Sexual interference

R. v. B.A.V.

A publication ban applies. The offender is not named.

  • Below the Crown's ask
  • No jail for a violent offence

Sentence and the Crown's position

Crown asked5 years in custody1
Judge imposed23 months conditional (11 months and 12 months consecutive), then 3 years probation1
5 years less custody than the Crown asked

A conditional sentence is served in the community, usually under house arrest. It counts as no custody here.

What the law allows

Maximum14 years
Crown asked5 years in custody
Judge imposed23 months conditional sentence
Minimum1 year struck down
For sexual interference (CC 151), the Criminal Code currently allows up to 14 years when the Crown proceeds by indictment, with a mandatory minimum of 1 year that courts have struck down as unconstitutional. The sentence imposed is 14% of the maximum. Read the section.

The offender pleaded guilty to two counts of sexual interference involving two girls aged 15 and 14 near Vernon in 2018. The Crown sought a global sentence of 5 to 5.5 years' incarceration; the defence sought a sentence under two years served in the community, followed by probation. Justice Devlin imposed a conditional sentence of 23 months followed by 3 years of probation, finding the offender's moral culpability markedly reduced by his autism spectrum disorder and applying Gladue principles in light of his Métis heritage.

In the judge's words

As set out at para. 70 of Scofield, I acknowledge that a CSO "will rarely satisfy the primary sentencing objectives of deterrence and denunciation in cases involving sexual touching of vulnerable children", but agree that "there are situations in which a CSO can satisfy those principles". I find that this is a rare, exceptional case in which a CSO can satisfy the purposes and principles of sentencing.

1

The record

Convicted of
Prior convictions
0 prior convictions1
At the time of the offence
Not stated1
Mandatory minimum
Found unconstitutional or not applied under a binding ruling1
Appeal
Not yet checked
Counsel
Crown: M. Cissell
Defence: G.A.P. Verdurmen

Sources

  1. R. v. B.A.V., 2021 BCSC 1773 Court decision, CanLII, September 7, 2021[2] As I will discuss in more detail in these reasons, the Crown submits the appropriate sentence is 3.5 years for count 2 and 5 years for count 3, to be served consecutively. Taking into consideration the totality principle, they submit a global sentence of 5 to 5.5 years' incarceration is a fit and proper sentence.[34] Prior to that, in Scofield at para. 89, the mandatory minimum sentence of one year imprisonment that s. 151(a) of the Code had carried was struck down, meaning that a CSO also cannot be prohibited with respect to s. 151(a) by s. 742.1(b) of the Code.[14] … has no criminal history.[96] As set out at para. 70 of Scofield, I acknowledge that a CSO "will rarely satisfy the primary sentencing objectives of deterrence and denunciation in cases involving sexual touching of vulnerable children", but agree that "there are situations in which a CSO can satisfy those principles". I find that this is a rare, exceptional case in which a CSO can satisfy the purposes and principles of sentencing.[104] Therefore, I sentence you to a conditional sentence of 23 months, to be followed by a probation order for 3 years.
  2. R. v. B.A.V., 2021 BCSC 1773 Court decision, Courts of British Columbia

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