R. v. G.S.H., 2022 BCPC 197

Citation: R. v. G.S.H. 2022 BCPC 197 Date: 20220922 File No: 106912 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. G.S.H. BANS ON PUBLICATION: Section 517(1) and 486.4(1) CRIMINAL CODE OF CANADA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. BENNETT Counsel for the Crown: A. Janse Counsel for the Defendant: L. Adler Place of Hearing: Kamloops , B.C. Dates of Hearing: May 31, 2022 Date of Judgment: September 22, 2022

INTRODUCTION [1] G.S.H. came before me for sentencing on May 31, 2022, after having pled guilty to both counts of Information 106912-1. Count1 states that from January 1, 2014 to July 7, 2016, Mr. H. did unlawfully observe or record various persons in which they couldreasonably have been expected to be nude or to expose their genitals and/or breasts contrary to section 162(1)(

a) of the Criminal Code(the “Code”). Count 2 states that on or about July 7, 2016, Mr. H. did possess child pornography contrary to

section 163.1(4) of theCode. CROWN AND DEFENCE SENTENCING POSITIONS [2] Crown argues that the circumstances of the offences and this particular offender justify a jail sentence that focuses ondenunciation and deterrence. Crown relies upon the sentencing guidelines set out in R. v. Friesen, 2020 SCC 9 , 2020 S.C.C. 9(“Friesen”), and argues that a conditional sentence order (as sought by defence) would not fulfil the primary objectives of denunciationand deterrence. Crown seeks a one-year jail sentence on each count, to be served concurrently, followed by a year of probation.

Crownalso seeks a DNA Order on Count 2, as well as a Sexual Offender Information Registration Act (“SOIRA”) Order on Count 2 (both aremandatory). Lastly, Crown asks the court to impose a s. 161 prohibition order, with a minimum 10-year duration. [3] Counsel for Mr. H. argues that Mr. H. has been under supervision without issue for coming on six years and accordingly,defence counsel seeks a conditional sentence order with a maximum length of six months, on terms that allow Mr. H. to continue tosearch for employment.

In that respect, defence counsel urges replication of the conditions set out in the current s. 161 order out ofOntario. Defence further submits that no further s. 161 prohibition order is warranted and that the proposed sentence meets the primaryobjectives of denunciation and deterrence. SENTENCING RANGE [4] Neither of the charges that Mr. H. pled guilty to carry a minimum sentence. The maximum sentence for voyeurism is a term ofimprisonment not exceeding five years. Possession of child pornography is a hybrid offence with a maximum sentence of 10 years’imprisonment when the Crown proceeds by indictment.

CIRCUMSTANCES OF THE OFFENCE [5] Counsel prepared an agreed statement of facts (Exhibit 1) which summarizes part of the background. Mr. H. was an employee of[omitted for publication] for many years. He was employed primarily as a technician but his employment included performing officewashroom renovations. In 2014, during his employment and while doing washroom renovations, Mr. H. installed hidden cameraequipment in the washrooms of two locations. [6] Mr. H.’s criminal behaviour in Kamloops did not come to light until August 2016 when Mr.

H. was arrested in Kingston,Ontario, and charged with similar events that had taken place in Ontario. Specifically, he was charged and convicted in Ontario with twocounts of voyeurism, one count of making child pornography and one count of possessing child pornography in that location. [7] Coincidentally, around the same time as Mr. H.’s arrest in Ontario, [omitted for publication] was moving. During the move,[omitted for publication] staff discovered suspicious items in the two washrooms that had been renovated by Mr.

H. in 2014. [8] In the shop washroom located at one of the two locations, it was discovered that Mr. H. had installed a hidden camera in a papertowel dispenser with a USB cord that was fed through a hole in the wall, then up to the ceiling to connect with a power cord. He hadmounted the paper towel dispenser across from the toilet. [9] In the main office washroom, it was discovered that Mr. H. had placed a block of wood under a laundry sink and in view of thetoilet, painted it to match the laundry sink, then attached velcro strips to it to hold camera equipment in place.

He had placed a USB cordin the wall where it was hidden, which led to a power source in the ceiling. The wood block location had a view of the toilet. [10] During the investigation of the Ontario offences, a forensic search of items seized from Mr. H. revealed a folder labelled“[omitted for publication]” which contained numerous video footage of people entering the two washrooms and using the toilet withtheir genitals exposed. The folder also included a video of Mr. H. setting up one of the washroom cameras. [11] Consequently, Kamloops RCMP then seized various items from Mr. H.’s residence in Kamloops.

A forensic search revealedadditional video footage of people using the washrooms at [omitted for publication], as well as images of an underage female estimatedto be between eight and 12 years old, changing into a bathing suit, in a folder labelled “[omitted for publication]’s files tokeep/personal/[omitted for publication]”. [12] Kamloops RCMP also located over 500 images and three videos that met the definition of child pornography on the electronicsseized from Mr.

H.’s residence. [13] The images and videos involved female children between the ages of four and 16 years old and they depict the children posing ina sexual manner, engaged in sexual acts with other children, or engaged in vaginal or anal intercourse with adult males. ADDITIONAL BACKGROUND – ONTARIO CHARGES [14] During sentencing submissions, defence counsel referred me to additional background involving the Ontario charges, as well asprior charges for similar offences that had arisen out of the United States. [15] More particularly, when Mr.

H.’s electronic devices were seized in 2016 incidental to his arrest in Ontario, they also revealed

digital images of a female’s genitals. These images were alleged to have been taken by Mr. H. in June 2016 during the course of his visit to Memphis, Tennessee. Mr. H. had travelled to Tennessee to stay with friends and one of the families he stayed with had a three-year- old daughter. [ 16 ] Canadian authorities advised the United States authorities about the discovery of the images and consequently in 2016, Mr. H. was also indicted on three counts of producing images of child pornography. On November 2, 2017, the United States requested the extradition of Mr.

