R. v. J.W., 2024 BCPC 20

Citation: R. v. J.W. 2024 BCPC 20 Date: 20240129 File No: 98121-3-C Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. J.W. BAN ON PUBLICATION PURSUANT TO S. 486.4(1) OF THE CRIMINAL CODE OF CANADA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: C. Gagnon Counsel for the Defendant: David B. Johnson

Place of Hearing: Kelowna , B.C. Date of Hearing: November 29, 2023 Date of Sentence: January 29, 2024 Overview [ 1 ] Mr. W. is before the court for sentencing, having pled guilty to sexual touching of his daughter (s. 151), inciting his daughter to touch him sexually (s. 152), and making a video of both these offences, which meets the definition of child pornography (s. 163.1(2)). These offences against the Criminal Code happened between November 2020 and June 25, 2022. His daughter was between the ages of 1 and 3 at the material time. Background Facts [ 2 ] Mr.

W. and his ex-partner have one daughter together, S. At one point in the family’s history, Ms. W. worked outside the home and the care of S. fell primarily on Mr. W. In January of 2022, Ms. W. became concerned when S. refused to be bathed. Anytime Ms. W. took off her daughter’s diaper, S. started screaming, leading Ms. W. to think that S. was experiencing pain in her bum area. Ms. W. consulted with a doctor but no medical exam was conducted. Over time, S.’s behaviour during bath time improved. [ 3 ] In the meantime, Mr. W.’s behaviour became odd. He was always protective and guarded with the use of his phone.

He would often change the screen or turn his phone off whenever Ms. W. entered the room. Ms. W. suspected that Mr. W. may have been having an affair or using pornography. By June of 2022, Mr. W.’s behaviour was so concerning that Ms. W. decided that she needed to check his phone to either confirm or dissolve her suspicions. [ 4 ] One night while Mr. W. was asleep, Ms. W. checked his phone. What she found was horrifying. Mr. W. had been using a social media app which automatically deletes conversations after 6 days. On this app, she found a series of exchanges between Mr. W. and others talking about how Mr.

W. would engage in explicitly sexual activities with S. During these exchanges, Mr. W. also talked about engaging in sexual activities with a fictitious 13 year-old daughter. [ 5 ] Ms. W. did not confront Mr. W. about what she had found, but she did report this to the police. At the time, she was hoping that these exchanges were merely fantasy and that Mr. W. had not, and would not, be acting on them. However, that was a chance she was not prepared to take. The Offences [ 6 ] In June, 2022, the police sought and were granted a search warrant for Mr. W.’s electronic devices.

From their review, it is evident that Mr. W. participated fully in chat groups and forums about incest. On his phone, the police discovered numerous messages or conversation segments in which Mr. W. described to others how he was engaging in sexual activities with his fictitious13-year-old daughter. These included every kind of sexual act except vaginal sex. He also talked about how this fictitious daughter and he would fondle each other in the shower, and that S. would become curious and would want to participate. Mr.

W. also espoused the viewpoint that “as long as no one is being forced and hurt and that everyone is having fun, then there is nothing wrong with it”. [ 7 ] In addition to these conversations, Mr. W. had video-recorded his offending with his daughter on his phone. One video depicted Mr. W. performing cunnilingus on S. when she was approximately 1 year old. This was the subject of the s. 151 offence. In another video, Mr. W. recorded his daughter running up to him giggling, taking his penis into her mouth and sucking it. This was the subject of the s. 152 offence.

The recording of both these crimes then form the subject of the offence of “making child pornography” contrary to s. 163.1. [ 8 ] Ms. W. also turned over to the police Mr. W.’s notebook. In this, Mr. W. wrote content that would be defined as “child pornography” under the Criminal Code . However, the Crown concedes that a private notebook of this nature, as long as it is not shared with anyone, may enjoy constitutional protection as an element of his freedom of expression under s. 2 of the Canadian Charter of Rights and Freedoms , as explained in R. v. Sharpe , 2001 SCC 2 .

