R. v. B.H., 2017 ONCJ 377

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara​graph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. B.H. , 2017 ONCJ 377 DATE: June 8, 2017 COURT FILE No.: 16-001092 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — B.H. Before Justice Robert S. Gee Heard on March 24 and May 31, 2017 Reasons for Sentence Released June 8, 2017 L. Brock …............................................................................................................. for the Crown J. Renwick ........................................................................................................................ for B.H. GEE, J. :

Introduction [1] Until February 17, 2016, B.H. had it all. He was educated, married and had two young children, a boy and a girl. He had beenan elementary school teacher at J[…] Public School in Brantford for a number of years. He was well liked and respected by the kids hetaught, their parents and his co-workers. So much so that he was promoted to the position of vice-principal at another elementary schoolwithin the same district. He was a homeowner and enjoyed a six figure salary. Needless to say he was a respected and admired memberof his community.

Life was unfolding as it should. [2] However there was a side to Mr. B.H. that he kept hidden. He now identifies as bisexual. When he was seven or eight years old,he was sexually abused, and he feels as a result his sexual orientation was changed. Whether a person’s sexual orientation can bechanged is, at best, questionable. For our purposes when and how Mr. B.H. recognized his bisexuality is not important. What isimportant is how it was affecting his life as an adult.

During the time leading up to the events in question, he had been fantasizing abouthaving sexual encounters with adult men. [3] This led him to, starting sometime in early 2015, installing a camera in the ceiling of the staff washroom at J[…] Public School. From this point until the camera was discovered on February 17, 2016, he secretly recorded male staff members of the school as theyused the washroom. He had three cameras that he would frequently switch out, take to his home and download the video and stillimages which had been captured.

He would then recharge the battery and switch cameras and repeat the process over and over. None ofthe recordings or images were ever made available on the internet or shared by Mr. B.H. with anyone else. He used them to masturbateto and to fulfill his own fantasies. [4] The police forensically reviewed all devices seized from Mr. B.H. that were used to record and store the captured videos andimages. There were no recordings of any women nor any of any children who may have attended the school.

In addition, the policesearched for evidence that any such videos or images had been deleted or any evidence the devices had been scrubbed of such, and foundnone. [5] On February 17, 2016 one of Mr. B.H.’s cameras was discovered by someone who heard a beeping sound and investigated whereit was coming from. This led to his arrest later the same day. He was charged with a number of voyeurism offences contrary tos.162(1)(

a) of the Criminal Code as a result, and on March 24, 2017 pled guilty to nine such counts. Sentencing submissions were madeMay 31, 2017 and the matter was adjourned to today for sentencing. Position of the Parties [6] The position of the Crown is that this matter cries out for a lengthy sentence of 15 to 18 months’ custody. Given the facts in thismatter, denunciation and general deterrence ought to be the primary sentencing principles to be emphasized by the court. [7] The crown contends this was a planned and sophisticated matter that was carried on by Mr. B.H. for a lengthy period of time.

Itwas a gross violation of the privacy of his victims and co-workers. He took advantage of and exploited their trust and friendship in orderto persist in his activities, even after leaving J[…] Public School. The offences have had a significant impact on not only the victimswhose images were captured but also on the school community, his colleagues and his own family. [8] The defence does not attempt to deny or diminish the devastating impact of the crimes on the victims.

However, the defenceposition is that other factors in addition to denunciation and deterrence, must be balanced in arriving at an appropriate sentence. Mitigating factors such as Mr. B.H.’s lack of prior record, his guilty plea, his remorse, and the counselling he has undertaken since hisarrest militate against a sentence that simply emphasizes punishment and retribution. When all factors are balanced, a fair and justsentence according to the defence, is a conditional sentence of 16 months. Conditional sentences, though not as harsh as serving the timein real jail, are considered jail sentences.

It is through the adjustment to the length and through the imposition of terms that a balance ofall the applicable sentencing principles including those of deterrence and denunciation can be achieved through the imposition of aconditional sentence. Applicable Legal Principles [9] In this, as in any sentencing, a variety of factors are considered in arriving at the appropriate sentence. Statutorily the factorsenumerated in sections 718 to 718.2 of the Criminal Code must be considered.

Additionally, any and all aggravating and mitigatingfactors present in the circumstances of the case, as well as the personal circumstances of the accused, must be kept in mind. Thesentences received by other offenders in similar circumstances must also be considered. [10] All of these factors must be considered in order to achieve what is the fundamental principle underlying all sentences; that ofproportionality. A proportionate sentence is one that reflects two principles. First the sentence must be reflective of the gravity of theoffence.

This principle is associated with the principles of denunciation and deterrence. It reflects justice for victims and instills publicconfidence in the justice system. The second principle of proportionality is designed to ensure the sentence does not exceed what isappropriate given the offender’s level of culpability or moral blameworthiness. This requires the court to consider all those factorsunique to the offender that led to him or her committing the offence.

