R. v. BosomworthR. v. Bosomworth Date:, 2014 BCPC 311

Citation: R. v. BosomworthR. v. Bosomworth Date: 20150114 2015 BCPC 0007 File No: 232006-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. ALLAN BOSOMWORTH REASONS FOR SENTENCE OF THE HONOURABLE JUDGE H. DHILLON Counsel for the Crown: Ellen Leno Counsel for the Defendant: Meagan Richards Place of Hearing: Vancouver , B.C. Date of Hearing: December 22, 2014 Date of Judgment: January 14, 2015

Introduction [ 1 ] Allan Bosomworth is charged under s. 162 of the Criminal Code with unlawfully and surreptitiously recording one or more persons using the restroom of a small restaurant he jointly operated with a business partner on Alexander Street in Vancouver B.C. The offence dates are between December 14 to 18, 2012. [ 2 ] Mr. Bosomworth has entered a guilty plea and is before the court for sentencing. [ 3 ] The Crown and Defence are not significantly apart on the question of a fit sentence. Both urge a community based sentence of at least one year.

Where they differ is that the Crown seeks a suspended sentence followed by a 12 month period of probation and the Defence seeks a conditional discharge followed by a longer period of probation. The singular difference between the two positions is that under the Crown disposition Mr. Bosomworth will be left with a criminal record after his sentence is fully served. Under a conditional discharge he will not. [ 4 ] The issue is whether a discharge is consistent with the purpose and principles of sentencing and is not contrary to the public interest. Circumstances of the Offence [ 5 ] In late 2012 Mr.

Bosomworth set up a small camera in the paper towel dispenser in the washroom of a very small restaurant he operated in the Gastown area of Vancouver. The restaurant had only one unisex washroom for use by patrons and staff. The camera with an attached USB stick was discovered by chance by Mr. Karl Engelken, who was Mr. Bosomworth’s business partner in the restaurant. He reported the matter to police for investigation. In one recording Mr. Bosomworth is seen adjusting the camera which ties him directly to the offence. [ 6 ] Mr.

Bosomworth was responsible for running the restaurant and he controlled the use of the premises. By placing a hidden recording device in the restroom, he took advantage of restaurant staff and patrons. The recordings retrieved from the device show at least 6 persons, four women and two men, each of whom entered and used the facility in some manner. These persons had every right to assume that their activities were taking place in a highly private and secure place. Each person’s privacy and security was violated by Mr. Bosomworth’s conduct. Circumstances of the Offender [ 7 ] Mr.

Bosomworth is age 39 and resides with his father in a small community in the Okanagan valley. He is a chef by training and experience. He completed grade 12 in 1993 and obtained his Culinary Arts diploma in 2002. He worked as a head chef at a restaurant before joining in a business partnership with Karl Engelken to open their restaurant in 2009. In 2011 the partnership opened a nearby butcher shop as well as another restaurant in Richmond. [ 8 ] After Mr. Bosomworth’s name and the restaurant were linked to the offence of voyeurism, his reputation as well as that of the restaurant suffered.

The business was adversely affected by the publicity. The business partnership disintegrated, with Mr. Bosomworth and Mr. Engelken each suffering from the consequences of Mr. Bosomworth’s illicit conduct. [ 9 ] Due to widespread publicity regarding the offence, Mr. Bosomworth found it difficult to secure and maintain employment in the restaurant industry while awaiting trial. His work as a chef in Kelowna came to an end when his employer came to know of his guilty plea. [ 10 ] Mr. Bosomworth saw psychotherapist Andrew Feldmar in early 2013 and a brief report of the therapist’s impressions is before the court. Mr.

Feldmar suggests that Mr. Bosomworth consider psychotherapy to help him gain insight into his “self-defeating habit patterns”. [ 11 ] Mr. Bosomworth also met with a forensic psychiatrist, Dr. Jeanette Smith, whose very comprehensive report dated November 5, 2014 has been filed as an exhibit. Dr. Smith has outlined Mr. Bosomworth’s background, family history, and social and developmental milestones. He was born to an addicted mother and on birth showed signs of neonatal addiction to heroin. He was taken into foster care as an infant. He was adopted by his parents who are described as stable and loving. Mr.

Bosomworth overcame childhood adversity and challenges, found an occupation in which he showed promise, and was on the path to becoming a successful restaurateur when he committed the offence. [ 12 ] Mr. Bosomworth has described the significant personal and business losses arising from his offending behavior. On the discovery of the hidden camera, Mr. Bosomworth left the restaurant business and the business partnership came to an end. His girlfriend broke off with him, and he lost many of his friends. He has struggled since his arrest with varying levels of depression and anxiety.

