R. v. W.J.L., 2022 BCPC 318

Citation: R. v. W.J.L. 2022 BCPC 318 Date: 20221214 File No: 21701-3-C Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. W.J.L. BAN ON PUBLICATION - s. 486.4(3) C.C.C. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. McKIMM Counsel for the Crown: P. Cheeseman Counsel for the Accused: D. Marshall Place of Hearing: Colwood , B.C. Dates of Hearing: March 18 and December 14, 2022 Date of Sentence: December 14, 2022

[ 1 ] THE COURT: This matter is on for disposition today, and I apologize to those who might be called upon to review my analysis, but the matter has been, as a result of no fault at all of Mr. W.J.L., enormously protracted by a global pandemic, a catastrophic atmospheric river and the presiding judge's own health struggles, as a result of which, in my view, it is more important that this matter reach a conclusion than that I afford myself the luxury of crafting more elegant reasons for judgment. [ 2 ] My intention is to outline my analysis.

I say with the greatest of respect to both counsel, both counsel have articulated before me exceptionally good submissions and I have considered them. Indeed, given the length of time between the Crown submissions and those of Mr. Marshall on behalf of Mr. W.J.L., I took the liberty of reviewing Mr. Cheeseman's submissions, entirely before we began our sitting today, and of course I have had the great pleasure of Mr. Marshall's comprehensive submissions today. I have also had a chance to review the authorities referred to me by both counsel, as well as the materials provided by both counsel.

So it is imbued with all of that information and knowledge that I craft these reasons, inarticulate as they may be. [ 3 ] The accused has pled guilty on three separate charges. The first is that: . . .on or about the 27th of November, 2019, at or near Langford, in the Province of British Columbia, did possess child pornography contrary to

section 163.1(4) of the Criminal Code .

Count 2: . . .on or between the 18th of September, 2018, and the 22nd of January, 2019, inclusive, at or near Langford, Dawson Creek, and/or other locations in the Province of British Columbia, did make child pornography, to wit, written material that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under the Criminal Code , or written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under the Criminal Code . . .

And finally: Count 16: . . .on or between the 28th day of February, 2019, and the 3rd day of March, 2019, at or near Langford, ..., in the Province of British Columbia, [did] unlawfully counsel another person to commit the indictable offence of sexual assault, contrary to

section 464 (

a) of the Criminal Code . [ 4 ] For Count 1, the maximum penalty available is that of 10 years.

For Count 2, the maximum penalty available is that of 14 years, and for Count 3, the maximum penalty available by agreement of counsel, with which I concur, is a penalty of five years and that is because the Crown is not able to prove that the counselled offence did in fact occur, that therefore the maximum penalty is one-half of the maximum penalty for sexual assault, being 10 years, and that is by force of the provisions of s. 463(b). [ 5 ] In 2019, the Facebook social media platform notified authorities of inappropriate communications between a man, Mr. W.J.L., and what appeared to be an under aged minor.

The police conducted a search of Mr. W.J.L.'s residence in the early morning hours of November 27, 2019 and during the course of that search found a number of different devices including a laptop, a cellphone, and certain external hard drives, as well as computer compact discs. [ 6 ] Contained within those various devices are a total of 230 videos and 565 separate images of child sexual abuse.

Those images and videos were across all of the various platforms and covered a wide range of sexual depravity, including sexual offences against children as young as three or four, they are toddlers, images including penetration and most particularly images including violence external to the inherent violence of the sexual assault portrayed. These images are across many devices, although there is no evidence of categorizing or classifying or doing anything other than gathering in that material.

That is the gravamen of Count 1. [ 7 ] Also found during that search are a series of text conversations with a number of different individuals who appear to be women in which the sexual abuse of children is discussed in lurid detail. The conversations include conversations around sexually abusing the infant children of the recipient of those text messages, as well as grooming and sexually abusing his own six-year-old daughter. There are conversations promoting raising children together with these recipients solely for the purposes of sexually abusing them.

There are exchanges of images during the course of these sexualized conversations which depict young persons, including images being forwarded by Mr. W.J.L. of his own daughter. I hasten to note that those images in themselves are not sexual images, which is to say they are not, for example, naked images of his daughter. Whether the images are fully clothed and appear to be ordinary family photographs, clearly the intention of sending those images was for a carnal purpose, which is to substantiate and support the depravity which is the thrust and nub of the sexualized conversations.

