[1] The appellant applies for leave to appeal a sentence pronounced by a Judge of the Provincial Court of British Columbia in Vancouver on 4 November 1999. In effect, he appeals four concurrent sentences that result in 18 months of incarceration.

[2] On 4 August 1999, after a four-day trial by judge alone, at which the appellant pleaded not guilty to charges related to events that occurred over a brief period sometime in the late 1960s or early 1970s, he was convicted of four counts of indecent assault (s. 148 of the Criminal Code at the time of the offences). The same judge presided at the sentencing hearing and he delivered oral reasons (the following is reproduced from the Particulars of Conviction and Sentence):

The appellant was in custody when the sentences were pronounced.

[3] The assaults took place sometime between 1969 and 1972 while the appellant was an officer in a quasi-naval organization. At the time, the complainants were Sea Cadets between the ages of 13 to 16 while the appellant was about 23 to 26 years of age.

[4] The reasons went into considerable detail, so I will simply deal with the facts on the basis of the judge's summary at sentencing:

I note that now the appellant is 54 years old, is married, and has two grown sons. He has had stable employment and no other criminal record.

[5] There is ample evidence to indicate that in the ensuing years, the appellant has had an impressive personal history and record of community service. His family has been very supportive and he is well regarded by his friends, which is attested to by the many letters submitted on his behalf. There is also no evidence that any similar type of conduct has occurred since these offences. There were no physical injuries to the complainants at the time these offences took place; however, the complainants have suffered psychologically.

[6] The trial judge had the benefit of a report from Dr. Karl M. Williams, a psychologist, prepared for sentencing purposes. I have read the report and, like the trial judge, I note that Dr. Williams indicates that the appellant is a "very low" risk for any sexual recidivism and that Dr. Williams does "not consider him to represent a danger to society". It is significant that the trial judge made a finding of fact that the appellant was not a paedophile.

[7] In addition, the trial judge had before him several Victim Impact Statements, one of which was particularly long, wide-ranging and detailed. Since I discuss the law governing victim impact statements and the relevant provisions of the Code in more detail below, I will not discuss them now except to note that the wide-ranging victim impact statement was read into court and that another statement included a victim's requests that a harsh sentence - which was not available to the court in law - be pronounced against the appellant.

[8] At sentencing, the judge concluded that the situation was somewhat similar to the authority a teacher has over his or her students, placing the appellant in a position of trust vis-à-vis the Sea Cadets. However, the trial judge pointed out that the majority of the actions were impulsive and little, if any, premeditation was involved, except "some form of premeditation" in one incident in which the appellant invited a young man over to mow the lawn. The trial judge considered the appellant's history since the events and concluded that he was a "solid citizen" and a "responsible family man". He referred to his "good employment record" and his "very good public service record". Also, he observed that these offences were committed when this appellant was "relatively young" and that in the last thirty years there have been no other offences. Finally, he concluded that the appellant was not a paedophile.

[9] After setting out the above background, he considered the application of the principles of sentencing, focusing most significantly on denunciation, general deterrence and restitution, which he characterized as follows:

I note that at law, neither vengeance nor revenge has any place in sentencing principles.

[10] Next, the trial judge referred to the combination of factors required for the appellant to serve his sentence by incarceration:

[11] Finally, in specifically addressing whether to impose a conditional sentence, the trial judge said that:

Then the trial judge concluded his reasons with the following passage:

I note that the trial judge did comment that while remorse may be a mitigating factor, a "lack of" remorse is not an aggravating factor that affects either the length or type of sentence imposed.

[12] In the discussion of the duration or range of sentence that should be imposed, the judge referred to adverse media coverage and the appellant's poor health. Regarding the media, the trial judge noted that:

The trial judge found that appellant has a heart condition that had resulted in a minor heart attack and has diabetes but concluded that the appellant's health was a consideration, but was "not a serious situation". In addition, I note that Dr. Gerretsen, the appellant's family physician, submitted a letter which states that certain medical facilities would have to be available if the appellant were to spend time in a correctional facility.