His self-esteem is low, and he feels a sense of shame, embarrassment and guilt. His circle has narrowed to the point that he spends the majority of his time in self-imposed isolation at his father’s home, assisting him in household duties. [ 13 ] Mr. Bosomworth was generally forthcoming to Dr. Smith about the circumstances of the offence. He admitted to setting up the camera over a period of about three months, and viewing the recordings at home. He described a sense of excitement in the surreptitious act of watching patrons in secrecy, and the thrill of not getting caught. [ 14 ] Dr.

Smith notes at paragraph 38 of her opinion that Mr. Bosomworth’s offending is due to paraphilia voyeurism where the act of observing an unsuspecting person who is naked or in the process of disrobing caused him to become intensely sexually aroused. Based on the foregoing, I am not persuaded, as has been contended by the defence, that the driving force underlying the unlawful conduct was to uncover and watch secret behaviours by others. The opinion evidence before the court is that Mr. Bosomworth’s desire to watch the forbidden is primarily and ultimately for a sexual purpose.

[15] Dr. Smith says, however, she does not believe there is evidence to suggest that the voyeurism will progress to more serioussexual offending. She sees no evidence of antisocial or psychopathic personality traits or substance abuse issues. She is of the furtheropinion that the likelihood of any future voyeuristic urges progressing to reoffending are low. [16] Dr. Smith also believes that the criminal justice process and being in the public eye has been a significant deterrent incontaining Mr. Bosomworth’s voyeuristic urges. [17] Mr.

Bosomworth has the support of his father, his minister and others who know him well. His father writes as follows: Allan has shown to me that he has a clear sense of what is right and wrong; he understands punishment and logical consequences; and hetakes responsibility for his mistakes. This charge has been so very hard on him, for it flies in the face of what is right and good, and heknows this. He has shared that he feels shamed and embarrassed over the behaviour he was charged with and being depressed over thiswaiting period, particularly after appearing in Court. Mr.

Bosomworth has expressed remorse in similar manner to the minister of his church. I accept that these expressions of remorse aresincere and heartfelt. Victim Impact Statements [18] The impact of the offence on the lives of Mr. Karl Engelken and Ms. Carissa Lammie are set out in their statements. The effectsinclude loss of trusted relationships, emotional stresses leading to general social withdrawal, anxiety and sense of insecurity in usingpublic restrooms. Ms. Lammie stated finding herself second guessing whether she was safe in using public restroom facilities.

Mr.Engelken spoke of business stresses and work pressures resulting from the offence being linked to a business in which he had investedhis time, industry and money. [19] In a more general way, any patron of the restaurant who used the restroom would be apprehensive and concerned on learningthat a device had secretly recorded persons using the facilities. Legal Authorities [20] The purpose and objectives of criminal sentencing under the Criminal Code are set out in s. 718, 718.1 and 718.2 of theCriminal Code.

A sentence must be proportionate to the offence, and contribute to respect for the law, protection of the public, and themaintenance of a just, peaceful and safe society by addressing one or more of the sentencing objectives under s. 718. [21] The central sentencing objectives in this case are to denounce the unlawful conduct of voyeurism, deter the offender and othersfrom committing voyeuristic offences, assist in Mr. Bosomworth’s rehabilitation, and to promote in him a sense of responsibility andacknowledgement of harm done to the community. [22] The Supreme Court of Canada R. v.

Nasogaulak 2010 SCC 6 at paras. 41-44 has said the principal of proportionality as set outin s. 718.1 of the Criminal Code is central to the sentencing process. [23] This means that a sentence must be proportionate to the seriousness of the offence and the degree of responsibility of theoffender.

In Nasogaulak the Supreme Court of Canada stated that the sentencing judge must assess the moral blameworthiness of theoffender and the gravity of the offence and strive to ensure that "the degree of censure required to express society's condemnation of theoffence is always limited by the principle that that an offender's sentence must be equivalent to his or her moral culpability, and notgreater than it." The Supreme Court further notes that any relevant aggravating or mitigating circumstances relating to the offence or theoffender under s. 718.2 of the Criminal Code are secondary sentencing principles with primacy to be given to determining and imposinga sentence that fits the crime and the offender’s role in committing it. [24] In determinate what is a just and proportionate sanction, I am guided by the Criminal Code sentencing provisions as discussedabove, and by the following cases relied on by the Crown and Defence.

