R. v. Levesque, 2013 BCSC 1752

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Levesque, 2013 BCSC 1752 Date: 20130627 Docket: 153946-1 Registry: Victoria Regina v. Jean Pierre Francois Levesque Restricted Access Before: The Honourable Mr. Justice Bracken Oral Reasons for Sentence Counsel for the Crown: D. M. Scanlan and C. C. Fisher Counsel for the Accused: A. Tam Place and Date of Trial/Hearing: Victoria, B.C. June 10, 2013 Place and Date of Judgment: Victoria, B.C.

June 27, 2013 [ 1 ] THE COURT: The defendant has pled guilty to two counts: Count 2, possession of child pornography contrary to s. 163.1(3) of the Criminal Code ; and Count 4, counselling the commission of the offence of sexual assault upon a person under the age of 16 years of age, contrary to ss. 21 , 22 , and 271 of the Criminal Code . [ 2 ] The facts that resulted in these charges are disturbing. Crown and defence counsel have made a joint submission that Mr. Levesque should receive a sentence of five years in the penitentiary.

For the reasons that follow, I am prepared to impose that sentence. [ 3 ] I will deal first with the facts. [ 4 ] Mr. Levesque came to the attention of the police in October of 2010, and a search of his computer revealed 11 child pornography files on his computer. In the course of the investigation, police also discovered material that documented video communications between Mr. Levesque and a man in China named Fu, who was the father of a young boy named Shen, who appears to be approximately four to six years of age. [ 5 ] Mr. Levesque and Fu carried on a series of video chats over a period of several months.

During those chats, Mr. Levesque, using his computer in North Saanich, British Columbia, counselled Fu in China to commit sexual assaults upon Shen. Data recovered by the police from Mr. Levesque's computer indicate that communication between Mr. Levesque and Fu commenced by at least mid- February of 2009, and continued until January of 2011. [ 6 ] In September 2009, Mr. Levesque travelled to China and met with Fu and Shen. There are photos of Shen and Mr. Levesque in the material found on his computer by the police, including at least one photo of Mr.

Levesque holding the child on his lap. [ 7 ] Over the ensuing months, Mr. Levesque engaged in a series of video chats with Fu, and in several of them he counselled Fu to commit sexual assaults on Shen while Mr. Levesque watched. He also counselled Fu respecting future abuse of Shen. [ 8 ] On December 21st, Mr. Levesque sent a communication to another individual who was apparently interested in child pornography, indicating that Mr. Levesque planned to be in China between August of 2011 and October of 2011. It also indicated that Mr.

Levesque planned to videotape sexual assaults on an eight-year-old boy, presumably Shen, as well as a sexual assault on a one-year-old child. There is other evidence indicating that Mr. Levesque had made plans for the trip. [ 9 ] The text, as well as some screen shots of the video chats and photos taken from Mr. Levesque's computer, are contained in a thorough sentencing report prepared by the police and marked as Exhibit 4 at the sentencing hearing.

It is beyond understatement to say that the report reveals perverted and disgusting material. [ 10 ] In the course of the sentencing hearing, the Crown called two witnesses. Detective Sergeant Parisien of the Saskatoon City Police, who conducts, in the course of his work, surveillance of Internet sites where individuals such as Mr. Levesque communicate with others who seek out pornographic material. In his evidence, he testified about the number of individuals who seek out such material on the Internet.

He also said that there are literally millions of sources of this material stored in individual computers and available by means of the Internet by way of file sharing.

[11] He also indicated that there are hundreds of thousands of computer addresses in this country that are known to have accessedchild pornography. The police are only able to take enforcement action on a few of the sites they are aware of where the nature orcontent of the access causes sufficient concern to prompt further investigation. [12] Detective Sergeant Parisien described the efforts that are constantly performed by the police to monitor and track such sites, butcautioned that they can only deal with a small portion of the ones of which they are aware, and what they are aware of is likely only asmall percentage of what exists. [13] Constable Southby of the RCMP provided a detailed

summary of the material that was recovered from Mr. Levesque'scomputer. He showed brief clips of the material in the courtroom. All of it was disturbing, some of it very disturbing. The materialincluded video clips depicting an adult male having anal intercourse with a male child, oral sexual acts performed upon a male child byan adult male, and one clip of what is commonly referred to as baby rape, depicting the penis of an adult male penetrating the vagina ofan infant.