Finally, and in many way most troubling, that is the gravamen of Count 2. [ 8 ] Finally, and most troubling, are a series of text messages between Mr. W.J.L. and someone who describes himself as "Mature". In those conversations, Mature complains that he has an uncontrollable 18-year-old daughter. He advises that as a manner of moderating her behaviour, he often sedates her with a drug similar to Ativan. Mr. W.J.L. then promotes with this individual the idea that the father ought to sexually abuse that child while she is comatose or while she is stupefied by those drugs.

After a series of exchanges in which this idea is promulgated further and further and during which the illegality and impropriety of this behaviour is minimized and downplayed by Mr. W.J.L., he appears in the text messaging to convince this individual to actually strip his unconscious 18-year-old daughter, fondle her, penetrate her digitally, and ultimately to have intercourse with her. It is apparent throughout the conversation that the father is initially reluctant to carry out the salacious wishes of Mr.

W.J.L., and clearly articulates his understanding of the gravity of this behaviour, as well as the inappropriateness of it, to say the least of its unlawfulness. Mr. W.J.L. is persistent in promoting this behaviour, and as the conversations become more and more graphic, it is apparent that Mr. W.J.L. becomes more and more pleased with his work. [ 9 ] I had considered reading the passages of that material into the record but in my view it would be inappropriate. It is so profoundly disturbing to read.

But I do say, for those who might review this decision, I do say that the overwhelming inference, the inescapable conclusion from reading those text messages and noting the time between text messages, between answer and response and answer and response, that there is no other conclusion than that Mr. W.J.L. believed he was engaging in this promotion in real time and that the horror of these text messages is the very fact that anyone reading them would come to no other conclusion than that they were

being successful in promoting a father defiling his daughter. That is the gravamen of Count 16, I find beyond a reasonable doubt that even though the Crown cannot prove that indeed Mature, which is to say the father, did in fact sexually abuse his daughter, that Mr. W.J.L. firmly believed that he had and that was exactly what he intended to have happen and that he took great satisfaction from having convinced the father to do that and indeed sought videos and images for his prurient pleasure of that defilement. [ 10 ] The accused is 30 years of age.

This matter has been extremely protracted as a result of a number of difficulties beyond Mr. W.J.L.'s control, but at the time of the offences he was somewhere between 26 or 27. He has no prior criminal history and has enjoyed steady employment since a very early age of approximately 16. He has enjoyed a number of supportive, long-term relationships and is currently engaged to be married. If memory serves, it is the second opportunity he has had to be engaged to be married.

He has enjoyed innumerable prior sexual partners, and I say this only because it is a fact that he seems to espouse with great pride as he considers these trophies, and indeed maintained on his computing devices images, sexualized images of many of these prior “trophies”. He has, by his own admission, enjoyed a number of sexual partners as young as 12 or 13, although I am mindful that he of course is not charged with that. [ 11 ] He professes that he is a changed man and expresses remorse and is ashamed of the past self which would allow him to commit these vile offences.

He has expressed remorse both to the writers of the various reports, as well as in his letter in his oral presentation to the court. As I say, he enjoys significant community support and indeed is deemed and found by coworkers and employers to be a model employee and one whom they would hire back again. I should say that he was entirely cooperative with the course of the investigation and he volunteered information with respect to his pedophilic predilections long before the officers were even aware that the investigation would take them down a path of child pornography as opposed to anything else.

Of course, it has to be said that he entered a very early guilty plea, although from a review of the record that may not be apparent. I find as a fact it is an early guilty plea made late by circumstances beyond his control. [ 12 ] I have to craft a sentence that is both proportionate and reflects the various principles of sentencing. First and foremost, I must pronounce a sentence which specifically deters those of like mind from sexually exploiting and abusing children. I must craft a sentence which deters Mr.

W.J.L. from sexually abusing children now or in the future, or from promoting such behaviour in other persons. I must consider all of the aggravating and mitigating circumstances of the offender and the offences such that I can craft a sentence which is fit and proper and appropriate for this offender and for this offence. I must craft a sentence which specifically denounces in no uncertain terms society's condemnation of those that would sexually abuse our children.

This is abhorrent behaviour which is carried on behind the veil of social media and on computer internets, but it is well known to the court that it is a behaviour which leaves an endless trail of victims scarred and traumatized for life, and I must denounce and condemn that behaviour. [ 13 ] Let me consider each count separately. [ 14 ] Count 1, there are many images. Those images are across many platforms and devices. The images are violent. The images contain a wide range of victims from toddlers to preteens.

