R. v. Brown, 2018 BCPC 260

Citation: R. v. Brown 2018 BCPC 260 Date: 20181004 File Nos: 51340-2-C, 52194-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WAYNE DOUGLAS BROWN BAN ON PUBLICATION s. 486.4, 486.5, 517 Criminal Code REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. MCPARLAND Counsel for the Crown: F. Caputo Counsel for the Defendant: N. Jacob Place of Hearing: Vernon , B.C. Dates of Hearing: June 11, August 13, 2018 Date of Sentence: October 4, 2018

Introduction [ 1 ] Wayne Douglas Brown was convicted on a total of six offences on information 51340-2C and 52194-1, all internet based offences involving child victims in the Philippines. The procedural history is somewhat unusual. The trial commenced on the single information 51340-2C. I conducted Charter voir dires and made a ruling on 24(2). Following my rulings, both counsel jointly applied to join Information 52194-1 to these proceedings.

A transcript of the proceedings in 51340-2C to that point was obtained and filed as an exhibit and by express consent of Crown and Defence all the evidence led in 51340-2C and all of my rulings made in 51340-2C were applied to 52194-1. From that point forward the Information’s 52194-1 and 51340-2C have proceeded together. [ 2 ] Formal Written Admissions were prepared and filed by Crown and Defence. Several other exhibits were filed, including most notably a flash drive and 3 inch binder of exhibits, and these two exhibits were the sum total of the evidence in the Crown case.

Based on the admissions and the exhibits filed Defence invited findings of guilt on six counts on the two Information’s. I convicted the accused on those six counts. Counsel made both oral and written submissions on sentence. These are my reasons on sentence. [ 3 ] I will begin with the details of the charges for which the accused was convicted and a

summary of the relevant facts. 51340-2C Count 1 – between 9 July 2016 and 27 July 2016 Wayne Douglas Brown did communicate with AB, a person under 18 years, for the purpose of facilitating the commission of an offence, contrary to

section 172.1(1)(b) (“ internet luring of AB”) . [ 4 ] Wayne Brown employed the social media platform Facebook Messenger to make contact with AB, a 16 year old girl in the Philippines and engaged in sexually explicit conversations with her. At first the offender asked AB to send him naked pictures of herself. She complied by sending him pictures exposing her breasts, this was captured on Facebook Messenger. In response Wayne Brown told her he “wants to suck them” and he wants to have sex with her when he travels to the Philippines in October 2016.

It is admitted that Wayne Brown had connections to the Philippines and travelled there regularly. Wayne Brown also sent her photos of his penis. Count 2 – between 9th July 2016 and 27th July 2016 did communicate with IM a person under 16 years, for the purpose of facilitating the commission of an offence, contrary to

section 172.1(1)(a) (“internet luring of IM”). [ 5 ] Wayne Brown used the social media platform Facebook Messenger to make contact with IM, a 14 year old girl in the Philippines and engaged in sexually explicit conversation with her. He asked to “see her little titties.” Next Wayne Brown asked her to send him naked pictures of herself and to appear naked on camera for him. He offered to send her money for a phone to facilitate her doing so.

No evidence was tendered that IM actually sent any pictures to him, however the offence of luring is made out by the preparatory communications. [ 6 ] Wayne Brown portrayed himself as being in a romantic relationship with IM, he told her he loved her. Wayne Brown told IM that he was happy to have a 14 year old girlfriend, and planned to visit her in the Philippines in October. Wayne Brown told IM he loved her because she is “open and honest, and allows him to talk about sex, and will allow him to fuck her when he comes there”.

Wayne Brown asks IM whether her parents will allow her to stay with him when he visits. [ 7 ] This offence is aggravated because he was planning on going to the Philippines and visiting IM while there. Evidence established that Wayne Brown travelled to the Philippines regularly, had a house and a wife there. Crown submitted and I accept these communications constitute preparation for sexual tourism. Count 3 – between 1st July 2016 and 27th September 2016 did possess child pornography, contrary to

section 163.1(4) (possession of child porn) [ 8 ] It was admitted that Wayne Brown possessed all of the material filed in exhibit 3 and that all the chat logs and images fit the definition of child pornography. Exhibit 3 is a 3 inch thick binder containing more than 400 pages of internet chat logs, Skype chat logs and Facebook messages between Wayne Brown and various young victims.

