sexual Assault	31 – 35
	iii. Factors to Consider in Imposing Sentence for Sexual Offences	36 – 47
	(a) The nature and intrinsic gravity of the offence which is affected by, in particular, the use of threats, violence, psychological threats and manipulation	38 – 40
	(b) The offender’s behaviour after the commission of the offence	41 – 44
	(c) The victim: gravity of the attack on her physical and psychological integrity	45 – 47
	iv. The Appropriate Sentence in this Case	48 – 50
	v. Consideration of Sanctions Other Than Imprisonment	51 – 63
G.	ANCILLARY ORDERS	64 – 78
	i. DNA Order	64 – 68
	ii. Victim Fine Surcharge	69 – 71
	iii. Sex Offender Registry	72 – 76
	iv. Weapons Prohibition	77 – 78
H.	CONCLUSION	79 – 83

A. NATURE OF THE PROCEEDINGS

[1] This is a sentencing hearing. The accused was found guilty by me of sexual assault after a four day trial in June 2008. My written reasons for that decision are stated in R. v. B.S.B., 2008 BCSC 917. The sexual assault consisted of non-consensual sexual intercourse with the female victim, K.R.

[2] B.S.B., for the reasons stated below, I sentence you to two years less one day at the Fraser Regional Correctional Centre, with a recommendation that you serve this time at the Ford Mountain Correctional Centre or at an institution which the Corrections Branch deems appropriate. I order that you be placed on probation for a period of three years following your release, and in addition to the statutory conditions the following conditions will apply:

(1) Within 24 hours of your release from prison, you must report in person to a probation officer at 275 East Cordova Street in Vancouver, British Columbia, and thereafter as required.

(2) You must provide your residential address to your probation officer and not change that address without the prior written consent of your probation officer.

(3) You must present yourself at the door of your residence and allow access to your residence as and when requested by a peace officer for the purpose of monitoring the conditions of this order.

(4) You must refrain absolutely from having any contact or communication of any form or in any manner with the complainant K.R.

(5) During the period of this probation order you are not to make use of any internet social networking programs or sites, including Facebook and sites like it, chat lines such as MSN, and online dating sites such as “Plenty of Fish”.

(6) You must provide a peace officer, upon request, immediate access to your residence for the purpose of monitoring internet access. You will give the officer access to any computing equipment, peripheral devices, communication devices, data storage devices, removable media and any manual associated with any computing equipment, and you will make available the necessary passwords and access codes required to enable examination of any of the above, in order to verify compliance with this order.

B. GENERAL OBSERVATIONS ABOUT SENTENCING PROCEEDINGS

[3] The task of the sentencing judge has become more and more complicated over the last few years. We are now required to give extensive reasons for our sentence; we have to deal with the conditional sentencing provisions of the Criminal Code if we decide to impose a sentence of less than two years; we have to determine whether or not there should be a DNA order; we have to decide if we should impose a victim fine surcharge; we have to decide if a firearms prohibition is required; we have to be sure to canvass the leading legal authorities; we have to be sure to refer to the range of sentences imposed by our Court of Appeal for the offence; and we have to take out our calculator to give credit for time the accused has already served in custody. In fact, sentencing an offender has become so complex that one would be well advised to give a written judgment in each case. One can only imagine the effect this increasing complexity is having on the busy Provincial Courts in this country.

[4] In addition to this complexity, there is now another directive with which we must comply: every word of our long and complicated sentence rulings must be read to the accused. In R. v. Blind, 2008 BCCA 310, the Court of Appeal held that it was improper to give a brief decision stating the terms of the sentence handed out and then file the reasons for judgment. Madam Justice Kirkpatrick, for the Court, wrote:

[19] Before leaving these reasons, I should comment on the fact that contrary to s. 726.2 of the Criminal Code, the sentencing judge, although she stated the terms of the sentence imposed on Mr. Blind to him in open court, did not read her reasons for sentence in his presence. That is obviously contrary to the Code provision and is a practice that cannot be condoned.

[5] B.S.B., although I have written this judgment, I ask you to bear with me for the next two hours while I comply with the directions of the Court of Appeal by reading it aloud to you. I ask that you follow along with me while I read the written text that I have given to you. I promise that I will not be departing from the typed script.

C. POSITION OF THE PARTIES

i. Position of the Crown

[6] The Crown seeks a period of incarceration of four years. The Crown proceeded by indictment; the maximum sentence under s. 271 of the Criminal Code is therefore ten years.

[7] The Crown submits that the minimum starting point for an offence of this nature which involves intercourse is two years in jail, and that applies in situations where the defendant had already spent some time in custody. The Crown submits that because B.S.B. has not even been held in custody overnight, a more appropriate starting point would be three years’ incarceration.

[8] Crown counsel submits that the jurisprudence establishes that federal time is appropriate, relying on the following cases: R. v. Dycko (1997), 94 B.C.A.C. 177; R. v. Zimmerman, [1998] B.C.J. No. 1968 (S.C.); and R. v. Hughes, [1999] B.C.J. No. 32 (S.C.).

[9] The Crown further submits that a conditional sentence would not be a fit and just sentence, having regard to the principles of sentencing which are of primary importance in matters such as this, namely denunciation, retribution, and specific and general deterrence.

[10] Crown counsel submits that there are many aggravating features to this case and no mitigating features. The aggravating features include B.S.B.’s intentional deception of K.R. from the start, the reliance on his position as a corrections officer to gain her trust, the manner in which the assault was carried out, including drugging the victim and the subsequent violence, the fact that he had unprotected sex and as a result gave the victim gonorrhea, the psychological impact of the assault on the victim, his lies to police, and his lack of empathy for K.R.

[11] Crown Counsel submits that the fact that B.S.B. is a former corrections officer presents no impediment to his doing jail time. In support of this submission, the Crown called Mr. Alex Lubimiv, the warden at Ford Mountain Correctional Centre, to testify at this sentencing hearing. Mr. Lubimiv testified that notwithstanding the fact that B.S.B. was a correctional officer at the Matsqui Institution, it would not be difficult to house him in the correctional system. Mr. Lubimiv entered statistics showing that there were former judges, police officers and corrections officers in the correctional system and they were all serving time in the general population of the prisons where they were being housed.