They contain images of violence above and beyond that violence inherent in the sexual exploitation itself. [ 15 ] I have considered the mitigating circumstances. There has been a presentence report and a psychological report prepared. I am entirely satisfied that those reports accurately portray this person, and suggest to the court that he is either a reformed man or in some way that the person captured in those reports is somehow a person in the past and no longer the individual that I am sentencing is unsustainable. I am sentencing the individual who is captured in that report. [ 16 ] While Mr.

W.J.L. in those reports endeavours to minimize or deny any sexual interest in children, I find as a fact that those denials are entirely self-serving and for his own purposes. It is evident from the depth and the depravity of the messages, the images, and the behaviour of Mr. W.J.L., that he holds a profound pedophilic attraction to children. I do not accept his attempts to portray himself as a completely changed and reformed man, nor is there any evidence to support such a suggestion. Indeed while his supporters may find him a changed man, there is nothing in the record to ground any suggestion of such a change.

There is no evidence, for example, of counselling which would allow the court to have any satisfaction that he has come to understand the depth of his depravity, and indeed the depth of the dysfunctional thinking that would allow him to even believe for a moment that this behaviour was anything other than repugnant. [ 17 ] His protestations now of being a changed man, in my view, more reflect an individual who is desperately trying to avoid the consequences of his behaviour rather than a man who has come to understand the depth of his depravity; and worse, those denials in his statements of being a changed man support an inevitable conclusion that he has a complete lack of insight as to the depth of his criminal thinking. [ 18 ] In the result, I am entirely satisfied that the conclusions of the psychiatric report with respect to his risk to reoffend are sound, and they are these [as read in]: Consideration has been given to the criminogenic factors associated with the behaviours exhibited by Mr.

W.J.L. With the use of the RSVP and the Static-99R, Mr. W.J.L. has been assessed as presenting with a moderate to high risk of sexual violence recidivism mitigated currently by restricted access to underage children and electronic devices capable of accessing the worldwide web.

Factors that contribute to a risk of violent reoffending include but are not limited to the chronicity of sexually deviant behaviour, significant minimization of sexual violence, attitudes that condone sexual violence, significant problems with self-awareness, insight, difficulties with stress or coping, cognitive behaviour, impulsivity, suicidal ideation, the presence of personality traits characterized by mood dysregulation, and a disregard for the rights of others, as well as potentially consistent psychopathic personality disorder, psychological coercion in the perpetration of sexual violence, significant difficulties in the context of interpersonal relationships, the presence of multiple paraphilic interests including pedophilic interests, possible adverse experiences in childhood, and potential difficulties associated with planning and treatment adherence in the future. [ 19 ] In a word, Mr.

W.J.L., as he sits before me today, presents a moderate to high risk of sexual violence recidivism, and I am satisfied beyond a reasonable doubt of those facts.

[ 20 ] In mitigation of the sentence, he is young. Younger still when these offences occurred. He has endured a difficult childhood and I accept that. He does have the continuing support both in his professional working life, as well as in his social life, and he has heretofore led a prosocial life and has no prior criminal history. He has entered a guilty plea and he has been entirely cooperative with the officer during the course of her investigation.

He has expressed remorse, although I do not find, given his lack of insight, those expressions of remorse particularly persuasive, as I say, given his lack of insight. [ 21 ] His counsel suggests that the appropriate range of sentence for this one offence is in the range of four months to two years, and he cites Hagen, 2021 BCCA 208 for this proposition which is, I hasten to add, a post- Friesen decision, and I accept his submissions in that regard.

In my view, however, in terms of possession of child pornography, this clearly is at the higher end of the range, and in my view a fit sentence is one of 15 months in custody. [ 22 ] On Count 2, I accept the aggravating and mitigating circumstances as indicated above. I also accept, as Mr. Marshall has proposed, that the range of sentence is a vast one of 12 months to eight years. I also accept Mr.

Marshall's able submissions that in instances where the production or transmittal of child sexual abuse material is limited to the written word, is less serious than if it were actual images or videos created or portrayed. In this instance, the fact that it is the written word is aggravated by the fact that it is the written word about real people in real time, including the real personage of his own daughter, and in that sense Mr. W.J.L. has managed to create a victim by the use of his own words, much more so than, for example, purely fantastical or fantasy writing of imaginary people.

