R. v. J.S., 2022 BCPC 137

Citation: R. v. J.S. 2022 BCPC 137 Date: 20220628 File No: 257346-C-3 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. J.S. BAN ON PUBLICATION

SECTION 486.4(2) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: A. Ip Counsel for the Defendant: D. Karp Place of Hearing: Vancouver , B.C. Dates of Hearing: March 3, April 14, May 5, 2022 Date of Judgment: June 28, 2022

INTRODUCTION [ 1 ] J.S. pleaded guilty to a number of charges related to the possession of child pornography, the distribution of child pornography, and the surreptitious video taping of his common law spouse’s teenage daughters, commonly referred to as voyeurism. A sentencing hearing was held wherein the Court received a pre-sentence report, a technical suitability report, a psychological assessment, character references, a treatment report, sentencing authorities and submissions of counsel. Counsel depart significantly on the appropriate sentence.

CIRCUMSTANCES OF THE OFFENCES [ 2 ] In March of 2020, a US Special Agent started online communication with a person who had posted five images of a female changing clothing in what appeared to be a private residential setting. The person believed to be posting the images was identified as J.S. During the communication, J.S. indicated he had been surreptitiously videotaping the girls for approximately three years and he described how he videotaped them.

This communication resulted in the authorities identifying J.S.’s residential address. [ 3 ] On April 8, 2020, the police executed a search warrant and arrested J.S. The police ultimately seized J.S.’s iPhone and computer. The iPhone contained 230 unique child pornography images of J.S.’s stepdaughters and 12 pornographic videos of the girls. All of the material focused on the girls’ breasts, vaginas and buttocks. On the computer, the police located 100 child pornography images of the two girls with the focus being their breasts, vaginas and buttocks.

All of the images and videos were taken surreptitiously in the bathroom in the family home. [ 4 ] Investigation revealed that the girls were between 12 and 14 at the time of the offences. The police also determined that J.S. shared the images of the girls with five other KiK users. In this regard, he shared five images with one user and one video with four others. [ 5 ] As for J.S.’s relationship to the girls, J.S. has been in a relationship with the girls’ mother, I.G., for nine years and all have lived together for the majority of this time.

The girls are I.G.’s biological daughters and J.S. was in the role of their stepfather. [ 6 ] The offences were committed when I.G. was at work, at which point, J.S. would conceal a video camera in the bathroom and direct the girls to take a shower. The investigators determined that J.S. had been recording the girls for approximately one year; however, during his psychological assessment, J.S. acknowledged he had been recording the girls for approximately three years. He also acknowledged that had he set the recording device so he could view the images live while he masturbated in another room.

OFFENDER’S PERSONAL CIRCUMSTANCES [ 7 ] J.S. is 51, he was born in the lower mainland. At 3, his mother abandoned him and his sister. Thereafter, he was in the care of the Ministry of Children and Family Development (MCFD). While in care, J.S. experienced verbal and physical abuse. By 15, he started running away and associating with a negative peer group. Ultimately, J.S. became criminally involved which resulted in him spending a period of time incarcerated in a youth detention centre. [ 8 ] After spending time in custody, J.S. went to live with his father.

J.S. managed to graduate from high school and he ultimately received certification in pre-press lithography. J.S. has a long continuous work history and he currently works in a management position for a graphics company. [ 9 ] J.S. abused alcohol and drugs from his mid-teens until his mid-twenties. Eventually, his family history, his new wife and his family motived J.S. to stop his abuse of substances. [ 10 ] In terms of family, J.S. has some contact with his sister. He also has contact with his biological daughter, who is 29.

He still has a romantic relationship with I.G., the mother of the victims, and he has one close friend who is aware of J.S.’s charges. On his arrest, J.S. left the family home and he lived in his car for a period of time. He is now renting an apartment.

The pre-sentence report and psychological assessment confirm J.S. has led an isolated life with few friends and little to no group activities. [ 11 ] J.S. enjoys good health, although he has previously struggled with anxiety, depressive symptoms and difficulty focussing. [ 12 ] J.S. denies attraction to children and acknowledges he is aroused by physically developed teenagers and adult females. He maintains his attraction to voyeurism led to him engaging in online discussions where he became caught up in fantasy; ultimately leading to his offences.

The broken attachment and the abandonment that he suffered as a child, combined with being emotionally and physically abused by his care-givers, is likely another explanation for J.S.’s offences. [ 13 ] A psychological evaluation for the purpose of evaluating J.S.’s risk and sexual deviation, particularly in relation to children, was conducted by Dr.