This aspect is meant to ensure justice for, and fairness, to theoffender. [11] It is through respecting both of these principles of proportionality that ensures sentences do not emphasize one over the other, andthrough that, the justice system can best maintain a just, peaceful and safe society. This concept has been discussed by the SupremeCourt in the cases of R. v. Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433, starting at paragraph 34, and R. v. Lacasse, 2015 SCC64 , [2015] 3 S.C.R. 1089, at paragraph 53.

[ 12 ] In this case, I was provided a number of cases to help assess what other offenders were sentenced to in similar circumstances. Similar circumstances is often an elusive concept; no two cases are ever exactly alike. In this case the concept seems to be particularly elusive. I was informed by counsel that their research did not produce many cases where an offender was sentenced on stand-alone charges of voyeurism, especially under circumstances where the offender and victims were both adult males.

Most reported cases involved situations where the offender was charged with other, most often more serious charges, such as the possession, production and even distribution of child pornography. [ 13 ] The cases were R. v. Keough , 2011 ABQB 312 , a case in which the accused was found guilty after trial of two counts of possessing child pornography, in addition to a charge of voyeurism. The charges related to two occasions where the accused recorded 15 and 16 year old girls engaging in consensual sex with their respective boyfriends, and one count of similar activity where the complainants were both 18.

On the voyeurism charge the accused was sentenced to nine months jail. [ 14 ] The next case was R. v. S.D.W. , [2014] O.J. No. 1110 . This was a case where the accused was convicted of one count of attempt voyeurism, again after trial, for setting up a clock radio in his 15 year old step-daughter’s bedroom that was capable of wirelessly transmitting live images. For this he was sentenced to 90 days to be served on weekends. [ 15 ] Another case referred to was R. v. R.B. , [2014] ONCA 840. The accused in that case was convicted of a number of child pornography offences, as well as one count of voyeurism.

The voyeurism related to the accused hiding a video camera in his 13 year old niece’s bedroom and filming her as she changed. On the voyeurism count relating to this he was sentenced to six months custody. [ 16 ] The next case I was provided was R. v. White ,

(2015) MBPC 20. In that case Mr. White hid cameras in the bathrooms of his home, in a foster home he ran, and in his cottage, which for two years, recorded his own children, their friends, his foster children, other family members, as well co-workers as they used the bathrooms at the various residences. He pled guilty to nine counts of voyeurism in addition to one count of possessing child pornography. The Crown sought a sentence of three years on the voyeurism charges and Mr. White was ultimately sentenced to two years on each charge concurrent to each other. [ 17 ] I was also provided with the case of R. v.

Lloyd-Jones , an unreported decision of Justice Edward of the Ontario Court of Justice in Brantford dated April 27, 2017. In that case Mr. Lloyd-Jones set up a camera in the bathroom of his residence and over a significant period of time videotaped his approximately 15 year old step-daughter and her friends as they used the facilities. He was charged with both voyeurism offences and child pornography offences. On the voyeurism charges he received a sentence of six months jail. [ 18 ] There was one other case to which I was referred that of all the cases, most closely resembles Mr. B.H.’s situation.

That is the case of R. v. Weinheimer , [2014] A.J. No. 1459 . In that case, over a two year period the accused had surreptitiously taken pictures of adult males using the washroom at his place of work. The accused was approximately 30 years old, had no criminal record and had had a difficult time coming to terms with his homosexuality in a small community. For these offences, he was given a suspended sentence with two years’ probation. [ 19 ] What can be gleaned from these cases is that a wide range of sentences have been imposed, given the disparity in the manner the offence can be committed.

The range seems to be from a suspended sentence to nine months jail. The outlier in these cases was that of White in which the accused received two years but with a much more extreme set of facts. Having said that, ranges are just that. They are not meant to be neither floors nor ceilings for any particular offence, but are a reflection of the justice system’s goal of treating similar offenders, convicted of similar offences, in a similar manner. Where a sentence falls within an identifiable range will depend on the individualized circumstances of the particular case.

The Supreme Court in Lacasse also discussed how sentence ranges should be considered starting at paragraph 56 of the decision. Analysis [ 20 ] It is obvious from the victim impact statements in this case that Mr. B.H.’s offences have had a profound effect on his victims. They all speak to the sense of betrayal, loss of their sense of privacy in many places where they used to feel secure, as well as the stress from the uncertainty as to what and who else may have been captured by the cameras.

These feelings of insecurity and betrayal have not left them in the 16 months or so since the discovery of his activities, and will likely remain for a long time into the future. [ 21 ] The level of planning, the length of time over which Mr. B.H. carried out these activities, as well as the fact he exploited the friendship and trust of his colleagues are all significant aggravating factors to be considered. [ 22 ] The invasion of privacy and loss of personal dignity to the victims are hallmarks of this offence and will generally attract a harsh rebuke from the court.