[13] In argument, the Crown pressed this Court to uphold the prison term on the basis of two submissions. The first was that the appellant showed no remorse and the second was that the seriousness of the offences warranted incarceration. The appellant, of course, argued that this case had exceptional circumstances and that indeed some form of penalty other than a custodial sentence was in order.

[14] At the hearing before us, the appellant made two major arguments in support of a conditional sentence. The first was that the trial judge erred in law when he overemphasized the principles of general deterrence and of denunciation by stating that a conditional sentence would not achieve the purposes of those sentencing principles. The second was that he overemphasized the absence of remorse as a factor when he decided not to impose a conditional sentence.

[15] In addition, the appellant made a third argument, which was emphasized less than the other two. This argument concerns the Victim Impact Statements read into the record at the sentencing hearing. I will discuss this argument first.

[16] In order to address the appellant's argument concerning the Victim Impact Statements filed with the court, including a particularly long, detailed statement filed by A.H., I must turn to the relevant sections of the Code.

[17] The Code was amended to include this procedure in 1988 with the addition of s. 735(1.1), (as numbered on the 1988 general statutory revision) proclaimed sometime later, which reads as follows:

[1] For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 736 in respect of any offence, the court may consider a statement, prepared in accordance with subsection (1.2), of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

[2] A statement referred to in subsection (1.1) shall be

[1] prepared in writing in the form and in accordance with the procedures established by a program designated for the purpose by the Lieutenant Governor in Council of the province in which the court is exercising its jurisdiction; and

[2] filed with the court.

[3] A statement of a victim of an offence prepared and filed in accordance with subsection (1.2) does not prevent the court from considering any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged pursuant to section 736.

[4] for the purpose of this section, "victim", in relation to an offence,

[1] means the person to whom harm is done or who suffers physical or emotional loss as a result of the commission of the offence, and

[2] where the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection (1.1), includes the spouse or any relative of that person, anyone who has in law or in fact the custody of that person or is responsible for the care or support of that person or any dependent of that person.

[18] The relevant part of the Code was repealed and replaced in 1995, again coming into effect sometime later. The relevant section is now s. 722, which at the time of sentencing read as follows:

[19] Parliament made another amendment adding s. 722(2.1), but these amendments were not operative in this case. This further amendment came into force in December 1999 and now permits the victim to read her or his statement into court; however, that change to the Code does not permit, in the words of Madam Justice Ryan's additional comments concurred in by the majority in R. v. Friginette (1994), 53 B.C.A.C. 153, "the attitude of the victim towards the length of the sentence" to be taken in account.

[20] As noted above, the 1999 amendment was not yet in force when Crown counsel applied under s. 722(3) to have A.H. read his statement to the court from the witness box. Both the trial judge and the defence expressed concern with this procedure, with defence arguing, correctly in my view, that the statement did not comply with s. 722(2). After some discussion, the application was granted and A.H. read in his statement.

[21] Let me say at the outset that s. 722(3), as it read at the time of the appellant's sentencing hearing, did not in my view either anticipate or authorize any further evidence from the victim beyond what was adduced at trial. The relevant portion of the section reads: ". . . does not prevent the court from considering any other evidence concerning any victim. . .". The evidence referred to would be that given by a psychiatrist, psychologist, doctor, social worker or some similar type of witness; that is, someone with knowledge and expertise to testify as to the harm done to the victim. The use of the words "other evidence" changed the permissible procedure to allow a court to hear expert evidence.

[22] The problem in this case arose because the Victim Impact Statements, particularly that of A.H., went well beyond what can be brought to the court's attention. Unfortunately, the editing or summarizing that occurred did little to make the statements any more acceptable.

[23] The statements submitted to the court contained much that in my view was not appropriately before the court, particularly with regard to recommendations for sentence and the use of psychiatric diagnostic terms made by victims. There is nothing in the sections of the Code that permits a victim to have a role in suggesting the length of sentence or kind of sentence to be imposed. Similarly, there is nothing in the relevant sections that erodes from the usual rules of expert evidence. I do not wish to detract in any way from victims' ability to put forward to the court "the harm done" or "the physical or emotional loss as a result of the crime" but the Code does not enable a tripartite procedure with regard to recommendations for sentencing. The parties on sentencing remain the same as at the trial.