It was also admitted that all of the materials and images contained on a flash drive filed as exhibit 2 in this matter met the definition of child pornography and were possessed by Wayne Brown within the date range although some of the materials were created prior to that date range. The images on the flash drive were essentially homemade selfies of teenage Filipina girls (under 18 years old) showing their breasts or vaginas.

None of the written works or images contained any overt violence although these offences are inherently violent when one considers the young age of the victims and their inability to consent. [ 9 ] The written works were not only possessed by but were actually mostly authored by Wayne Brown.

These chats logs are all sexually explicit internet conversations wherein Wayne Brown convinced the young victims to send him naked pictures of themselves, offered to send them pictures of his penis, urged the victims to sexually touch themselves, their minor friends, their younger siblings or their mothers; in some cases Wayne Brown urged the guardians to sexually touch or sexually interfere with their daughters, all of which was done for the promise of financial payment by Wayne Brown. [ 10 ] In the chat logs Wayne Brown directed the specifics of exactly what he wanted the victims to do and directed them how to do it while he watched, or listened.

He offered to pay them for compliance but refused to pay until he was satisfied that they delivered or performed to his satisfaction. [ 11 ] In addition to the victims IM, AB, CC, JA, AT which are identified in the specific counts, the binder of materials also revealed several other additional young female Filipina victims. [ 12 ] The universal theme in all the chats was that Wayne Brown offered to send money to poor Filipina teenagers or their caregivers or in exchange for the girls providing naked photos or engaging in sex acts. Many of these victims expressed that they needed the money

for food, school registration, school uniforms or medicine. [ 13 ] As Wayne Brown very crudely put it in one conversation with an unidentified teenager he was trying to entice, he offered her “Money for Pussy?” That particular unidentified teenager declined Wayne Brown’s offer. [ 14 ] The Crown filed within exhibit 3 a

summary of 28 Western Union money transfers made between June 2012 and September 2016 by Wayne Brown to the victims, caregivers or relatives of the victims as payment for their compliance with his requests. Crown Counsel submitted that the sums paid by Wayne Brown to the victims were paltry by Canadian standards but would represent significant sums of money in the hands of poor victims located in a third world country like the Philippines. This characterization was unchallenged by defence and I accept it. [ 15 ] The full chat logs are all referred to in exhibit 3 in graphic and disturbing detail.

The chat logs are more than 400 pages long and the chats spanned the years 2012 to 2016. I will not repeat all the details, however I will refer to a sample of the chat logs with one victim, ES, in order to succinctly illustrate the nature and tone of the chats: “Honey I am not sending money until I get naked photos and hear from you.” ES apparently complies and sent the requested pictures, since Wayne Brown comments on them approvingly. Wayne Brown then asks ES to masturbate with her sister, offering to send money if she does.

Wayne Brown instructs ES that if her sister is unwilling she should find another young girl to do it with. “I had a 16 year old who masturbated with three girls for me…I didn’t even give money to the other girls, only her” “ …But you are my gf now hun… I don’t chat her any more but I can go back to her if you don’t please me” “Try to find a poor girl who doesn’t need much money, one that like sex, I will give her a little money if she masturbate you.” 52194-1 count 4 – from 3rd March 2015 to 2nd June 2016, did by means of telecommunication make an arrangement with a person to commit a sexual offence against a child under 16 years contrary to

section 172.2(1)(b), ( making an arrangement with KA re daughter JA ). [ 16 ] Wayne Brown engaged in sexually explicit conversation via Skype with KA, who is the mother of the young victim JA. Wayne Brown offered to pay KA if she will arrange for him to see JA’s “young tits”. The mother tells Wayne Brown she needs money for food and offers to the offender that she will perform lewd acts instead, sacrificing her own dignity in place of her daughter’s. The mother offers that she will masturbate on camera for him instead of her daughter doing it.

Wayne Brown refuses KA’s offer insisting that he wants to see “young tits”. [ 17 ] Wayne Brown goes further by giving KA grooming advice imploring KA to masturbate in front of her daughter and to teach the daughter how to masturbate. Wayne Brown also asks KA for JA and her 11 year old sister to masturbate each other for him on video camera. KA repeatedly asks Wayne Brown for money for food. Wayne Brown offers to pay to for seeing the mother and daughter naked on camera performing sex acts on each other. [ 18 ] Wayne Brown goes even further and asks KA if he can have sex with JA when he comes to the Philippines.