Victims are damaged by this behaviour and it takes a long time for them to fully recover, if they ever do. [ 23 ] However this case is not without mitigating factors. First and foremost is Mr. B.H.’s guilty plea which courts have historically recognized as a sign of remorse. Mr. B.H. has no prior criminal history, and continues to have a close relationship and the support of his mother and sister.

As well, on the day of his arrest, he provided police with a fully voluntary, cautioned confession. [ 24 ] Through counselling undertaken since his arrest, he seems to have come to better terms with his sexuality as well as the trauma associated with the sexual abuse he was subjected to as a child. He has, since July 2016 been in intensive therapy with a therapist who specializes in sex offender treatment and assessment. This therapist has provided an assessment that described Mr.

B.H. as a low risk to re-offend. [ 25 ] Although his marriage has broken down as a result of this, he has maintained access to his children and hopes to continue to do so. As well he has found employment in the kitchen at a restaurant in Woodstock. [ 26 ] I also cannot lose sight of the fact that there are consequences to Mr. B.H.’s behaviour that will go well beyond and survive any sentence I impose on him. Prior to this he was married, with two children. His marriage, as we know, has now been destroyed by his

behaviour. He was also a respected member of his community and held an important position within the public school system that paid him a six figure salary with prospects for future advancement and he could look forward to retirement with a comfortable pension. He has lost all that as well and is now a pariah in the community he used to call home. It is extremely unlikely he will ever be a teacher again, and his criminal record will limit his prospects for employment, travel and volunteering with any organization. [ 27 ] As noted above, the sentence sought by the Crown is for a period of jail of 15 to 18 months.

As can be seen from the cases referred to above, save for the one case of White , this is well above the range of sentence that courts have imposed for this type of offence. In my opinion to impose the sentence requested by the Crown would offend the principle of proportionality as it would over- emphasize denunciation, deterrence and retribution. It would fail to properly balance Mr. B.H.’s culpability and level of moral blameworthiness. [ 28 ] I find that the proper balance, keeping all the sentencing factors in mind, can be achieved by imposing a sentence as suggested by the defence.

A sentence of 16 months, to be served conditionally, would reflect both the court’s and the community’s denunciation for the offence, but would also properly balance Mr. B.H.’s moral culpability, and recognize his insight into his behaviour and the rehabilitative steps he has taken to date. A conditional sentence is a jail sentence. A sentence of that length is nearly double the high end of the range of actual jail sentences for this offence as reflected in the cases noted, and with appropriate punitive conditions, it can meet all sentencing objectives. [ 29 ] As such, Mr. B.H.’s sentence will be as follows.

On each count he will be sentenced to a period of 16 months custody, concurrent on each, to be served in the community on the following conditions: he shall report immediately to a supervisor and thereafter at all times as directed. He shall reside at a place approved of by his supervisor and not change that address without obtaining the consent of his supervisor in advance. He shall be subject to a period of house arrest for the first 8 months of the sentence, which means he shall remain within his residence at all times except, between 1:00 p.m. and 4:00 p.m. on Saturdays, to acquire the necessities of life.

For any medical emergency for himself. For going to or returning from employment, court attendances, religious services and legal, medical or dental appointments. For going directly to or returning from, and while being at assessment, treatment or counselling sessions. He shall confirm his

schedule in advance with the supervisor, setting out the times for those activities, or at any other time with the prior written approval of the supervisor. The written approval is to be carried on him during those times, and last, for carrying out any legal obligation required of him to comply with this conditional sentence order. [ 30 ] During the period of home confinement Mr.

B.H. must present himself at his doorway upon the request of his supervisor or a peace officer, for the purpose of verifying compliance with his home confinement condition. [ 31 ] He shall not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with any of the named complainants in the nine counts plead to. As well, he shall not be within 25 metres of any place where he knows those persons to live, work, go to school, frequent, or any place he knows them to be, except for required court attendances.

As well, he shall not be within 25 metres of J[…] Public School in the City of Brantford. [ 32 ] He shall attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor, and sign any releases to enable the supervisor to monitor his attendance and completion of those programs. [ 33 ] This conditional sentence will be followed by a period of probation for two years on the same terms of the conditional sentence as they relate to residing, reporting, non-contact and non-attendance in relation to the complainants and J[…] Public School, and with the same counselling term.

There will also be an order requiring Mr. B.H. to provide a sample of his DNA for inclusion in the national DNA databank. [ 34 ] As well, all cameras and other storage devices seized in this matter shall be forfeited to the Crown. Last, Mr. B.H. can have 12 months to pay any applicable surcharge. Dated at Brantford, Ontario This 8 th day of June 2017 The Honourable Justice Robert S. Gee