



COURT OF APPEAL
FOR BRITISH COLUMBIA




Citation:



R. v.
  Fisher,









2019 BCCA 33




Date: 20190130

Docket: CA45590

Between:

Regina

Respondent

And

James Albert Stanley Fisher

Appellant

Restriction on publication: An order has
been made under ss. 486.4(1) and 486.4(2)
of the
Criminal Code
restricting the publication, broadcasting or
transmission in any
way of any information that could identify the complainants, including their
initials.

An order has been made under s. 486.4(1)
on the publication of any information that
would identify the author of the letter at tab 11 of Exhibit 8 of the
sentencing exhibits.

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




Before:



The
  Honourable Chief Justice Bauman

The
  Honourable Madam Justice Garson

The
  Honourable Mr. Justice Willcock




On appeal from:  An order of the Provincial Court of
British Columbia, dated
August 21, 2018 (
R. v. Fisher
, 2018 BCPC 210, Surrey Provincial Court
Docket 219368‑3C).




Counsel for
  the Appellant:



W.B. Smart, Q.C.

N. Gilewicz





Counsel for
  the Respondent:



M. Mereigh





Place and
  Date of Hearing:



Vancouver, British Columbia

January 9, 2019





Place and
  Date of Judgment:



Vancouver, British Columbia

January 30, 2019





Written Reasons by:





The
  Honourable Madam Justice Garson





Concurred
  in by:





The
  Honourable Chief Justice Bauman

The
  Honourable Mr. Justice Willcock










Summary
:

The appellant, a former police officer, appeals the
sentence imposed following his plea of guilty to two counts of breach of trust
and one count of sexual exploitation in relation to the kissing of two
complainants in police investigations. On appeal, he says that the judge erred
in placing undue weight on the victim impact statement of one victim and that
the eight-month consecutive sentence on one count of breach of trust was
demonstrably unfit. Held: appeal dismissed. The judge did not err in principle
by admitting and relying on Bs victim impact statement. The sentence imposed
was not demonstrably unfit when the kiss was considered in the context of the
victims history of abuse and her trusting relationship with the appellant.

Reasons for Judgment of the Honourable
Madam Justice Garson:

[1]

James Fisher, a
former police officer, appeals the sentence imposed following his plea of
guilty to one count of sexual exploitation and two counts of breach of trust.
The charges and his plea arose from circumstances surrounding his relationship
with two complainants, referred to as A and B, involved in police
investigations of two prostitution rings. In the course of the investigations,
the appellant befriended and worked closely with A and B. The appellant kissed
B once. He kissed A on three occasions.

[2]

The appellant was
sentenced to 90 days in prison for the sexual exploitation of A (the
mandatory minimum sentence) and 12 months in prison for the breach of
trust of A. These two sentences were to be served concurrently. He was
sentenced to eight months in prison for the breach of trust of B, to be served
consecutively. Therefore he received a global 20‑month sentence to be
followed by two years of probation. The Reasons for Sentence are indexed as
2018 BCPC 210.

[3]

The appellant does
not take issue with the sentence imposed for the offences related to A. He
focuses his appeal on the eight‑month consecutive sentence he received
for the breach of trust of B. He says that a concurrent sentence ought to have
been imposed, but if the sentence is to be consecutive, a sentence of one to
two months would be fit.

[4]

For the reasons that follow I would grant leave to appeal but dismiss
the appeal.

Background

[5]

At the sentencing
proceedings, the facts which form the background to the charges and plea were
set out in a detailed agreed statement of facts and a supplementary statement
of facts. There is no dispute about any of the facts, though there is some
dispute about the reliability of Bs victim impact statement. I shall return to
this point of controversy below.

[6]

The appellant is a
61‑year‑old former police officer. Until these charges were laid,
he had a highly successful career and a stable family life. He has been married
for about 32 years and has two adult children.

[7]

Before becoming a
police officer, the appellant worked as a hockey referee at a high level. His
goal was to work in the NHL. He did not succeed in that goal, but he did
referee in the Western Hockey League and the 1990 national junior hockey
championship. Between 2001 and 2011, he volunteered in coaching and organizing
womens hockey.

[8]

The appellant joined
the Vancouver Police Department (VPD) in 1988 and became a highly decorated
and accomplished investigator. For all but 17 months of his police career,
he worked in specialty investigative units such as the Gang Task Force and the
Coordinated Law Enforcement Unit. He also worked for Criminal Intelligence
Service Canada in Ottawa as a National Coordinator for Asian Organized Crime.
He created a working group to formalize the sharing of information on Asian
organized crime between federal and municipal investigators in British Columbia
and Alberta. He worked with the New York Police Department on human smuggling,
attended an Interpol conference in France to provide a briefing on human
smuggling, briefed the Solicitor General on organized crime, and testified
before a Parliamentary Justice Committee in Ottawa. These are just a few of his
professional achievements. He received many awards and commendations.

[9]

The appellant has no criminal record.

[10]

The appellant was
arrested on December 28, 2016, and immediately suspended from his duties
as a police officer. He retired from the VPD in January 2017. He entered guilty
pleas on March 28, 2018, and was sentenced on August 21, 2018.

[11]

I now turn to the
background underlying this sentence appeal.

[12]

On January 2,
2011, the appellant was transferred into the Special Investigation
Section-Counter Exploitation Unit of the VPD (CEU) where he was positioned
when the offences occurred.
The
CEU is a specialized unit whose purpose is to investigate prostitution-related
offences, internet child luring, and internet child pornography. The CEU also
assists sex trade workers in leaving the sex trade. The CEU directs its
officers not to meet alone with female victims and witnesses.