So these are indeed about real people, and in my view that aggravates the nature of these written words. [ 23 ] In my view, a sentence of two years, in that range, accurately reflects the depth and breadth of his offending behaviour, and on Count 2, a sentence of two years is appropriate. [ 24 ] On Count 16, again I reflect on the aggravating and mitigating circumstances captured above, but what is particularly aggravating on Count 16 is that this is the graphic real time encouragement of the sexual violation of a young stupefied female by her father, a person clearly in a position of trust.

I find this to be a most grave and disturbing and serious offence and one that requires articulations of general deterrence and denunciation as a primary consideration. [ 25 ] In my view, an appropriate sentence would be one of 18 months. [ 26 ] In the result, in my view, a sentence on Count 1 of 15 months is appropriate. A sentence of 24 months on Count 2, and a sentence of 18 months on Count 3 are appropriate. [ 27 ] Each of these offences contains entirely separate delicts and addresses very separate social evils.

I agree with my colleagues who have found that these sentences are appropriately issued consecutively, and in my view in this case those sentences should all be consecutive, for a total sentence of 57 months in custody. [ 28 ] I appreciate that this is less than that which the Crown sought, but I also believe that this is a sentence of four years and nine months, in its totality is excessive.

My understanding of the law, and I have had not had a chance to provide the citation, is that the appropriate response is not to make consecutive sentences concurrent but to rather indicate on the record what the sentence would have been, and then reduce that sentence so that each sentence is then served consecutively but to the same effect. [ 29 ] As a result, I will, on Count 1, reduce the sentence from 15 months and impose a sentence of 12 months. On Count 2, I will reduce the sentence from 24 months and impose a sentence of 20 months.

On Count 16, I will reduce the sentence from 18 months to one of 16 months, for a total sentence of 48 months in custody, starting today. [ 30 ] I wish to make one last comment with respect to mental health. Counsel for Mr. W.J.L. endeavoured to persuade the court that a mitigating circumstance in this case is the mental health of Mr. W.J.L. With the greatest of respect, I do not agree and I do not accept that submission. The material before me is certainly not sufficient to suggest that Mr.

W.J.L. has any inability to properly grasp the wrongfulness of his behaviour or to moderate his behaviour according to social norms. Quite the contrary. He seems to be a man well capable of functioning at a high level in our society and leading a prosocial life. [ 31 ] The material also overwhelmingly establishes that he is well aware of the illegality of his behaviour and simply chooses not to respect those social and legal norms. The suggestion is that he may well have a borderline personality disorder.

But in my view that does not minimize or limit his moral culpability with respect to these offences, and indeed while they may explain them, they certainly do not minimize them. So I have not considered his mental health as being a mitigating circumstances, although I have obviously considered his difficult childhood that these mental health struggles may well have made it more difficult for him in some stages of his life to function, but the evidence to the contrary suggests that he is well able to function but simply chooses not to. See R. v.

Milne, 2021 BCCA 166 . [ 32 ] There will be a SOIRA order for a period of 20 years. There will be a DNA order that you are to provide a sample of your DNA within seven days to the Correctional authorities. [ 33 ] The SOIRA order, Madam Clerk. Pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for a period of 20 years. [ 34 ] There were no submissions, Mr. Marshall, on 161. I think your friend asked for a 161 order for life. I cannot recall right off. It just occurred to me just now. What was your submission, Mr. Cheeseman? [ 35 ] CNSL P.

CHEESEMAN: I believe I had asked for 20 years, Your Honour. [ 36 ] THE COURT: All right. [ 37 ] CNSL P. CHEESEMAN: Under 161(a), (b), (c), and (d), with some varied wording. [ 38 ] THE COURT: All right. Mr. Marshall?

[ 39 ] CNSL D. MARSHALL: I need a minute, Your Honour, I apologize. Sorry, Your Honour, I missed that when my friend -- [ 40 ] THE COURT: Sorry? [ 41 ] CNSL D. MARSHALL: -- was dealing with something else. I am just looking for what Your Honour's discretion is with respect to the alternatives to 20 years. On a quick reading, it appears that it is in the discretion of the court as to the length of time. Mr. Cheeseman is in effect asking for an order until Mr. W.J.L. is 54 years of age.