H. to face trial in Tennessee and extradition proceedings commenced. Mr. H. resisted extradition and argued that the obtaining of evidence from his electronic devices by the Kingston Police Force and the subsequent sharing of that information with the United States authorities breached his

section 7 and 8 Charter rights. He was ultimately successful and was not extradited. [ 17 ] It was in the course of the extradition hearings on November 28, 2018, when the Kamloops Information was sworn. [ 18 ] In August 2017, Mr. H. was sentenced to three years in prison for the Ontario convictions. He was granted early parole, but waived it. [ 19 ] I refer to the background of the Ontario charges because it is relevant to the argument put forward by defence counsel that had the Kamloops Information been sworn by the time Mr.

H. pled guilty in Ontario, the British Columbia matters could have been consolidated and dealt with in Ontario concurrently with the Ontario matters. In making this argument, defence counsel made reference to the various efforts he took after being retained by Mr. H. to inquire about the status of the Kamloops charges and resulting Information in the hopes that the Information would be laid so that Mr. H. could be sentenced at the same time on both the British Columbia and Ontario charges. Despite defence counsel’s best efforts, that did not happen. [ 20 ] Defence counsel submits that if Mr.

H. had been sentenced for the British Columbia and Ontario charges at the same time, there would not have been much of a difference between this sentence and the total sentence given in Ontario because Mr. H. was a first offender, and also because the court in Ontario would have taken into consideration the principles of totality and proportionality. Put a different way, defence counsel submits that but for the unfortunate timing of the laying of the British Columbia Information, Mr.

H. would not even be before the court today because his British Columbia offences could have and would have been dealt with simultaneously with the Ontario charges, and Mr. H. would have received a global sentence. Defence argues that to send Mr. H. back to prison now, especially in light of all of the rehabilitation he has done, would subject him to unusually severe consequences. [ 21 ] Crown disagrees with the defence suggestion that the British Columbia and Ontario charges would have been treated as a single criminal adventure for the purposes of sentencing.

Crown points to the clear difference in time and jurisdiction and disagrees that any sentence that Mr. H. would have received would have been global in nature. MITIGATING/AGGRAVATING FACTORS [ 22 ] In regards to mitigating factors, Crown acknowledges that Mr. H. had no criminal record at the time of these offences. Crown also recognizes the early guilty plea and takes no issue with the defence suggestion that Mr. H. has shown remorse. [ 23 ] To the mitigating factors, defence adds that Mr.

H. is relatively youthful, that he is otherwise of good character, that in addition to showing remorse, he has shown insight and that he has willingly submitted to treatment or counselling. [ 24 ] In response to the defence suggestion that previous counselling should be viewed as a mitigating factor, Crown argues that the only reason Mr. H. committed to the prior counselling was because he had been convicted of other similar offences. [ 25 ] Defence counsel suggests one other mitigating factor; namely, that Mr. H. has already suffered as a result of these charges in the sense that Mr.

H. now faces embarrassment or shame within his community. Defence submits that Mr. H. finds it very difficult to secure employment either as a result of these charges or because of the limitations that are imposed by his bail and outstanding s. 161 order. [ 26 ] With respect to the aggravating factors, Crown submits these include: the sophistication of the offences; the fact that in relation to both charges the victims either included or were children; the fact that the washrooms were used by both employees and their children; that Mr.

H. was in a position of trust as an employee; and the number of victims involved. Crown also relies on the duration of the offending behaviour and specifically refers back to the agreed statement of facts which confirms that the offending period took place over a two-year span. On this last point, defence counsel asserts that more realistically, the offence took place over the span of a year and a half. CIRCUMSTANCES OF THE OFFENDER [ 27 ] Mr. H. was born on [omitted for publication]. He is 37 years old. In 2016 when he was charged with the Ontario offences, he was 31 years old.

With respect to further particulars of his background, defence directs me to Exhibit 3, which is a compilation of documents that include two reports from Dr. Robert G. Ley, clinical and forensic psychologist, as well as other documents containing personal information about Mr. H. and his background. [ 28 ] I have reviewed and considered all of the documents that make up Exhibit 3. [ 29 ] What those documents explain is that Mr. H. resided in the Kamloops area throughout his life, and during the dates of these charges he was residing with his parents in the family home.

He has a young sister who resides in Kamloops. His sister is married and has a son that is almost two. His parents are long-term residents of this community and both hold steady, long-term employment. Mr. H. comes from a harmonious family background, which was absent any maladjustment or dysfunction. Neither parent abused alcohol, nor is there any suggestion that Mr. H. ever abused drugs or alcohol. There is no history in his family of psychiatric illness or criminal behaviour, aside from Mr. H.’s troubles with the law. [ 30 ] According to the report of Dr. Ley dated July 1, 2021, Mr.

H. grew up having a positive relationship with peers and authority figures. He was not oppositional or rebellious and was compliant and respectful with authority. He did not experience or report any

malignant childhood behavioural problems which can foreshadow adult maladjustment. He was never the subject of any physical or sexual abuse and there are no findings that he engaged in any kind of inappropriate sexual behaviour during his preteen or adolescent years. [ 31 ] Mr. H. was identified as having high intellect throughout his school-aged life and was placed into accelerated educational programs in his senior elementary years. His scholastic achievement continued into his high school years where his technological skills flourished.

He became known as the audio and electronics expert and his experiences and exposures facilitated his interest in robotics, automation and artificial intelligence, which he pursued in his collegiate studies. Throughout his educational years, Mr. H. is reported to have had a normal, positive life, all while he maintained a social group of peer friends. He continued to not use or abuse alcohol or drugs and held a straight-A academic record throughout high school and college. [ 32 ] Dr. Ley’s comments include that during Mr.