The Breach of Trust and Sexual
Exploitation of A

[13]

In 2014, the CEU
began an investigation into an individual named Michael Bannon. The appellant
was the lead investigator. Mr. Bannon was arrested in July 2015 and
charged with procuring A and eight other complainants to work in the sex trade.
A was 17 at the time. She estimated that Mr. Bannon arranged about 200
sexual encounters between her and individuals who paid money for sex with her.
On January 30, 2018, Mr. Bannon pleaded guilty to 22 of the counts he
was facing. He was sentenced to fourteen years in jail.

[14]

In the course of the investigation, the appellant and A were in frequent
contact. The appellant knew that A was in the care of the Ministry, had
virtually no parental relationship or support, had mental health issues
including self-harm, had attempted suicide, and was addicted to drugs. He
became involved in her life, regularly communicating with her, her step-father,
her social worker, and her youth worker. The sentencing judge noted that A was
17 at all relevant times and the appellant was aware of her age: para. 59.

[15]

The first incident
that formed the basis of these charges occurred between August 22 and 30,
2015. The appellant met A alone, having told her he had two tickets to the PNE.
They spoke in his car and he agreed to drop her off at a restaurant. Before she
got out of the car, they hugged and kissed, including French kissing. They
kissed for 30 seconds to a minute.

[16]

The second incident
occurred on November 21, 2015. The appellant wanted to give A a book on
drug addiction and rehabilitation. He met with her alone and off duty at around
midnight. They talked in his car for about 30 minutes and then kissed for
about 10 minutes. About a week earlier, A had been hospitalized for
cutting herself, was arrested, and had to change residences. The appellant was
aware of these difficulties. At the time of the incident, she had not slept for
a number of days and had consumed a large quantity of drugs and alcohol. She
had also begun to experience psychotic episodes.

[17]

The third incident
occurred on December 7, 2015. A had confided to the appellant that she was
having psychotic episodes. The appellant made her a series of appointments with
a psychiatrist. On December 7, he drove her to her appointment with the
psychiatrist as her social worker was unavailable. After the appointment, he
took A back to his office. He asked her to identify the naked persons in a
photograph relevant to the Bannon investigation. They then went into an
adjacent office, where he kissed her. She was not feeling well and told him she
did not want to kiss him. He asked her for one more kiss and she acquiesced.
The kissing lasted about five minutes and included French kissing.

[18]

In March 2016, A
disclosed these incidents to her youth worker. Around the same time, she
disclosed the incidents to another police officer.

[19]

A lengthy
investigation into As allegations ensued. A became a paid police agent and her
communications with the appellant were intercepted by the police.

[20]

After A agreed to
become a police agent, the appellant and some of his colleagues became aware of
a false rumour circulating among sex trade workers that he had slept with A.
The appellant spoke with A about the rumour and the resulting investigation.
These conversations were intercepted by the police. The sentencing judge stated
that the intercepted conversations revealed that the appellant was helping,
preparing, and arguably coaching A as to what to say to the investigators: para. 67.
However, the judge concluded that there is nothing that amounts to the
appellant asking A to lie to the police, or to deceive the police, or do
anything to obstruct the police in either investigation: para. 71. He
further noted that there was absolutely no evidence before him that the
appellant had had sexual intercourse with A.

The Breach of Trust of B

[21]

B met the appellant in 2011, when she was 16, in the course of the CEUs
investigation of an individual named Reza Moazami. Mr. Moazami was charged
with numerous prostitution-related offences involving 11 complainants,
including B. He was convicted of 30 counts of prostitution-related offences on
September 15, 2014 and sentenced to 23 years in jail. The trial judge
described Mr. Moazamis treatment of B as abusive, callous, and
border[ing] on psychopathic.

[22]

The appellant worked
with B for five years in the course of the Moazami investigation. He played a
significant role in the investigation and had frequent contact by text,
telephone, and in person with her.

[23]

On December 3,
2015, B texted the appellant and they agreed to meet. They talked for
approximately 15 minutes in his car in a parking lot. As they were saying
goodbye, he hugged her. He asked her for a goodnight kiss and then kissed her
on the lips. She left the car.

[24]

B disclosed the
details of the incident to the manager of a program that assists sex trade
workers. That individual reported the incident to the police on May 27,
2016, and the police began an investigation. B became a paid police agent. Her
communications with the appellant were intercepted and used in the
investigation of the kissing incident. The intercepted communications were also
relevant to an investigation of whether the appellant had covered up Bs role
in a stabbing.

[25]

B told the police that she was upset by the kiss and did not return to
work that night as she had planned. She also told the police that following
this incident she began to drink every day.

The Burnaby Stabbing Incident

[26]

On June 8, 2015, a male was stabbed in Burnaby in the course of a
drug deal with B and her boyfriend. His injuries were not life-threatening. On
June 9, 2015, B met with the appellant and they discussed the incident. At
some point, she confessed to him that she was the stabber. On June 10,
2015, the appellant advised the Burnaby RCMP that he had spoken to a female who
witnessed the stabbing, and provided Bs name, date of birth, and phone number.
He then texted B and encouraged her to contact the RCMP first. B changed her
phone number a few days later and the RCMP were unable to reach her. The
appellant had her new phone number, but did not provide it to the RCMP. B never
spoke with the Burnaby RCMP regarding the stabbing and the appellant never told
the investigators that B had confessed to him that she was the stabber.