Impact on the Victims [ 9 ] The impact these offences had on S. and her family was predictably devastating. Although the extent of the damage to S. is not yet fully known due to her tender age, it is safe to assume that they will be profound and long lasting. Moreover, Ms. W. orally addressed the Court on the consequences this abuse has had on her. In a statement as eloquently, thoughtfully, and powerfully delivered as any that come before the courts, Ms. W. said, in part: I struggle looking at my daughter’s baby photos.

What were happy memories and proud moments are now questions of what he could have done to her that day. Or, perhaps, this was a photo of her before he abused her. Sometimes it feels like I can see the loss of innocence in her face from one photo to the next. He robbed all of those happy memories and proud moments from me. No – I am fighting for those memories back. I refuse to let him forever taint those, too. My survival from this requires me to hold very close the trust I blindly gave away. I don’t dare to get close to anyone else for fear of another betrayal, or worse, someone hurting my child again.

There will always be a little voice in my head that will never let another person in close enough to love me the way I deserve to be loved. He stole that from me. He stole my security and my ability to feel genuinely loved. How will I ever get that back? Circumstances of Mr. W. [ 10 ] Mr. W. is 39 years of age. He has finished high school and has completed a couple of years of post-secondary studies in education, business, and accounting. He had a relatively unremarkable upbringing although his relationship with his mother was closer

than that with his father. Mr. W. does not suffer from any substance use issues or any mental health challenges. Unlike a good number of offenders in similar cases, he himself was not the victim of any abuse in the past. He previously worked as a delivery driver, manual labourer, and entry-level customer service representative. He is currently working in the food service industry. [ 11 ] Mr. W. met S.’s mother in 2016 and they married shortly thereafter. In 2019, S. was born. Since the offences came to light, the couple has separated, with an intention to divorce. Mr.

W. is currently living with his mother and stepfather. His relationship with his own father came to an end upon his father learning of these charges. Mr. W. was arrested in June 2022 and shortly thereafter, he attempted to commit suicide. [ 12 ] A pre-sentence report, as well as a psychological report were prepared for the sentencing hearing. In those interviews, Mr. W. denied being sexually attracted to his daughter, although he admitted to being aroused by themes of incest.

When asked about a hypothetical scenario in which a teenage daughter were a willing participant in sexual activity, he frankly responded with “it would have been hard to say no.” Mr. W. also denied any interest in sexual activities with coercive sex, however, it was noted that some of the writings in his notebook did touch on coercive themes with pubescent females. [ 13 ] Dr. Sarah Mordell, a psychologist, was asked to assess the level of risk Mr. W. posed in the future. To this, she wrote: In considering the information above, Mr.

W. was estimated to be a moderate risk of future sexual violence, although his risk is contextual and is currently managed in the community. Were he to reoffend, it is most plausible that this would occur with a related individual and would likely escalate over time in the context of unsupervised contacts. It is unclear if risk would extend to individuals who are not blood relatives (e.g., a future stepchild). Despite some of Mr. W.’s writings, physically coercive sexual violence seems less likely. Risk estimates should be considered contextual, dynamic, and time-limited.

Risk may fluctuate over time in response to new information, changes in the risk factors above, and/or positive changes. For example, were Mr. W. to successfully participate in treatment targeting his sexual interest, his risk may be lower. [ 14 ] With respect to his participation in the pre-sentence procedures, Mr. W. appeared to be cooperative and honest. Prospectively, he seems open to intervention. Mr. Tim Johnson, his bail supervisor, wrote: The subject has been compliant while under bail supervision. He has reported when directed, and provided his monthly cell phone bills when asked.

J.W. was forthcoming with both positive and less positive information about himself during the pre-sentence report. The subject expressed an interest in counselling and advised that he found his previous experience with couples counselling to have been beneficial for him. J.W. indicates that he is willing to comply with any conditions the Court would deem appropriate. [ 15 ] In like vein, Dr. Mordell noted that Mr. W. “showed a reasonable appreciation of his risk and was open to avoiding situations that might put him at risk, such as spending unsupervised time with his daughter”. [ 16 ] Mr.