That latter clip was accompanied by the sound of an infant crying. [14] Equally disturbing are the transcripts of conversations that accompanied the video chats between Fu and Mr. Levesque. Crowncounsel referred to several sections of those conversations during the course of submissions. While there is no evidence that Mr.Levesque was ever an actual participant in the abuse of Shen by his father, in the sense that he was physically present, it is plain from thematerial that Mr.

Levesque derived sexual pleasure from observing such activity. [15] I do not find it necessary to repeat the content of the conversations that Mr. Levesque participated in, as they are contained andfully set out in Exhibit 4. [16] The purpose and principles of sentencing are well known. Sections 718, 718.01, and 718.2 set out the general principles. [17]

Section 718 provides that the purpose of sentencing is, first, to denounce unlawful conduct; to deter the offender and otherpersons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to providereparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment ofthe harm done to victims and to the community. [18]

Section 718.01 provides that when a court imposes a sentence for an offence that involved the abuse of a person under the ageof 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. That principle is clearfrom the existing case authority as well. [19]

Section 718.2 sets out several other principles that a court must consider.

Among those principles are that a sentence should beincreased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and,without limiting the generality of the foregoing, evidence that the offender abused a person under the age of 18 years, shall be deemed tobe aggravating circumstances. [20] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [21] Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [22] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. [23] Guidance to determine the appropriate range of sentence is found in the applicable case authorities.

Counsel have canvassed theauthorities thoroughly and provided a number of cases they submit apply to the circumstances of this case. [24] In R. v. R.E.L., 2010 BCCA 493, Hinkson J.A. said at para. 10: The harm to young children that results from sexual assaults is well known, and recognized by the requirement that denunciation anddeterrence must be a primary sentencing consideration pursuant to s. 718.01 of the Criminal Code.

Such assaults not only violate thechild’s physical integrity, but erode the child's ability to develop emotional trust, and create the sort of profound and long-lastingconsequences that are evident in the appellant’s victim. [25] In R. v. Jewell and R. v. Gramlick, both cited as (ON CA), [1995] O.J. No. 2213, the Ontario Court of Appealcommented: The conduct underlying these convictions discloses a subculture that is unsettling and repugnant.

These appeals confront the court withthe pressing issue of how to deal with offenders such as the appellants who prey on young persons, boys in this case, for no otherpurpose than their own sexual gratification. The court must be responsive to emerging concerns that pornography, particularly childpornography, has become an area of criminality that increasingly menaces our young people and threatens our values as a society.

Because pornography now can be so easily prepared and disseminated through relatively inexpensive means, such as the hand-heldvideo camera used in the case under appeal, it has emerged as a very real problem in our society. [26] In that case, the court went on to comment on the nature of the harm caused to children as a result of such activity and notedthat the use of child pornography is in some cases used by pedophiles to fuel sexual fantasies and rationalize their behaviour. [27] I will say there is no evidence here that Mr. Levesque is a pedophile.

I mention this only to simply reinforce the recognition ofthe great harm that is done by the availability and use of child pornography. [28] Based on the authorities, the range of sentence that the Crown considers appropriate to this case is between five and sevenyears. Crown seeks a sentence of two years on the charge of possession of child pornography and five years on the charge ofcounselling the commission of a sexual offence or sexual assault.

The Crown submits that the sentences should be served concurrentlyas an appropriate global sentence that fits the circumstances of this case and the circumstances of the offender.

[29] I question the appropriateness of allowing the two sentences to be served concurrently. In my view, the two offences aredistinct. The possession of child pornography was an ongoing offence that is independent of the counselling offence. The counsellingoffence is in itself unique, in that it is an offence where Mr. Levesque's conduct in Canada was acted upon in China.

The nature andcircumstances of each offence is consistent with the range of sentence revealed by the case authority and submitted by the Crown anddefence, but served consecutively would result in a sentence of seven years, not five. [30] In my view, the longer sentence is perhaps the more appropriate sentence to the facts of this case, but for some of the factorsthat Mr. Tam has pointed out with respect to Mr. Levesque's background and history. Indeed, much was made of the harm that is causedby the activity in which Mr.