[27]

In a statement to
the police given on September 16, 2016, B said that she stabbed the victim
to protect her boyfriend, since she believed the victim was going to kill him.
On September 30, 2016, B was granted immunity in connection with the
stabbing.

[28]

The sentencing judge
noted that the appellant was not being sentenced for any crime related to
obstructing justice: para. 86. However, he remarked that, as an officer of
the law, the appellant had an obligation to do more with Bs admission than
bury it: para. 86.

Counts

[29]

The appellant pleaded guilty to three counts.

[30]

By information, he
was charged with one count relating to A:

Count 1

James
Albert Stanley FISHER, between the 22nd day of August, 2015 and the 7th day of
December, 2015, inclusive, at or near Vancouver and Surrey, in the Province of
British Columbia, being a person in a position of trust or authority towards a
young person, [A], did kiss [A] for a sexual purpose, contrary to Section 153
of the Criminal Code.

[31]

By indictment he was
charged with two further counts:

Count 1

James Albert
Stanley FISHER, between the 22nd day of August, 2015 and the 7th day of
December, 2015, inclusive, at or near Vancouver and Surrey, in the Province of
British Columbia, being an official, did, in connection with the duties of his
office, commit a breach of trust by kissing [A] for a sexual purpose, [A] being
a witness in a criminal prosecution, contrary to Section 122 of the Criminal
Code.

Count 2

James
Albert Stanley FISHER, between the 3rd day of December, 2015 and the 6th day of
December, 2015, inclusive, at or near Burnaby, in the Province of British
Columbia, being an official, did, in connection with the duties of his office,
commit a breach of trust by kissing [B], [B] being a witness in a prior
criminal prosecution, contrary to Section 122 of the Criminal Code.

[32]

As originally
framed, Count 2 included the language that he did commit a breach of
trust by kissing [B] for a sexual purpose. At the outset of the sentencing
proceedings, the Crown withdrew the words for a sexual purpose from the
indictment. However, the judge found that the kiss was a sexual activity: para. 30.

[33]

The maximum sentence in respect to Count 2 is five years. There is
no prescribed minimum sentence.

Reasons
for Judgment on Sentencing

[34]

The Crown sought a global sentence for all three counts of 18 to 20
months imprisonment plus two to three years probation, noting the mandatory
minimum of 90 days for the sexual exploitation charge.

[35]

The defence asked that the mandatory minimum of 90 days
imprisonment be served intermittently on weekends. For the two counts of breach
of trust, the defence sought a lengthy Conditional Sentence Order (CSO).

[36]

The Crown opposed
the CSO but acknowledged that it was available.

[37]

The sentencing judge
noted that in breach of trust and sexual exploitation cases, the paramount
sentencing principles were denunciation and general deterrence: para. 92.
He noted that the sentence imposed should send a very clear message of
societys absolute and unequivocal condemnation of the offenders conduct and
represent a symbolic collective statement that the offenders conduct should be
punished for encroaching on our societys basic code of values [citation
omitted]: para. 92.

[38]

The sentencing judge reviewed the appellants personal background and
character references. He noted that the reference letters spoke highly of the
appellant. However, the sentencing judge said that there was a hidden side to
the appellant. He noted that the offences he committed, as well as his conduct
with respect to the Burnaby stabbing incident, appeared irreconcilable with the
appellants professional and personal accomplishments.

[39]

The sentencing judge
noted that the offences had already had catastrophic consequences for the
appellants career, reputation, marriage, and post-retirement career prospects.
He said he would take into account the price the appellant had already paid for
his crimes, but that he ought to have known he would pay that price when he
committed the offences: para. 112.

[40]

The judge then turned to the mitigating and aggravating factors. He
noted that there were a number of mitigating factors: the appellants guilty
plea, the personal and professional consequences he had already suffered, the
impact on his family, his lack of a criminal record, and his remorse and full
acceptance of responsibility for his crimes.

[41]

The judge then noted the aggravating factors.

[42]

First, the appellant
had breached both the public trust and the victims personal trust.

[43]

Second, the victims
were extremely vulnerable and viewed the appellant as their saviour and as a
father figure. A was especially vulnerable. The appellant knew of her fragile
psychological state and that she could not legally consent.

[44]

Third, the crimes
were not isolated incidents, but the appellants behaviour was escalating over
a three- or four-month period. The incidents took place in late August 2015
(A), November 21, 2015 (A), December 3, 2015 (B), and December 7,
2015 (A). However, the judge noted that there was no evidence of further
incidents after December 7, 2015.

[45]

Fourth, the judge
considered the impact on the victims to be a significant aggravating factor: para. 123.
A and B both filed victim impact statements. In Bs victim impact statement,
she stated that after the kiss with Mr. Fisher, she relapsed into
substance abuse after five years of being clean and attempted suicide twice.
The appellant urged the judge to take a critical view of her statement. He
emphasized that the judge who heard Mr. Moazamis trial, in which B was a
witness, made serious adverse findings regarding her credibility and declared
her a hostile witness. The judge stated:

[24]      I
do not quarrel with Justice Bruces findings about B., but what I do not accept
is that those findings are in any way transportable into this proceeding. B.,
in giving her victim impact statement, was not likely in survival mode. She had
nothing to gain, or no consequence to avoid, by telling lies and making up the
impact Mr. Fishers crime has had on her life. Could she have exaggerated
that impact on her life?  Absolutely. But as trial judges we see on a daily
basis victims telling us how a crime has impacted their life. Some exaggerate,
some minimize, but in very few cases can we accept, as objectively established,
the impact the victim tells us the crime has had on their life. Perception is
their reality and we factor their nuanced statements into our sentencing
decisions without a critical analysis of how reliable or accurate their
feelings are.