[24] Several cases make the point very clearly that a sentencing hearing is not a tripartite process, both with regard to s. 722, which is operative in this case, and its predecessor, s. 735. Madam Justice Saunders, when her Ladyship was a trial judge, considered s. 735(1.1) in R. v. Coelho (1995), 41 C.R. (4th) 324 (B.C.S.C.). Faced with dealing with whether the victim had the "right to be heard on a sentence" regarding the sentence severity, her Ladyship concluded to the contrary, commenting that (at 330):

[25] Two additional passages from that judgment about the standing of victims to address the court are useful (at paras. 14 and 16):

In short, sentencing proceedings are between the convicted person and the state.

[26] In the case of R. v. Gabriel (1999), 137 C.C.C. (3d) 1; 26 C.R. (5th) 364 (Ont. S.C.), Mr. Justice Hill, in a very comprehensive judgment dealing with all aspects of Victim Impact Statement under s. 722 (the successor to the section considered my Madam Justice Saunders) said the following (at para. 22):

I agree with that general statement by Mr. Justice Hill that sentencing hearings are not tripartite proceedings, rather they are a proceeding between society, as represented by the Crown, and a convicted person.

[27] In Gabriel, Mr. Justice Hill set out what should be presented to the court when victim impact statements are submitted. I reproduce them here as I think they are extremely useful (at paras. 29-33:

Regrettably, when taken together, the statements before the trial judge contained all those matters referred to by Mr. Justice Hill, matters that should not have been before the court at a sentencing hearing.

[28] Those victim impact statements (including that of A.H.) which urged particular sentencing options on the court were clearly not appropriate to be presented at a sentencing proceeding. Moreover, more than one statement sought to achieve personal revenge, something that is not appropriate in the sentencing process.

Fairness

[29] I am compelled to address yet another issue. The trial judge in his 4 August 1999 reasons for conviction and the 4 November 1999 reasons for sentence made a clear finding of fact that the appellant was not a paedophile. Unfortunately, at the sentencing hearing, the term "paedophile" was used both by A.H. and, more seriously, by Crown counsel.

[30] In R. v. Swietlinski (1994), 33 C.R. (4th) 295, the Supreme Court of Canada, in a case involving s. 745 (parole eligibility) stressed the necessity for the fairness of Crown counsel. The same need for fairness applies in sentencing hearings and, in this case, the reference at the sentencing hearing to the appellant as being a paedophile was unfair in the extreme.

[31] To provide context, I reproduce the portion of the transcript in which Crown counsel mentioned paedophiles:

The only inference that could be drawn was the appellant was a paedophile. In view of the trial judge's finding that the appellant was not a paedophile, this reference was inappropriate and should not have been permitted. In such circumstances, it is incumbent on the court to intervene.

[32] The need for fairness is related to the dangers of a runaway model of victims participating in the sentencing process, detracting from the reasoned, proportionate response of Mr. Justice Hill in R. v. Gabriel, supra, articulated so clearly. In my opinion, this is what occurred in the case at bar.

[33] As I stated above, the argument made to the trial judge placed too much emphasis on the principles of general deterrence and of denunciation, but placed insufficient weight on the fact that the appellant did not have a criminal record, was young when the events occurred, has been free of any trouble with the law for 30 years, used no physical violence, had been rehabilitated, and was a useful member of society for the long period after the offences. The appellant's counsel argued that, taken together, all the factors that were minimized by the trial judge should weigh in favour of a conditional sentence. Also, counsel emphasized at this late date, no useful purpose could be served by sending this man to jail since he is not a risk to the public.

[34] Indeed, general deterrence and denunciation are the paramount principles in circumstances presented by this case. This court is faced with the question of whether a conditional sentence would satisfy these principles.

