R. v. Mehagan, 2022 ONCJ 673

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

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 victim of the right to make an application for the order; and (

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

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

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Mehagan , 2022 ONCJ 673 DATE: 2022 05 20 COURT FILE No.: 201133, 210747,204659 Thunder Bay BETWEEN: HER MAJESTY THE QUEEN — AND — BRENT MEHAGAN

Before Justice D.J. MacKinnon Heard on April 22, 2022 Reasons for Sentence released on May 20, 2022 R. Kozak................................................................................................ counsel for the Crown B. Sacevich..................................................... counsel for the defendant Brent Mehagan MacKinnon J.: Introduction [1] On April 22, 2022 Brent Mehagan you plead guilty and have been convicted of a number of charges.

They include five counts ofmaking child pornography, one count of criminal harassment and one count of voyeurism involving a child, and a further four counts ofvoyeurism involving 240 victims. The facts related to these charges have been placed before the court and agreed to by you. [2] On March 6, 2020 you were observed by three young women to be taking their photos at the Canada Games Complex inThunder Bay. You were using a zoom lens to photograph their buttocks, breasts and genital area while they exercised and swam at thepool.

You tried to hide the camera, but they saw you and they knew that what you were doing was wrong. They took pictures of you andcomplained about your conduct. [3] Upon execution of a warrant, the Thunder Bay Police Service discovered hundreds of similar photos taken by you of otheryoung women not only at the Complex but at other locations in the city.

The methods employed by you were covert including not only acamera with a zoom lens, but also a pinhole camera concealed in a key fob, a pinhole camera concealed in a water bottle and a pinholecamera attached to your shoe so that you could put your foot under the doors of change rooms to photograph your victims in stages ofundress. [4] In addition to these illegal actions, you also followed up on some of your victims by learning their names and workplaces anddownloaded photos from their social media. [5] The greatest concern arising from these actions of yours is not only the flagrant and repeated intrusions into the privacy ofcitizens of this City but it is also the cataloguing of female children and young women in the city, and taking pornographic photos oftheir bodies for your own sexual purposes.

These are the acts that you have plead guilty to. Positions on Sentence [6] The Crown takes the position that a jail sentence of 5 to 6 years less pre-sentence custody is warranted in this case. [7] The Defence recommends a sentence to the court of two years less a day reduced by pre-sentence custody and by a period to bedetermined by the court on the basis of the case of R. v.

Downes, (ONCA) (for stringent pre-trial release conditions)plus three years of probation. [8] The Crown has filed a criminal record which shows a prior conviction for possession of child pornography in June of 2009contrary to s.163.1(4) of the Criminal Code. [9] A Pre-sentence report, a Gladue report and a report from your mental health counsellor have been filed with the court. VictimImpact statements from a number of victims have also been filed and one has been heard by the court in person. [10] The issue today is to determine your just and appropriate sentence.

Considerations on Sentencing [11] The determination of sentence in this case must be guided by a number of principles: a. Denunciation – The sentence must reflect the outrage and condemnation by society of certain criminal acts. b. Deterrence – The sentence must act to convince you not to commit similar acts in the future. The sentence must also deter other like-minded persons from wanting to commit these offences because of the penalty associated with these charges. c. Rehabilitation – The sentence should enhance the possibilities of the accused to rehabilitate himself so that he can re-enter society. d.

Gladue – The court must consider the systemic history and treatment of Indigenous people and you in particular to explain how youcame to commit these crimes and to be before the court. [12] I will review the aggravating and mitigating factors which will inform the development of your sentence.

Aggravating Factors [ 13 ] These are the factors which must be held against you today. The Nature of the Crimes [ 14 ] The facts in this case show that you systematically and single mindedly photographed the breasts, buttocks, faces and other parts of the bodies of young women and children in Thunder Bay. Your victims number in the hundreds.

This was a planned and deliberate act. [ 15 ] You knew at the time that your actions were wrong as evidenced by your attempts to hide the camera, your use of a pinhole camera hidden by you in a water bottle, and most egregious the pinhole camera hidden by you in a shoe so that you could photograph young women changing clothes in a change room by putting your foot with the camera under the door. [ 16 ] The crimes you committed are not simply involving photographing of the private body parts of young women and children.

The facts include that you kept records of the young women you encountered and that you investigated them further by noting their friends, their whereabouts, in some cases their names, giving them nicknames to attempt to create familiarization and searching for further social media photos of them. To the court this is the most concerning aspect of this case; that you were cataloguing and investigating young women in this city. What is the reason that you were cataloguing the young women of this community?

Your pleas show that you acknowledge that your actions were for your own sexual purposes. [ 17 ] I must comment at this time on the three young women, EJ, SJ and AP who noted you photographing them at the Canada Games Complex. They let you know that they saw you. They had the wherewithal to photograph you committing your criminal acts. They were not afraid of you at that time and reported your behaviour. Without their fearlessness and presence of mind, your criminal activities would have continued and created more victims. These young women are the real heroes in my mind.

The Impact of the Crimes [ 18 ] Your crimes violate the sense of security and safety in each of your victims, as is clear from the Victim Impact Statements. Knowing that they were being watched and photographed by you and that the photos were kept for your sexual purposes, has caused some of them to be afraid of venturing out into any public space, to be insecure in their person, to be afraid of others. This is even more impactful on young children who are just starting out into the public world without their parents, enjoying socializing with their friends, getting exercise for their health.

You took away from them the sense of freedom that young people should experience. [ 19 ] The other victim in this case is the community. The citizens of Thunder Bay have worked hard to have public spaces for their children to enjoy. Businesses strive to attract customers to provide employment for people. I note that some of your victims were young women working in jobs where you photographed them. You make us think that we can never trust other members of the community again as they also may be surreptitiously using us for their own purposes. [ 20 ] The fabric of the community is torn by these actions.

The nature of your crimes, the losses of community trust and the feeling of safety and security are aggravating factors, along with the psychological impact on each young child or woman. Your Criminal Record [ 21 ] In 2009 you were convicted of possession of child pornography and discharged from the Canadian Armed Forces. The Gladue report states that you said you were downloading a lot of modelling portfolios and there were of a girl about the age of ten wearing a see through shirt. The reporting of this by you seems to reflect a view that the possession of the child pornography was almost an accident.

You suggested that you took the plea deal and wanted out of the military in any event. [ 22 ] This report gives me concern that you minimized your criminal action in 2009 and its impact on your life. This view is supported by three factors: 1. That while you did complete the treatment program suggested at the time, you blamed the program for not suiting your needs, thus deflecting personal responsibility for your own rehabilitation; 2.

The report from your counsellor that, in discussing your past and present charges, you minimized your actions and had the attitude, to quote her, “Brent rationalized it as if nobody knew what he was doing then he wasn’t hurting anyone.” 3.

The impact on your life of being excluded from a military career is characterized by you as a wish that you had, again to minimize the impact of your actions on your own life. [ 23 ] Your prior record shows that you were not deterred from committing further offences by the jail sentence you received in 2009 of 45 days, and did not recognize your need for further rehabilitative programs to correct your behaviour. Mitigating Factors [ 24 ] These are the factors in your favour today.

Voluntary Plea [ 25 ] Your plea to these offences has meant that the individual children and women involved in this case do not have to testify and be subjected to the trial process. Your plea has saved precious court resources and can be viewed as a recognition by you of your wrongdoing and a sign of your remorse. Acknowledgement of Scope [ 26 ] The particular charges you have plead to incorporate named individuals but also three of the counts involve hundreds of victims which, by your plea, you acknowledge. Recognition of Impact and Remorse

[27] In speaking to the court, you indicated a recognition of the impact of your behaviour on your victims and expressed remorse.This understanding is also found in the report of your counsellor which says, “…Mr. Mehagan has exhibited insight regarding thepossible impacts of his previous behaviours, and has identified feelings of remorse for the victims of his behaviours and their families.” Iaccept that you have this insight and that it may act as a deterrent. [28] This recognition by you opens the door to your rehabilitation.

Counselling [29] You voluntarily attended for assessment and counselling in this intervening period. The report from your counsellor demonstratesa commitment to counselling in that she indicates you have attended for 39 counselling sessions and that it is your intention to continueto address your issues. The counsellor states that: …More recently, Mr.

Mehagan has identified that patterns of avoidance and addiction were normalized within his family…By attendingregular psychotherapy sessions at KMH, participating in counselling for problem gambling behaviours at the Sister Margaret SmithCentre, and addressing longstanding physical health issues over the last 21 months, Mr. Mehagan has demonstrated an effort towardbreaking these cycles of addiction and avoidance behaviours. Moreover, Mr.

Mehagan has identified that he has benefitted fromparticipating in psychotherapy sessions thus far, and has expressed his commitment to pursue ongoing individual and grouppsychotherapy interventions as he works toward his goals… [30] You have engaged in counselling which is a positive move toward rehabilitation. Gladue Factors [31] The court is required to consider Gladue factors which may explain how an Indigenous person comes before the court.

From theGladue report, I do see that your life had some of the markers of living in a home where alcohol abuse was exhibited and that youdeveloped certain avoidance and obsessive mechanisms in order to cope. [32] I note that, because you grew up in the city, you have very little connection with your First Nation and few Indigenous culturalconnections. You have not had these strengths to rely on. This disassociation with your Indigenous roots is a Gladue factor for me toconsider. [33] The Criminal Code in s.718.2 (

e) directs that all available sanctions other than imprisonment should be considered, particularlyfor Aboriginal offenders. Other Factors [34] The drowning of your girlfriend and the loss of both of your parents are events which have had an impact on you. You have griefand loss issues and appear to have a rather solitary life. [35] You have also admitted a gambling addiction which you have worked to control. [36] The accounts of you are that you are a pleasant and nice person who does not have a history of other violence. Discussion [37] The offences you have committed call for denunciation and deterrence.

As a society we have no greater calling than to protectchildren from those who would use them for their own purposes. You are now part of that group. The court must determine a just andappropriate punishment. [38] The key to determining your sentence however is whether it appears likely that you can be rehabilitated and should be given thatopportunity. As I indicated earlier, I am impressed by your efforts to understand yourself better and that you have gained some insightinto your commission of crimes.

However, I do not feel that you have completed that treatment. [39] While you admit that your actions have an impact on others and that the actions are obsessive, you have not articulated asufficient understanding of the power and control issues, and the sexual gratification elements of your offences. I did not hear anunderstanding of the source of your illness and the plan to address it.

This may require more intensive therapeutic intervention.Nonetheless, the progress you have made shows a distinct difference in attitude from the time of your earlier crime. [40] This matter calls for a jail sentence which will deter you from committing similar offences in the future, and deter others. Thesentence must reflect society’s condemnation of your actions against children and a general contempt for your other intrusions into theprivacy of its members. [41] In the case of R. v. Taylor (2010), 2010 MBCA 103 , 263 C.C.C.(3d) 307 (Man.

C.A.), the court set out a process fordetermining a sentence for multiple counts. It included: a. Assessing if the sentences should be consecutive or concurrent; b. Determining the fit sentence for the most serious offence, and the others thereafter; c. Applying the totality principle. Structuring Your Sentence Concurrent and Consecutive

[ 42 ] A number of the convictions relate to your actions on March 6, 2020 at the Canada Games Complex. This includes the making of child pornography, criminal harassment and voyeurism. They involve the same victims on the same day. Sentences for those criminal acts should be concurrent. [ 43 ] There are also two other convictions for making child pornography which occurred between January of 2016 and March of 2020.

It is not against the public interest for these sentences to be concurrent. [ 44 ] The other multiple victim counts under s.162.1(2), the voyeurism charges, occurring over a period of time, should be dealt with consecutively to those involving the three victims. This is because they involve numerous other victims at different times and places. Making Child Pornography [ 45 ] The most serious offences relate to the making of child pornography. The primary consideration, as I indicated earlier, is denunciation and deterrence in regard to this offence.

The Criminal Code has established a minimum sentence for this offence of one year. In contemplating your sentence in regard to this offence I must consider whether the minimum sentence is sufficient. [ 46 ] Your criminal record is for a related offence of possession of child pornography in 2009 for which you received 45 days in jail.

That conviction did not act as a deterrent nor are you fully rehabilitated as you do not recognize the reasons why you are obsessed with taking photos of the private body parts of children. [ 47 ] There is no evidence that you made this pornography for distribution but it was wrong to make child pornography for your own use. The use of the telephoto lens and the parts of the bodies photographed make your actions criminal.

I must in fairness also consider that the making of this pornography did not involve manipulation of the children physically or mentally, staging, encouraging or inciting, or any physical contact. [ 48 ] As a society, we have a duty to protect children from predators. The principles to be applied are denunciation and deterrence.

The facts place these actions on the lower end of sentencing for this offence. [ 49 ] In considering all of the mitigating and aggravating factors in this case, and the prior related record, I sentence you to 14 months concurrent on each of these charges of making child pornography on March 6, 2020. [ 50 ] There are two other convictions for making child pornography involving two other victims between January 1, 2016 and March 16, 2020. On each of these counts there will be one year concurrent to the March 6, 2020 convictions.

Voyeurism Charges [ 51 ] There are five convictions for surreptitiously recording individuals in circumstances that give rise to privacy rights contrary to s.162(1) (

c) of the Criminal Code . The number of victims on these counts ranges from one, to 50, 80 and 100. [ 52 ] These crimes were widespread and deliberate. The most concerning element as I stated, is the cataloguing of young female women and children by you. This is not acceptable or normal behaviour. It is frightening to other people because it is often a precursor to more intrusive, violent or abusive behaviours.

You have violated the common understanding between Thunder Bay’s citizens that privacy and personal body integrity is not to be violated even visually. [ 53 ] Given the sheer volume of victims and the public outrage at your actions, it would be tempting to maximize any sentence you should receive. The court must apply restraint and consideration of all of the circumstances of your crimes and that there be parity with sentences of other offenders. [ 54 ] I must consider that you have entered pleas to these charges, thus saving any of these victims from having to testify. You have indicated genuine remorse.

There are Gladue factors which have undermined your childhood and skewered your view of the world and you in it. You do not have a record for similar offences. [ 55 ] In assessing all of these factors in the context of the public and personal harm your actions have caused, the appropriate sentence on the s.162(1) (

c) charges are as follow, consecutive to the offences under s.163.1(2): a. One count involving AP – 4 months consecutive b. One count involving 10 individuals – 6 months consecutive c. One count involving 50 individuals – 6 months consecutive d. One count involving 80 individuals – 8 months consecutive e. One count involving 100 individuals – 8 months consecutive Criminal Harassment [ 56 ] You have plead guilty to one count of criminal harassment against the three child victims which occurred on March 6, 2020 when you knew that they were harassed by your continued photographing of them.

You were undeterred by their reactions. [ 57 ] I am considering a number of factors in sentencing you for this offence. This offence occurred at the same time as the other offences at the Canada Games Complex, involving the same victims. Your photographing of the children on that day has already been sanctioned by your convictions under s.163.1(2) You do not have a record for this offence, however, the victims were children. Your actions, while harassing, were not the most serious types of harassment often evident in cases under this section.

[ 58 ] In considering all of these factors, I sentence you to 4 months concurrent on this charge to the other charges of that day. Applying the Totality Principle [ 59 ] The total time of this sentence is 46 months or three years and ten months. Is this aggregate sentence just and appropriate? [ 60 ] Given your limited criminal record, such a sentence is a large increase in jail time from the 45 days on your first offence, more than ten years ago. It can only be said that the prior sentence was insufficient to deter you, but the length of sentence needed to deter you is unknown.

There is a good chance for your rehabilitation but the realization of that is totally only within your power. [ 61 ] In all of the circumstances, I find that the total sentence is not outside of an acceptable range given the number of victims, the period of the offences being committed and the seriousness of these actions. Further calculations are needed.

Reductions of Sentence [ 62 ] You shall receive a reduction of your sentence on the basis of the time you were in custody for eight days, enhanced to twelve days credit. [ 63 ] Your lawyer has asked that there be a further reduction of time with a credit given for the onerous release conditions you have been under, as set out in the case of R. v. Downes supra. The case established that a sentencing judge must consider the period of release involving house arrest or stringent bail conditions which the accused was subjected to prior to sentencing.

The court held: Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence order… [ 64 ] On March 20, 2020 you were released on a $5000 pledge without deposit with a surety.

The terms were house arrest, you could have no cell phone or computer, and you were not to be in any parks or places where there may be children. On December 4, 2020 following the examination of your computer and further charges being laid, you were released on the same terms. The terms were amended on May 12, 2021 to provide a time each week for obtaining the necessaries of life and medical and other appointments There has been one surety replacement. [ 65 ] The house arrest term was in place for about 26 months and appears to have been on consent. There are no breaches alleged.

The term of house arrest appears to be a response to your systematic, persistent and widespread actions of intrusion into the privacy of citizens across Thunder Bay. [ 66 ] Nonetheless I feel that house arrest contains a presumption of guilt and should be a last resort in a release. Given your lack of a lengthy or violent record, I believe that sufficient conditions on your liberty in the community could have been structured. There were very few exceptions to the house arrest condition. To be on house arrest is the same as being a convicted person serving a Conditional Sentence Order of incarceration.

There must be a recognition of this period of incarceration in your home with few conditions of release. [ 67 ] Unfortunately, like the situation in the Downes case, there is no evidence before me demonstrating how the house arrest affected you. In similar circumstances, however, the Court of Appeal still granted five months reduction in a circumstance of eighteen months of pre-trial house arrest.

I am prepared to find, on the fact of the release alone, that it was very onerous, in many respects unnecessarily limiting your freedom and a burden on both you and your surety. [ 68 ] The period of house arrest you had in your release is a mitigating factor on sentence. I have determined that a credit of eight months should be given on the sentence for the period of time during which you were on house arrest. Conclusion [ 69 ] The principles of denunciation and deterrence in regard to the charges dealing with children are paramount.

It is your responsibility to make rehabilitation a reality by being honest with yourself. I hope that your intention to work to rehabilitate yourself and to free yourself from this burden will continue. You are the only person who can change the trajectory of your life. [ 70 ] The duty of the court is to be fair to you but also to protect society. The sentence you are receiving today is a total of 38 months. This sentence is appropriate given your lack of a lengthy record, the facts of your crimes, the expanse and number of victims who have been affected and the terrible impact on them and this City.

As part of the sentence, I am also ordering the following: 1. The charges under s.163.1(2) are primary designated offences, and you will provide a sample of your bodily substances for the purpose of forensic DNA analysis and the results will be kept in the DNA Identification Bank; 2. You will, upon your release, comply with the Sex Offender Information Registration Act pursuant to s.490.013(1) of the Criminal Code for life. The length of time is because of the conviction for an offence under s.163.1 of the Criminal Code which has a maximum sentence of 14 years. The order will be in Form 50.; 3.

Pursuant to s.161(1) of the Criminal Code , I order the following for a period of ten years to commence upon your release from jail:

i) You are prohibited from attending a public park or swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre except in the presence of another adult that has knowledge of this order. ii) You are prohibited from using the internet or other digital networks or devices including a cell phone for any unlawful purpose or for

taking or retaining photographs of any female under the age of sixteen years. 4. Pursuant to s.164.2(1) of the Criminal Code , all cameras, lenses, computers and external hard drives seized in the commission of this crime are forfeited to Her Majesty the Queen in Right of Ontario to be disposed of as the Attorney General for the Province of Ontario directs. Released: May 20, 2022 Signed: Justice D.J. MacKinnon