[25]      So,
while at the time of the Moazami trial B. was found to be an unreliable
witness, I do not factor those findings into my determination of the impact
that Mr. Fishers crime has had on B. as told to me by B.



[123]    Mr. Fisher has urged me to be cautious taking
at face value what B. says in her Victim Impact Statement, given the adverse
credibility findings of Justice Bruce in the Moazami trial. I have already
commented on this issue earlier in these reasons and I will not repeat what I
have already said. But clearly, B. was a victim at the hands of other people
from the time she was a child. Mr. Fisher came to rescue her from a
psychopathic pimp and developed a father-figure relationship with her. I have
no difficulty concluding that Mr. Fishers crime against B. had a
devastating impact on her.

[46]

A said in her
statement that she had been extremely vulnerable at the time of the incidents.
She said that the incidents took her back to her experiences in the sex trade,
where she learned that if someone did something for her, she would be expected
to reciprocate with sex. The judge accepted that she felt that kissing the
appellant was the price she had to pay for the help he gave her in the Bannon
investigation.

[47]

Fifth, the
sentencing judge noted that the crimes may have tarnished the reputation of the
VPD, although he did not consider this to be a significant aggravating factor.

[48]

The sentencing judge
then reviewed all the authorities provided to him by counsel. He commented
first on the Crown authorities:

-

In
R. v. Greenhalgh
,
2011 BCSC 511, affd 2012 BCCA 236, a Border Services Officer employed by
Canada Border Services Agency was sentenced for three counts of sexual assault
and one count of breach of trust. He conducted illegal, feigned strip searches
of four women who were crossing the border and sexually touched three of them.
He was sentenced to two years imprisonment less a day followed by three years
of probation.

-

In
R. v. Cook
, 2010
ONSC 5016, a police officer was sentenced for five offences, including two
counts of breach of trust and three counts related to drug offences, for
stealing packages of what he believed to be cocaine from a crime scene. The
sentencing judge in that case observed that an individual accused of breach of
trust will inevitably be able to produce good character references because it
is that character profile that allows the individual to attain the position of
trust: para. 36. Mr. Cook was sentenced to five years and eight
months imprisonment.

-

In
R. v. Sandhu
,
[2013] O.J. No. 6325 (C.J.), affd 2015 ONSC 1679, a police officer
attending a massage parlour to perform a license inspection demanded that a
masseuse perform oral sex on him. He was convicted of sexual assault and
sentenced to 15 months imprisonment, followed by two months of probation.

-

In
R. v. Von Seefried
,
[2017] O.J. No. 1094 (C.J.), a police officer was sentenced for sexually
assaulting a female passenger of a vehicle he pulled over for a traffic stop.
He was sentenced to 16 months imprisonment.

-

In
R. v. Bracken
,
2005 SKPC 64, a police officer who was the lead investigator in a sexual assault
investigation involving a 17‑year‑old complainant sexually
assaulted her in his police cruiser by squeezing her breast. He had been
initiating sexual conversations with her for several months before this
incident. The sentencing judge, Judge Mary Ellen Turpel-Lafond, noted that the
complainant was a vulnerable teenage sexual assault victim and that the
offender knew from his professional experience that she was scarred by that
abuse and was susceptible to influence: paras. 22‑23. Although there
was only one incident of sexual touching, Judge Turpel-Lafond found the sexual
assault could not be described as being at the low end of the spectrum of harm,
given the context: para. 51. The offender was sentenced to nine months
imprisonment. The sentencing judge noted that the facts in
Bracken
were
strikingly similar to those in this case and that many of Judge Turpel-Lafonds
comments were equally applicable to the appellant: paras. 165, 176.

[49]

The defence referred
to a number of authorities in which a CSO or intermittent jail sentence had
been imposed:

-

In
R. v. F.O.R.
,
2016 BCPC 223, the offender was sentenced for carrying on a sexual relationship
with the teenage daughter of his former partner. The relationship began just
prior to her 18th birthday. He pleaded guilty to touching a young person while
being in a position of trust and breaching a term of his release. He was
sentenced to 90 days imprisonment to be served intermittently followed by
two years probation.

-

In
R. v. Chen
, 2017
BCSC 1689, affd 2017 BCCA 426, a piano teacher was sentenced for sexually
touching and kissing five students, including French kissing, over a period of 17 years.
The victims were from 11 to 19 years old. He was 69. He was sentenced to 75 days
imprisonment followed by 21 months to be served in the community by way of
a CSO and one year of probation. In reviewing this decision, the sentencing
judge noted that the sentencing judge in
Chen
must have been of the view
that exceptional circumstances existed such that a conditional sentence was
appropriate.

-

In
R. v. Nicholson
,
2018 BCSC 515, a police officer was sentenced for one count involving three
incidents of breach of trust which included encouraging a police informant to
provide false information in a drug investigation, giving false information to
a fellow officer, and counselling an accused while transporting him to the
police detachment about how important it was that he not be found with drugs
and offering him an opportunity to make a phone call. The sentencing judge
adopted a joint submission of 17 months to be served by way of a CSO.