W. comes to court with no previous criminal record. He expressed his remorse at the sentencing hearing which I accept to be genuine. He also expressed his gratitude, knowing that S. has such a great and strong mother. Positions of the Parties [ 17 ] The Crown sought a global sentence of 9 years. Ms. Gagnon suggested that the s. 151 and s. 152 offences could either be 3 years each consecutively, or 6 years each concurrently. The “making child pornography” offence should attract a consecutive sentence of 3 years. [ 18 ] Mr. Johnson, on behalf of Mr. W., asks the court to impose a global sentence of 5 years.

Principles of Sentencing [ 19 ] The predominant principles that are at play at this hearing must be those of general deterrence and denunciation. As anyone with any awareness knows, sexual abuse against children remains a scourge in our communities. Through the sentencing process, the Court must send a message to the public the abhorrence with which the law holds these offences, and that this conduct will be met with severe consequences. Indeed, s. 718.01 of the Criminal Code requires that this to be so. Moreover, the Supreme Court of Canada in R. v.

Friesen , 2020 SCC 9 mandated that punishment for sexual abuse against children must increase in order to honour the principle of proportionality. Previous sentencing ranges were inadequate to properly reflect the serious harm perpetrated on innocent children. [ 20 ] With cases of this nature, it is always helpful to revisit the opening words of Friesen . At para. 1, the Supreme Court of Canada said: [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 of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. [1] [ 21 ] Then at para. 5: [5] Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of

sexual violence against children. Sentences must accurately 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. [22] Although the principles cited above will play a dominant role today, other principles must not be forgotten. For example, there isa reasonable prospect for Mr. W.’s rehabilitation. He seems genuinely accepting of his responsibility and his compliance with court-ordered conditions to date has been beyond reproach.

His openness to treatment, and his insight into his personal circumstances bodewell for an ultimate successful reintegration into the community. Be that as it may, rehabilitation will need to take a distant backseat togeneral deterrence, denunciation, and proportionality here. [23] There are other applicable principles as well, such as restraint and totality. In these reasons, I have considered all of the principlesset out from s. 718 to s. 718.2. However, the ones most germane here remain the ones I have set out above.

Additionally, s. 718.2(a)requires the Court to adjust the sentence for any aggravating or mitigating factors, to which I will now turn. Aggravating Factors [24] There are a number of seriously aggravating factors in the case at bar. Firstly, the age of S. at the time of these offences isaggravating. One cannot think of a more vulnerable person in our community than a baby or a very young child. S. was 1 year old whenMr. W. first sexually abused her. She was at most 3 years old when Mr. W. offended against her for the last time.

Why S.’s young age isan aggravating feature may be intuitive, but the Supreme Court of Canada had occasion to shed some additional light on why this is so.At para. 134 of Friesen, the court said: [134] The age of the victim is also a significant aggravating factor. The power imbalance between children and adults is even morepronounced for younger children, whose “dependency is usually total” and who are “often helpless without the protection and care oftheir parents” (R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 66).

Their personality and ability to recover from harm is stilldeveloping (Renaud, at s. 12.64; L. (J.-J.), at p. 250). Moreover, children who are victimized at a younger age must endure theconsequential harm of sexual violence for a longer period of time than persons victimized later in life. [135] These realities flowing from the age of the victim are relevant to both the gravity of the offence and the degree of responsibilityof the offender. Sexual offences against children are wrongful precisely because the perpetrators recognize and exploit children’s specialvulnerability (Woodward, at para. 72).

It follows that the moral blameworthiness of the offender is enhanced when the victim isparticularly young and is thus even more vulnerable to sexual violence. [25] In the case at bar, S.’s dependence on Mr. W. was absolute. As remarked above, there is no victim more vulnerable and helplessthan an infant. Abusing S. at such a young age means that she must endure the consequential harm of sexual violence for a longer periodof time. In fact, S. will not know a time in her life when she does not suffer the damage from these offences. This elevates significantlyMr.