H.’s high school years, he sought out pornography and the timing of this coincided with the increased accessibility to the Internet throughout the same time period. It was within this context that Mr. H. was first exposed to child pornography as a young teen. [ 33 ] According to Dr. Ley, Mr. H. continued to spend a great deal of time viewing pornography into his adulthood and reported immersing himself in it until he became bored with a particular genre and then he would switch to another category.

He continued to re- watch certain child pornography that he had saved after downloading it originally from other file-sharing programs. Dr. Ley notes that Mr. H. was living at home while he was doing so and as a result, the pornography viewing had a furtiveness and secretness to it, which created a greater degree of arousal. Dr. Ley opines that it is through this arousal that Mr. H.’s voyeuristic trait evolved. [ 34 ] Mr.

H. worked at [omitted for publication] from approximately 2006, until his arrest in 2016. [ 35 ] He served almost two years (2017 to 2019) of his prison sentence in minimum security prison at the Joyceville Institution. On his release date, he was immediately arrested and charged with the current offences. [ 36 ] On July 4, 2019, Mr. H. was granted bail for these offences with the consent of the Crown on various conditions and restrictions. There is no suggestion that Mr. H. has ever breached his bail conditions. [ 37 ] Throughout this same timeframe, Mr. H. had been unemployed.

In late November 2020, he completed the course requirements for long-haul trucking. He is certified as a Class 1 driver, with a license for air brakes. [ 38 ] Defence counsel advises that since Mr. H. completed that driving program, he has been applying for jobs through WorkBC and other sources, but he has had no success or luck.

The geographic restrictions associated with his bail conditions (i.e.: he requires the permission of his bail supervisor to leave Kamloops; he is not permitted to leave the province; he has a curfew; and he is prohibited from using cell phones with internet capability) are all impediments to his employment as a long-distance driver. [ 39 ] Defence counsel further points out that Mr. H. has been forthright in disclosing his legal status and criminal history to prospective employers, which tends to result in prospective employers choosing not to hire Mr. H. [ 40 ] The pandemic had another negative impact upon Mr.

H.’s employment, from February 2020. [ 41 ] As a result of all factors combined, Mr. H. remains unemployed and is supported by social assistance. [ 42 ] In his reports dated July 1, 2021 and November 23, 2021, Dr. Ley noted repeatedly the extent of intensive psychological treatment that Mr. H. received as a sexual offender while imprisoned in Ontario between September 2017 and June 2019, and then again while Mr. H. was in the community of Kamloops while on parole in late 2019 and into 2020. He received a prison-based sexual-offender treatment program for sexual offences in relation to the Ontario crimes.

His community-based relapse-prevention treatment program pertained to those same 2016 offences. [ 43 ] Dr. Ley correctly points out that as a consequence of the foregoing time frame, Mr. H.’s current offences were committed prior to his Ontario offences and therefore do not represent a relapse into sexual crime recidivism. [ 44 ] Dr. Ley also noted that those therapist and treatment program coordinators who provided treatment to Mr. H. both in prison and in the community all concluded that Mr.

H. was highly motivated for the psychological treatment programs that he undertook, he successfully completed the treatment programs that were offered and he significantly benefitted from them. [ 45 ] Dr. Ley opined that Mr. H. is very familiar with his risk factors, as well as the ways and means to prevent relapse into sexual offending. In Dr. Ley’s opinion, Mr. H. represents a very low risk for future criminality generally and a low risk of sexual crime recidivism: . . . Mr. H. is at very low risk for future sexual offending and sexually violent crimes. Quite simply, Mr.

H. has very few of the characteristics that typify sexual offenders generally. In other words, Mr. H. has not had employment problems. He is not psychopathic. He does not have a major mental illness or substance abuse problems. Mr. H. has not been a victim of child abuse. He has not had suicidal or homicidal thoughts. He has not had any kind of breach or failure while being subject to stringent supervisory conditions in the community. Mr. H.’s only risk factors for sexual crime recidivism pertain to his pedophilic interests and voyeurism disorder. However, as I will elaborate below, Mr.

H. has engaged in extensive, appropriate and successful treatment to mitigate the impact of these few risk factors.” (July 1, 2021 at page 42.) [ 46 ] Referring to Mr. H.’s new trade, Dr. Ley states, . . . that trade reduces Mr. H.’s exposure to children and does not permit him to develop any familiarity with children . . . (July 1, 2021 at

page 43). [47] Regarding his attitude toward treatment, Dr. Ley goes on to say, Additionally, Mr. H. has a very positive attitude toward psychological treatment and any kind of intervention. He is highly motivated toengage in any kind of psychological program or rehabilitative efforts, which would serve to further decrease his risk of reoffending . . . Itis now more than five years since Mr. H. committed his Ontario crimes, and he has substantially benefited from intensive treatmentduring this interval. (July 1, 2021 at page 43). [48] Dr.

Ley opines that from a psychological standpoint, no further benefits are to be obtained from further incarceration of some orall of the Kamloops charges given that Mr. H. already received intensive, extensive and successful treatment both in custody and in thecommunity. [49] Dr. Ley concluded his reports by reiterating that Mr. H. is not a danger to the public, that he represents a very manageable risk inthe community and that he represents a nil to negligible risk for contact sexual offences against children. [50] In his personal address to the court, Mr. H. read from a written statement.

He said that he has had a lot of time to realize that heviolated the trust and peace of mind of many of those who were close to him. He truly regrets his actions and expressed his sincereapologies for the anger caused to his victims, family and friends. [51] Notwithstanding what defence counsel described as plausible Charter issues, Mr. H. accepted responsibility for his actions tospare anyone the need to testify. He reassured the court that he will never reoffend. He also reiterated the challenges noted by his counseland by Dr. Ley regarding his inability to find employment in the circumstances.