Brown, who opined, untreated, J.S. remained a moderate risk to engage in voyeurism, but noted that there were no indicators that he would escalate to contact offences. [ 14 ] Psychological testing revealed that, J.S. is motivated to engage in treatment, that he acknowledges his need for help and that he takes personal responsibility for his actions. J.

S. also expressed remorse, acknowledging he took advantage of the victim’s trust and he expressed an awareness into the potential life lasting harm that his actions could cause. [ 15 ] Since his arrest, J.S. has participated in excess of 80 counselling sessions with Reza Roodi, a clinical counsellor, who has limited experience with sexual offences. The Court received Mr. Roodi’s counselling report and his curriculum vitae. In his report, Mr. Roodi, comments that J.S. has shown commitment to the therapeutic process and he has been honest, genuine, and forthcoming.

The report comments that J.S. has struggled with abandonment and attachment and that he has some awareness as to how these unresolved issues contributed to his conduct. Mr. Roodi also observed that J.S. did not try to minimize or justify his conduct and that he recognized that he

had crossed moral, ethical and legal boundaries. VICTIM IMPACT [ 16 ] The Court did not receive statements from the victims and was informed that their mother, who is romantically involved with J.S. and receives money from him, reported to the writer of the pre-sentence report that both girls appear to be doing well and that they do not wish to participate in counselling. I place little weight on this information because the mother’s romantic involvement and the financial support she receives from J.S. provides motive for her to minimize the impact of J.S.’s offences.

I also note the mother has not informed the girls that their images were posted on the internet, thus, there remains the future possibility of emotional harm. [ 17 ] With the above in mind, this Court acknowledges how the breach of trust has likely diminished the girls’ ability to trust. Undoubtedly, they feel uncomfortable and unsafe in their own home and any place where they might be changing or otherwise exposed.

Further, I expect that if they learn of the posting they will have terror over the possibility of millions having viewed their naked images and that such thoughts would be devastating for a young woman who is growing into her self image and confidence. I also expect that thoughts of when, where and in what context, will their images appear would be continuously foremost in their minds. [ 18 ] Suffice to say, I infer the impact of J.S.’s offences to be extreme, long lasting and emotionally crushing.

POSITION OF THE PARTIES [ 19 ] The Crown submits that an appropriate sentencing range is 3 to 5 years with the appropriate sentence being 5 years. The Crown seeks DNA orders, a SOIRA order and

section 161 prohibition and forfeiture of the exhibits. The Crown relies on: R. v. K.M ., 2022 BCSC 360 ; R. v. Hagen , 2021 BCCA 208 ; R. v. Partanen , 2021 BCPC 245 ; R. v. V.L., 2011 ONSC 218 ; R. v. White , 2015 MBPC 20 ; and R. v. R.K., 2015 ONSC 2391 . [ 20 ] Counsel for J.S. submits that a fit sentence is a 20 to 24 months conditional sentence order, followed by probation for three years. He does not oppose the ancillary orders and points out that J.S. is prepared to be electronically monitored while serving his sentence. Counsel relies on: R. v. Proulx , 2000 SCC 5 ; R. v.

S., [unreported] August 25, 2021, 237143-4-C, Surrey Prov. Ct.; R. v. Swaby , 2018 BCCA 416 ; R. v. Bisson , 2020 BCSC 1778 ; R. v. Humphreys , 2020 BCPC 136 ; R. v. Quested , 2019 BCPC 95 ; R. v. Esposito , 2020 ABQB 165 ; R. v. Canning , 2019 O.J. No. 4846 ; R. v. B.H ., 2017 ONCJ 377 ; R. v. Downes , 2020 BCSC 177 ; and R. v. Vandermeer , 2021 BCPC 94 . [ 21 ] I have considered the authorities tendered by counsel. They are of assistance in terms of the guiding principles and with respect to the sentences that have been imposed.

Nevertheless, I remain mindful that sentencing is an individualized exercise where the unique circumstances of each offender and their offence must be considered. I now turn to some of the authorities. [ 22 ] In K.M ., the offender received a 30-month sentence for voyeurism and making child pornography in circumstances where he placed cameras in the bathroom used by his roommate’s 15-year-old daughter.

Noteworthy is, the offender had an unrelated criminal record, his acceptance of responsibility was superficial, his insight into the harm caused was minimal and he engaged in victim blaming. [ 23 ] In White , the offender was sentenced to 2 years custody for voyeurism, 2 years concurrent for making child pornography and 1 year for possession of child pornography. The offences involved the offender surreptitiously setting up cameras at his work place, home and cabin, where over a number of years, he recorded numerous persons including his daughter.