Levesque committed these offences and the prevalence and presence of such material by means of theInternet. [31] However, the sentence was presented as an appropriate global sentence by experienced counsel as a joint submission. Appellatecourts have, for good reason, said that joint submissions should receive the respect of judges when imposing a sentence. The sentencingjudge is not bound by the joint submission, but should not depart from a joint submission except when considered necessary.

Courtshave noted that even though a sentencing judge is entitled to depart from a joint submission, certain procedures should be followed. [32] In R. v.

Tkachuk (2001), 2001 ABCA 243 , 293 A.R. 171 at para. 32, the Alberta Court of Appeal noted that asentencing judge must give serious consideration to the joint sentence submission; that a joint sentence submission should be accepted,unless it is considered unfit or unreasonable; if the sentencing judge is inclined to depart from the joint sentence, the judge must soadvise counsel and permit them to make further submissions in support of the joint submission to address the judge's concerns; and if thejudge remains of the view that the joint submission is unfit or unreasonable, the judge may impose a different sentence, but must givereasons. [33] These principles were succinctly summarized by Mr.

Justice Low in the case of R. v. Pretty, 2005 BCCA 52 at para. 2, as notedin the case of R. v. Penney, 2010 BCCA 307. [34] In this case, counsel have pointed out that Mr. Levesque has no prior record and a first sentence of imprisonment of five years isa significant starting point.

It is also pointed out that he co-operated with the police when first approached, and that he has entered a pleaof guilty to these offences, thus saving the expense and potential difficulty of a trial. [35] He had a consistent work history for many years through his employment with the Canadian Armed Forces, including sometime in the military police, and he spent some months in the Middle East in that capacity. He has since been unemployed as a result of adisability. [36] The Criminal Code and the case law clearly require a sentence that emphasizes the principles of deterrence and denunciation.

Itis difficult to find words sufficient to denounce such behaviour and I will not go beyond what has already been said. I am satisfied that inthese circumstances, the joint submission of counsel is one that I should not depart from and that the sentence of five years is anappropriate one in all of the circumstances. [37] I will therefore impose a global sentence of five years in the penitentiary. [38] Mr.

Levesque, if you would stand up, please. [39] I sentence you to a term of imprisonment for a period of five years. [40] In addition, I impose a lifetime firearms ban under s. 109 of the Criminal Code, prohibiting you from possessing any firearm,ammunition, or explosive substances or other weapons as described in that section, and that prohibition is for life. [41] If you possess any firearms, ammunition, or explosive substances, you must disclose that to the authorities immediately andmake arrangements for their surrender. [42] I also order that pursuant to ss. 490.012 and 013, that you comply with the Sex Offender Information Registration Act for aperiod of 20 years from today's date. [43] I also order authorizing that a sample of bodily substances be taken for the purpose of forensic DNA analysis.

That process willbe undertaken by the appropriate authorities while you are in custody. [44] It is my hope that while you are in custody, that some effort may be made to provide counselling and suitable treatment withrespect to the difficulties that led you to these offences. [45] Counsel, with respect to the Sex Offender Information Registration Act, is there anything further? I think that will all be read toMr. Levesque by the justice of the peace? [46] MR. TAM: Yes, I believe that is so, My Lord. [47] THE COURT: Anything else? [48] MR.

SCANLAN: My Lord, one matter of clarification, on Count 2, Your Lordship said possession of child pornography, it waspossession for the purpose of distribution. [49] THE COURT: Yes, all right, thank you. [50] MR. SCANLAN: In terms of the five-year global sentence, I wonder if the court is able to clarify which -- [51] THE COURT: I will allocate the sentences as suggested by counsel: two years to the possession of child pornography for the

purpose of trafficking, and five years to the counselling offence. Those sentences will be served concurrently. [ 52 ] MR. TAM: Would Your Lordship consider waiving the victim fine surcharge in light of the length of the sentences? [ 53 ] THE COURT: Any comment? [ 54 ] MR. SCANLAN: No position, My Lord. [ 55 ] THE COURT: Yes, I will waive it. [ 56 ] MR. TAM: Thank you. [ 57 ] THE COURT: Thank you. [ 58 ] MR. SCANLAN: Thank you, My Lord. [ 59 ] MS. FISHER: Thank you. “J. K. Bracken, J.” The Honourable Mr. Justice Bracken