[50]

The sentencing judge determined that a CSO would not adequately serve
the applicable sentencing principles in this case. He emphasized the
appellants senior position in the CEU and his role in the Bannon and Moazami
investigations. He noted that the appellant was not guilty of a momentary lapse
in judgment, but that his offences continued over a period of months. He
emphasized the fact that his first offence against A occurred the first time he
met alone with her in contravention of the CEUs policy. He concluded that
there were no exceptional circumstances justifying a CSO, as in
Chen
.
The gravity of the offences and the degree of the appellants moral culpability
required his incarceration.

[51]

The sentencing judge then considered the appropriate range of
sentence. He noted that in
Bracken,
the range of sentence was determined
to be nine to fifteen months. That case involved one incident and one victim.
The conduct was similarly seriously intrusive given the victims
vulnerability and their trusting relationship. However, he noted that the
relationship had already been overtly sexualized and the offender took
immediate responsibility for his actions. He noted that in this case, the
appellants offences occurred over a period of months and he did not
immediately accept responsibility: para. 211.

[52]

The judge also referred to
Von Seefried
. That case
also involved one incident, one victim, and seriously intrusive sexual
behaviour. However, the offender had no relationship with the victim and used
his authority as a police officer to coerce her. The judge observed that in the
case at bar, the appellant 
did not use his authority as a police
officer to enable his offences against A and B, rather he used his
well-developed relationship with these women to facilitate his offences against
them: para. 212.

[53]

After
considering these authorities, the sentencing judge determined that a jail
sentence of between nine and fifteen months for the crimes against each of A
and B would be a fit sentence. He determined that the sentences should be
consecutive because the crimes occurred at separate times against separate
victims.

[54]

He then sentenced the appellant to the mandatory minimum sentence of
ninety days for the sexual exploitation of A,
not
to be served
intermittently; twelve months for the breach of trust of A; and eight months
for the breach of trust of B, to be served consecutively. The global sentence
was therefore 20 months imprisonment. He further sentenced the appellant
to two years of probation.

Issues

[55]

The appellant
asserts that the sentencing judge erred in two ways. First, he says that the
judge erred in accepting the victim impact statement of B without properly
scrutinizing it, despite another judge having found B to be a completely
unreliable witness. Second, he says that the sentence imposed with respect to
Count 2, the breach of trust of B, was disproportionate considering the
gravity of the offence and his degree of responsibility. He says that the
sentence on Count 2 was unduly harsh. This is his main ground of appeal.

[56]

The appellant does not appeal from his sentence on the other two counts.
In oral submissions, he withdrew an argument based on the judges finding that
the kiss with B was sexual activity.

Discussion

Standard of Review

[57]

The standard of
review is that set out in
R. v. Lacasse,
2015 SCC 64.
Appellate intervention is justified only where the sentencing judge made an
error in principle that had an impact on the sentence or the sentence is
demonstrably unfit: paras. 43‑44; 51‑53. As stated by
Stromberg-Stein and Fitch JJ.A. for the majority in
R. v. Agin
,
2018 BCCA 133:

[56]      Appellate
intervention is justified when an appellate court identifies a material error
that has impacted the sentence, in that the sentence would have been different
absent the error. The court will then assess the fitness of the sentence by
conducting its own sentencing analysis. If the sentence is unfit, the court may
vary the sentence and impose a fit sentence.

[57]

Where there is no error, or the error
had no impact on the sentence, appellate intervention can still be justified if
the sentence is demonstrably unfit.

[58]

Justice Wagner,
speaking for the majority in
Lacasse
, emphasized that wide latitude
must be given to sentencing judges: para. 11. Describing the deferential
nature of appellate review of sentencing judgments, he said:

[40]      In
this regard, Iacobucci J. explained in [
R. v.
Shropshire,
[1995] 4 S.C.R. 227]
that consideration of the fitness of a
sentence does not justify an appellate court taking an interventionist approach
on appeal:

An
appellate court should not be given free rein to modify a sentencing order
simply because it feels that a different order ought to have been made. The
formulation of a sentencing order is a profoundly subjective process; the trial
judge has the advantage of having seen and heard all of the witnesses whereas
the appellate court can only base itself upon a written record. A variation in
the sentence should only be made if the court of appeal is convinced it is not
fit. That is to say, that it has found the sentence to be clearly unreasonable.
[para. 46]

[41]

In [
R. v.

Proulx
,

2000 SCC 5],

this Court, per
Lamer C.J., discussed these same principles, which continue to be
relevant:

In
recent years, this Court has repeatedly stated that the sentence imposed by a
trial court is entitled to considerable deference from appellate courts: see
Shropshire
,
supra
, at paras. 46‑50; [
R. v. M. (C.A.),
[1996] 1 S.C.R. 500]
, at paras. 89‑94; [
R. v.
McDonnell
, [1997] 1 S.C.R. 948], at paras. 15‑17
(majority);
R
.
v.

W
.
(G.)
,
[1999]
3 S.C.R. 597
, at paras. 18‑19.
In
M. (C.A.)
, at para. 90, I wrote:

Put simply, absent an error in
principle, failure to consider a relevant factor, or an overemphasis of the
appropriate factors, a court of appeal should only intervene to vary a sentence
imposed at trial if the sentence is demonstrably unfit.
Parliament explicitly vested sentencing
judges with a
discretion
to determine the appropriate degree and
kind of punishment under the
Criminal Code
. [First emphasis added; second emphasis
in original.]

...