He concluded by stating that he will endeavour to findmeaningful employment with less restrictive conditions and looks forward to becoming a productive member of society again. CASELAW [52] Crown and defence have referred me to several case authorities regarding sentences that have been imposed for offenders whohad been found guilty, or who have pled guilty, to similar offences for which Mr. H. is being charged.

I have read and considered themall in reaching my decision. [53] The case authorities reveal a broad range of sentences for voyeurism, from a conditional discharge, to a suspended sentence, to aconditional sentence order, to up to two-years’ imprisonment. Cases at the higher end generally involve additional serious charges. Alengthy custodial sentence is reserved for egregious conditions and often includes offenders who have committed other serious offencesin conjunction with voyeurism. In those cases, the sentence is generally consecutive. [54] The first case noted by Crown is R. v. Friesen, (supra).

In Friesen, the Supreme Court of Canada emphasized that the protectionof children is one of the most fundamental values of Canadian society and on that basis, instructed that sexual offences against childrenare to be treated as more grave than they had in the past, that sentences must recognize and reflect both the harm caused against childrenand the wrongfulness of sexual violence, and that an upward departure from prior sentencing precedents and ranges is required.

Thedecision by Parliament to increase maximum sentences for certain offences affirms that Parliament intended such offences to be punishedmore harshly. [55] The court began in Friesen: [1] Children are the future of our country and our communities. They are also some of the most vulnerable members of our society.They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands ofCanadian children such a childhood every year.

This case is about how to impose sentences that fully reflect and give effect to theprofound wrongfulness and harmfulness of sexual offences against children. . . . [5] . . . we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerabilityand cause profound harm to children, families, and communities. Sentences for these crimes must increase. . . .

Sentences mustaccurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children,families, and society at large. . . . [56] The court went on to say: [48] Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films orimages depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge thatothers may be accessing the films or images, which may resurface in the child’s life at any time (R. v.

Sharpe, 2001 SCC 2, [2001] 1S.C.R. 45 at para 92; R. v. S.(J.), 2018 ONCA 675, 142 O.R. (3d) 81, at para. 120). [57] The second case Crown referred me to is R. v. Russell, 2019 BCCA 51 , 2019 B.C.C.A. 51, and it involves a 71-year-oldoffender who placed an open backpack under a female’s skirt at the mall. The evidence included 63 videos and approximately 85 othervictims. When sentencing the accused, the court pointed out the serious invasion of privacy that attaches to offences of voyeurism, andconfirmed that sentencing objectives ought to focus on denunciation and deterrence.

The court found the accused’s actions were found tobe deliberate and devised, and noted that he was bound by a long-term supervision order at the time of his arrest, which was anaggravating factor. The accused was sentenced to 18 months’ jail and 36 months’ probation. [58] At para. 37 of Russell, the court referenced R. v. Berry, 2015 BCCA 210 , 2015 B.C.C.A. 210, as the leading case for

sentencing for voyeurism offences in this province. In Berry, the court imposed a nine-month consecutive sentence for voyeurisminvolving the accused’s spouse and two months concurrent for voyeurism against another victim. The accused had an unrelated recordand was considered a low to moderate risk to reoffend. I note that both Russell and Berry predate Friesen. [59] In R. v. Leighton, 2021 BCPC 27 , 2021 B.C.P.C. 27, two of three counts on the Information related to charges ofvoyeurism. The accused was 44 years old with no prior criminal involvement.

The offences involved two hidden cameras which theaccused placed in employee washrooms so that he could simultaneously record his victims from two different angles. The cameras hadbeen in place for approximately two months and were placed near the toilet and facing upward so that they could record genitals. Theevidence included 31 video files, in addition to over 50 other video files which had been deleted. The victims included 13 differentsubjects, including two that were under 18 years of age. The Crown argued for 9-12 months of jail while defence argued theappropriateness of a conditional sentence order.

The court held a conditional sentence order would be inappropriate and contrary to thepublic interest and ultimately imposed two six-month jail sentences to be served concurrently. [60] R. v. R.J.H., 2020 BCSC 1070 , 2020 B.C.S.C. 1070, dealt with two accused who were in a romantic relationship andboth pled guilty to possession of child pornography. The circumstances of that case were more egregious, and R.J.H. also pled guilty to acharge of making available or distributing child pornography. The evidence included 125 videos as well as 2,782 images.

Two of thevideos included babies who were being sexually abused and the court found the actions of R.J.H. in particular to be “alarming andsickening . . . that R.J.H. is a sexual deviant who requires decisive punishment, correction, and long term treatment.” The Crown soughta 40-month jail sentence for R.J.H. based on the significant number of aggravating factors, many of which are not present in the case ofMr. H. The court gave R.J.H. a 15-month sentence for the possession charge. [61] In R. v.

Krock, 2020 BCSC 1858 , 2020 B.C.S.C. 1858, the 54-year-old accused pled guilty to one count of possessingchild pornography. Examination of his computer and hard drives produced images in the thousands and further forensic examination ofhis devices resulted in the location of disturbing chat-style exchanges, including the accused and another person, about childpornography. Like Mr. H., the accused had a high-school education, a steady work history and no criminal record. Unlike Mr.

H., theaccused had significant impairments and challenges, including a mild neurocognitive disorder due to a traumatic brain injury caused by aprior motor vehicle accident. [62] The court in Krock referred to R. v. Swaby, 2018 BCCA 416 , 2018 B.C.C.A. 416, which dealt with the constitutionalityof the mandatory minimum sentence of child pornography where the Crown proceeds summarily. [63] Mr. Swaby had 400 disturbing video files that met the definition of child pornography which he had downloaded over a period ofless than three months. At trial, the Crown sought a 12-month jail sentence and 36-months’ probation.

