R. v. S.F., 2023 BCPC 223

Citation: R. v. S.F. 2023 BCPC 223 Date: 20231017 File No: 43600-2K Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. S.F. Ban on Publication pursuant to s. 486.4(2.2) and s. 486.4(1) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: T. Morgan Accused not in attendance and no counsel appearing on his behalf Place of Hearing: Courtenay , B.C. Dates of Hearing: April 11, 12, 13, 14 and October 16 and 17, 2023 Date of Judgment: October 17 , 2023 INTRODUCTION

[ 1 ] There has been a lengthy trial and the accused has been found guilty of an offence contrary to section 162(1) of the Criminal Code of Canada . [ 2 ] Specifically, he illegally planted a camera in the family home and created a digital recording of his spouse. He did this without her knowledge and without her permission. [ 3 ] These are the reasons for sentence. THE FACTS [ 4 ] A more detailed version of the facts will be published as soon as possible. [ 5 ] For our purposes today, a brief

summary should be enough. The accused and complainant were married. They lived in the same home. For a number of reasons the accused decided to put a camera in their home. He obtained an alarm clock, which had a hidden camera in it.

The camera had a motion sensor and was set to capture movement in and around the main bed in the master bedroom. [ 6 ] In this trial, I have concluded that at least one recording was made of the complainant while in the bed. [ 7 ] In its simplest form, section 162(1) criminalizes the act of surreptitiously making visual recordings of individuals in situations where a person should have a reasonable expectation of privacy. Any recording made in this environment can only be made with a person’s knowledge and consent. [ 8 ] The law is designed to protect the privacy and dignity of individuals.

WHAT IS NOT CONTESTED [ 9 ] It appears that the accused obtained a copy of the video and sent it to his spouse. The video was not taken for a sexual purpose. This is an important point, as the charge itself is simply that the recording was made in a place where a person might reasonably be expected to be nude or expose certain parts of their body. It is important to note that the accused in this case is not charged with a different

section that forbids surreptitious recordings of people for a sexual purpose. WHAT IS CONTESTED [ 10 ] This is not a joint submission. Both Crown and the accused want different sentences to be imposed. CROWN POSITION [ 11 ] The Crown has proceeded by way of indictment, and the maximum punishment is five years imprisonment. If the matter had proceeded by way of

summary conviction, the maximum punishment would be punishable by

summary conviction. [ 12 ] The Crown submits there is a wide range of possible sentences. They argue that due to the nature of the breach of trust in this case that a short jail sentence is warranted. They also ask for a lengthy three year probation order with a number of conditions and some collateral orders. DEFENCE POSITION [ 13 ] Counsel applied to be removed as counsel of record and did not participate in the sentencing hearing. The accused was also not present. I expect if he was present he would not be agreeable to the Crown’s position and I expect this would not be a joint submission.

RANGE OF AVAILABLE SENTENCES [ 14 ] When proceeding summarily, the maximum sentence is two years less a day jail and/or a $5,000 fine. When proceeding by way of indictment, the maximum punishment is five years jail. There are no minimum penalties. [ 15 ] All dispositions are available for consideration. Discharge Provisions [ 16 ] Pursuant to

section 730 of the Criminal Code , an accused person can be discharged absolutely, that is without any conditions, fines, probationary terms, or jail sentences. [ 17 ] As well, an accused can be discharged with conditions attached to probation. Sometimes these conditions may include restrictions on who they can see, or where they can go. Even community service work and mandatory attendance at counselling can be attached to conditional discharges. [ 18 ] The advantage to a discharge is that no ‘conviction’ is entered, and thus the accused does not obtain a criminal record. Non-Custodial Sentences [ 19 ] Under section 731(1)(

a) of the Criminal Code of Canada , a suspended sentence can be imposed. Like a conditional discharge, a suspended sentence can also create the same restrictions on an accused, such as who they can see, or where they can go, or community service work or counselling conditions. The main difference is that a suspended sentence creates a criminal record. [ 20 ] A fine up to $5,000 is an available disposition. Any amount of a fine also creates a criminal record.