Although an appellate court might
entertain a different opinion as to what objectives should be pursued and the
best way to do so, that difference will generally not constitute an error of
law justifying interference. Further, minor errors in the sequence of
application of s. 742.1 may not warrant intervention by appellate courts.
Again, I stress that appellate courts should not second-guess sentencing judges
unless the sentence imposed is demonstrably unfit. [paras. 123 and 125]



[Citations
added; emphasis in original.]

Applicable Principles of
Sentencing

[59]

As noted above, the sentencing judge identified denunciation and general
deterrence as the paramount sentencing principles in this case.

[60]

The sentencing judge found the appellant to be deeply remorseful and
apologetic. Thus specific deterrence, rehabilitation, and the protection of
society were lesser factors in his sentence.

[61]

I agree with the
sentencing judge that denunciation and general deterrence were the primary
applicable principles in sentencing the appellant.

[62]

I now turn to the
errors alleged by the appellant.

Victim Impact Statement of B

[63]

This appeal raises the question of the weight that may be placed upon a
victim impact statement where the offender disputes the truth or reliability of
the statement, but does not seek to cross-examine the victim.

[64]

In her victim impact statement, B said that after the offence her life
went downhill fast and she relapsed after five years of being clean. She said
that she lost the ability to trust anyone and became depressed, negative,
hopeless, [and] homeless. She ascribes this downward spiral to the appellants
conduct.

[65]

The appellant takes no issue with the admissibility of Bs statement,
but says the judge erred in not approaching it with a critical view given the
adverse findings made about her credibility in the Moazami trial. He also
suggests that B had a financial motive to exaggerate the impact of the offence.
He points to the fact that at the time she made the statement, B indicated that
she was considering pursuing a claim for restitution; that she told
investigators she was considering suing the police department and the City of
Vancouver; and that she had been paid more than $40,000 for her role as a
police agent. Given this context, the appellant says the judge erred in placing
undue weight on her statement.

[66]

The Crown contends that the appellant chose not to challenge the
admissibility of Bs statement, did not seek to cross-examine B on it, and
pointed to no disputed facts warranting a
Gardiner
hearing (in
accordance with
R. v. Gardiner
, [1982] 2 S.C.R. 368). Crown counsel
notes that the sentencing judge was well aware of the appellants position on
Bs credibility, including the factual basis for the argument that she had a
financial motive to exaggerate. The sentencing judge nonetheless rejected the
appellants submission and accepted Bs statement. The Crown points out that
pursuant to s. 718.2(a)(iii.1) of the
Criminal Code,
R.S.C.1985,
c. C‑46
,
the sentencing judge was required to consider the
sentencing principle that a sentence should be increased to account for
evidence that the offence had a significant impact on the victim.

[67]

Section 722 of
the
Criminal Code
provides for the use of victim impact statements on
sentencing. The pertinent portion of the section for this appeal is s. 722(1):

722. (1) When determining the sentence to be imposed on an
offender or determining whether the offender should be discharged under section
730 in respect of any offence, the court shall consider any statement of a
victim prepared in accordance with this section and filed with the court
describing the physical or emotional harm, property damage or economic loss
suffered by the victim as the result of the commission of the offence and the
impact of the offence on the victim.

[68]

Section 4 of
the
Victims of Crime Act
, R.S.B.C. 1996, c. 478, provides
:

4.
Crown counsel must ensure that a victim is given a reasonable opportunity to
have admissible evidence concerning the impact of the offence,
as perceived
by the victim
, presented to the court before sentence is imposed for the
offence.

[Emphasis
added.]

[69]

In
R. v. Berner
,
2013 BCCA 188, this Court discussed the purpose of victim impact statements.
The Court stated:

[12]      Victim impact statements play an important role in
the sentencing process. They were formally introduced into sentencing
proceedings by legislation in 1988. While there was some inconsistency among
the courts as to the admissibility of such evidence prior to codification, the
general trend was toward acceptance. The issue was resolved in
R.
v. Swietlinski
, [1994] 3 S.C.R. 481 at 503, where Chief Justice
Lamer observed: It is well known that the victims testimony is admissible at
a hearing on sentencing. The current statutory scheme, enacted in 1995, is set
out in s. 722 of the
Criminal Code
.

[70]

The Court emphasized
that the sentencing judge is required to consider a victim impact statement for
the purpose of sentencing. The Court also noted that the statement is intended
to bring home to the offender in a palpable way the consequences of his or her
conduct. It is a means to inform the court of the damage done by that conduct
to the victim and, indirectly, to the community. In this way the victim impact
statement achieves the objective of sentencing set out in s. 718(f) of the
Criminal Code,
which provides:

718. The
fundamental purpose of sentencing is to protect society and to contribute,
along with crime prevention initiatives, to respect for the law and the
maintenance of a just, peaceful and safe society by imposing just sanctions
that have one or more of the following objectives:



(f)
to promote a sense of responsibility in offenders, and acknowledgment of the
harm done to victims or to the community.

[71]

On sentencing, the Crown must prove beyond a reasonable doubt the
existence of any aggravating fact disputed by the offender:
R. v. Gardiner
,
supra
; s. 724(3)(e) of the
Criminal Code
. Where the Crown
calls a witness to prove a disputed fact, the offender may cross-examine that
witness pursuant to s. 724(3)(c).

[72]

The appellant faced a dilemma at his sentencing. The judge considered
his guilty plea to be a mitigating factor in part because it meant neither
victim had to testify. The mitigating effect of the plea might have been
diminished if he had put B through the potentially re‑victimizing
experience of being cross-examined on her statement:
R. v. V.W.
,
2008 ONCA 55 at para. 28. In choosing not to cross-examine her, he took
the risk that the judge would place significant weight on the statement, as in
fact he did.