The defence argued that Mr.Swaby was found to be at low risk to reoffend and sought a conditional sentence order. The provincial court judge, having found themandatory minimum sentence unconstitutional as it applied to Mr. Swaby, imposed a conditional sentence order. That sentence wasupheld by the British Columbia Supreme Court. In Swaby, 2017 BCSC 2020 , 2017 B.C.S.C. 2020, Mr. Justice Marchand of theSupreme Court (as he then was) said: [93] . . . the appropriate range for a first time offender with a collection of child pornography similar to Mr. Swaby’s would be a jailsentence of six to 15 months.

The range would, however, be lower if the first time offender had a smaller collection of child pornographyand/or a particularly reduced level of moral blameworthiness. [64] Both the Provincial Court and Supreme Court found that the conditional sentence was a fit and appropriate sentence given thatMr. Swaby’s personal circumstances included that he suffered from significant, serious cognitive and intellectual impairments that werecausally related to his offending, thus reducing the overall level of culpability. [65] In R. v.

Goodell, 2021 BCSC 735 , 2021 B.C.S.C. 735, the 75-year-old offender possessed 19 images of childpornography. The Crown sought a jail sentence of 8 to 12 months plus 36-months’ probation.

The defence sought a conditional sentenceorder as opposed to actual jail and argued that such a sentence would appropriately reflect the principles of sentencing and in particular,would appropriately emphasize deterrence and denunciation. [66] The court again referred to Swaby, (supra) starting at paragraph 44: [44] Nevertheless, our Court of Appeal has made clear that the requirement to prioritize the principles of deterrence and denunciation insentencing for child pornography offences means a period of incarceration of between four months and two years is usually requiredeven for simple possession of child pornography: Swaby at para 66; Alexander at para 39.

In Alexander, Justice MacKenzie saidincarceration was required “except in exceptional cases”. [45] So far, there has been limited guidance from the Court of Appeal with respect to the kinds of circumstances that might place apossession of child pornography case in the “exceptional” category and lead to the conclusion that the sentencing principles, includingthe requirement to prioritize deterrence and denunciation, would be met by the imposition of a community sentence. [67] As noted above, in Swaby, a conditional sentence was upheld on the basis that there were exceptional circumstances. Mr.

Swabywas not a typical offender. He had significant cognitive and intellectual impairments and mental-health issues, including auditoryhallucinations, which reduced his moral culpability. [68] In Goodell, the accused also received a conditional sentence order but that case is also distinguishable from Mr. H.’s situation,given that the accused was much older (75 years old) and was found to be in possession of only 19 images, none of which consisted ofsexual acts involving penetration or the like. [69] In Goodell, the court also referred to R. v.

Voong, 2015 BCCA 285 , 2015 B.C.C.A. 285, where the concept ofexceptional circumstances was discussed in the context of a drug-trafficking case. The non-exhaustive list of circumstances included:lack of a criminal record; the fact that the accused had taken significant, objectively identifiable steps towards rehabilitation as a drugaddict; he obtained gainful employment; showed remorse; and acknowledged the harm that he had done to society as a result of his

offending. [70] Counsel for Mr. H. argues that similar exceptional circumstances exist in the case of Mr. H. Counsel makes reference to Mr. H.’slack of a criminal record as of the date of these offences, as well as the significant steps that Mr. H. has taken toward rehabilitation bothin and out of custody. [71] In response, Crown argues that by arguing exceptional circumstances, Mr. H. is trying to “have his cake and eat it too”. AlthoughCrown acknowledges the steps that Mr. H. has taken toward rehabilitation, Crown points out the only reason Mr.

H. was counselled inthe first place was due to the fact that he committed (and was convicted) of other related offences. In other words, while it is appropriatefor the court to note that Mr. H. was a first-time offender as of the date of these charges, Crown argues that the court ought not ignorethe fact that Mr. H. has since been convicted of further similar offences and it is only as a result of those offences that Mr. H. has takencounselling and made rehabilitative efforts. [72] In R. v. Capewell, 2021 BCSC 904 , 2021 B.C.S.C. 904, the accused entered a guilty plea to possession of childpornography.

The evidence included 75 videos and 2,500 images of nude girls. Several other videos were found in the recycle bin.Crown was asking for a 10-month jail sentence and the defence, for a 15-month conditional sentence order. The court ordered an eight-month jail sentence followed by 18 months of probation. [73] In R. v. Hagen, 2021 BCCA 208 , 2021 B.C.C.A. 208, the trial judge sentenced the accused to 10 months of jailfollowed by 36 months of probation for possessing 605 images and 224 videos of child pornography. He was 36 years old, single, andwas himself the victim of childhood sexual abuse.

The appeal court upheld the jail sentence but reduced the length of the s. 161prohibition order from 20 years to five years. [74] The cases to which I have just referred were provided by Crown, but referenced as well by counsel for Mr. H. [75] Defence counsel also referred me to R. v. K.M., 2022 BCSC 360 , 2022 B.C.S.C. 360 . That case includes acomprehensive

summary by the Honourable Madam Justice Donegan of the current state of the law on many of these issues. [76] As well, defence counsel referred me to R. v. Bissonnette, 2022 SCC 23 , 2022 S.C.C. 23 . This case involvesfirst degree murder charges, but defence counsel relies upon it for the sentencing principles that are discussed throughout and inparticular, at paragraphs 45-53.