[35] The issue of whether conditional sentences can satisfy two of many sentencing principles, general deterrence and denunciation, has been addressed in other court decisions. The Supreme Court of Canada's decision in R. v. Proulx (2000), 140 C.C.C. (3d) 448; 30 C.R. (5th) 1 (S.C.C.); 2000 SCC 5, which post-dates the trial judge's decision, considers the factors that go into assessing the appropriateness of a conditional sentence. Proulx sets out four criteria that a court must consider when assessing the appropriateness of a conditional sentence (para. 46):

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

[36] It is important to note the Supreme Court of Canada said, in principle, a conditional sentence is available for all offences in which the statutory prerequisites are satisfied. Put another way, once the first three conditions have been satisfied, the analysis moves to the fourth criterion. In the case at bar, in my view, the first three criteria have been met. The fourth condition governs the case at bar and the matters of denunciation and general deterrence fall within that fourth category.

[37] The Supreme Court of Canada, in Proulx, addressed the principle of denunciation, saying that (paras. 105-106):

Also, the court discussed the question of deterrence (para. 107):

[38] Clearly, conditional sentences are capable of meeting the principles of denunciation and of general deterrence. The issue before the trial judge is whether a conditional sentence is appropriate in a particular case. Further passages from Proulx give guidance to judges in the process of a particular sentencing proceeding (paras. 113-115):

[39] I do not read the reference to "victim's wishes" as giving a victim any part in recommending sentence, as the Code clearly has not made this a tripartite process. Also, the presence of aggravating circumstances or factors do not prevent a court from imposing a conditional sentence.

[40] The Crown argued that the principle of restorative justice in sentencing has not been met because of the absence of an apology. Proulx says the following concerning restorative justice (paras. 98 and 100):

. . . . .

In the Proulx analysis, the absence of an apology need not be determinative that a custodial sentence is to be imposed; a conditional sentence may still be available. This sentencing analysis follows a framework constructed to achieve proportionate treatment of the various sentencing objectives.

[41] Next, I refer to R. v. Shore 1999 BCCA 227. In that particular case, although it did not concern a sexual assault, Madam Justice Southin provided insight into conditional sentences (paras. 33-34, and 39):

[42] Madam Justice Southin's comments allude to the balance struck by Parliament. When a convicted person serves a conditional sentence, there is the possibility of incarceration if that person breaches certain conditions or requirements. Thus, the Code enables a more graduated approach to dealing with offenders, as was noted also in Proulx (at paras. 38-39), which makes similar characterizations of the purpose of conditional sentencing.

[43] Earlier cases also provide guidance in the context of historical sexual assaults. Some useful passages can be drawn from cases dealing with when non-custodial sentences may be appropriate. I refer firstly to the case of R. v. M.(D.E.S.) (1993), 80 C.C.C. (3d) 371 (B.C.C.A.), a case that also involved a sexual offence that occurred many years prior to conviction. In that case the Court issued reasons for a panel of five and made some comments that, in my opinion, are appropriate to consider in this case (at paras. 18-20, 22, 24, and 26-27):

[44] The indecent assault and gross indecency case of R. v. Gallacher (3 April 1991), Vancouver Registry, (B.C.C.A), is useful in that it sets out what factors contribute to a court finding that exceptional circumstances exist. The Gallacher factors are not exhaustive or exclusive, and not all of the Gallacher factors have to be present for exceptional circumstances to exist. In the case at bar, a significant number of the Gallacher factors are present:

Again, I note that this is not an exhaustive or exclusive list, and even if a convicted person does not meet all of the criteria, Gallacher may still apply. In the case at bar, many of the Gallacher factors are relevant. I might add that a conditional sentence was not available at the time of Gallacher, but a fine was substituted and the Court considered that the principles of general deterrence would be satisfied with that disposition.

[45] In my view, the trial judge fell into error with this passage, which I will repeat:

[46] It is of significance that the trial judge did not have the benefit of Proulx. It appears to me from that passage just quoted, particularly from the words "to simply walk away from this court", the trial judge did not appreciate or deal with the point made in Proulx that a conditional sentence of imprisonment is not a "walking away". A conditional sentence is not a variation of the old suspended sentence. In saying that, in these circumstances, a conditional sentence is appropriate, I am mindful of the trial judge's finding that the appellant was in a position of trust which constitutes an aggravating factor. However, Proulx makes it clear that such a finding does not preclude imposing a conditional sentence, and in all the circumstances before the Court, a conditional sentence is the proportionate response.