W.’s moral blameworthiness. [26] The relationship of trust is also at the extreme end. In our society, there is no greater level of trust than that placed upon a parentto take care of their children. Here, while Ms. W. was out working, Mr. W. was entrusted with this care. He was supposed to haveprotected her, cared for her, and saved her from harm. It was in this context that he violated her sexually. As Ms. W. so poignantly put itin her statement, “that is the most cruel kind of violation”. [27] On a related note, the fact that Mr. W. abused his daughter while they were at home is aggravating.

As the Supreme Court ofCanada explained in Friesen at para. 178: …While it is not clear to us from the record whether the child was residing with the mother full-time, the fact that the sexual violencetook place in the mother’s home was nonetheless aggravating. A parent’s home is a place where the child should feel safe and secureunder the care and guardianship of the parent. Accordingly, sexual violence against children that takes place in the home may beparticularly damaging because it damages the child’s sense of security in the home environment (Bauman, at p. 370; R. v. M.J., 2016ONSC 2769, [2016] O.J.

No. 3177 (QL), at para. 31)… [28] Moreover, the degree to which Mr. W. interfered with S.’s bodily integrity makes this an extremely serious case. Licking thegenitals of an infant, and causing a toddler to put her mouth on one’s penis are significantly intrusive and degrading actions. While it isan error to place physical acts on any kind of hierarchy in determining the degree of physical interference (see para. 146 of Friesen), it isundisputable that what happened here is at the higher end of the scale in terms of interference. Mr.

W. selfishly trampled on and violatedS.’s bodily integrity and autonomy for the sake of his own gratification. [29] For clarity of these reasons, the Crown has not proven beyond a reasonable doubt that Mr. W. committed anal sex on S., or thathe interfered with her anally in anyway. The initial circumstances that triggered the investigation was concerning. S. was screaming inpain and tried to hide her bum whenever her diaper was taken off. Ms. W. could not persuade S. to take a bath. In light of what wasdiscovered on Mr.

W.’s phone, the conversations he has had, and the fantasies that he harboured, there was a compelling basis to suspectthat Mr. W. had interfered with S. anally. However, at a sentencing hearing, any aggravating feature must be proven beyond a reasonabledoubt as explained in R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368. Given Mr. W.’s denial, and lack of further evidenceled, the Court cannot, and does not, find this element to be an aggravating factor. [30] With that being said, what is an aggravating feature is that this abuse spanned at least a year or two. Mr.

W. abused S.’s genitalswith his mouth when she was approximately 1 year old. By the time the video was taken of Mr. W. abusing S.’s mouth with his genitals,she was either 2 or 3 years old. The Court concludes, from the video, that there would have been significant grooming prior to the secondincident. The video depicted Mr. W. standing and wearing a pyjama bottom. S. ran towards him, giggling. She then pulled down hispyjama bottom, took his penis out, put it in her mouth and started sucking on it. [31] It would be unfathomable that a toddler would do this spontaneously and on her own accord.

Even more remote still is thepossibility that Mr. W. just happened to be videoing this spontaneous episode that happened for the first time. On the contrary, theirresistible inference to be drawn is that Mr. W. spent some time grooming S. into this behaviour, teaching and encouraging her to act this

way. And the Court does draw such an inference beyond any reasonable doubt. Needless to say, normalizing this type of sexual abuse will lead to a life time of psychological and emotional harm for S. Accordingly, the sentence must be adjusted upward to account for the abuse that occurred over the span of a year or two, and that there was significant grooming in between the two incidents that were captured on video. [ 32 ] As alluded to above, Mr. W. does not suffer from any substance dependence issues. He has no psychological, cognitive, or mental health deficiencies.

There were no attenuating circumstances that precipitated this abuse. He did this purely for his own gratification. Mr. W.’s moral culpability is enhanced thereby. Mitigating Factors [ 33 ] In mitigation, Mr. W. has pled guilty. This saved the justice system the time and resources of conducting a trial. Infinitely more importantly, it saved Ms. W. from having to relive the trauma in the context of the trial process, and be subject to cross-examination.