Crown Cases: R v Dekker 2014 ABPC 61 , [2014] A.J. No. 288 R. v. Pan 2012 ABPC 203 , [2012] A.J. No. 878 R. v. Laskaris 2008 BCPC 130 , [2008] B.C.J. No. 865 R. v. R.H.C. 2010 BCPC 475 , [2010] B.C.J. 2960 R. v. Gric-e 2008 ONCJ 476 , [2008] O.J. No. 3870 R. v. Weinheimer 2007 ABPC 349 , [2007] A.J. No. 1459 R. v. Roca 2012 ABPC 24 , [2012] A.J. No. 163 R. v. J.H.N.2010 BCPC 155 , [2010] B.C.J. No. 1450

Defence Cases: R. v. Freedman (1975), 25 C.C.C. (2d) 56 (Ont. C.A.) R. v. Fallowfield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.) R. v. M. (C.A.) (1996), (SCC), 105 C.C.C. (3d) 289 (Ont. C.A.) R v. Priest (1996), (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.) R. v. Bertuzzi 2004 BCPC 472 , 2004 BCPC 0472 R. v. Ens, 2011 MBQB 301 R. v. Heatherington 2005 ABCA 393 R. v. Klassen, 2011 BCPC 109 R. v. Laboissonniere, 2013 BCPC 182 R. v. C. (R.H.), 2010 BCPC 475 R. v. Laskaris, 2008 BCPC 130 R. v. Pan, 2012 ABPC 203 R. v. Tompkins, 2013 BCSC 2265 R. v. S. (C.A.) 1994 CarswellOnt 7361 (Ont.

C.J.) Analysis [25] I have considered the legal authorities, submissions of counsel, the materials and exhibits filed, the Victim Impact Statements,and letters of support for Mr. Bosomworth. [26] As regards the line of authorities provided by counsel, I rely in particular on the cases that involve the sentencing of offendersfor the offence of voyeurism.

I accept that specific deterrence of the offender, general deterrence of others, denunciation, and theoffender’s rehabilitation are relevant factors in sentencing for the offence of voyeurism. [27] With respect to the moral gravity of the offence, I find that the conduct by Mr. Bosomworth was thought out, planned inadvance, and deliberate. He devised and carried out a means to spy on and record the activities of persons using the restroom of hisestablishment.

His actions were designed to invade the privacy of his patrons and staff over several days in circumstances where, asemployer and owner of the restaurant, he ought to have had their security, comfort and interests foremost in his mind. [28] I have no hesitation in accepting that Mr. Bosomworth is truly and fully remorseful for this illegal conduct. He comes to hissentencing without a prior criminal record. His guilty plea is not only an acceptance of his full responsibility, it will save the criminaljustice system considerable expense and will spare further embarrassment to any victims.

His full and frank disclosure to Dr. Smith ofhis history and motivations is also a mitigating factor. [29] I further accept that Mr. Bosomworth has been sanctioned in many and far greater ways by extra-judicial consequences. He haslost his business and employment as a direct and immediate result of his offence. His many years of training in the culinary arts, and hishard work and investment have been wiped away. Mr. Bosomworth has seen much of the culinary community fall away from him afterhe was criminally charged.

His friendships and professional connections have been weakened or lost and may not be easily regained. Mr. Bosomworth has faced barriers in resuming employment. The widespread media scrutiny since the offence became public hasmade it near impossible for him to regain work as a chef. He found work in the kitchens of several restaurants but was dismissed whenhis employers learned of his pending charges. [30] The defence submits that the purposes and objectives of sentencing are more comprehensively achieved if Mr.

Bosomworth issentenced to a conditional discharge with a period of probation that is longer than the 12 months the Crown seeks. The defence contendsthat a discharge is not contrary to the public interest because Mr. Bosomworth will be under scrutiny by corrections for a longer termwhich serves the public interest. Further, a conditional discharge will afford Mr. Bosomworth the best opportunity of again becoming acontributing and employed member of the community which goals also serve the public interest. [31] The Crown opposes a discharge because it says that the moral gravity of Mr.