[47] In addition, the appellant's counsel states that aside from the procedural issues around Victim Impact Statements (discussed above), the way the trial judge incorporated the Victim Impact Statements into the analysis resulted in the trial judge overemphasizing the views of "interested parties" when he decided not to impose a conditional sentence. Of course, the Crown stressed the seriousness of the offences and maintained this lack of remorse is a significant reason why the appellant should not have a conditional sentence. The Crown was so insistent that at the very least an apology should have been forthcoming that its vigorous argument concerning the lack of remorse nearly demanded the inference that "lack of remorse" was an "aggravating factor" that requires a court to impose a more severe sentence, a positions which would be wrong in law.

[48] To put this into context, I note that the matter of remorse was addressed in the psychologist's report. Dr. William's opinion is clear: an expression of remorse or an apology from this appellant is unlikely and the appellant may well need some assistance in order to come to an understanding of how to deal with this issue.

[49] In my opinion, considering all the circumstances in this case, to which I have already referred, and arriving at a fair balancing of all principles involved, I am satisfied that a conditional sentence could satisfy the principles of deterrence and denunciation. A conditional sentence in this case would be a fit sentence.

[50] I would grant leave and allow the appeal to that extent.

[51]

As for conditions; counsel, I am confident, will be able to agree on conditions to suggest we should impose. However, if that process proves unsuccessful, written submissions may be made to the Court.

"The Honourable Madam Justice Huddart"

[52] I have had the privilege of reading in draft the reasons for judgment of Madam Justice Proudfoot, with which I agree.

[53] I add words of my own because, to my mind, the question of what sentences should be imposed in "historic" sexual assault cases is disturbing. In sentencing for such offences, the court must address many considerations, often conflicting.

[54] By "historic", I mean those cases in which the victim does not complain to the authorities until long after the events in issue, although the identity of the perpetrator was known to the victim at the time.

[55] In some situations such delay is understandable. A child of, say, eight or ten sexually interfered with by a stepfather or other male family member may feel, and indeed be, powerless to do anything. When that child reaches adulthood, ought he or she not then to complain and not wait another ten or twenty years? In my experience, what is rarely clear in cases of delays of such length is why now and not much earlier?

[56] In the case at bar, the offences are alleged to have occurred in various periods between 1st January, 1968, and 3rd December, 1972. When the first complaint was made to the police, I do not know, but the Information bears date the 12th July, 1999.

[57] The evidence in the case at bar provides no compelling answer, either to the question "why now?" or to the question of what social purpose has been served by bringing obloquy on the appellant whose life, on the evidence, for nearly thirty years has been exemplary.

[58] The only possible purpose is to appease the victim or victims - to satisfy a demand for vengeance. I am happy to note, however, that not all the victims in the case at bar appear to want vengeance.

[59] But even if vengeance were a permissible purpose in the fixing of sentences under our legal system, which it is not, the question would then arise whether the vengeance demanded was out of all proportion to the crime to be avenged.

[60] If one looks at the particulars of the crime against A.H., who seeks a mighty vengeance, one finds that in the continuum of sexual crimes from, at one end, the brutal rape of a woman or the buggery of a little boy, to, at the other end, an unwanted touching by one adult of another, it is, looked at objectively, nearer the latter than the former.

[61] In matters of sentencing, the court must appraise the crime objectively.

[62] The subjective impact on the particular victim is essentially irrelevant. The doctrine of the eggshell personality, whatever part it properly plays in the assessment of damages in a civil case, is not a proper subject of investigation by a court carrying out the statutory duty of sentencing for a criminal offence.

[63] There is in some of these cases a further aspect - the relationship of the accused to the family and friends who, after the crimes were committed, became part of his life. I do not say it is so here, but it may be that what the learned judge saw as a lack of remorse was fear of loss - fear on the appellant's part that his family would reject him if he told the truth about those years - and a lack of the moral courage to risk that loss. To put it another way, it may be that he did not believe, whether rightly or no I cannot say, that his family, any more than the complainants or the courts, would judge him, as every man should be judged, whole - his years of virtue weighed against his years of sin.

"THE HONOURABLE MADAM JUSTICE SOUTHIN"