Having heard her oral address in court as well as having read her written Victim Impact Statement, this Court concludes that she is a strong and resilient woman with a robust constitution that would allow her to rise to the challenge of a trial. Nevertheless, Mr. W. should be given full credit for not making Ms. W. and her family go through all of that. [ 34 ] As mentioned above, Mr. W. has no previous criminal record. He is gainfully employed and has the support of his mother and stepfather. He has expressed genuine remorse and takes ownership of his offending.

In his address to the Court, he accepted that “there is no one to blame but [him]self” and that he takes full responsibility. He seems to have some insight into his own condition and the prognosis for successful rehabilitation is generally positive. To date, he has managed his risks within the community well and he has complied with all of his bail conditions. All of this bodes well for future intervention. Other Cases [ 35 ] Sentencing is the most individualized process in the criminal justice system. Each case must be decided on its own facts; no two cases will be exactly unlike.

With every case cited, there will inevitably be some elements that make it more serious, and others that make it less so. However, the principle of parity requires the sentencing judge to look at other cases to better gauge the proper range within which a particular case should fall. At para. 33 of Friesen , the Supreme Court explains: [33] In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases.

Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. [ 36 ] To that end, the Crown relies on a number of authorities. Of the cases cited, the Court finds the following to be most applicable: R. v. J.K.D. , 2020 BCPC 211 The accused offered to assist a disabled single mother by babysitting her 4-year-old daughter.

She and her co-accused sexually offended against the victim which included sexual touching while the victim was incapacitated (after a stupefying substance had been administered). Photographs and videos were made of these offences which the accused and co-accused transmitted to each other in multiple formats. She was sentenced to a global sentence of 9 1/2 years. R. v. Reid , 2022 ONCJ 76 The accused babysat his 8-year-old victim. While the victim was rendered unconscious, Reid sexually assaulted her by inserting objects into her vagina. He also masturbated on her.

The accused had a large collection of child pornography which included videos and photos of the victim as well as other children. This resulted in a 10-year global sentence. R. v. Taber , 2022 BCSC 652 The accused and the victim’s mother were in a relationship. At times when the offender was babysitting the victim, he sexually assaulted her by touching her vagina digitally and orally. The victim was 8 and 9 years old when the offences took place. He also caused the victim to touch his penis with her hand. Mr. Taber took photos and made videos of his offending. The accused was sentenced to 7 1/2 years globally.

R. v. R.H. 2021 ONCA 236 The accused was the cousin of the victim’s stepfather. The sexual abuse continued for years, which included acts of genital touching, oral sex and anal intercourse. This began when the victim was only 10 years old. The accused took nude photos of the victim, and a system of penalties was established if the victim did not comply with the accused’s wishes. The global sentence was 6 years which was upheld on appeal. R. v. Brown 2020 BCSC 2168 The accused sexually assaulted 3 young girls, including his own daughter when she was between 7 and 10 years old. Another victim was 11 when it began.

With the third victim, she was between 6 and 9 years old. These acts included fellatio and anal intercourse. Mr. Brown made videos of his offences and had a large collection of child pornography on his laptop. The court imposed a global sentence of 8 years. R. v. Palmer 2023 BCSC 1818 Mr. Palmer was the friend of the victim’s father. The victim experienced developmental delays. When then victim was between 12 and

19 years old, the accused sexually assaulted him on multiple occasions, performing acts that included masturbation, oral sex and anal sex. These assaults happened on a number of occasions over the course of 6 years. Mr. Palmer took photos of his offending. He was sentenced globally to 10 years following a trial. [ 37 ] The other cases cited by the Crown are as follows: R. v. J.R.A. , 2011 MBPC 86 R. v. C.C ., 2015 ONCA 59 R. v. R.D.S. , 2022 MBCA 47 R. v. R.J. , 2016 MBPC 25 R. v. Kendell , 2017 NLTD(G) 145 R. v. B.C.M. 2008 BCCA 365 R. v. K.D.M. , 2017 ONCA 510 R. v. R.C.R.T. , 2017 MBQB 113 R. v.