She agrees. However Wayne Brown insists that JA must stay a virgin for him. [ 19 ] When KA expresses concern for her daughter and concern about going to jail Wayne Brown reassures her there is no reason to worry because he will not post it online and no one will find out. Wayne Brown’s attitude is clearly callous and arrogant. [ 20 ] As the chat logs bear out, KA eventually accedes to Wayne Brown’s repeated requests and does indeed bring her daughter JA online in front of Wayne Brown to perform for Wayne Brown.

It is noteworthy that Wayne Brown discusses the payment for these sex acts with KA in front of JA, and the sum agreed to amounts to approximately $37 CDN I am told. Once JA and KA are online together Wayne Brown takes over and explicitly directs JA to undress, to show him her breasts, to open her legs, to show her vagina, insisting that he needs a clearer view of JA’s intimate regions and directing her precisely how to do it. Wayne Brown also requests JA touch her mother while he watches. [ 21 ] Afterward Wayne Brown wants to know whether the daughter enjoyed it and requests future similar episodes.

When KA asks for more money Wayne Brown responds by telling her that he had to drop other girls because they were getting too greedy. [ 22 ] Wayne Brown also asks KA to find him other young girls who would be willing to watch him masturbate and ejaculate online. He asks KA to find other young virgins who are willing to perform for him online. [ 23 ] I find that the facts of this offence are highly aggravated because Wayne Brown offends against young vulnerable victims in the third world by preying upon the financial desperation of their mother.

These offences illustrate that Wayne Brown is not simply observing passively - he initiates and specifically directs the lewd acts he wants the mother to do to the daughter and vice versa. He is cavalier, in his attitude and callous. Count 6 – from the 20th of September to 26th of September 2016, did by means of telecommunication, communicate with person under 18 (CC) for the purpose of facilitating commission of a sexual offence with respect to that person contrary to

section 172.1(1)(a) ( internet luring of CC 16 year old ). [ 24 ] Wayne Brown contacts 16 year old CC another Filipina teenager by Facebook Messenger. CC refers to Wayne Brown as Daddy throughout the chats. Wayne Brown asks CC to masturbate for him in exchange for money. The chat logs reveal multiple sessions of online masturbation by CC or online mutual masturbation. Wayne Brown tells her that wants her to perform oral sex on him

and that he cannot wait until he comes to the Philippines so that he can have sex with her; he wants her to stay a virgin for him until he gets there. He describes that the first time she has sex it will hurt, but that this will prove that she is a virgin. She has an upcoming birthday and she asks him for money for a dress but she also asks him for money for her parents and for money for medicine for her sister who is in the hospital.

He asks her to send naked pictures to him, which she does but he directs her to take more explicit pictures. [ 25 ] Wayne Brown tells CC that several of his friends, all in their 60’s are coming over to visit him. Wayne Brown wants to show them a picture of his new girlfriend. He specifically directs what she is to wear and how she is to pose in the pictures so that it is clear she is masturbating herself. Finally he approves the pictures she has sent and asks her if he can show her pictures to his friends. CC responds that it’s up to you.

When CC asks him if his friends also have 16 year old girlfriends too he responds by saying that “that doesn’t work in Canada”, illustrating clearly he knows that what he is doing is wrong. count 7 – from the 1st July 2012 to the 21st May 2015, did unlawfully counsel HT to commit the indictable offences of sexual interference and invitation to sexual touching which offence was committed contrary to

section 464 ( counselling HT to commit offences against daughter AT). [ 26 ] Wayne Brown befriended HT, who is AT’s mother in 2012 and began counselling HT to commit offences against AT and between them. At first he seems to counsel HT to masturbate her daughter AT but then at one point seems to change his mind. [ 27 ] Although some of the text messages are somewhat disjointed it appears that at times is talking to HT and at times is talking to AT.

At times Wayne Brown seems to engage in money for sex acts with the mother and then turns to the daughter, asking her to masturbate. [ 28 ] In 2015 Wayne Brown continues the discussion with AT directly. Wayne Brown asks to see her breasts and explicitly directs her to touch herself. He tells AT “I want to see inside your pussy honey”. The victim responds “u see it daddy”. Wayne Brown responds by saying “fuck it honey, and “I want to fuck your pussy honey”. [ 29 ] Wayne Brown also urges AT to bring her younger sister into the offending.

Wayne Brown: In four years she will be masturbating too AT: My little sister not do that yet Wayne Brown: when she is 12 maybe do it…like you did [ 30 ] Wayne Brown tells AT he will give her money for a phone but the phone must have video capacity, not just still pictures, because he wants to see videos. AT asks Wayne Brown for money for food and medicine in exchange for explicit images or watching her masturbate online. [ 31 ] With respect to all of the offences, they were committed online by Wayne Brown, in Vernon by means of internet using his computer, tablet and smart phone.