I will leave it in Your Honour's hands as to whether or not that length of time is necessary. [ 42 ] THE COURT: Well, I think a better solution is that there -- he be at liberty -- I mean, if he does in fact wish to have a family, which is obviously in the materials, that the order needs to be amended from time to time to facilitate that if it is in anyone's best interests. So I think what I will do is I will impose it for a period of 10 years. [ 43 ] Pursuant to s. 161 of the Criminal Code , you are prohibited for 10 years commencing from the date you are released from prison from (

a) going to any public park, public swimming area, daycare centre, school ground, playground, community centre, or theatre, where persons under the age of 16 are known by you to be present or can reasonably expect to be present; (

b) seeking or obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves a position of trust or authority towards persons under the age of 16; (

c) having any direct or -- sorry, any contact or communication directly or indirectly with -- or being in the presence of any person under the age of 16; the exceptions are you are in the immediate presence of another adult or the communication contact -- that is four. Number five, any communication or contact or your presence that is incidental to your employment or your presence in a public place. [ 44 ] CNSL P. CHEESEMAN: Is your Your Honour working off a picklist -- [ 45 ] THE COURT: Yes. [ 46 ] CNSL P. CHEESEMAN: -- from that point rather than the -- [ 47 ] THE COURT: Oh, yes.

Oh, am I erring here? [ 48 ] CNSL P. CHEESEMAN: Well, I mean, I would object to "except in the presence of another adult" given the context of the communication. [ 49 ] THE COURT: Oh, no. I was thinking -- yes, that is fair comment. [ 50 ] CNSL P. CHEESEMAN: In the Code , 161(1)(c), it is worded, "Unless the offender does so under the supervision of a person whom the court considers appropriate." And that may be more, given the nature of this offence, that may be a better terminology that -- [ 51 ] THE COURT: All right. [ 52 ] CNSL P.

CHEESEMAN: -- if he wants to see his daughter -- [ 53 ] THE COURT: So, Madam Clerk, did you catch that? So except in the presence of another adult person whom the court deems appropriate. [ 54 ] CNSL P. CHEESEMAN: Yes, the wording of the Code is, "Unless the offender does so under the supervision of a person whom the court considers appropriate." [ 55 ] THE COURT: Thank you. Mr. Cheeseman, I am going to -- you must not -- sorry, you also must not use the internet or other digital network except -- [ 56 ] CNSL P. CHEESEMAN: Your Honour, just looking back at my submissions.

Well, I had suggested the wording be along the lines of, "Not accessing internet or the digital network or any similar communication service to (

a) access any content that violates the law," and I had suggested, too, that we put in some kind of term, directly or indirectly access any social media sites, social network, internet discussion forum or chatroom, or maintain a personal profile on any such service. I think that came from the Athey case, wording to that effect. [ 57 ] THE COURT: Okay. [ 58 ] CNSL P. CHEESEMAN: Given the nature of the conversation. [ 59 ] THE COURT: Madam Clerk, did you get that? I agree with that. [ 60 ] Okay, sir.

Now, that order may need to be varied from time to time as life progresses and as the internet progresses, but that is what it will be for now. Any questions? Anything else? [ 61 ] CNSL D. MARSHALL: Just the remaining counts and the outstanding Information. [ 62 ] CNSL P. CHEESEMAN: There is the forfeiture order, Your Honour, as well. [ 63 ] THE COURT: Sorry? [ 64 ] CNSL P. CHEESEMAN: A forfeiture order under -- [ 65 ] THE COURT: Oh, yes, all of the items seized by the police are forfeited.

[ 66 ] CNSL P. CHEESEMAN: Thank you, Your Honour. The Crown directs a stay on the remaining counts. [ 67 ] THE COURT: Oh, you made a comment -- or there was a comment in some of your material that some of the -- some of the media had images that could not be retained from anywhere else. [ 68 ] CNSL D. MARSHALL: There is a hard drive that belonged to his father that has got family photos -- [ 69 ] THE COURT: Right. [ 70 ] CNSL D.

MARSHALL: -- that the police have advise me they would kindly do their best to put those onto a DVD for me or a thumb drive or some other such storage device and provide to me to give to Mr. W.J.L. at a later date. [ 71 ] AN OFFICER: Yes. [ 72 ] THE COURT: No, I agree with that, officer. So we will say forfeited to the Crown subject to the release of any images deemed appropriate -- sorry, any images the police choose -- or sorry, the RCMP choose to release back to -- any appropriate images the RCMP choose to release back to Mr. W.J.L. [ 73 ] CNSL D. MARSHALL: Thank you. [ 74 ] THE COURT: Okay.

So you have the authority to withdraw and release photographs before you destroy the hard drives or whatever, which you have to keep I think for the appeal period anyway, but that makes good common sense to me. [ 75 ] Thanks everybody. Counsel, thank you both for excellent submissions. They were very helpful. (JUDGMENT CONCLUDED)