[12] The Crown also submits that B.S.B. should be registered with the National Sex Offender Registry for 20 years, that he should give a sample of his DNA, and that a weapons prohibition should be ordered.

ii. Position of the Defence

[13] Counsel for the accused told the probation officer who prepared the pre-sentence report that for the past year B.S.B. had not accessed internet chat lines or dating sites, and that he had deleted all of his accounts and profiles from these sites.

[14] Counsel for the accused called two correctional officers as witnesses on the sentencing hearing, Kelly Dillavough and Sonya Schaufele. They testified that as a former correctional officer, B.S.B. would either have to spend more time in the segregation unit of a correctional facility than any other inmate or he would have to serve his time in another part of the country.

[15] Counsel for the accused submits that a conditional sentence is appropriate. In support of this submission he drew my attention to the many letters of support that have been marked as exhibits to these proceedings. He also drew my attention to the report of Dr. Karl M. Williams, a registered psychologist whose report is also an exhibit in these proceedings. Dr. Williams stated:

I do not believe that B.S.B. represents a generalized risk to society and therefore I am not of the opinion that from a psychological/behavioural perspective he requires a custodial sentence. I would however like to see him exercising greater judgment and prudence with respect to his relationships and being more careful in particular when it comes to using the internet as vehicle with which to establish heterosexual relationships. Such matters could be addressed effectively within the context of a period of community supervision and reporting. Further efforts to bolster his insight and introspectiveness and to address directly the variables that got him into trouble could be made via B.S.B.’s participation in the community-based sex offender treatment program that is an obligatory component of B.C. Adult Community Corrections supervision.

[16] Counsel for the accused also argued that there were several mitigating factors which should be considered by the Court in this case. Some of these mitigating factors include:

(a) The accused has no previous convictions.

(b) There was a minimum mens rea established in this case. Defence counsel submits that, at most, the Crown has established that the accused was reckless. He submits that that is a mitigating factor, citing R. v. Martineau, [1990] 2 S.C.R. 633, 58 C.C.C. (3d) 353 [Martineau cited to C.C.C.]. He further submits that the facts in the case at bar are close to those in R. v. San Salvador, 2007 ONCJ 390, in which the offender was given a choice of sentences, one of which was ten months in prison.

(c) The accused has lost his employment as a result of this conviction. In support of this submission, defence counsel drew my attention to R. v. Gorman, [1971] 3 O.R. 364, 4 C.C.C. (2d) 330 (C.A.); R. v. McCormick (1979), 7 Man.R. (2d) 30, 47 C.C.C. (2d) 224 (C.A.); and R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183.

(d) The accused would have to do “hard time”. During his submissions, I drew counsel’s attention to my understanding that having to do hard time is not a mitigating factor, citing R. v. Chand (1994), 52 B.C.A.C. 301. Defence counsel submitted that Chand was distinguishable from the case at bar and that the cases of R. v. M.R., [1990] O.J. No. 160 (C.A.) and R. v. Powell (1989), 81 Nfld. & P.E.I.R. 314, 18 M.V.R. (2d) 277 (C.A.) were more pertinent.

(e) The long time lapse between the date of the offence and the date of sentencing. In support of this submission defence counsel drew my attention to R. v. Nicholson, 2004 ABCA 310, 191 C.C.C. (3d) 26.

D. BACKGROUND OF THE ACCUSED

[17] On the date of the offence the accused was a prison guard at Matsqui Institution. After the offence he was suspended without pay, but was reinstated after an appeal to the Public Service Labour Relations Board. A further appeal to the Federal Court resulted in an order for a new hearing into his suspension: see Canada (A.G.) v. B.S.B., 2008 FC 606.

[18] B.S.B. is 30 years old with no previous convictions. As a result of this conviction he lost his employment as a prison guard and his hopes of becoming a police officer came to a grinding halt. His attitude towards this offence was described by the probation officer who prepared his pre-sentence report, which states:

B.S.B. feels his version of this offence differs from that illustrated in the police report and by the victim as many details and allegations are false. B.S.B. reported the sex between himself and the victim was consensual in nature and not criminal. He portrayed the sex as “two adults consenting” at that time. He indicated he was not the aggressor and believed the victim was the aggressive individual who wanted to engage in the sexual activity. Although B.S.B. acknowledged that the victim has felt victimized in this situation, he still lacks insight into his behaviours.

In speaking with the subject, it was difficult to assess his attitude surrounding the sexual assault toward the victim due to his denial despite the findings of the courts. B.S.B. continues to deny his conviction and claims that he wants to appeal this decision.

[19] The accused has been described as a hard-working individual and would appear to have been a valued employee at his places of employment.

E. VICTIM IMPACT STATEMENT

[20] Victim impact statements are designed to provide victims of crime with a voice in the sentencing process. These statements can be useful and eloquent reminders of how certain types of offences can impact a person’s life.

[21] The complainant’s victim impact statement is worth repeating in full; it states:

Below are some of the major ways that the experience that occurred on September 9, 2004 has affected me:

After the assault I was a physical, emotional and mental write-off for several weeks. I mostly slept and cried. I had to drop out of a few of my classes at the college.

I missed work for more than a week after the assault because I was on so much medication that I felt sick for quite some time.

I sought psychological support for quite some time from family, friends, and a local pastor at a church (in addition to the counselling).

For years afterwards, I was unable to have comfortable sexual relations in two long-term relationships.

It has been extremely difficult for the men in my life to know how to support me in something as perverted as this (because of that, I have not asked any one of them to come to any of the court hearings or appearances).

On a number of occasions I woke up having nightmares.

On a number of occasions I woke up in the middle of the night in fits of hysteria (somehow my subconscious remembers things that I do not).

I will live the rest of my life with this horrifying thought that a complete stranger took something away from me that I can NEVER, EVER get back. Deciding to share yourself with someone is a very sacred gift and because I never elected to share myself with “Dion” I will always know that in the back of my mind.

I have had to take countless hours off work, school and family time over the years as a result of this.

I have suffered financial losses as a result of time away from my jobs.

The Sane Kit that was conducted at Surrey Memorial Hospital brought back positive results for gonorrhea after the assault. Prior to September 2004 I had no Sexually Transmitted Diseases. “Dion” could have had AIDS. Could you imagine if I was diagnosed with AIDS for instance? Then, truly, my life would have been taken from me. It’s such a heinous thought that someone would have not only done this to me, but would also have the audacity not to use protection.