L.V.R. , 2016 BCAA 86 R. v. J.S. , 2018 ONCA 675 [ 38 ] Mr. Johnson provided no additional authority on behalf of the defence. He only urged the Court to consider R. v. J.R.A . 2011 MBPC 86 from the Crown’s book as a comparable case to justify the 5-year sentence. As I expressed to counsel during the hearing, J.R.A. was decided in the Provincial Court of Manitoba in 2011, almost a decade prior to Friesen . Consequently, I find it to be of very limited precedential value. [ 39 ] In R. v. B.L.J. , 2023 BCPC 39 , this Court had occasion to lament on the tragic prevalence of these cases.

At paragraph 30, this Court wrote: [30] I pause here to say that it is singularly depressing seeing how many reported cases there are to canvass when doing this research. This feeling worsens with the realization that reported cases are necessarily a small subset of all cases that come before the courts, which are themselves but a small fraction of the true incidence of sexual offending against children in our communities. [ 40 ] This sentiment rings true again today. It reaffirms the need to emphasize general deterrence and denunciation as the primary objectives in the sentencing of these offences.

The call to action in Friesen mandates nothing less. A fit Sentence [ 41 ] In the present case, the magnitude and number of aggravating factors exceed those of the mitigating ones by a great extent. S.’s young age, the degree of physical interference, the cruel violation of trust, and the damage done to S. and her family justify an upward adjustment to the sentence. Moreover, the principles of general deterrence, denunciation, and proportionality weigh more heavily on the balance than the other principles including but not limited to rehabilitation and restraint.

Additionally, the sentence for the offence of “making child pornography” must be consecutive to the offences of “sexual touching” and “incitation to sexual touching” by virtue of s. 718.3(7). In the context of the above, as well as taking into account the sentences imposed in similar cases, the Crown’s position on sentence is closer to the mark than that of the defence. [ 42 ] Mr. W., if you could please stand. [ 43 ] For the above reasons, it is the Court’s view that a fit global sentence is that of 8 years.

I have specifically directed my mind to the principle of totality and concluded that this would not result in an aggregate sentence that is unduly harsh or excessive given all of the circumstances. [ 44 ] The Court imposes the following sentences: On Count 2, for the offence of inciting S. to touch you for a sexual purpose contrary to s. 152, I sentence you to 5 years. On Count 4, for the offence of touching S. sexually contrary to s. 151, I sentence you to 5 years, which will be served concurrently to Count 2.

On Count 7, for the offence of making child pornography contrary to s. 163.1(2), I sentence you to 3 years. This will be served consecutively to Counts 2 and 4. [ 45 ] For clarity, this will result in a global sentence of 8 years which commences today. Ancillary Orders [ 46 ] In addition, there will be the following ancillary orders. [ 47 ] Pursuant to s. 490.013(2) (b), of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for 20 years.

[ 48 ] Pursuant to s. 109 of the Criminal Code , there will be a firearm prohibition for 10 years. [ 49 ] I am declining to impose a s. 161 order banning Mr. W. from public parks and the like. From the forensic report, it appears that Mr. W.’s risk to reoffend lies with people who are related to him. There is no suggestion of any predatory behaviour or tendencies otherwise. Accordingly, the protective measures envisaged under s.161 are not necessary. [ 50 ] There will be a forfeiture order with respect to the items seized pursuant to s. 490.1(1). Counsel will agree among themselves the items to be forfeited.

In the event counsel cannot come to an agreement, they can apply for further directions from the Court. [ 51 ] Pursuant to s. 743.21(1) of the Criminal Code , I order you to have no contact or communication, directly or indirectly, with C.W., S.W., N.J., G.J., A.J., K.J., or C.D. during the custodial period of your sentence. ___________________ The Honourable A. Tam Provincial Court Judge