In considering the matter, Judge Stewart observed the range for voyeurism is suspended sentence to 2 years conditional sentence or 9 months real jail. [ 24 ] In S., the offender was sentence to a 21-month conditional term of imprisonment followed by 3 years of probation for the offences of voyeurism, distributing intimate images and possession of child pornography.

The offences occurred over a number of years and involved the offender strategically placing cameras throughout his home for the purpose of capturing explicit images of his children and their friends while they were undressed or engaged in sexual activity. A police investigation discovered 105 unique images of child pornography and the transmission of intimate images related to adult images and involved the offender transferring images and videos he found on computers that he was repairing.

The offender was 51, married with adult children, he did not have a criminal record and he had engaged in post arrest counselling. The judge granted a conditional sentence order after concluding there were exceptional circumstances. [ 25 ] In Bisson , the offender had a large collection and his offending occurred over 10 years. The offence involved the possession of in excess of 7500 images and 193 videos. The offender was 55 years old, he did not have a criminal record, he was employed, he had back issues and he had a history of depression and anxiety.

Unlike J.S., there was an external opinion linking the offender’s mental health challenges to his offending, as such, the justice concluded that the offender’s mental health played a central role in his offence and therefore his circumstances were exceptional and imposed an 18-month conditional sentence order. PURPOSE AND PRINCIPLES OF SENTENCING [ 26 ] Sections 718 – 718.2 of the Code outlines the purpose and principles of sentencing. These sections dictate that any sentence must be directed toward specific sentencing objective(

s) and it must be proportional. Further, any sentence imposed must consider the aggravating and mitigating factors, the offender’s unique circumstances, the circumstances of his offences, and sentences that have been imposed for similar offences. Lastly, a sentencing judge must impose the least restrictive sanction that is appropriate.

SECTION 718 – THE PURPOSE OF SENTENCING [ 27 ]

Section 718 of the Code states: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [28]

Section 718.01 of the Code, directs that denunciation and deterrence are the primary sentencing objectives for offences involvingthe abuse of children. [29] The requisite degree of denunciation and deterrence demanded in cases involving the possession of child pornography,necessarily warrants a custodial sentence except those cases involving exceptional circumstances: R. v. Swaby, 2018 BCCA 416 atparagraph 66 and R. v.

Alexander, 2019 BCCA 100, where Justice Mackenzie commented at paragraph 39: [39] … Moreover, recent authorities say incarceration will be necessary in all cases of possession of child pornography, except inexceptional cases, to appropriately emphasize the principles of denunciation and deterrence. [30] I am also of the view that, a further but lesser sentencing objective is, J.S.’s continued rehabilitation. My perspective is driven by;his background, his rehabilitative steps, and Dr. Brown’s observations.

SECTION 718.1 – PROPORTIONALITY- FUNDAMENTAL PRINCIPLE OF SENTENCE [31] A cardinal principle of sentencing requires that any sentence imposed must be proportionate to the seriousness of the offence andthe offender’s degree of responsibility. In R. v.

Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089, Justice Wagner C.J., commentedon the application of proportionality at para 12: The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moralblameworthiness of the offender. [32] When applying the proportionality principle in the context of sex offences against a child, a judge needs to take into account thewrongfulness and harmfulness of the offence with the understanding that these considerations influence the gravity of the offence and theoffender’s degree of responsibility: Friesen, at paragraph 75.

SECTION 718.2 – ADDITIONAL PRINCIPLES [33]

Section 718.2 sets out additional principles that a court must consider when imposing sentence. Below are the relevant sections: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, … (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,.. shall be deemed to be aggravating circumstances: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. ANALYSIS [34]

Section 718.01 of the Code, directs that denunciation and deterrence are the primary sentencing objectives for offences involvingthe abuse children. Simply, through the sentence imposed this Court must express society’s condemnation for J.S’s abhorrent acts.Additionally, the sentence imposed must deter others who might be inclined to engage in conduct similar to J.S. The objective ofdeterrence is particularly pressing owing to the significant harm that these offences cause children.