[73]

In my view, the judge cannot be said to have erred in accepting and
placing weight upon Bs statement in the absence of any cross-examination or
contradictory evidence. If the appellant wished to preclude the judge from
considering the statement as required by s. 722(1), he could have
challenged its admissibility or cross-examined B on it at the sentencing
hearing. He chose for strategic reasons not to do so. It was then incumbent
upon the judge to consider the statement in determining an appropriate
sentence.

[74]

Even if the judge had erred in placing undue weight on the victim impact
statement, such an error would have had no material impact on the sentence. The
appellant appears to take issue primarily with the part of the statement that
describes Bs relapse into substance abuse and her two suicide attempts. In my
view, this part of the statement, while important, did not factor largely in
the judges reasoning as to the appropriate sentence. Rather, he emphasized Bs
history of victimization and the father-like relationship the appellant had
with her. The appellant does not dispute Bs history or her description of
their relationship. These parts of the statement are corroborated by the
intercepted conversations, in which she expressed feelings of betrayal and
anger and said that she had viewed the appellant as a father figure. Ultimately,
I am not convinced that the impugned portions of her statement had a material
impact on the sentence.

[75]

I would not accede to this ground of appeal.

Proportionality of the
Eight-Month Sentence

[76]

As I would find that the sentencing judge committed no error in
principle, appellate intervention will only be justified if the sentence is
demonstrably unfit.

[77]

The appellants main argument on appeal was that the sentence was unfit
on the basis that it was not proportionate to the gravity of the offence. I
repeat that this argument relates only to the eight-month sentence on Count 2,
the breach of trust for kissing B. The appellant does not seek to minimize the
seriousness of his conduct or his moral blameworthiness. He says simply that,
although his behaviour was inappropriate, eight months incarceration is a
disproportionate sentence for one brief consensual kiss.

[78]

The appellant also contends that the eight-month sentence was
disproportionate to the 12‑month sentence imposed for the breach of trust
involving A. That breach of trust involved three incidents which were much more
sexualized than the incident with B, and hence more serious.

[79]

The appellant
contends that the judge erred by conflating the offence against A with the
offence against B. In the appellants factum he says:

The
judge did no individual analysis leading to the conclusion that the range of
sentence was appropriate in both circumstances. Without the bolstering effect
of joining the offences in the judges analysis, the circumstances surrounding
the incident with B are limited to a single, brief goodnight kiss on one
occasion with a person of the age of consent after having asked permission.

[80]

Therefore, he says the two offences were significantly different.

[81]

The appellant also
disputes the sentencing judges decision to impose consecutive sentences. He
says that this decision reflects an inconsistency in the judges reasons. He
treated the offences as a pattern of escalating conduct, implicitly treating
all four offences as linked. However, in deciding to impose consecutive
sentences, he described the offences as separate. The appellant also submits
that the judge failed to consider the totality principle when imposing
consecutive sentences.

[82]

Finally, the
appellant submits that the judge did not take into account the difficult
circumstances in prison for a police officer. The judge may not have adverted
specifically to his status as a former police officer, but it was so obvious I
do not think it can be said to be an error that he failed to expressly refer to
it as a factor in his sentencing decision.

[83]

The Crown argues on the other hand that the appellants argument on
appeal focuses unduly on the
actus reus
of the offence, and ignores the
context in which the offence occurred. The Crown notes that the sentencing
judge found that, while the appellant did not use his authority as a police
officer to coerce the victims, he used his well-developed relationship with
these women to facilitate his offences against them: para. 212. The Crown
submits that the sentencing judges decision to impose consecutive sentences
was discretionary and is owed deference on appeal. The Crown also notes that
the eight-month sentence was one month below the judges stated sentencing
range for the offence: para. 213.

[84]

I turn to the cases brought to our attention. Six of the eight cases
involved sexual contact. Three of those,
Greenhalgh, Sandhu,
and
Von Seefried,
involved a police officer or, in
Greenhalgh,
a border guard who
committed aggressive, coercive sexual assaults on strangers. Apart from the
official status of the accused, those cases bear less similarity to the facts
of the case under appeal.

[85]

The other three cases,
Chen, F.O.R.,
and
Bracken,
are more
analogous. They each involved an accused who knew his victim or victims and
took advantage of their youth and vulnerabilities. As noted above,
Chen
involved
a 69‑year‑old piano teacher who was sentenced to 75 days
imprisonment, 21 months CSO, and one year of probation for sexually
touching and kissing five students. That sentence was upheld by this Court. Mr. Chen
was suffering from major depression, had been extensively shamed in local Asian
newspapers, and had been shunned by his community. As the sentencing judge in
this case observed, the judge who sentenced Mr. Chen must have viewed
these as exceptional circumstances justifying a CSO.

[86]

F.O.R.
was a Provincial Court decision in which the offender
engaged in sexual activity with the daughter of his former partner on one
occasion a few weeks before her eighteenth birthday, then carried on a brief
consensual relationship with her after she turned eighteen. He was sentenced to
90 days intermittent imprisonment and two years of probation
.

[87]

Finally,
Bracken
was a Saskatchewan Provincial Court decision in
which a police officer sexually touched the teenage complainant in a sexual
assault investigation. He was sentenced to nine months imprisonment.

[88]

On appeal, the Crown also referred to
R. v. Power
, 2009 BCSC
1514, affd 2010 BCCA 21. The accused in that case was a lawyer who invited his
teenaged client to spend the night at his apartment, where he sexually touched
him and performed oral sex on him. He was convicted of one count of sexual
exploitation and sentenced to 18 months imprisonment and two years
probation.

[89]

Of these sentencing decisions, all are distinguishable in one way or
another and most are lower court decisions. I find most of them to be unhelpful
with the exception of
Bracken
, whose facts are very similar to the facts
of this case. In both cases, a senior police officer assisting a young,
traumatized crime victim took advantage of his position to initiate sexual
contact with her. I do not accept the appellants argument that the facts in
Bracken
are significantly dissimilar.

[90]

In
Bracken
,
Judge Turpel-Lafond discussed the importance of context in sentencing for
sexual offences. At paras. 48, 49 and 51, Judge Turpel-Lafond
said:

[48]      The
characterization of the sexual assault before the Court as at the low end of
the spectrum needs to be carefully considered. The case law does anticipate an
analysis of the particular facts in each sexual assault but that analysis is
not confined to an assessment of the physical acts. The evaluation of the
sexual assault requires a consideration of the subjective impact of the assault
on a victim, and the inference that a reasonable person would know the impact
of their actions. Trial judges do not base their decision on the spectrum
solely on the physical acts of sexual assault, placing touching at the low end
and intercourse at the high end of a spectrum.

[49]

Sexual assault sentencing requires a broader contextual
analysis. The leading case of
R. v. Sandercock
(1984), 48 C.R. (3d) 154 (Alberta
Court of Appeal), as applied in Saskatchewan, requires the trial judge to
evaluate the intensity of the behaviour of the offender and whether or not he
knew the victim would suffer emotional or psychological injury, or physical
injury. Where the touching might seem to be less aggressive or forceful, but
there is a contemptuous disregard for the feelings and personal integrity of
the victim, the assault must be classified as at the higher end of the
spectrum. Context matters a great deal and hence the characterization of the
facts before the Court as at the low end is difficult to accept.



[51]

Mr. Herman, on behalf of the Crown, argued that
characterizing the sexual touching in this case at the low end of the spectrum
is only possible if it is viewed in a vacuum. Mr. Hermans submission is
correct. The impact of Sergeant Brackens conduct on a sexual assault victim
could not be assessed at the low end of a spectrum of harm given his position,
his knowledge, and the fact that the victim was struggling with depression,
anxiety and poor self-worth. He demonstrated a contemptuous disregard for her
personal integrity.

[91]

I agree with this description of the importance of context. The comments
made by Judge Turpel-Lafond are applicable to the appellants offences. As the
Crown says, the appellants submissions ignore the broader context in which he
committed the offences. That context is the appellants role in the life of B.

[92]

The appellant could
be described as Bs saviour. He supported her in improving her life, moving
away from sex work, and getting off drugs. She had been abused in one way or
another by most of the men in her life. She trusted and relied on the
appellant, and so his betrayal of that trust by sexualizing their relationship
was far more significant than the physical act of one kiss.

[93]

B described her relationship with the appellant in portions of her
victim impact statement that the appellant does not challenge. She met him when
she was about 16. She was then an underage sex worker. Over the course of the
investigation they became very close. She said, I had so much respect for
him and looked up to him as a positive role model, a father figure. I often
looked to him for advice and guidance. We used to joke about him walking me
down the aisle one day. I will never understand why it happened. I reiterate
that the offence with which he was charged with respect to B is a breach of
trust.

[94]

This is a tragic case. It was tragic for the victims who had grown to
trust and admire a senior police officer who did all that he could to help
improve their lives and bring to justice those who abused them. He worked
tirelessly to do so. To experience the appellant as just another man seeking
sexual favours from them must have been a breach of trust of the highest order.

[95]

The many reference letters filed on behalf of the appellant are a
testimony to the exceptional nature of his contribution to the police force, of
which he was, until these events, a distinguished member. For the appellant,
his seemingly inexplicable offending has had catastrophic effects on his life.
But, in my view, this appeal seeks to minimize the breach of trust and separate
it from the full context in which it occurred. His offence against B was not
just a kiss. His offence must be examined in the broader context. The appellant
must have known, considering his role in Bs life, that even non‑aggressive
or non‑forceful conduct would be a serious breach of her trust in him. As
in
Bracken
, the kiss cannot be examined in a vacuum.

[96]

For the same reasons I do not accept that the judge erred in overstating
the seriousness of the offence against B by conflating it with the offence
against A. The offence against B was serious when viewed in the context of Bs
life and relationship with the appellant, regardless of whether one also
considers the offences against A.

[97]

The judges decision to impose a consecutive sentence is a discretionary
one. The appellant does not suggest that these facts require a concurrent
sentence; rather he says that the imposition of a consecutive sentence renders
the total sentence disproportionate, or that in imposing a consecutive sentence
the judge disregarded the totality of the sentence. I do not agree. In my view,
when the sentence is examined in its context, it cannot be said that the judge
failed to consider the totality of the sentence or imposed a sentence that was
disproportionate to the gravity of the offence. I would not accede to the
submission that the sentence is demonstrably unfit.

Disposition

[98]

I would grant leave to appeal and dismiss the appeal.

The Honourable Madam Justice Garson

I agree:

The Honourable Chief Justice
Bauman

I agree:

The Honourable Mr. Justice
Willcock