All victims were young, poor vulnerable teenage girls, all under 18 years located oversees in the Philippines. Sometimes he dealt with the child victims themselves and sometimes he communicated with their caregivers. The Crown was unable to file victim impact statements because the victims were in the Philippines however the Crown urges me to conclude that the explicit chats would undoubtedly profoundly impact the young victims.

I do accept that based on common sense, and based on case law discussed below. [ 32 ] Counsel made detailed and thorough sentencing submissions, prepared written argument, filed extensive case law and filed several exhibits including:

a) Criminal record of the offender, which is limited and unrelated (includes minor driving offences and breaches of court orders);

b) Letter of apology from the offender, in which he expresses remorse and states his willingness to engage in any treatment suggested;

c) Letter of support from the offender’s ex-wife, current wife and one of his children;

d) Corrections Branch Log, describing Wayne Brown as a quiet, polite, and respectful inmate;

e) Certificates of completion for several Bible study courses which the offender took online by correspondence while in custody;

f) I also note that I did not receive any PSR, psychiatric or psychological report as none was requested by Defense or Crown so I have no information regarding Wayne Brown’s risk to reoffend. Purpose and Principles of Sentencing [ 33 ] The purpose and principles of sentencing are well known. Sections 718 , 718.01 , and 718.2 of the Criminal Code set out the general principles. [ 34 ]

Section 718 provides that the purpose of sentencing is, first, to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 35 ]

Section 718.01 provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. That principle is clear from the existing case authority as well.

[ 36 ]

Section 718.2 sets out several other principles that a court must consider.

Among those principles are that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and, without limiting the generality of the foregoing, evidence that the offender abused a person under the age of 18 years, shall be deemed to be aggravating circumstance. [ 37 ] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 38 ] Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [ 39 ] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. [ 40 ] The offence of internet luring has a mandatory minimum penalty of one year in custody for each count: 718.3(7) requires the imposition of consecutive sentences for sexual crimes against a child Cumulative punishments — sexual offences against children

(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct: (

a) that a sentence of imprisonment it imposes for an offence under

section 163.1 (child porn) be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another

section of this Act committed against a child; and (

b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under

section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under

section 163.1. [ 41 ] However this

section which mandated consecutive offences was not in effect until March 9, 2015 therefore this

section does not apply to the arranging or to the counselling offences as set out in counts 4 (JA) or count 7 (AT) because the date range of both those offences predated the coming into force of 718.3(7). I note that in the case of JA, the start of the offence was less than a week prior to the coming into force date. Maximum and Minimum Sentences [ 42 ] Each of the luring offences has a mandatory minimum of 1 year consecutive, and a maximum of 14 years. The possession of child pornography offence has a minimum 1 year consecutive and a maximum of 10 years.

The arranging offence has a minimum of 1 year (not necessarily consecutive) and a maximum of 10 years and finally the counselling an indictable offence has a minimum of 50% of 45 days and a maximum of 50% of 10 years. [ 43 ] Therefore the statutory minimum sentence I can impose is 4 years.

Positions of the Parties [ 44 ] The Crown submits the appropriate sentence is 5 to 7 years in custody, broken down as follows: 1 year for luring of AB, 1 to 2 years consecutive for luring IM, 2 years consecutive on possession of child porn, 5 years concurrent for arranging in relation to JA, 1 to 2 years consecutive on luring of CC, and 3 years concurrent on the counselling in relation to AT, for a total sentence of 5 to 7 years.

Crown seeks various ancillary orders, including: 487.051 DNA order (primary) 490.012 and 490.013(2.1) lifetime SOIRA orders 161 prohibition (discretionary) 490.1 forfeiture order [ 45 ] The defence submits that the appropriate sentence is 4 years in custody, one year consecutive for each of the counts of luring and possession of child porn, 3 years concurrent on the arranging and 2 years concurrent on the counselling offence. Defence does not oppose the ancillary orders.

Aggravating Factors [ 46 ] There are several aggravating factors I must consider. [ 47 ] First and foremost is the statutory aggravating factors that the victims are all under 18. [ 48 ] There are 5 specific named child victims, as well as at least one other, ES revealed in the global child pornography count. [ 49 ] There are also several other unidentified female Filipina teenage victims in the chat logs. [ 50 ] All victims were very vulnerable teenage girls who needed money for school, medicine or food. [ 51 ] They are presumably by their age vulnerable and impressionable, susceptible to manipulation.