Additionally, the proliferation ofsmall recording devices dramatically increases the ease within which similar offences can be committed, thus, enhancing the need fordeterrence. Finally the number of child pornography offences suggest a strong need for a deterrent sentence. Despite these objectives,J.S.’s rehabilitative efforts demands some consideration. [35] In terms of the seriousness of the offences and J.S.’s level of moral culpability, the offences were serious transgressions whereinJ.S. exploited his position of trust and in doing so he exposed Z.N. and F.N. to significant harm.

As for his degree of` responsibility, onthe one hand, J.S. committed his offences over a number of years, his actions were planned and he knew that his conduct was wrong. On

the other hand, and minimally reducing his culpability, is the role that his up bringing played in his offending. Specifically, his abandonment and attachment issues combined with the abuse that he suffered resulted in social isolation leaving J.S. with unresolved issues. [ 36 ] Turning to the aggravating and mitigating circumstances, it is aggravating that J.S.’s offences involved the abuse of children. It is also aggravating that he took advantage of the trust vested in him. Further aggravating is the duration of his offending, as well as his degree of planning and deliberation.

The method of distribution is also aggravating and in this regard, the internet was used resulting in it being impossible to control further publication of the offending images. [ 37 ] In terms of mitigation, J.S.’s guilty pleas are substantially mitigating. He saved the victims from having to come to court where they would have to testify about the events and view intimate images of themselves. He has also saved the justice system the time and resources associated with a full prosecution and he has waived his right to have the state prove each element of the offences beyond a reasonable doubt.

J.S.’s rehabilitative steps are also mitigating, as is his genuine remorse. I also recognize he is a first time offender and he has some community support. CONCLUSION [ 38 ] I find that the total sentence of 5 years advocated by the Crown is disproportionate. In this regard, I note the child pornography in the instant matter did not include acts of sexual abuse, additionally and unlike K.M., J.S. does not have a criminal record, he is genuinely remorseful, he does not blame the victims and he has insight into the harm.

Lastly, I have found as a fact that J.S.’s background has minimally reduced his culpability and this must be reflected in his sentence. [ 39 ] As for the sentence advocated by counsel for J.S., I find the sentence suggested would not adequately denounce the offences or deter others, nor, would it be proportionate in that it would not reflect the seriousness of J.S.’s offences. Notably, the extreme breach of trust and the harm caused by distributing the images. [ 40 ] For the offences of voyeurism, counts 3 and 4, I impose a sentence of 18 months concurrent.

I note this is at the high end of the range noted above, however, the aggravating features (breach of trust, duration, and directing the victims to shower) support a sentence near the high end of the range. [ 41 ] For the offence transmitting child pornography, count 6, the amount distributed was minimal and although alarming it did not disclose physical sexual violence, accordingly, I impose a sentence of 1 year. This sentence is to be served consecutively to counts 3 and 4.

In arriving at the 1 year sentence, I observe J.S.’s conduct showed a callous disregard for those he had the privilege of acting as a step- parent. [ 42 ] For the offence of possessing child pornography, count 8, after considering the volume and nature of the material, I impose a sentence of 9 months to be served concurrent to count 6. [ 43 ] The total custodial sentence is 30 months. I do not see this as a crushing sentence and in my view, it will permit J.S. the opportunity to engage in further and specialized counselling.

ANCILLARY ORDERS DNA [ 44 ] Pursuant to s. 487.051 (1) a DNA order is mandatory for those offences captured in counts 6 and 8 and I order that sample of J.S’s DNA be taken.

Section 487.051 (3) makes the offences contained in counts 3 and 4 secondary designated offences and after considering J.S.’s offences, the circumstances of their commission and J.S.’s circumstances, I am satisfied that it is in the best interests of the administration of the justice to order that a sample of J.S.’s DNA be taken. SOIRA [ 45 ] Pursuant to

section 490.011, participation in the sex offender registry program is mandatory and because of the multiple convictions pursuant to s. 490.013 (2.1), J.S. must participate for life. As for counts 3 and 4, I am satisfied beyond a reasonable doubt that the voyeurism was committed with the intention of possessing child pornography and, therefore, I order that J.S. comply with the sex offender registry program for life in relation to those offences.

SECTION 161 PRHOBITION ORDER [ 46 ] I decline to make a prohibition order because I do not see that one is necessary to protect the public or the victims. This is because J.S. has undergone counselling, the passage of time and the deterrent effect of a jail sentence. VICTIM FINE [ 47 ] The sentence imposed will result in J.S. being unemployed and with out funds for a period of time. With this in mind, I conclude that a fine would be a hardship and his obligation to pay is waived. FORFEITURE [ 48 ] The items sought by the Crown are ordered forfeited.

____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia