R. v. Reynard Date:, 2013 BCPC 279

Citation: R. v. Reynard Date: 20130829 2013 BCPC 0279 File No: 225251-3- A,228976-1, 228976-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LEE ANDRE REYNARD BAN ON PUBLICATION 486.4(2) CCC RESTRICTED ACCESS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: S. Black Counsel for the Defendant: P. Evans Place of Hearing: Vancouver , B.C.

Date of Hearing: August 29, 2013 Date of Judgment: August 29, 2013 Introduction [ 1 ] THE COURT: Mr. Reynard has entered pleas of guilty to four charges relating to sexual offences.

The first count is in relation to the transmission and making available for distribution child pornography between the 1st of July, 2011, through the 3rd of April, 2012. [ 2 ] He has also entered a plea of guilty in relation to the same timeframe that he did have in his possession child pornography. [ 3 ] In addition, he has entered a guilty plea in relation to child luring, as it is commonly called, through the use of a computer between the dates of July 7, 2011, to the 10th of March of 2012. [ 4 ] There is a related breach charge that he has also entered a guilty plea to, that between the 1st of September of 2012 to the 6th of March of 2013, in violation of a recognizance entered into before a justice, that he was accessing the Internet contrary to that order. [ 5 ] Mr.

Reynard must now be sentenced for his transgressions. Overview [ 6 ] The charges to which Mr. Reynard has pled guilty are extremely serious.

The circumstances surrounding the directly-related sexual offences are, in my view, dreadful. [ 7 ] In addition, the accused has prior related convictions out of the United Kingdom where, in 2004, he was either found guilty or pled guilty to 18 counts of possession of indecent photographs of a child for which he was sentenced to 18 months on each count, each served concurrently to the other and, in 2009, in the United Kingdom, he either pled guilty or was found guilty of 10 counts of possession of indecent photos in relation to a child for which he received concurrent sentences of 30 months. [ 8 ] Shortly after his release from custody, he was returned to Canada as he had renounced his United Kingdom citizenship, though he remained attached to Canada where he was born.

Upon his deportation back to Canada, he was a person of interest to police authorities who interviewed him and he assured police authorities that he would not become engaged in the possession of child pornography or any related activity. [ 9 ] As a result of continuing police investigation, the accused was subject to an investigation to determine if he was accessing the Internet and becoming involved in criminal activity with respect to that access. The police intercepted a series of materials including chats and emails relating to Mr.

Reynard. [ 10 ] An undercover operative managed to access a chatline in which the accused was engaged. Crown counsel has taken the court through those chats and they are disturbing.

On one of the chats on March 13th, 2012, the accused who had the moniker of Tonyflynn38 chatted to the undercover operative in the following language [as read in]: Meanwhile, to be bluntly, I would like to fuck your eight-year-old daughter while you and the 14-year-old watch, then fuck the 14-year- old while you and your daughter watch, then fuck you while both girls watch. [ 11 ] The interest of the accused through this series of chats with the undercover operative was to engage in sexual activity with the children of the undercover operative who was presenting herself as a bisexual mother of two children.

It also became clear through the series of chats on that date that the accused wished to find a woman to have a baby with and, when that child was born, to hand the baby over to him. [ 12 ] There is always the concern that this type of activity may simply be fantasy driven, though obviously reprehensible to a well- informed sensible public. However, further along in the materials that have been provided to me, the undercover operative, to determine whether or not this was serious conversation, the following chat exchange took place [as read in]: Undercover: Depending on if it's fantasy or serious.

Tonyflynn38: Serious ... I told you I am real. I would use her and make you watch. [ 13 ] As a result of further police investigation, it was determined that it would be appropriate to further investigate the location of Tonyflynn38. As a result of a police investigation technique through various domain providers, it was determined that actually Tonyflynn38 was the accused who was using that moniker and that he lived on Granville Street in the City of Vancouver. [ 14 ] As a result of further police investigation, a warrant was executed and access was made to the apartment of the accused.

Computer equipment was seized and forensically examined. [ 15 ] Within the materials that were forensically examined, it was determined that there was a vast collection of child pornography in the range of 5,400 images and videos. In relation to Count 1, with respect to the transmission or distribution of child pornography, a series of emails over an extended period of time as set out in the timeframe of the information were sent by Mr. Reynard. [ 16 ] Attached to the emails were images that can only be described as horrific. The general theme of these emails with the lurid

attachments were prepubescent girls and infants engaged in sexual activity with males. Several examples were brought to the court's attention by Crown counsel, and I will refer only to two. [ 17 ] As a result of the forensic examination, there was an email downloaded from November 4th of 2010 in which there were three images. Of the three, one is of a picture of a naked prepubescent girl lying on her back with an adult male straddling her.

This girl is holding an adult penis in her hands and there appears to be ejaculate on her face. [ 18 ] Further forensic examination resulted in downloading of another email on November 4th of 2010. This email contained a two- minute-and-31-second-long video of a naked prepubescent four to six-year-old girl. At the beginning of the video, the girl is lying on her back. The camera zoomed in close to the area of her vagina and an adult penis penetrating her. The video then changes to the adult male sitting down holding the girl over his erect penis pushing it into her. [ 19 ] The number of emails was substantial.

Various parties were the recipient of these emails and, unfortunately, as is often the case, these type of people manage to gravitate to each other. [ 20 ] One of the other features of this case is that the accused had befriended a young girl known as S.L. through the mother of S.L. It is clear from the submissions of Crown counsel that S.L. was a focus of attention by the accused.

Indeed during the search of his premises, apparently a pair of her underwear were found in his bed which he used for masturbation purposes. [ 21 ] Apparently, the reason for this inappropriate relationship with S.L. was to teach her how to stay away from predators. It is common sense that this clearly was not the intent. [ 22 ] Emails with respect to S.L. form part of the distribution list of the accused.

There was also provided to me further chat details in which I agree with defence counsel, we do not know who those persons were in which there is graphic chat of a lurid sexual nature, but on my review of some of those chatlines, there does not appear to be any attempt whatsoever to verify the recipient's age in relation to the chat discussion. [ 23 ] In relation to the luring as set out in Count 5, there were a total of 10 named complainants.

All of the chat in relation to the luring was of a sexual nature and, in some instances where the recipient questioned whether this was proper or not, the recipient was told by the accused that it was okay, it would not be illegal for the recipient to become involved. [ 24 ] All of the victims in relation to the child-luring had questionable monikers such as a 12-year-old from Vietnam known as BD, for one, but again, there does not appear to be any effort whatsoever by the accused to determine the age of these people other than, on the submissions before me, the ages of the individuals range from 11 through to 14 to 17. [ 25 ] In some of the instances involving child luring, the accused sent videos of himself masturbating.

Throughout, there was also grooming of the victims which is a significant component of child-luring cases. [ 26 ] In relation to the breach, an anonymous tip was received that the accused was accessing the Internet when he was prohibited from doing so by court order.

As a result of police investigation, it was determined that indeed the accused was accessing the Internet, in particular, through the Vancouver Public Library. [ 27 ] As a result of further investigation, it was determined that he had accessed Facebook and was actively involved on a site called FetSite which is a fetish site accessed by individuals dedicated to sexual deviation, some of which included incest and involved young children as a chat log thread. [ 28 ] On March 13th of 2013, the accused was arrested, found on his person was an iPod, two cellphones, a Kobo Reader.

There was child pornography stories on the bed and the Kobo Reader was open and there was a child pornography story on the reader. Position of the Parties [ 29 ] Crown counsel takes the position that specific and general deterrence and denunciation are paramount. Crown counsel identifies the harm caused by possession of child pornography as set out in R. v. Sharpe at paragraphs 88 through 90. [ 30 ] There is no question that possession of child pornography is a heinous offence and that the more serious the degree of depictions, the more serious the offence becomes.

The predators that manufacture child pornography can only do so if people are prepared to buy it. It is a commercial enterprise of the lowest sort. [ 31 ] The impact on the production of child pornography has been referenced in numerous cases. I need not reference those cases.

Indeed, when I viewed some of the depictions today in court, it is clear in some of those depictions that the victims were distressed and one, in which it was a video in which I observed a male erect penis penetrating a baby, the baby was crying. [ 32 ] Crown counsel takes the position that there are numerous aggravating factors of which some are set out in my decision in R. v.

Nichol handed down April 14th of 2009. [ 33 ] The factors noted by Crown counsel is that the accused is now a three-time offender; the chats were graphic; the collection of the depictions was vast; there was significant planning; the nature of the luring such as the exchange of photos, videos of masturbation; the use of the Internet itself; that the children engaged in the child pornography were young and, in some instances, children were tied up and subjected to other degrees of violence; and there was a breach of a court order that he not access the Internet. [ 34 ] In mitigation, Crown counsel notes there was the guilty plea and I agree with defence counsel, Mr.

Evans, the plea comes at a relatively early stage. [ 35 ] Defence counsel takes the position that the offences are serious, but that a fit and proper sentence is two years. The two years

would be followed by a period of probation and it is emphasized by Mr. Evans that the accused has not been idle while in custody, has completed a program for essential skills, and that rehabilitation remains a life circumstance that I must consider. [ 36 ] It was also noted by Mr. Evans that in relation to many of the chats, we do not know who the recipient of the chat was and it may well have been simply fantasy chatting between males. Again, as I indicated to Mr.

Evans in questioning from the bench, that does not reduce the importance of a person inquiring with respect to a determination of the age of the recipient. Circumstances of the Offender [ 37 ] Mr. Evans is 41 years of age. He has lived in various countries included the United Kingdom and the U.S.A. He was born a dual citizen with citizenship to the U.K. and to Canada. [ 38 ] He has a family of which he is estranged from and it was submitted to me that, in large measure, his offending behaviour is as a result of abuse when he was a young boy.

Both he and his sister were abused by a male or several males at a very dysfunctional time in his family's life. It is that abuse which has led to, in large measure, his offending behaviour. He began in the United Kingdom to collect child pornography in the early 1990s when he returned to the U.K. in 1993. [ 39 ] In addressing the court, he indicated that he is remorseful for what has happened, that he wishes to have counselling, and he is aware that his activity was solely for his own personal sexual gratification which is entirely consistent with a pedophile.

Analysis and Disposition [ 40 ] Those individuals who possess child pornography and transmit child pornography are individuals of the worst kind in our society. I say that as they are predators in relation to the most vulnerable in our society and, in this case, very young children. Children deserve to be protected. They are the future for all of us. The children involved in these cases become damaged goods. It is doubtful that they could ever recover. [ 41 ] As I indicated in my introduction, this case is a dreadful case.

As was noted by Crown counsel in relation to moral culpability, all cases with respect to transmission or possession of child pornography and luring are serious, but some are more serious than others. This case hits that category. I find all of these cases very difficult. This one I found abhorrent. One could not help but be distressed when I observed the video of a baby being penetrated. [ 42 ] In relation to Counts 1, 4, and 5 of Information 225251-C-4, I find the following are aggravating circumstances.

In relation to the child pornography allegations contained at Count 1 and Count 4, that the collection was vast. Secondly, the depictions both in still and in video can only be described as shocking. Thirdly, I find it aggravating in relation to the age of the victims from babies to young girls. [ 43 ] I find it aggravating that some of these depictions were transmitted to other individuals for the sole purpose of gratification.

It is aggravated that there was significant planning in relation to the possession and transmission of child pornography. [ 44 ] It is aggravating that the accused has two prior convictions in relation to child pornographic photographs. I find it aggravating that the accused tends to minimize his involvement.

He has all of the hallmarks of a narcissistic personality type. [ 45 ] As is his right, he did not have to cooperate in relation to the preparation of a Pre-Sentence Report or a psychological assessment, but he chose not to participate in either a Pre-Sentence Report or psychological assessment as ordered by this court. I have little to go on with respect to risk other than I must always ensure that the public interest is protected and that public interest includes young children. [ 46 ] Obviously, the accused appears to be willing to take counselling, but nothing has commenced.

I find that he currently is at a significant risk to reoffend if untreated. Even then, he appears to be a pedophile of which there will be ongoing and necessary intervention by police authorities to protect those young people of our society. [ 47 ] It is also aggravating with respect to the child luring, as I noted in Nichol , that his actions in relation to the luring were predatory in nature, targeting young children using the Internet as his cloak of anonymity; that in relation to the luring, there was graphic sexual content along with active grooming.

A video of himself masturbating on several occasions was forwarded along. [ 48 ] He was subject to a court order which he breached in relation to that charge. I find, in itself, that is an aggravating factor standing alone. [ 49 ] In imposing sentence, I have been provided with a large amount of cases of which I have taken into account in crafting this ruling. Cases provide guidelines, but ultimately, a sentence must be proportionate to the nature of the offence and the nature of the offender.

I am required by law to apply s. 718 through 718.2 of which, in relation to s. 718.2, the involvement of the accused with S.L. would be an aggravating factor. [ 50 ] It has been proposed by Crown counsel that a fit and proper sentence is four years in prison to be broken down as the court deems appropriate. [ 51 ] Defence counsel has proposed two years and that, in relation to the time served, there be a discount in relation to approximately a month as the accused was awaiting sentence and, through no fault of the accused, he was unable to have his sentence before him because the court was unavailable and the defence rightly so relies upon R. v.

Bradbury from out Court of Appeal. [ 52 ] Could you stand, please, sir. [ 53 ] In relation to the breach allegation, I am sentencing you to one day in jail plus six months' time served on a one-to-one basis.

Victim fine surcharge exempt. [ 54 ] On Count 1 of 225251-C-4, I sentence you to a period of incarceration of two years in prison. [ 55 ] THE ACCUSED: Which charge was that, please? [ 56 ] THE COURT: Transmission or making available for distribution child pornography. [ 57 ] THE ACCUSED: Thank you. [ 58 ] THE COURT: On Count 4, having in your possession child pornography, in my view, a fit and proper sentence is one year consecutive to the two-year sentence.

Victim fine surcharge exempt. [ 59 ] In relation to the child luring, in my view, a fit and proper sentence is one year consecutive to all other sentences for an aggregate new-time sentence of four years' total time in prison.

Victim fine surcharge exempt. [ 60 ] DNA under s. 487.051 is granted in relation to Count 1, 4, and 5 of the C-4 Information. [ 61 ] There will be an order for forfeiture of crime-related property as requested by Crown counsel. [ 62 ] There will be an order with respect to SOIRA and it will be a lifetime in relation to Counts 1, 4, and 5. [ 63 ] There will be a prohibition under s. 161 of the Criminal Code for those items that were reviewed by Mr. Black.

They are in relation to: non-attendance at a public park or public 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; (

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

c) using a computer within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years. [ 64 ] This order will be for a period -- what did you ask for, Mr. Black? [ 65 ] MR. BLACK: Ten years. [ 66 ] THE COURT: Ten years. [ 67 ] I am recommending on the warrant of committal that you be classified to a federal institution that can provide to you sexual offender counselling and, in particular, counselling that addresses pedophile personality behaviour. You need it. [ 68 ] THE ACCUSED: Thank you. [ 69 ] THE COURT: I want to thank my staff.

It has been a long day and this has been a distressing case. [ 70 ] Is there anything else, Mr. Black? [ 71 ] MR. BLACK: Yes, Your Honour, I am going to direct a stay of proceedings on the substantive matter, 228976. [ 72 ] THE COURT: Anything else, Mr. Evans? [ 73 ] MR. BLACK: Is there anything else outstanding? [ 74 ] MR. EVANS: Count 3 and -- [ 75 ] MR. BLACK: I am directing a stay of proceedings -- [ 76 ] MR. EVANS: Count 2 and 3 -- [ 77 ] MR. BLACK: -- on Count 3. [ 78 ] MR. EVANS: -- Count 2 and 3, and the dash -- already PNI'd the dash two. [ 79 ] MR.

BLACK: Okay, so a stay of proceedings on Count 2 and 3. [REASONS FOR SENTENCE CONCLUDED]