He led some of the young victims to believe he was in a romantic relationship with them, which seems to have worked, as two of the victims called him daddy and at least one made a poster shrine for him declaring their love for him.

[52] Crown argued the statutory aggravating factor of abuse of trust is at play. Crown submits that although Wayne Brown was notin a direct position of trust he arranged with their guardians who were in a position of trust, to carry out offences against the girls inexchange for paltry sums of money. I find that the statutory aggravating factor of abuse of trust is not made out on these facts.

HoweverI do find it aggravating that Wayne Brown resorted to recruiting mothers whom he must have known that because of their positions hadthe opportunity to convince their daughters to satisfy Wayne Brown perverted urges. [53] In the case of AT and JA, Wayne Brown befriended their mothers first, got the mothers to lay the foundation for futureoffences.

He instructed the mothers on how to groom the children, and to use the sanctity of their home and the intimate relationshipwith their daughters to be able to influence their daughters. [54] The offending continued over a protracted period of time from 2012 to 2016. [55] There was a significant volume of offensive communications, more than 400 pages. [56] All the communications included very graphic sexual content.

The communications escalated in severity: he started byconvincing victims to expose their breasts and then their vaginas, to make child pornography, to masturbate and in some cases performsex acts with their guardians, sisters or friends, with a final plan of having sexual intercourse with them when he visited. He insisted thevictims stay virgins for him. [57] The conduct was planned and deliberate.

Wayne Brown very clearly knew that what he was doing was wrong but he wasdetermined and calculated in his efforts, he seemed to hand select poor vulnerable victims and enticed them with money to follow hisrequests. [58] Wayne Brown displayed a cavalier attitude: “Money for pussy” and he warned the victims and the mothers against getting toogreedy. He was not worried about being caught and seemed to think the supply of young victims in the Philippines was endless. “I cango back to my other girlfriend if you don’t please me”.

Mitigating [59] There are also several mitigating factors I must consider: [60] Lack of related record. Wayne Brown has only a minor unrelated criminal record. [61] Although it is not the same as a guilty plea, Wayne Brown did save significant court resources by applying jointly with Crownto combine the two Information’s and by inviting findings of guilt after conclusion of the voir dires.

This definitely does not have thesame impact as an early guilty plea but the Crown quite rightly concedes that this is significant since this would have been a difficulttechnical Crown case. [62] Wayne Brown has very clearly expressed remorse for his offences in the handwritten letter he filed as an exhibit. [63] Wayne Brown had prior good character and a good work history.

He attended bible college in his young adulthood, and wasproductively employed for some 40 years. [64] Defence counsel submits that Wayne Brown has been a “model prisoner” while in custody; he is quite, respectful and polite tostaff. [65] Wayne Brown has been taking bible courses by correspondence in custody. [66] Wayne Brown has no drug or alcohol issues. [67] Wayne Brown has told the court that he is willing to submit to any form of sex offender treatment imposed. [68] Wayne Brown has family support and the support of friends in the community. [69] Defence argues the relative depravity of the images is mitigating.

Defence points out that the images are certainly not the worstseen in child pornography cases. [70] Defence notes that the age of the children involved is not that young - they are all teenagers, rather than the very young victimsseen in some cases. Case Law and Guiding Principles [71] I thank Crown and Defence for their very detailed and able submissions on the law. I have reviewed all of the cases provided. Of course no two cases are directly analogous on the facts but I take guidance from several cases on the leading principles. [72] In R. v.

Morelli 2010 SCR 253 the Supreme Court of Canada said at paragraph 8: “To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerablechildren, both economically and morally. Understandably, offences of this sort evoke a strong emotional response. They generatewidespread condemnation and intense feelings of disapprobation, if not revulsion…” [73] In R. v. G. F. 2018 BCCA 339, at para 49, the Court of Appeal said: “This case involves offences against vulnerable children. In such cases, denunciation and deterrence are the main considerations.

ThisCourt noted in R. v. D.G., 2014 BCCA 84 :

“[37] … children are “priceless assets” and it is extremely important to denounce conduct that takes advantage of their vulnerability.” [74] In R. v. D.(D.) (2002), (ON CA), Moldaver J.A. (as he then was) said: “[44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent youngchildren on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiaryterms.” [75] In R. v.