The most important aspect of this is my own personal dignity. I somehow believe that I am less of a person now. I believed for a LONG time that I was a weak person, less of a person. I believed somehow that this was my fault – that somehow I did this. Being a victim of an assault has taken a part of me away that I will never get back. I suppose it’s innocence. I have always been a curious person; asking questions, being inquisitive and fun. Now, the spark is gone somewhat. I have my guard up ALL THE TIME. Not a moment in my life goes by where I am not paranoid and looking over my shoulder just in case someone should try to do this to me again.

I do not drink in excess of 2 drinks in one sitting, no matter where I go, because the last time I had more than 2 drinks it resulted in me being in an unconscious state for almost a day.

K.R.

[22] This statement shows the devastating effect this violent sexual assault had on the complainant.

F. THE LAW

i. Fundamental Principles of Sentencing

[23] The Criminal Code is Canadian society’s collective statement that the behaviours which it prohibits are inimical to the type of society we wish to be. In sentencing those who violate this code, the overarching aim is “to contribute … to respect for the law and the maintenance of a just, peaceful and safe society”: s. 718 of the Criminal Code. This is to be achieved by imposing sentences which have one or more of the following objectives:

· separating offenders from society, where necessary;

· denouncing unlawful conduct;

· deterrence of the offender and others;

· rehabilitation of the offender;

· providing reparation for the harm done to the victim and the community; and

· promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[24] In seeking to achieve these objectives, the sentencing judge must keep at the forefront the fundamental principle of sentencing: that the sentence imposed be “proportionate to the gravity of the offence and the degree of responsibility of the offender”: s. 718.1 of the Criminal Code.

[25] As weighty as these pronouncements in the Criminal Code are those of the Supreme Court of Canada. In R. v. C.A.M., [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 at para. 40, the Court, referring to the proportionality principle, stated:

It is a well-established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender.

Put another way, proportionality requires “that those causing harm intentionally be punished more severely than those causing harm unintentionally”: Martineau at 360.

[26] In the recent case of R. v. L.M., 2008 SCC 31, 231 C.C.C. (3d) 310 at para. 17, the Supreme Court of Canada summarized the fundamental principles of sentencing contained in the Criminal Code as follows:

- the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgement of and reparations for the harm they have done (s. 718 Cr. C.);

- the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and

- the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).

[27] That summary was prefaced by a comment from Mr. Justice Lebel regarding the individualized nature of the sentencing process, which requires a careful weighing of the normative principles set out by Parliament, and accordingly, vests the trial judge with considerable discretion. Sentencing is necessarily an individualized process because “the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender”: R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728 at para. 18; see also R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399 at para. 14.

[28] The Ontario Court of Appeal put the matter well in R. v. Thurairajah, 2008 ONCA 91, 229 C.C.C. (3d) 331 at para. 26, stating that, in imposing sentences, trial judges must apply the objectives and principles of sentencing set out in the Criminal Code to “the specifics of each case and, in the exercise of their discretion, fashion a sentence that is tailored to the circumstances of the offence and the circumstances of the offender.”

[29] Although the court must consider all of the principles of sentencing set out in the Criminal Code, certain principles will receive more emphasis than others, depending on the nature of the offence committed: R. v. McCormick, 2006 ABCA 410, 216 C.C.C. (3d) 437. In more reprehensible cases of sexual assault, the principles of denunciation and deterrence assume greater importance: see R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163, discussed below.

[30] In fashioning the appropriate sentence in each case, judges must be conscious of prevailing social values and seek to bring sentences into harmony with them. This is particularly so when the principle of denunciation comes to the fore. In R. v. Stone, [1999] 2 S.C.R. 290, 134 C.C.C. (3d) 353, the Supreme Court of Canada stated:

[239] It is incumbent on the judiciary to bring the law into harmony with prevailing social values. This is also true with regard to sentencing. To this end, in M. (C.A.), supra, Lamer C.J. stated, at para. 81:

The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.... Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

This Court’s jurisprudence also indicates that the law must evolve to reflect changing social values regarding the status between men and women; see Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Seaboyer, [1991] 2 S.C.R. 577.

ii. Range of Sentences for Sexual Assault

[31] In R. v. Shropshire, [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193, Mr. Justice Iacobucci, speaking for the Court, stated that an appellate court should interfere with a sentence only if it is convinced that the sentence is “unfit”; that is, if it has found the sentence to be “clearly unreasonable”. In that regard, Iacobucci J. adopted the following passage from R. v. Muise (No. 4) (1994), 135 N.S.R. (2d) 81, 94 C.C.C. (3d) 119 (C.A.) at 124:

The law on sentence appeals is not complex. If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming the trial judge applied the correct principles and considered all relevant facts. ... My view is premised on the reality that sentencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of the offence and the offender. The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range. In my opinion, that is the true basis upon which Courts of Appeal review sentences when the only issue is whether the sentence is inadequate or excessive. [emphasis added]

[32] After referring to this passage, Iacobucci J. stated:

[50] Unreasonableness in the sentencing process involves the sentencing order falling outside the “acceptable range” of orders...

[33] Thus, the question of whether a sentence falls within an “acceptable range” is clearly a factor for the trial court to consider in imposing sentence, and for an appellate court to consider on reviewing the fitness of the sentence. However, as our Court of Appeal has recently re-affirmed, ranges provide guidance, they do not supplant the need to consider the sentencing principles discussed above in the context of the particular case: R. v. Jack, 2008 BCCA 437 at para. 59.

[34] A case which is towards the more serious end of the spectrum of sexual assault is R. v. Berthiaume, [1985] B.C.J. No. 2047 (C.A.). The accused was convicted of two counts of sexual assault while using a weapon. Both complainants were prostitutes. At trial, the accused was sentenced to 18 months’ imprisonment on the first count and 12 months on the second, to be served concurrently. The accused had a serious criminal record which included a conviction for indecent assault and a conviction for rape in the United States. On appeal, the sentence was increased to three years but only because the accused had spent ten and a half months in custody awaiting trial. Speaking for the Court, Mr. Justice Macfarlane stated:

[13] The sentences which have been imposed for this type of offence vary according to the circumstances in each case, but I think it is fair to say that it is not unusual for a man, even without a record, when the circumstances are aggravated, to be sentenced to four years or more for what is now sexual assault and what used to be rape.

[35] The following B.C. cases establish that the range of sentences for sexual assault where sexual intercourse takes place is two to six years: R. v. Lefebvre (1992), 21 B.C.A.C. 81; R. v. Briand (1992), 10 B.C.A.C. 234; R. v. Kerr (No. 2) (1992), 13 B.C.A.C. 165; R. v. Louis (1993), 36 B.C.A.C. 212; R. v. G.E.W. (No. 2) (1993), 28 B.C.A.C. 189; R. v. Khan (1994), 41 B.C.A.C. 70; R. v. Caouette (No. 2) (1994), 52 B.C.A.C. 133; R. v. Crumly (No. 2) (1995), 64 B.C.A.C. 197; R. v. Napierala (1996), 76 B.C.A.C. 155; Dycko; Zimmerman; and Hughes.

iii. Factors to Consider in Imposing Sentence for Sexual Offences

[36] As the Supreme Court of Canada stated in L.M., the sentencing judge must consider the aggravating or mitigating circumstances of the individual case which may increase or reduce the offender’s sentence. In that regard, the judgment of R. v. J.-J.L., [1998] R.J.Q. 971, 126 C.C.C. (3d) 235 (C.A.) [J.-J.L. cited to C.C.C.], written by Madam Justice Otis, is particularly helpful for its review of the factors to be considered in sentencing for sexual offences, listed at 241-43:

- The nature and intrinsic gravity of the offences which is affected by, in particular, the use of threats, violence, psychological threats and manipulation, etc... (R. v. L.(A.) (1991), R.L. 337 (Que. C.A.); R. v. Hamelin, J.E. 91-1285 (Que. C.A.); R. v. S.(A.F.) (1996), 71 B.C.A.C. 317 (B.C.C.A.); R. v. K.(D.) (1994), 155 A.R. 269 (Alta. C.A.); R. v. W.(A.) (1994), 94 C.C.C. (3d) 441 (Ont. C.A.); R. v. S.(W.B.) (1992), 73 C.C.C. (3d) 530 (Alta. C.A.); R. v. J.(J.) (1991), 117 A.R. 155 (Alta. C.A.).)

- The frequency of the offences and the time period over which they were committed. (R. v. C.(P.), [1997] R.J.Q. 1263 (Que. C.A.); R. v. G.(P.), J.E. 91-1770 (Que. C.A.); R. v. Hamelin, supra; Plourde v. R., J.E. 91-266 (Que. C.A.); R. v. Scott, J.E. 90-1425 (Que. C.A.); R. v. C.(G.), J.E. 90-266 (Que. C.A.).)

- The abuse of trust and the abuse of authority which are involved in the relationship between the offender and the victim. (R. v. D.(D.), J.E. 97-806 (Que. C.A.); R. v. D.(G.), J.E. 93-303 (Que. C.A.); R. v. Potvin, [1992] R.J.Q. 1471 (Que. C.A.); R. v. Doré, J.E. 91-1656 (Que. C.A.); R. v. Déraspe, J.E. 91-1693 (Que. C.A.); R. v. L.(A.), supra; Plourde v. R., supra; R. v. Scott, supra; R. v. T.(P.M.) (October 2, 1996, Can. Abr. (2nd) R11B SUPP. 5958 [reported 131 W.A.C. 179]; R. v. Creasser (1996), 187 A.R. 52 (Alta. C.A.); R. v. T.(M.S.) (1995), 131 Sask. R. 311 (Sask. C.A.);R. v. M.(G.W.) (1994), 75 O.A.C. 153 (Ont. C.A.); R. v. A.(R.A.) (1993), 39 B.C.A.C. 151 (B.C.C.A.); R. v. J.(J.), supra.)

- The disorders underlying the commission of the offences: the offender’s psychological difficulties, disorders and deviancy, intoxication, etc. (R. v. N.(A.), J.E. 94-1185 (Que.C.A.); R. v. Doré, supra; R. v. L.(A.), supra; R. v. Laforest, J.E. 90-1522 (Que. C.A.); R. v. C.(R.) (1992), 125 N.B.R. (2d) 17 (N.B.C.A.); R. v. R. (W.G.) (1991), 8 B.C.A.C. 91 (B.C.C.A.); R.v. S.(L.I.), B.C.C.A., Macdonald, Southin and Cumming JJ.A., August 15, 1989, CA010600.)

- The offender’s previous convictions: proximity in time to the offence charged and the nature of the previous offences. (R. v. G.(P.), supra; R. v. Laforest, supra; R. v. J.(P.T.) (1993), 24 B.C.A.C. 142 (B.C.C.A.); R. v. B.(D.M.) (1993), 141 A.R. 307 (Alta.C.A.); R. v. S.(L.I.), supra.)

- The offender’s behaviour after the commission of the offences: confessions, collaboration in the investigation, immediate involvement in a treatment programme, potential for rehabilitation, financial assistance if necessary, compassion and empathy for the victims (remorse, regret, etc.). (R. v. N.(A.), supra; R. v. Potvin, supra; R. v. Hamelin, supra; R. v. Laforest, supra; R. v. Bouchard, J.E. 90-1136 (Que. C.A.); R. v. C.(G.), supra; R. v. K.(J.E.), [1995] C.C.L. 572 (Alta. C.A.); R. v. D.(T.A.) (1995), 68 B.C.A.C. 230 (B.C.C.A.); R. v. B.(R.A.) (1995), 58 B.C.A.C. 303 (B.C.C.A.); R. v. S.(A.L.) (1995), 160 N.B.R.(2d) 198 (N.B.C.A.); R. v. R.(A.), [1994] 4 W.W.R. 620, 88 C.C.C. (3d) 184 (Man. C.A.); R. v. K.(B.D.) (1993), 20 W.C.B. (2d) 171 (B.C.C.A.); R. v. B.(D.M.), supra; R. v. M.(G.), 77 C.C.C. (3d) 310 (Ont. C.A.); R. v. P.(R.B.), Ont. C.A., Robins, McKinlay and Griffiths JJ.A., March 23, 1992, 646/91; R. v. G.(R.A.) (1991), 115 N.B.R. (2d) 221 (N.B.C.A.); R. v. A.B.C. (1991), 120 A.R. 106 (Alta. C.A.).)

- The time between the commission of the offences and the guilty verdict as a mitigating factor depending upon the offender’s behaviour (the offender’s age, social integration and employment, commission of other offences etc.). (R. v. C.(P.), supra; R. v. Piette, J.E. 95-1168 (Que.C.A.); R. v. T.(L.M.), J.E. 94 -1032 (Que.C.A.); R. v. G.(P.), supra; R. v. Doré, supra; R. v. H.(G.O.) (1996), 148 N.S.R. (2d) 341 (N.S.C.A.); R. v. C.(C.E.) (August 20, 1996), Can. Abr. (2nd) R11B SUPP. 6636 (Man. C.A.); R. v. Creasser, supra; R. v. D.(T.A.), supra; R. v. R.(A.), supra; R. v. R.(S.G.O.) (1991), 113 A.R. 36 (Alta. C.A.).)

- The victim: gravity of the attack on his or her physical or psychological integrity reflected by, in particular, age, the nature and extent of the assault, the frequency and duration of the assault, the character of the victim, his or her vulnerability (mental or physical handicap), abuse of trust or authority, lingering effects, etc. (R. v. Piette, supra; R. v. L.(A), supra; R. v. Laforest, supra; R. v. C.(G.), supra; R. v. S.(A.F.), supra; R. v. W.(J.M.A.), (1995) 55 B.C.A.C. 96 (B.C.C.A.); R. v. T.(M.S.), supra; R. v. S.(S.M.) (1995), 160 N.B.R. (2d) 182 (N.B.C.A.); R. v. W.(A.), supra; R. v. C.(R.), supra.)

[37] I now turn to a consideration of some of the factors referred to in J.-J.L.

(a) The nature and intrinsic gravity of the offence which is affected by, in particular, the use of threats, violence, psychological threats and manipulation

[38] The case of R.A.R. is instructive here for the comments of Madam Justice L’Heureux-Dubé, writing for the majority, regarding the gravity of sexual assault as an offence and its pervasiveness in Canadian society. In that case the Court was concerned with the sentence of an employer for sexual and physical abuse of a young employee. The Court overruled the conditional sentence imposed by the Court of Appeal and reinstated the sentence imposed by the trial judge of one year of incarceration followed by three years of supervised probation for the count of sexual assault and two fines for the two counts of assault. The decision of the Court of Appeal was overturned notwithstanding the fact that since the imposition of the original sentence by the trial judge, the offender had made a payment of $10,000 to the complainant pursuant to a settlement of the complainant’s proceedings before the Manitoba Human Rights Commission relating to the same incidents. See also R. v. Osolin, [1993] 4 S.C.R. 595, at 669 and R. v. Ewanchuk, [1999] 1 S.C.R. 330 at paras. 68-75, referred to in R.A.R.

[39] In my view, the nature of the sexual assault committed by B.S.B. was particularly heinous; it was a rape, and “there is a significant difference between a sexual assault involving unwanted touching mainly over the clothes and full vaginal intercourse”: R. v. Pittiman (2005), 199 O.A.C. 113, 198 C.C.C. (3d) 308 at para. 74, appeal as to conviction dismissed 2006 SCC 9, [2006] 1 S.C.R. 381.

[40] The violence meted out to the complainant by the accused during this sexual assault is fully documented in my reasons for judgment, and is a further aggravating factor.

(b) The offender’s behaviour after the commission of the offence

[41] Remorse as a mitigating factor does not refer to a submissive or contrite manner on the part of an accused, but rather to a concrete demonstration by the accused that he has recognized the gravity of his offence, changed his attitude, and thereby become less of a risk to re-offend: R. v. Anderson (1992), 16 B.C.A.C. 14, 74 C.C.C. (3d) 523 at 535-36.

[42] In R. v. Cormier (1999), 209 N.B.R. (2d) 289, 140 C.C.C. (3d) 87 (C.A.), the Court held that remorse shown by an accused can be viewed as a mitigating factor because it demonstrates a facet of the accused’s character. However the Court also held that treating a lack of remorse by an accused as an aggravating factor is incorrect, citing R. v. E.S. (1997), 191 N.B.R. (2d) 3 (C.A.), where Ryan J.A. stated:

[6] … A failure to express remorse after a plea of guilty may be taken into consideration by the sentencing judge as callous but it is not an aggravating factor. More so, if an accused is found guilty following a trial. Lack of remorse after a finding of guilt is not a factor to be considered. The conclusion of the trial judge or a jury as to the accused’s guilt is an opinion based upon the evidence presented. It is not an absolute. Many persons have had their convictions reversed.

[43] Other cases which are instructive on the role remorse plays in the sentencing process include R. v. LaBrie (1988), 87 N.S.R. (2d) 181 (C.A.) at 182; R. v. Ambrose, 2000 ABCA 264, 271 A.R. 164 at paras. 71, 77, 90, Fraser C.J.A. dissenting, but not on this ground; R. v. Sawchyn (1981), 30 A.R. 314, 60 C.C.C. (2d) 200 (C.A.) at 208-10; R. v. Valentini (1999), 43 O.R. (3d) 178, 132 C.C.C. (3d) 262 (C.A.) at 296; R. v. Vu, 2003 BCCA 339, 176 C.C.C. (3d) 568; R. v. Zeek, 2004 BCCA 42, 193 B.C.A.C. 104; and R. v. Muhammad, 2004 BCCA 396, 187 C.C.C. (3d) 14.

[44] B.S.B. has not shown any remorse for this offence or any compassion or empathy for the victim. That lack of remorse is not something I have considered as an aggravating factor in his sentence.

(c) The victim: gravity of the attack on her physical and psychological integrity

[45] Courts have commented on the psychological harm that is inflicted on victims of sexual assault: see R. v. D.G.H. (1990), 88 Sask.R. 115 (C.A.) and R. v. McCraw, [1991] 3 S.C.R. 72, 66 C.C.C. (3d) 517.

[46] In the case at bar, there can be no doubt that the complainant was in a very vulnerable state when she was sexually assaulted by the accused. In addition to that, he inflicted the injuries described in my conviction ruling. The victim impact statement clearly demonstrates the devastating effect this assault had on the complainant. The complainant testified that because of the injuries inflicted on her she was not able to cross her thighs for days and that she is having great difficulty being intimate with her present long-term partner.

[47] In making these observations I am fully aware of R. v. McDonnell, [1997] 1 S.C.R. 948, 114 C.C.C. (3d) 436, where the majority was of the view that if the prosecution is to depend on harm to the victim for a higher sentence, then the accused should be charged under s. 272(c) of the Criminal Code. The Court was also of the view that if harm was an element of the offence then the Crown must prove its existence beyond a reasonable doubt.

iv. The Appropriate Sentence in this Case

[48] After instructing myself on the law as enunciated above, I have concluded that the offence committed by this accused should result in a period of imprisonment of two years less one day. I conclude that such a sentence would be proportionate to the offence committed by him and his degree of responsibility for it because of the following factors:

(a) the vulnerability of the victim;

(b) the insidious nature of the offence;

(d) the requirement for the sentencing principles of general deterrence and denunciation to be stressed.

[49] In terms of the accused’s circumstances, as I have already said, there are a number of positive factors which must be considered and which are mitigating in nature. These positive factors, however, do not cause me to conclude that the period of imprisonment warranted by the nature of the offence committed by the accused should be reduced. The imposition of a lesser period of imprisonment would offend the principle of proportionality because of the seriousness of the offence and the accused’s level of responsibility for it.

[50] I should also state that in this case, although there were suspicions of the complainant being drugged, there was no proof that she was drugged by B.S.B.. In my reasons for judgment I noted:

[30] Mr. Pon also testified that from the symptoms described by the complainant a drug other than GHB may have been used. He was of the view, however, that if one of the other drugs was used then he should have been able to find traces of it in the complainant’s blood or urine.

[31] Having found that the complainant was not intoxicated by alcohol on the evening of September 9, 2004, the consumption of one of the date rape drugs described by Mr. Pon, as suggested by the Crown, would explain the complainant’s condition on September 9 and September 10, 2004. However, I have no evidence before me that that type of drug was consumed by the complainant on the evening of September 9, 2004.

v. Consideration of Sanctions Other Than Imprisonment

[51] Having determined that a sentence of less than two years is appropriate, it is now incumbent upon me to consider “all available sanctions other than imprisonment that are reasonable in the circumstances…”: s. 718.2(e) of the Criminal Code, cognizant of the directive that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate…”: s. 718.2(d) of the Criminal Code.

[52] The most recent amendments to the conditional sentencing provisions of the Criminal Code came into force on November 30, 2007. Those amendments changed s. 742.1 to prohibit conditional sentences for “serious personal injury offences”, which are defined to include sexual assault.

[53] Section 11(i) of the Charter states:

Any person charged with an offence has the right

…

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

Under this section of the Charter, B.S.B. is entitled to the benefit of s. 742.1 as it read prior to November 30, 2007, because at the time the offence was committed the law did not prohibit a conditional sentence for the offence.

[54] At the time of the offence, s. 742.1 read as follows:

Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.

[55] The leading case of R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, sets out the two-stage test that is to be applied when s. 742.1 of the Criminal Code is being considered. That test considers first, whether a conditional sentence is available, having regard to the statutory prerequisites, and second, whether it is appropriate, having regard to the fundamental principles of sentencing. The Supreme Court of Canada clearly indicated in that case that there are no classes of offences which are exempt from conditional sentences, though the Court also stated that:

[114] Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.

[56] There is no statutory bar to a conditional period of imprisonment being imposed in this case. However, as pointed out by the Supreme Court of Canada in Proulx, cases such as this one, where denunciation and deterrence are pressing concerns, will generally result in a period of incarceration.

[57] Helpful summaries of the effect of Proulx and the proper approach to the determination of whether a conditional sentence is appropriate are found in R. v. McLean, 2004 ABCA 353, 190 C.C.C. (3d) 472, and more recently in R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742. In Fice, the Supreme Court of Canada stated:

[6] The provisions regarding conditional sentences were first considered in Proulx. In that case, Lamer C.J. noted that the conditional sentence was specifically enacted as a new sanction designed to achieve Parliament’s two objectives: (i) reducing the use of prison as a sanction, and (ii) expanding the use of restorative justice principles in sentencing (paras. 15 and 21). He described the conditional sentence as “a meaningful alternative to incarceration for less serious and non-dangerous offenders” (para. 21).

[7] After identifying the objectives underlying the new conditional sentencing regime, Lamer C.J. then turned to the criteria, set out in s. 742.1, that a court must consider before deciding to impose a conditional sentence:

(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. [para. 46]

He described the first three criteria as “prerequisites” to any conditional sentence, in that they “answer the question of whether or not a conditional sentence is possible in the circumstances” (para. 47). In the context of this appeal, we are concerned with the second prerequisite - i.e. that the court impose a term of imprisonment of less than two years.

[58] The Court concluded that the following procedure is appropriate when the issue of a conditional sentence is being considered:

[13] Therefore, Lamer C.J. held that “the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by a preliminary determination of the appropriate range of available sentences” (para. 58). Of course, the overall approach to s. 742.1 suggested by Lamer C.J. still requires a sentencing judge to proceed in two stages: first, the judge must determine if a conditional sentence is available; if it is, the judge must then determine if it is appropriate. However, at the first stage of this analysis, Lamer C.J. made it clear that the judge need not impose a term of imprisonment of a fixed duration; rather, the judge need only exclude two possibilities: (i) probationary measures, and (ii) a penitentiary term. Lamer C.J. explained that “[i]f either of these sentences is appropriate, then a conditional sentence should not be imposed” (para. 58). In making this preliminary determination, he noted that “the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender” (para. 59). [emphasis in original]

[59] A non-custodial sentence and a period of imprisonment of more than two years have been excluded, and thus, a conditional sentence may be imposed in this case. The next questions are whether or not the imposition of such a sentence would place the safety of other women in the community at risk and whether or not such a sentence is consistent with the principles of sentencing set out in the Criminal Code.

[60] With respect to the prerequisite involving the safety of the community, the Supreme Court of Canada held at para. 68 of Proulx, that “the focus of the analysis at this point should clearly be on the risk posed by the individual offender while serving his sentence in the community.” The danger to the public is evaluated by reference to (1) the risk of re-offence in light of the conditions attached to the sentence, and (2) the gravity of the danger in the event of a re-offence.

[61] B.S.B. has no previous convictions. This supports the proposition that he does not constitute a danger to the public, but only in a simplistic manner. The nature of the sexual offence committed by B.S.B. raises serious concerns for the Court. This was an offence involving an accused who had non-consensual sex with a female when she was in a very vulnerable state; this is an offence where the accused inflicted violence on the complainant when he committed the assault upon her; this is a case where the accused transmitted gonorrhea to the complainant because he decided to have unprotected sex with her. The Court must conclude that B.S.B. committed this offence solely in order to satisfy his sexual desires. Obviously, B.S.B.’s behaviour raises serious concerns as regards the safety of the community. I conclude that allowing B.S.B. to serve a period of imprisonment in the community would result in the safety of women in the community being endangered.

[62] With respect to the prerequisite involving the principles of sentencing, the Supreme Court of Canada held in R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207 at para. 29, that the court is to undertake a “comprehensive consideration” of the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code. As in R.A.R., the principles of denunciation and deterrence are of prime importance in this case. In my view, a conditional sentence would fail to reflect the seriousness of the offence committed by B.S.B. and would fail to satisfy the sentencing principles of denunciation and general deterrence.

[63] I am aware that it would be extremely difficult for the accused to serve time in the general population at any correctional facility because of the fact that he was a prison guard and that in all likelihood he would have to serve his time in protective custody. However the imposition of a conditional sentence in this case would put at risk the women of our community and would be contrary to the objectives and principles of sentencing. As a result, it is hereby ordered that the period of imprisonment imposed is to be served in a prison.

G. ANCILLARY ORDERS

i. DNA Order

[64] Section 271 of the Criminal Code is listed in subsection (a.1) of the definition of “primary designated offence” under s. 487.04, and therefore, s. 487.051(2) is applicable. That section states:

The court shall make such an order in Form 5.03 in relation to a person who is convicted…of an offence committed at any time… if that offence is a primary designated offence within the meaning of any of paragraphs (a.1) to (d) of the definition “primary designated offence” in section 487.04 when the person is sentenced or discharged. However, the court is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.

[65] The nature of the privacy interests at stake when a DNA order is being considered were discussed in R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, in which a young offender had been convicted of a primary designated offence. The Court held, at para. 21, that “[i]n applying this provision, courts must determine whether a DNA order would adversely affect the individual’s privacy and security interests in a manner that is grossly disproportionate to the public interest.” This includes not only the offender’s physical sense of privacy, but the offender’s “informational privacy interests” as well:

[27] Of more concern, however, is the impact of an order on an individual’s informational privacy interests. In R. v. Plant, [1993] 3 S.C.R. 281, at p. 293, the Court found that s. 8 of the Charter protected the “biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”. An individual’s DNA contains the “highest level of personal and private information”: S.A.B., at para. 48. Unlike a fingerprint, it is capable of revealing the most intimate details of a person’s biological makeup.

[66] The Court indicated that in applying the DNA provisions a “highly contextual” analysis must be adopted by trial judges including “taking into account not only that the offence is a primary designated offence, but also the particular circumstances of the offence and the character and profile of the offender”: R.C. at para. 29. The Court then set out some of the factors to be considered:

[30] Some of the factors that may be relevant to this inquiry are set out in s. 487.051(3): the criminal record of the offender, the nature of the offence and the circumstances surrounding its commission, and the impact such an order would have on the offender’s privacy and security of the person (Jordan, at para. 62).

[31] This is by no means an exhaustive list. The inquiry is necessarily individualized and the trial judge must consider all the circumstances of the case. What is required is that the offender show that the public interest is clearly and substantially outweighed by the individual’s privacy and security interests.

[67] In this case, the accused has no previous convictions. However, the offence committed by him is a very serious one and I have concerns of a repetition occurring. I am satisfied that the effect on B.S.B.’s privacy and security interests of an order allowing the taking of bodily substances for DNA analysis would not be grossly disproportionate to the public interest in the protection of society and the proper administration of justice. Such an order in Form 5.03 is hereby issued.

[68] Prior to any samples being taken, B.S.B. is to be provided with an opportunity to contact counsel in accordance with s. 10(b) of the Charter and he is to be given an opportunity to read a copy of the order allowing for the taking of the samples.

ii. Victim Fine Surcharge

[69] Section 737 of the Criminal Code requires the court to impose a victim fine surcharge, unless it would constitute an “undue hardship”. Section 737(2)(b) indicates that if a fine is not imposed in relation to an indictable offence, the amount of the victim fine surcharge is $100. However, as a result of s. 737(3), the court can order that a victim fine surcharge exceeding $100 be imposed.

[70] In this case, there is no evidence before the Court as regards to B.S.B.’s financial circumstances. If an offender is seeking the imposition of a minimum victim fine surcharge, then some evidence should be presented. In this case, based upon B.S.B. having been employed on a full-time basis, I have decided that the victim fine surcharge should be set at $200 for the offence.

[71] Section 737(4) indicates that any victim surcharge imposed shall be paid “at a time at which the fine imposed for the offence is payable and, when no fine is imposed, within the time established by the lieutenant governor in council of the province…” I order that the victim fine surcharge be paid within 30 days of today.

iii. Sex Offender Registry

[72] Sexual assault is listed in subsection (a) of the definition of “designated offence” in s. 490.011(1) of the Criminal Code. Section 490.012(1) therefore compels registration under the Sex Offender Information Registration Act, R.S.C. 2004, c. 10 [SOIRA], unless the exception in s. 490.012(4) applies. Sections 490.012(1) and (4) state:

(1) As soon as possible after a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition “designated offence” in subsection 490.011(1) … it shall, on application of the prosecutor, make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.

...

(4) The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

[73] R. v. S.S.C., 2008 BCCA 262, 234 C.C.C. (3d) 365, was an appeal of a rejected application for an exemption from registration by an offender convicted of five counts of sexual touching. The Court of Appeal dismissed the appeal and enunciated the following general principles applicable to all such applications at para. 87:

1. the public interest requires all sex offenders to register, not just those with the profile of predatory strangers or those with a heightened risk to re-offend;

2. the public interest is fixed; Parliament has declared that registration is in the public interest;

3. an offender seeking exemption is obliged to establish that his or her registration would be grossly disproportionate to the public interest; that is, it is a given that registration has a potential minimum or threshold effect on all offenders;

4. relevant to the consideration of the offender’s circumstances is the nature of the offence, the risk to re-offend, the offender’s criminal record, and other similar matters personal to the circumstances of the offender.