Jail - Custody [21] A custodial sentence is available to the court in this case. Any jail sentence can be attached to a period of probation as well as afine. Conditional Jail Sentence [22] If the court determines that a jail sentence is appropriate, then consideration should be given to whether the jail sentence can beserved in the community or not. General Range [23] R. v. McFarlane, 2018 MBCA 48, is an appellate authority that endorsed a range for this offence for a first time offender to bebetween a discharge and 12 months imprisonment. PRINCIPLES OF SENTENCING [24]

Section 718 to 718.2 of the Code sets out the purpose and principles of sentencing. [25]

Section 718 sets out the statutory objectives I must consider when imposing a sentence. They are: 1. To denounce unlawful conduct and the harm done to victims or to the community that is caused the unlawful conduct; 2. To deter the offender and other persons from committing offences; 3. To separate offenders from society where necessary; 4. To assist in rehabilitating offenders; 5. To provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders andacknowledgment of the harm done to victims of the community. [26]

Section 718.1 requires that the sentence I impose must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. CASE LAW [27] R. v. McFarlane, 2018 MBCA 48 is from the Manitoba Court of Appeal. For context, in that case, the accused threatened todisseminate intimate images of the complainant. The court concluded that the ‘sextortion’ interfered with her freedom of choice over hersexual integrity. Many of the facts are very different than in our case.

However, the court confirms at paragraph 25 that they were of theview that a range of sentence for a first offender on a guilty plea on this sort of charge would be between a discharge and 12 monthsimprisonment. [28] R. v. F.G. (NL PC), 308 Nfld & P.E.I.R. 59 Is a Newfoundland and Labrador judgment by the HonourableAssociate Chief Justice Hyslop from 2011. In FG, the step father of a 17 year old minor entered her bedroom and installed a camera. Inboth that case, as in this case, the accused said the recording was not done for a sexual purpose.

In FG the accused feigned some thoughtthat there was a disciplinary purpose behind the planting of the camera. A three month conditional jail sentence was imposed in thatcase. [29] The Associate Chief Justice indicated at page 3 of 10: I cannot imagine what he thought would be accomplished for the good by engaging in this type of activity. If it was intended to be sometype of discipline for parental guidance, it can only be described as a criminal act and ALWAYS as inappropriate.

In a situation whereone is in a position of trust and chooses to invade the privacy of a bedroom of a child in these circumstances, this act is completelyinexcusable. [30] In FG, the aggravating factors were that the victim was a minor, the accused was not the biological parent, but was in a positionof trust, the camera was placed in one of the most private places possible, and that to quote CJ Hyslop: The expectation of privacy was extremely high. It seems to me that the principle focus of the sentence here should be denunciatory. Itshould also strive to deter this person and others from this type of offence.

In this age of computers, “iPhones”, Facebook, and YouTube,there is a very real risk that images like this could be disseminated around the world. The sentence should also reflect the concern of thecourt to ensure the protection and integrity of children. Even though this person was not an infant, she was very much a young personand this behaviour must be sharply denounced. [31] Of course in our case today, there is no child involved. However, the recording was made in a bedroom. As well, I am of theview a trust-like relationship exists between spouses. [32] R. v. Russell 2019 BCCA 51 is an appeal decision.

In that case the appellate court considered whether the sentence I imposed atthe original sentencing hearing was fit or not. In that case the accused received an 18 month jail sentence for taking pictures up the skirtsof girls in a mall. His circumstances are significantly different than the circumstances of the offender before the Court today as he had along record and was at high risk to re-offend. However, the courts comments at paragraph 33 are helpful for our purposes: [33] With respect to the offence of voyeurism, the Crown proceeded by indictment.

Therefore, the maximum sentence is five years.The judge properly considered the nature of the offence of voyeurism as a serious invasion of privacy, reproducing the comments of

Dhillon P.C.J. in R. v. Bosomworth , 2015 BCPC 7 : [12] Judge Dhillon’s comments under victim impact statements at paragraph 21, in considering the legal authorities when sentencing for this type of offence, writes: The central sentencing objectives in this case are to denounce the unlawful conduct of voyeurism, deter the offender and others from committing voyeuristic offences, and assist in [in that case] Mr. Bosomworth’s rehabilitation … [13] Under the analysis which was found at paragraphs 26, 36, and 38, there are comments about the moral gravity of the offence. It was determined that Mr.

Bosomworth thought his plan out, planned it in advance. It was quite deliberate.