At para 51, the court states “a person cannot be made to suffer a grossly disproportionate punishmentsimply to send a message to discourage others from offending (Nur, at para 45)”. [77] Defence counsel relies on Bissonnette when arguing that Mr. H. has to be viewed as the rehabilitated person he is today and notas the person he was at the time of his offending. In the same context, defence counsel urges the court to keep in mind that these chargescould have and should have been dealt with when the Ontario charges were dealt with.

Defence reiterates that the Kamloops chargeswere not laid until almost two years after the seizure and the arrest, and that the Mr. H. that is before the court today is not the sameindividual that was before the court six years ago.

Defence counsel submits that those circumstances alone make this case unusual andextraordinary and take this sentence out of the usual range. [78] The case authorities relied upon by both counsel confirm that determination of a just and proportionate sentence is a highlyindividualized process that must fall within the legislative framework that is set out in s. 718 of the Criminal Code. Each offender isunique and as a result, the authorities show a diverse range of sentences.

PRINCIPLES OF SENTENCING [79] The sentence I impose must protect society by imposing a sentence that denounces the offender’s conduct, while discouraginghim and others from engaging in criminal activity. As well, I must balance these objectives against the need to separate the offender fromsociety because of any risk he may pose to the safety of the community and to children. [80]

Section 718 to 718.2 of the Criminal Code sets out the purpose and principles of sentencing. [81] A sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender. Sentencing judgesmust also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similarsentences.

Sentencing judges must also consider the principles of restraint and totality. [82] The purpose of sentencing is to denounce unlawful conduct and the harm done to victims; to deter the offender and other personsfrom committing offenses; to separate offenders from society where necessary; to assist in rehabilitating offenders; to provide reparationsfor harm done to victims or to the community; to promote a sense of responsibility in offenders; and acknowledgment of the harm doneto victims or to the community. [83] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances related to theoffence or the offender. [84] I have taken into account the following mitigating factors: a.

Absence of a criminal record: at the time of the offences, Mr. H. did not have a criminal record. As the above-noted chronologymakes clear, the Ontario charges postdate these charges. b. Guilty pleas: according to Crown, resolution discussions began immediately and therefore these can be considered early guilty pleas.Mr. H.’s early guilty pleas have saved the court significant resources and time and have spared his victims from the need to come to courtto testify. c. Remorse: I accept that Mr. H. is genuinely remorseful and accept his comments that he has experienced grief, shame, embarrassment

and regret as a result of his wrongdoing. d. Publicity: defence counsel contends that the publicity of these offences have had a negative impact on Mr. H. Although defencecounsel made no specific submissions on the media scrutiny that this case has attracted, I do accept that at a minimum, Mr. H. hassuffered the effects of having employment opportunities restricted as a result of potential employers learning about his criminalbehaviour. Further, any media stories pertaining to Mr. H. that do exist are unlikely to ever go away.

Consequently, any restrictions hefaces as a result of any information on the Internet will likely impact his life after any sentence he completes. [85] The aggravating factors I have taken into account include: a. Duration and nature of the offending behaviour: the offending behaviour spanned one and a half to two years. In the case of thevoyeurism charges, Mr. H.’s victims were vulnerable in that he recorded individuals in washrooms where they would have had a highexpectation of privacy.

In the case of the child pornography charges, the images and videos involved female children between the ages offour and 16 years old, and show the children posing in a sexual manner, engaged in sexual acts with other children, or engaged in vaginalor anal intercourse with adult males. b. Number of victims, including child victims: the evidence seized from [omitted for publication] included numerous videos of peopleentering the two washrooms with their genitals exposed. The evidence seized by Kamloops RCMP from Mr.

H.’s residence includedover 500 images and three videos that met the definition of child pornography. The images and videos involved under-aged femalechildren and, as I noted above, the child pornography charges include female children who were between the ages of four and 16. c. Breach of trust: Mr. H. was in a position of trust. He was a trusted and valued employee of [omitted for publication] when heundertook two washroom-renovation projects. The washrooms were used not only by his co-workers, but also by their children. d.

Sophistication of the offences: while in charge of the washroom-renovation projects, Mr. H. deliberately planned and installed whatappeared to be a sophisticated hidden-camera recording regime. [86] All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. I have not been given any information that suggests Mr.

H. has an Indigenous background, nor have I been alerted to anyGladue considerations. [87] In reaching my decision, I am alive to defence counsel’s submissions that the Ontario and British Columbia matters ought to havebeen dealt with at the same time, and I am alive to defence counsel’s efforts in trying to ensure that happened. For various reasons,however, it did not happen and there is no guarantee that even if the British Columbia charges were approved in time, that the Ontariocourts would have considered both series of offences to be a single criminal adventure for the purposes of sentencing.

They are separateoffences, that took place in different provinces at different times. [88] As a general rule, “offences that are so closely linked to each other as to constitute a single criminal adventure may, but are notrequired to, receive concurrent sentences, while all other offences are to receive consecutive sentences” (Friesen, supra, at para 155). [89] Overall, I find the circumstances of these offences and of this particular offender more in line with the case authorities presentedby Crown.

Most of those authorities presented by Crown postdate Friesen and take into consideration the Supreme Court of Canada’sinstructions that sentences should increase for these types of offences. [90] The cases provided to me also confirm that the primary principles of sentencing applicable to this case are denunciation anddeterrence. That being the case, I am permitted to give less weight to the fact that Mr. H. has already made significant efforts toacknowledge his criminal conduct and rehabilitate himself. [91] With respect to the voyeurism charges, as I noted, Mr.

H. was a trusted employee of [omitted for publication] for approximately10 years. Toward the end of his career, he planned out and strategically placed a hidden camera system within two washrooms of hisformer employer. Those cameras were placed purposely and used specifically to record videos of individuals using the toilet with theirgenitals exposed. The offences occurred in the location most obvious to where a person is entitled to have the highest expectation ofprivacy.