Bosomworth’s offence calls for a clear statementof denunciation and general deterrence. The objective of general deterrence is best achieved by sending the message that any serious

invasion of personal privacy will generally result in a criminal record. [32] The test for a conditional discharge is set out in R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450, [1973]6 W.W.R. 472 (B.C.C.A.). As stated in R. v. Daskalov 2011 BCCA 169 at para. 42, the test is two-fold: first, is it in the best interests ofthe accused that he or she should be discharged either absolutely or upon condition, and second, would a grant of discharge be contrary tothe public interest? [33] There is no question that a discharge on conditions to be followed in the community is in Mr. Bosomworth best interests.

Theissue is whether a grant of discharge would be contrary to the public interest. [34] I have considered the line of cases where courts have imposed discharges for voyeurism or other offences. I find that where theoffence was done for a non-sexual purpose such as detecting theft at a place of employment (R. v. Laskaris), or done once impulsively,briefly and on the spur of the moment (R. v. Pan; R. v. Bertuzzi) a discharge has been found to be not contrary to the public interest. In R.v.

Tomkins 2013 BCSC 2265 a discharge was granted for breach of trust by a prison guard who viewed sex between inmates on prisonmonitors. I distinguish the viewing of sex acts in Tomkins as opportunistic within a monitored setting, and it was the continuation ofwatching the private sexual acts which became an unlawful breach of trust. [35] Cases of voyeurism in which a discharge was found to be unsuitable generally disclose greater moral blameworthiness, such as aplanned or pre-meditated course of conduct, multiple surreptitious recordings or voyeuristic acts, or those involving more than onevictim: R. v.

Grice, R. v. Weinheimer; and R. v. Dekker. [36] It is my view and determination that the moral gravity of the offence in the circumstances committed by Mr. Bosomworth callsfor a denunciatory sentence that signals in a deterrent way to the general public that serious consequences will attach to criminal breachesof privacy. His offence was well thought out and implemented by design. The breaches of privacy occurred over several days, involvedmultiple subjects, and took place in a restroom where total privacy is expected. His offending was done for an underlying sexualpurpose. [37] I accept that Mr.

Bosomworth himself has been specifically deterred. I also accept that he has good and giving qualities thathave been overshadowed by his offence and that his family and supporters would wish the court not to lose sight of those positiveattributes. Mr.

Bosomworth’s rehabilitation remains relevant but, on the facts giving rise to this offence, the public interest requires afocus on general deterrence, denunciation and protection of the public. [38] It is my view that given the times in which we live, where privacy in the public sphere has been eroded by the prevalence ofsurveillance cameras or the ready deployment of cell phone cameras in public places, the expectation of personal privacy in highlyprivate places must be protected.

Members of the public who use the restroom facilities of any bar, restaurant or similar establishmentmust be assured of their utmost privacy.

The law must protect that privacy by ensuring a deterrent and denunciatory sentence whichsends the message that a criminal record is likely to result if criminal acts involve a serious breach of personal privacy. [39] For these reasons, and on the facts of this case, I find that a conditional discharge would be contrary to the public interest and ajust sanction is a suspended sentence with a probationary period of 12 months’ duration with the following conditions: Sentence Conditions 1. Keep the peace and be of good behavior. 2. Appear before the court when required to do so by the Court. 3.

Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probationofficer of any change of employment or occupation. 4. Report to a probation officer at 275 East Cordova street Vancouver B.C. before January 16, 2015 at 3 p.m. and report thereafter asand when directed by your probation officer. 5.

You shall not possess or use any device, electronic or otherwise, that is designed for or capable of making or capturing video, film,digital or photographic recordings, including but not limited to cameras, camcorders, video recorder or camera equipped cellulartelephones or communication devices. 6. You shall have no contact direct or indirect with Karl Engelken, except through legal counsel, and you shall have no contact direct orindirect with Amanda Becker, Megan Himmel or Carise Lammie. 7. You shall take counseling as directed by your probation officer. 8.

You are to complete 60 hours of community work service as directed by and to the satisfaction of your probation officer by the end of the 10th month of your one year probationary term. [40] In addition I impose an order under s. 487.051(3) of the Criminal Code requiring you to submit to the taking of any number ofsamples of bodily substances reasonably required for forensic DNA analysis as I am of the view such an order is in the best interests ofthe administration of justice and will have minimal impact on your privacy and security.

You shall attend in person on Monday January19, 2015 at 10:00 a.m. at 3585 Gravely Street in Vancouver, B.C. for purposes of providing the requisite DNA samples. [41] I further order under s. 737 of the Criminal Code the payment of $100 as a victim fine surcharge with extension of time forpayment to March 14, 2015.

_____________________________ The Honourable Judge H. K. Dhillon Provincial Court of British Columbia