He devised and carried out a means to spy on and record the activities of other people, thereby invading their privacy. [14] At paragraph 38 Judge Dhillon really, I think, makes the point quite clear when she writes: It is my view that given the times in which we live, where privacy in the public sphere has been eroded by the prevalence of surveillance cameras or the ready deployment of cell phone cameras in public places, the expectation of personal privacy in highly private places must be protected. [15] She continues and writes: … The law must protect that privacy by ensuring a deterrent and denunciatory sentence which sends the message that a criminal record is likely to result if criminal acts involve a serious breach of personal privacy [16] So this was not a victimless crime, even though we do not have victim impact statements.

The impact on society when people’s privacy is invaded is apparent. [ 34 ] As the judge noted, the offence of voyeurism is not a victimless crime. It involves a serious invasion of personal privacy. [33] In the Russell case, the court refers to the R. v. Dastagir 2018 MBPC 44 case. It is a helpful authority that talks about the range of sentences in voyeurism cases and lists a number of useful cases.

At paragraph 21 the Honourable Judge Martin writes: [21] There is a range of sentences for the offence of voyeurism given the different manners in which the offence can occur and the broad spectrum of seriousness of offending. Counsel only provided two cases to the Court, R. v. Brandt, 2013 MBPC 39 (provided by defence counsel) and R. v. Cassels, 2013 MBPC 47 (provided by the Crown). Brandt surveys the case law on lower end voyeurism offending, observing that community-based dispositions appear to be the norm, ranging from conditional discharges to conditional sentence orders. R. v.

Muggridge, 2015 NLPC 1314 A00585 which considers the Brandt decision makes similar observations. The cases reviewed in these two decisions follow: Cases where a conditional discharge was imposed R. v. C. (R.) , 2010 BCPC 475 : The accused videotaped his 13 year old granddaughter. In that case, the accused had been sexually abused as a teenager. He had undergone counseling and was determined to be a very low risk for sexual recidivism. He had no criminal record and had begun counseling to address his behaviour. It is unknown how the Crown proceeded.

The court noted that denunciation and protection of the public were important factors. Despite noting these paramount factors and the relationship of trust with his granddaughter, the court granted a conditional discharge for a period of three years. R. v. Pan , 2012 ABPC 203 : The accused was caught videotaping a sexual encounter between his roommate and his roommate’s girlfriend. The Crown proceeded summarily. The court found that the circumstances of that particular offence were at the low end of the spectrum of voyeurism offences.

It noted his very early guilty plea and remorse and his lack of criminal record and sentenced the accused to a conditional discharge accompanied with 18 months of supervised probation. Cases where a suspended sentence was imposed R v. N. (J.H.), 2010 BCPC 155 : A 32 year old accused with no prior criminal record repeatedly watched two young girls, aged 15 and 18, while they were at home, over a period of five months. On one occasion he trespassed on their property and climbed onto the roof. The Crown proceeded summarily.

The court found that denunciation and protection of the public were the paramount principles and sentenced the accused to a one year suspended sentence. R. v. Grice , 2008 ONCJ 476 : The accused surreptitiously filmed his estranged wife while she was in the shower. The Crown proceeding summarily. In that case, the court found that given the personal circumstances of the accused and the complainant, the voyeurism was an abusive attack on the complainant’s personal privacy. The court rejected the Crown’s submissions that a custodial sentence was required, and imposed an 18 month suspended sentence. R. v.

Weinheimer, 2007 ABPC 349 : The accused surreptitiously took photographs of fifteen men using the urinal at his place of employment. He stored these photographs together with the names, birthdates, addresses, insurance account numbers and notes regarding the genitals of the victims on his computer. The Crown proceeded by indictment. The court found that the primary sentencing objective was rehabilitation, deterrence and denunciation being secondary objectives, and sentenced the accused to a two year suspended sentence with supervised probation. R. v.