Numerous co-workers were the subject of this offending behaviour and the evidence included saved, labelled and revealingimages of underage females between the ages of eight and 12 years of age. [92] With respect to the child pornography charges, 500 images and three videos depicted younger female children (between the agesof four and 16) posing in a sexual manner, engaged in sexual acts with other children, or engaged in vaginal or anal intercourse with adultmales. [93] I have considered the steps taken by Mr.

H. toward his rehabilitation and I have taken into consideration that those steps wereinvoked as a result of his repeated pattern of similar offences. Notwithstanding, I have also considered Mr. H. to be genuinely remorsefulfor his offending behaviour. I have also taken into consideration the opinion of Dr. Ley that Mr.

H. does present a manageable risk in thecommunity. [94] Notwithstanding all of the above, I find that a conditional sentence order would be an inappropriate sentence in that it does notproperly address the primary principles of denunciation and deterrence in these particular circumstances which include, among otherfactors, Mr. H.’s extremely high level of moral blameworthiness. Based on the information I have been given, Mr. H. has no cognitive orother mental impairments that could potentially diminish his moral culpability. To the contrary, by all accounts, Mr. H. is extremelyintelligent, perhaps gifted.

Without question, he had the mental capacity and ability to know better. [95] In all the circumstances, I find that a conditional sentence order would be unfit and contrary to the public interest; it would be aninsufficient sentence to communicate the wrongfulness of Mr. H.’s conduct to both himself and to the larger community. In this regard, Irefer to the court’s comments in R. v. Jarvis, 2019 ONSC 4938 , 2019 O.N.S.C. 4938, referred to in R. v. Leighton (supra) at

paragraph 20: [20] In addressing the issue of the suitability of a conditional sentence the Court said: [81] In my view, all of the aforementioned factors are an indication that general deterrence and denunciation are required at a high level. Not just because it is statutorily mandated on the facts of this case. Technology is everywhere. Cameras, cell phones and other recording devices can be placed surreptitiously in any location, or on any person. The main stream and social media is replete with video captures taken by citizens. It seems like everyone has a smart cell phone today.

While this is not a case of a cell phone, in my view, this increases the need for sending a message to the general public that taking pictures of individuals in compromising positions . . . is inappropriate. That is what Mr. Jarvis did, repeatedly and with guile. Therefore, in my view, this is one of those cases where general deterrence must actually play an enhanced and meaningful role in sentencing. . . . [83] In order to encourage the principles of denunciation and deterrence for both Mr.

Jarvis specifically, and other offenders who commit similar crimes, a conditional sentence will not be suitable given the high number of aggravating factors. In my opinion, this requires a sanction that cannot be attained by the imposition of a conditional sentence in order to meet the objective of proportionality. For greater certainty, a conditional sentence would fail to strike the right balance in emphasizing the paramount principles and it would fail to place the right weight on denunciation, specific deterrence, and most significantly, it fails to address adequately general deterrence.

The significant denunciation effect of jail is required. I find that it would be unfit and contrary to the public interest to impose a conditional sentence. [ 96 ] In the case of Mr. H., the jail sentence put forward by Crown falls squarely within the range of sentences for these types of offences. Further, it is apparent from the range of sentences available that Crown did take into consideration that it would have been preferable for Mr. H. to deal with the British Columbia and Ontario charges together. However, Crown does not accept, nor am I convinced, that had that happened, Mr.

H. would have received a global sentence. There is no nexus between the British Columbia and Ontario offences. The British Columbia offences were separate offences, with separate victims, in a jurisdiction on the opposite side of the country at different times. These facts cannot be ignored, nor can I ignore the fact that while Mr. H. did receive a significant level of rehabilitation through counselling, that counselling was undertaken only because he was convicted of further similar offences. Additionally, the fact that Mr.

H. has received counselling for other similar offences does not automatically negate the need for it here. The counselling undertaken and the rehabilitation already experienced by Mr.

H. may reduce his risk in the community, but that is only one factor of many that I am required to consider in determining a fit and appropriate sentence that requires me to focus primarily on denunciation and deterrence. [ 97 ] Further, the fact that Crown is seeking a one-year jail sentence when the maximum sentence for voyeurism is five years and when the maximum sentence for child pornography by indictment is now 10 years, tells me that the Crown has considered Mr.

H.’s guilty plea, any plausible Charter issue, all of his counselling and rehabilitative efforts, and the fact it would have been preferable to Mr. H. to have dealt with these charges together with the Ontario charges. SENTENCE [ 98 ] Mr. H., I ask you to stand. [ 99 ] Having considered all of the circumstances, I am sentencing you to one year of jail on Count 1 and one year of jail on Count 2. These sentences are concurrent. I also sentence you to 12 months of probation. [ 100 ] With respect to your probation, the terms are as follows: [ 101 ] You must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the officer of any change of employment or occupation. [ 102 ] You must report in person to the probation officer at 102 - 455 Columbia Street, Kamloops, British Columbia, within two business days after your release from custody unless you have, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame.

After that, you must report as directed by your officer. [ 103 ] If you are arrested, detained, or if you serve a sentence for another offence, you must report by telephone to your probation officer within two business days of your release from custody (or completion of the sentence) so that your probation officer can give you further direction to report. [ 104 ] You must live at an address approved in writing in advance by your probation officer and you must provide your probation officer with your phone number if you have one.

You must not change them without prior written permission from your probation officer. [ 105 ] You must have no contact or communication directly or indirectly with R.P., S.H. M.B. or members of their immediate family, or anyone you know to be previously or currently employed with [omitted for publication]. [ 106 ] You must not go to or be within FIFTY (50) metres of any place where R.P., S.H., M.B., or members of their immediate family, or anyone you know to be previously or currently employed with [omitted for publication], lives, works, attends school, or worships, or happens to be.