[74] There is no evidence before me which would lead me to conclude that the impact of registration on B.S.B. would be grossly disproportionate to the public interest in the effective investigation of sexual crimes. In concluding that B.S.B. will be subject to a Form 52 order, I find apposite the following straightforward analysis of Chief Justice Drapeau in R. v. Mullins, 2005 NBCA 111, 294 N.B.R. (2d) 265:

[5] Here, the key considerations are: (1) Mr. Mullins was convicted of sexual assault (s. 271), a “designated offence” under subparagraph 490.011(1)(a)(xvi); (2) the prosecutor applied in the court below for an order under s. 490.012; (3) the sentencing judge was not satisfied that Mr. Mullins had established the conditions precedent to the exception set out in ss. 490.012(4); and (4) the offence for which Mr. Mullins was convicted is one for which the maximum term of imprisonment is 10 years.

[6] The first three considerations combined to compel the court below to make an order under s. 490.012 requiring Mr. Mullins to comply with the Sex Offender Information Registration Act. The fourth consideration triggered the application of para. 490.013(2)(b), which provides that an order under s. 490.012 ends 20 years after it was made if the offence in connection with which it was made is one for which the maximum term of imprisonment is 10 years.

[75] Under s. 490.013(2), an order made under s. 490.012(1) or (2) applies for:

1. 10 years, if it was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;

2. 20 years, if the maximum term of imprisonment for the offence is 10 or 14 years; or

3. life, if the maximum term of imprisonment for the offence is life.

[76] As in Mullins, the fact that this offence has a maximum sentence of 10 years’ imprisonment requires that the order be for a period of 20 years.

iv. Weapons Prohibition

[77] Section 110 of the Criminal Code states:

(1) Where a person is convicted, or discharged under section 730, of

(a) an offence, other than an offence referred to in any of paragraphs 109(1)(a), (b) and (c), in the commission of which violence against a person was used, threatened or attempted, or

…

the court that sentences the person … shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court decides that it is so desirable, the court shall so order.

(2) An order made under subsection (1) against a person begins on the day on which the order is made and ends not later than ten years after the person’s release from imprisonment after conviction for the offence to which the order relates or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence.

[78] The sexual assault committed upon the complainant in this case constitutes a violent offence for the purposes of s. 110. Therefore I order that the accused is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and/or explosive substance for a period of three years from the date of his release from prison.

H. CONCLUSION

[79] After considering all of the submissions of the Crown and defence; after considering all of the aggravating and mitigating factors in this case; after considering the law as enunciated above, I sentence you as follows:

[80] I sentence you to two years less one day at the Fraser Regional Correctional Centre, with a recommendation that you serve this time at the Ford Mountain Correctional Centre or at an institution which the Corrections Branch deems appropriate. I order that you be placed on probation for a period of three years following your release, and in addition to the statutory conditions the following conditions will apply:

(1) Within 24 hours of your release from prison, you must report in person to a probation officer at 275 East Cordova Street in Vancouver, British Columbia, and thereafter as required.

(2) You must provide your residential address to your probation officer and not change that address without the prior written consent of your probation officer.

(3) You must present yourself at the door of your residence and allow access to your residence as and when requested by a peace officer for the purpose of monitoring the conditions of this order.

(4) You must refrain absolutely from having any contact or communication of any form or in any manner with the complainant K.R.

[81] In addition, B.S.B. you will pay a $200 victim fine, to be paid within 30 days of today, and you will be subject to the following orders:

(a) A weapons prohibition order pursuant to s. 110 of the Criminal Code for a period of three years from the date of your release from prison.

(b) An authorization for the taking of one or more bodily samples from you for the purpose of forensic DNA analysis pursuant to s. 487.051(1)(a) of the Criminal Code.

(c) An order that you comply with the Sex Offender Information Registration Act pursuant to s. 490.012(1) of the Criminal Code, said order to be for 20 years’ duration (s. 490.013(2)(b)).

[82] The SOIRA order will be as follows:

ORDER TO COMPLY WITH SEX OFFENDER
INFORMATION REGISTRATION ACT
FORM 52
(Section 490.012)

1. You must report for the first time, in person, to the registration centre that serves the area in which your main residence is located, whenever required under subsection 4(2) of the Sex Offender Information Registration Act.

2. You must subsequently report to the registration centre that serves the area in which your main residence is located whenever required under section 4.1 or 4.3 of the Sex Offender Information Registration Act, for a period of 20 years after this order is made.

3. Information relating to you will be collected under section 5 of the Sex Offender Information Registration Act by a person who collects information at the registration centre.

4. Information relating to you will be registered in a database, and may be consulted, disclosed and used in the circumstances set out in the Sex Offender Information Registration Act.

5. If you believe that the information registered in the database contains an error or omission, you may ask a person who collects information at the registration centre that serves the area in which your main residence is located to correct the information.

6. You have the right to apply for leave to appeal this order to the B.C. Court of Appeal.

7. You have the right to apply to the B.C. Supreme Court to terminate this order, and the right to appeal or to apply for leave to appeal any decision of that court, as the case may be.

8. If you are found to have contravened this order, you may be subject to a fine or imprisonment, or both.

9. If you are found to have provided false or misleading information, you may be subject to a fine or imprisonment, or to both.

[83] The Registrar will see to the follow up and ensure compliance with s. 490.018(1). After the order is read by B.S.B. or read to him, a copy of the order is to be given to him and he is to be informed of ss. 4 to 7.1 of the Sex Offender Information Registration Act as well as s. 490.031 of the Criminal Code. B.S.B. shall also endorse the order.

“Romilly J.”

November 14, 2008 – Revised Judgment

Please be advised that the attached Reasons for Sentence of Mr. Justice S.R. Romilly dated November 7, 2008 have been edited.

The following notation has been added on the front of the Reasons for Sentence after the description of the publication restriction:

This judgment is subject to the non-disclosure provisions of s. 16(4) of the Sex Offender Information and Registration Act and has been edited.