Bosomworth , 2015 BCPC 7 : The accused who was the co-owner of a restaurant, surreptitiously set up a video camera in the restaurant’s unisex bathroom, capturing six victims. It is unclear how the Crown proceeded. The judge denied the accused’s request for a conditional discharge and imposed a suspended sentence and probation. The court noted at paras. 34-35 that: “where the offence was done for a non-sexual purpose such as detecting theft at a place of employment ( R. v. Laskaris ), or done once

impulsively, briefly and on the spur of the moment (R. v. Pan; R. v. Bertuzzi) a discharge has been found to be not contrary to the publicinterest …. Cases of voyeurism in which a discharge was found to be unsuitable generally disclose greater moral blameworthiness, suchas a planned or pre-meditated course of conduct, multiple surreptitious recordings or voyeuristic acts, or those involving more than onevictim: R. v. Grice, R. v. Weinheimer; and R. v. Dekker. Muggridge: In Muggridge, the 57 year old accused with no prior record surreptitiously recorded his employee in the bathroom on at leastthree separate occasions. The Crown proceeded by way of

summary conviction. The court denied the accused’s request for a conditionaldischarge and sentenced him to a suspended sentence with twelve months of supervised probation. Cases where a conditional sentence order was imposed R. v. F.G., (NL PC), 2011 CarswellNfld 90 (NLPC): The accused installed a video recorder aimed towards the bedof his 17 year old step-daughter capturing nude footage of her. The Crown proceeded by indictment.

The court noted that given hisposition of trust, which was a statutorily aggravating factor, and his lack of prior record, denunciation and deterrence were primaryconsiderations and sentenced the accused to a three month conditional sentence order. Brandt: In Brandt, the offender surreptitiously watched his subordinate shower at work, videotaping her twice and transferring theseimages to his home computer where his wife discovered them over five years later. After watching the victim in the shower, he wouldmasturbate and ejaculate in her underwear in hope of impregnating her. The Crown proceeded by indictment.

The court distinguished thecase law referred to it given the serious and predatory nature of the offending and sentenced the offender to an 18 month conditionalsentence order. R. v. Dekker, 2014 ABPC 61: The accused surreptitiously recorded 80 individuals in a public bathroom and on one occasion in herhome. An analysis of the images depicted on the videos revealed 77 video clips and a total of 251 minutes of video. The Crownproceeded by indictment. The court imposed a nine month conditional sentence order. [22] There are however, cases where a period of incarceration is ordered such as in Cassels.

A review of that case and others suggestthat incarceration tends to be reserved for those offenders who engage in egregious conduct, often alongside other types of offending,such as sexual assault or child pornography. In Cassels, the Crown proceeded by way of indictment. After a review of the case law, thecourt commented that the accused’s conduct went well beyond the mere watching conduct at issue in most of the reported case law: ... [the victim] not only knew about the recording she tried to get them back – to no avail. Mr. Cassels’ scripted his voyeurism.

He forcedhis victims to sleep nude to facilitate his actions. He positioned their bodies so that he could take incredibly intimate image of them. Thisbehaviour goes beyond the circumstances of many of the cases reviewed.Cassels at para. 92. [23] The court sentenced Cassels to six months of custody, consecutive to other sentences including, sexual assault, unlawfulconfinement and uttering threats. [24] One of the cases referred to in Cassels is R. v. Keough, 2011 ABQB 312, varied on appeal, 2012 ABCA 14.

Keough received anine month custodial sentence, the Court commenting at para. 233 that “no Court has faced voyeurism of the kind engaged in by theOffender. He is also a different kind of voyeur. The accused was found guilty at trial of possession of child pornography, makingvoyeuristic material and voyeurism. The accused was a community youth worker who befriended young people and invited them to hishome, occasionally allowing them to stay in his spare bedroom to engage in sexual activity.

This sexual activity was recorded and endedup in the possession of the accused who had offered some type of consideration for it. The Crown proceeded by indictment. [25] Custody was also the outcome in R. v. M.(G.), 2014 MBPC 57 where the Crown proceeded by way of indictment on thevoyeurism offence, in addition to multiple other offences including sexual interference, make and possess child pornography andcriminal harassment. The facts behind the voyeurism offence included surreptitiously recording sexual activity. The court found a seriousbreach of trust and profound violation of the victim’s privacy.

Noting that the offender minimized and justified his conduct, the courtheld that denunciation and deterrence were paramount sentencing principles, requiring a nine month custodial sentence. [26] In McFarlane, at paras. 25-48, the Manitoba Court of Appeal endorsed the court’s comments in M.(G.) that the range of sentencefor a first offender on a guilty plea to the offence of voyeurism from the low end to the high end of the spectrum is between a dischargeand twelve months' imprisonment.