If you see them, or any of them, you must leave their presence immediately without any words or gestures. [ 107 ] You must provide your probation officer with the details of your employment and intimate relationship status. You must inform your probation officer within two business days of any change in your employment of intimate relationship status. [ 108 ] You must not go to or be within FIFTY (50) metres of [omitted for publication]. The exception is: while you are in a moving

vehicle on your way to some other place. [ 109 ] You must not go to any public park, public swimming area, daycare centre, school ground, playground, community centre, theatre or other location where persons under the age of SIXTEEN (16) years are known by you to be present or can reasonably be expected to be present. The exceptions are:

a) while you are in the company of D.H., K.H., A.N., or J.N., or another trustworthy adult who is aware of your criminal record and who is approved of by one of the aforementioned persons (

b) for purposes directly related to employment; (

c) as incidental to conducting day-to-day activities provided that one of the aforementioned persons are present (

d) in the case of an emergency; (

e) with the prior written permission of the probation officer. Such permission is to be given only for reasonable purposes. If you are given permission, you must carry it with you in paper or electronic format at all times when you are in the prohibited area. [ 110 ] You must not have any contact or communication directly or indirectly with, or be in the presence of, any person under the age of SIXTEEN (16) years. The exceptions are as follows:

a) while in the company of D.H., K.H., A.N., or J.N., or or another trustworthy adult who is aware of your criminal record and who is approved of by the probation officer; (

b) for purposes directly related to employment; (

c) as incidental to conducting day-to day activities in a public place where other adults are present (

d) in the case of an emergency; and (

e) with the prior written permission of the probation officer. Such permission is to be given only for compelling reasons. You must carry the permission, which can be in electronic format, with you at all times when you are in the prohibited area; or (

f) you may have contact or communication with D.N. and/or A.N. in the presence of at least one of your parents, D.H. and K.H., or your sister A.N. [ 111 ] You must not seek, obtain, or continue with any volunteer position or employment that involves being in a position of trust or authority towards a person under the age of SIXTEEN (16) years, unless you have the advance written permission of your probation officer. (

a) if you are given permission, you must carry it with you in paper or electronic format at all times when you are engaged in the activity requiring permission. [ 112 ] (2306 and 2306-A): You must not enter into or continue any dating relationship, common-law relationship, or marriage, with any person who has children under the age of SIXTEEN (16) years, or who has the care of or access to children under that age. The exception is (

a) You have identified to your probation officer the person with whom you are in, or propose to enter, a relationship, and your probation officer has informed that person of this order and your criminal record. [ 113 ] (2310): You must not possess or use any device capable of recording images except with the prior written permission of your probation officer for purposes directly related to your employment. [ 114 ] You must not access or possess any pornographic material, including, but not limited to, possessing or accessing pornographic material by electronic means. [ 115 ] (2601): You must not access any computer network including the Internet or possess any device capable of accessing the Internet.

The exceptions are

i) you do not delete the history of the Internet use from the device; ii) the device you use retains and displays the history of Internet use; iii) you do not install or have any applications or platforms on the device that automatically deletes messages, videos, or photos viewed from the device; permits incognito Internet browsing; or allows data to be deleted from the device remotely; iv) you do not access, directly or indirectly, or maintain any personal profile on any social media sites, social networks, Internet discussion forums or chat rooms;

v) you do not communicate or attempt to communicate with any person you know to be or who reasonably appears or represents themselves to be under the age of sixteen (16) years through any electronic means, including, but not limited to, telephones and computers. The exceptions are as follows: (1) for purposes directly related to employment; (2) for communication (such as email, VolP phone, technical support); financial services, consumer products and services (such as shopping, reservations, news); government and legal services; research (such as navigation, tutorials, job search); education and training; media (such as Netflix, Spotify, ebooks).

SECTION 161 – PROHIBITION ORDER [ 116 ]

Section 161 is permissive and I find that the circumstances of the offences themselves are sufficient to justify an order pursuant to s. 161 of the Criminal Code . [ 117 ] With regard to the duration of the s. 161 order, I refer to comments made in R. v. Hagen , (supra) a t para 81, referring to the case of R v. R.J.H., (supra) : where a s. 161 order is made, the length of the prohibition should respond to the offender’s risk, but also take into account the length of the sentence, the age of the offender upon release into the community and the prospects for rehabilitation.

The court also noted that prohibitions that overshoot the mark serve no valid sentencing purpose. [ 118 ] With these considerations in mind, and bearing in mind the considerations that I have already referenced throughout my decision, the duration of the s. 161 order is 10 years and the terms will be consistent with the terms set out in the existing s. 161 order out of Ontario. [ 119 ] Lastly, I make the following ancillary orders: [ 120 ] I am making an order authorizing the taking of samples of DNA analysis pursuant to s. 487.051 of the Code .

The samples will be taken from you while you are in custody and you must submit to the taking of the samples. [ 121 ] I am also making an order pursuant to s. 490.012 that Mr. H. comply with the Sex Offender Information Registry Act for 20 years. [ 122 ] Crown is not opposed to waiving the victim fine surcharge, as requested by defence, and I am satisfied it would be appropriate to do so in the circumstances. Mr. H. has been without employment for a significantly long period and will not have an opportunity to earn income while incarcerated. [ 123 ] This concludes my decision.

I thank counsel for their thorough submissions. To Mr. H., I trust this brings you closure. I have no doubt that the last six years have been very difficult and challenging for you. I wish you much luck Sir as you move forward with your life.

______________________________ The Honourable Judge L. Bennett Provincial Court of British Columbia