In McFarlane, the accused (then age 19) surreptitiously video recorded the victim (then age 17)undressing and showering when she was in the bathroom of his family home. He kept, but did not share, the recording. He explained hisconduct resulted from his interest in pornography relating to "peeping toms" and that he was aroused when he was in "control." TheCourt of Appeal held that given the circumstances of the offence and the age of the victim, a three month custodial sentence waswarranted. [27] There are of course many other reported decisions.

The above are simply an illustration of the spectrum of conduct in voyeurismoffences and the sentencing range that is commensurate with that conduct. As such, although voyeurism offences usually attractcommunity-based dispositions, that tends to be the case for conduct that falls on the lower to middle range of offending conduct. Forthose offences where the conduct is more egregious, custodial sentences are often warranted. [34] R. v. Leighton is a case where a camera was placed in a workplace washroom. There were 13 victims and two of them wereunder the age of 18.

I appreciate the number of victims and recordings arguably makes the Leighton case more serious. However, in myview, The Honourable Judge Burnett highlights the technological age that we live in. [35] The Honourable Judge Burnett in Leighton, provides extensive reasons as to why she believes denunciation and deterrence in thatcase required an actual custodial sentence, versus one that could be served in the community. She acknowledge that the accused wasremorseful, but relied on cases such as R. v. Jarvis 2019 ONSC 4938 decision by the Honourable Justice Goodman who sentenced theaccused to six months jail.

I note that Jarvis case generally does not support the proposition that a conditional jail sentence is anappropriate sentence in voyeurism cases. However, I find the circumstances in that case also pretty egregious. In that case a teachertook videos of a number of 14 to 18 year old girls. However, the comments of the judge in the Jarvis case again, ring true to sentencing

people for these type of crimes. At paragraph 81: [81] Technology is everywhere. Cameras, cell phones and other recording devices can be placed surreptitiously in any location, or onany person. The main stream and social media is replete with video captures taken by citizens. It seems like everyone has a smart cellphone 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 thattaking pictures of individuals in compromising positions, for example, women who might be wearing a top that is loose or showingcleavage is inappropriate.

That is what Mr. Jarvis did, repeatedly and with guile. Therefore, in my view, this is one of those cases wheregeneral deterrence must actually play an enhanced and meaningful role in sentencing. [36] The Judge acknowledges that R. v. Proulx 2000 SCC 5 , [2000],1 SCR 61 from our Supreme Court of Canada providesthe conclusion that a conditional jail sentence, with restrictive conditions properly designed, can properly deal with principles ofdeterrence and denunciation.

However, Judge Burnett then concludes that a conditional jail sentence may not meet the objective ofproportionality – that is balancing the serious nature of the offence with the degree of moral blameworthiness of the offender.

Theargument favouring a jail sentence rather than a conditional jail sentence is largely premised on the idea that if denunciation anddeterrence are the primary sentencing objectives, then while a properly designed onerous conditional jail sentence can sometimes meetthese objectives, incarceration generally provides more denunciation. [37] I have a great amount of respect for this argument, but I wonder if to say a conditional jail sentence is never appropriate for thecrime of voyeurism throws too broad a blanket over the delicate balancing that needs to be applied with respect to all mitigating andaggravating factors of the offence and offender.

After all, planting a camera to catch a thief in your store is significantly different thanplanting a camera to record pornographic images for distribution.

As well, a person with no record might receive a significantly differentsentence than an offender who has an extensive criminal record. [38] Surely the plethora of cases, some of which have been referred to by defence counsel, that decided conditional discharges andsuspended sentences were appropriate sentences shines a bright light on the possibility that before a jail sentence, a judge must at leastconsider whether a conditional sentence is a reasonable alternative. It may be that in some cases it is, and in other cases it is not. [39] The R. v. M.S.A. 2013, ABPC 66 is a case out of Alberta.

The Honourable Judge Redman, now I believe the Chief Judge ofAlberta considered whether a conditional sentence should be given to an accused who surreptitiously videotaped his fifteen year oldstepdaughter. In that case there were two incidents of recording. Paragraphs 42 to 48 provide a number of useful authorities with respectto their factual scenario. The range of 3 to 6 jail was accepted by the court and a 5 months jail was imposed. [40] The accused was remorseful.

Equally applicable is a portion of the judgment read out by the crown, found at paragraph 53 and55: The victim was under 18, taken by surprise, occurred without warning, in a location where she should have been able to expect theutmost privacy and sanctity. … The offender has a high degree of moral blameworthiness. His actions were planned and deliberate. They were far from ‘spur of themoment.’ When initially confronted he was evasive. [41] R. v. Concepcion 2017, BCPC 153 is a 2017 decision by the Honourable Judge Challenger. She gave a suspended sentence tothe accused.

He had recorded an adult women in her own home. The victim in that case was in her 40’s and had a close relationshipwith the accused. The accused accepted responsibility, was compliant with bail and remorseful. Judge Challenger essentially echoedJudge Dhillon’s reasons from the Bosomworth case that emphasized that sentencing judges must ensure that privacy is protecting byensuring deterrent oriented sentences. [42] In that case, there was no breach of trust, the victim was not a vulnerable youth, the accused received a criminal record andprobably would not be able to remain in Canada on his work permit.

In other words, these collateral consequences were part of JudgeChallenger’s analysis in reaching the conclusion that she did. [43] R. v. Downes, 2020 BCSC 177, is a case by the Honourable Justice MacNaughton from 2020. A coach had filmed two boys. They were 13 and 14. The case speaks to range of sentences available at paragraph 68 and confirms that the range is broad spanningfrom a conditional discharge to a suspended sentence to a conditional sentence order to up to two years imprisonment.

Genuine remorse,insight and his understanding of the impact on the victims and their families were important considerations in deciding the sentence inthat case. The Supreme Court of Canada reviewed the decision. While the appeal concerned a review of the voyeurism provisions, theCourt in the headnote emphasizes the importance of protecting individuals’ privacy and sexual integrity. [44] R. v. R.H.C., 2010 BCPC 475, is a decision by the Honourable Judge Dossa. In that case a grandfather taped his 13 year oldgranddaughter with a hidden camera. A conditional discharge was granted.

In that case there was a complicated history that the accusedsuffered from, that in my view, lessened the moral culpability of the offender. There was evidence before the court to show that thebehaviour was not predatory and there would be significant career ramifications if he were to receive a suspended sentence or a criminalrecord. [45] R. v. P.B.D., 2019 BCPC 18, is a decision of the honourable Judge MacCarthy. Recordings had been taken in a local coffee shopbathroom. Crown sought a suspended sentence and defence sought a conditional discharge.

Once more, it is my view, that a criminalrecord may have had some severe impacts on his employability was part of the reason he received a discharge. Again, the crown wasonly seeking a suspended sentence. Remorse was expressed, it was argued that his moral culpability was lessened by mental healthissues. He also notes a low level of premeditation. [46] On the topic of ‘employability’, the case of R. v. Laskaris, 2008 BCPC 130 , 2008 BCPC 0130, is a decision of TheHonourable Judge Gill. In that case, a dentist set up a video surveillance camera in a staff washroom. An employee was video recordedusing the washroom.

The Crown argued that a fine was appropriate. Judge Gill considered whether giving the accused a fine, and thusa criminal record, was appropriate. He noted that there was no sexual motive. He also noted the expression of remorse and the benefits

of a guilty plea. Judge Gill accepted that the accused had been under an immense amount of stress that effected his judgement. The accused received a 12 month conditional discharge. ANALYSIS Factors to Consider in Imposing Sentence [ 47 ] In determining what type of sentence is required, I accept that denunciation and deterrence are the main guiding principles. [ 48 ] There is an endless list of factors that can be considered.

Not in any particular order, I have taken into consideration the following factors: the events that were recorded; whether they were distributed to a place that others could access; the age of victim and accused; the relationship between them; whether there were any threats of violence; whether there were attempts to conceal evidence and the degree of cooperation with the authorities; the lack of previous related convictions; how the accused did on bail; and location of offence, which includes the enhanced expectation of privacy that we associate with the bedroom.

I have also considered whether certain stressors may have played a role in the poor exercise of judgement in hiding a camera in the main bedroom. I also note that there may be other collateral consequences if this medical professional gets a criminal record. [ 49 ] I have also considered the amount of time that this accused has been on bail. While there is no actual equation that assists me in ensuring this time is considered, I note that it has been considerable. CONCLUSION [ 50 ] I have considered whether an absolute discharge is appropriate. I conclude that this would not be an appropriate sentence.

The fact remains that there has been no expression of remorse in this case. The accused does not seem to relent from the position that he has done no wrong, and that it is he who has been victimized by these proceedings. [ 51 ] There has also been no guilty plea in this case.

The trial took countless days, and untold resources. [ 52 ] The complainant has been re-traumatized by having to take the witness stand. [ 53 ] I appreciate there is a strong argument that the lack of guilty plea, the expensive and time consuming trial, and putting the complainant through such an arduous cross-examination could easily favour a suspended sentence, a conditional jail sentence or even a short period of actual jail with probationary conditions as well.

Certainly the accused’s general approach to this case may also favour more punitive sanctions than what I am imposing. [ 54 ] I also appreciate that when a person is charged with a crime there are often immediate consequences. For example, in this case, this accused was arrested. The arrest occurred at his place of business. In his profession, reputation can be an extremely important part of running a professional business. Then there are court attendances, hiring of lawyers, and all the other inconveniences that go along with having to prepare for a trial.

If I understand correctly, this accused spent considerable resources coming to and from his court proceedings, as he resides in England. [ 55 ] As in the Laskaris case to do with the dentist cited above where The Honourable Judge Gill at paragraph 17 writes, “it is important to note that this accused is nowhere near to being out of the woods after today’s proceedings.

The consequences of his actions will continue to reverberate through his life for some time yet to come in the form of disciplinary proceedings ….” There may be similar collateral consequences for the accused in our case. [ 56 ] No doubt it has been long and complicated emotional and financial journey for this accused. I note that the offence date is from September 2020, and here we are in October 2023. [ 57 ] In my view, the delay alone, and the fact that this accused has done so well on bail all favour a discharge.

On top of that, once more, a criminal record would no doubt have significant effects on his career and ability to travel. [ 58 ] I conclude that a conditional discharge is the appropriate disposition. It is certainly in the best interest of the accused to get a discharge.

I also believe that it would not be contrary to the public interest. [ 59 ] In coming to this conclusion, I have considered the gravity of the offence, that the circumstances of this case are extremely unique and thus the exact offending behaviour in the community is not prevalent. [ 60 ] I have considered whether it would be appropriate to increase the disposition to one of a suspended sentence or period of jail.

I am of the view that the sentence that I am imposing would be seen by the public as a fair and proportional response to the crime this accused committed. [ 61 ] I sentence the accused to a conditional discharge. [ 62 ] You must comply with the probation order for a term of 12 months. The conditions are: 1. You must keep the peace and be of good behaviour. 2. You must appear before the court when required to do so by the court. 3. You must notify the court in advance of any change of name or address. 4.

You must have no contact or communication directly or indirectly with E.F. except through writing, email or text, and then only for sole purpose of communicating about your children.

5. You may also have communication with E.F. pursuant to a valid Family Court order or through legal counsel. DNA [63] Whether a DNA order is to be granted is at the discretion of the court. In my view, the lack of criminal history and the particularcircumstances in this case strongly favour not ordering a sample of DNA and I decline to do so.

Victim Fine Surcharge [64] Pursuant to section 737 (2), there is usually a $200 Victim Fine Surcharge. [65] Section 737 (3) allows the court to pay a victim fine surcharge in an amount exceeding that set out in 737(2) if the courtconsiders it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount. [66] As the Honourable Judge Preovolos found in R. v. J.S. 2023 BCPC 160 , I am of the view that an increased victim finesurcharge of $2,500 is appropriate.

To use Judge Preovolos’ words, I find that such a quantum “supplement the denunciatory anddeterrent effects … of the sentence and ensure his sentence is proportional.” Taking into consideration that the accused is easilyemployable, I do not think the penalty is unduly harsh or excessive. It is payable from 12 months from today’s date. Community Service Work [67] I appreciate that Judge Preovolos found community service work also appropriate, I do not find it is necessary in this case.

Isuspect this accused in this case will continue to use his professional skills to the betterment of any community he is living in. [68] That concludes these reasons for sentence. ____________________________ The Honourable Judge A. Wolf