K.R.J. 2016 SCC 31, the Supreme Court of Canada said at para 131: [131] As my colleague Karakatsanis J. aptly notes for the majority, sexual offences against children have “persisted for centuries”(para. 83). Their legacy is toxic. They are notorious for their devastating impact, often ruining the lives of their victims, and of thosewhose lives intersect with those victims as they move into adulthood. Trauma from childhood sexual abuse may reverberate forgenerations, creating pernicious cycles of abuse. [76] In R. v.

Hajar, 2016 ABCA 222, the Alberta Court of Appeal said: “[66] Even without expert evidence, courts have recognized the harm to children from abusive interference: see, for example, R vHewlett, 2002 ABCA 179 , 167 CCC (3d) 425; R v D(D) (2002), (ON CA), 58 OR (3d) 788 (CA), 163 CCC(3d) 471 [D(D)]; AB; R v Woodward, 2011 ONCA 610 , 107 OR (3d) 81 [Woodward]. [67] In Woodward, supra at para 72, the Ontario Court of Appeal confirmed a number of consequences of child sexual abuse Threesuch consequences are now well-recognized: (

i) children often suffer immediate physical and psychological harm; (ii) children who havebeen sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who havebeen sexually abused are prone to become abusers themselves when they reach adulthood… …There is another aspect of the harm caused by an offender who commits

an act of major sexual interference. That is the harm causedto society, including both the broader community and the child’s family. The criminal law operates to protect the vulnerable not just bypunishing those who subject the vulnerable to risk of harm, but by reinforcing the message that we condemn the attitude which promotessuch conduct. Nor is there any room in our diverse and tolerant society for so-called cultural distinctions either. Devaluation of anymembers of society is an evil in itself, as well as criminal.

It is not just that child victims suffer from these crimes, although plainly thatis enough to justify the effort to protect children. Society as a whole is diminished and degraded. … [68] Moreover, it is society that bears a substantial portion of the consequences flowing from the social problems that prematuresexual activity between a child and an adult offender often produce. And it is society that must typically pick up the pieces when childabuse in one generation leads to ramifications over generations. The harm inherent in the crime of sexual interference extends wellbeyond the one child victim.

Harm to any child in the community affects the rights and security of everyone because perpetrators ofcrimes against children strike a blow directly at one of the core values in our society – protection of children.” [77] Although the facts are not parallel R. v. Woodward 2011 ONCA 610 is helpful for the guiding principles. The court inWoodward (supra) was referred to the decision in R. v. Jarvis, (ON CA) as authority for the proposition that luringoffences normally result in a range of 12 to 24 months. “…[57] Two comments about Jarvis are in order.

First, I am not at all persuaded that Rosenberg J.A. was purporting to set the rangeof sentence for the offence of luring at 12 months to two years. Rosenberg J.A.'s reasons do not focus on the range of sentence for theoffence of luring. [58] Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the2007 amendment in which Parliament doubled the maximum punishment from five years to ten years.

Moreover, if it is shown throughthe introduction of properly tendered evidence that the offence of luring has become a pervasive social problem, I believe that muchstiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predatorswho would commit this insidious crime. [59] One need only consider the facts of this case to appreciate the dangers and disturbing features of the crime of luring and thegrave consequences that may flow from it -- here, a face-to-face meeting between a 30-year-old predator and a 12-year-old child,resulting in the sexual assault of the child.

Fortunately, the appellant did not inflict further harm on the complainant after the sexualassault. That, perhaps, is the one positive thing that can be said about him. But the offence of luring carries very real dangers --innocent children being seduced and sexually assaulted or even worse, kidnapped, sexually abused and possibly killed. … [75] Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-yearsentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive.

In the light ofthe appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like thosecommitted by the appellant will typically warrant mid- to upper-level single-digit penitentiary sentences.

The additional 18 months theappellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive. [76] In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocentchildren, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-alteringconsequences that can and often do flow from it.

While the effects of a conviction on the offender and the offender's prospects forrehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators

from society for society's well-being and the well-being of our children must take precedence...” [ 78 ] It is noteworthy that Woodward ( supra ) was decided in 2011 when the offences of internet luring were first emerging. The minimum and maximum sentences have increased since Woodward (supra). [ 79 ] The Crown offered the case of R. v. Pitts 2016 NSCA 78 as perhaps the closest parallel case to the facts of the case at bar. Mr.

Pitts pled guilty to a number of charges: one charge of possessing child pornography; one charge of accessing child pornography; one charge of making child pornography; and eight charges of conspiring to commit the indictable offence of sexual assault on a child. He received a global sentence of seven years; the conspiracy charges netting five years concurrent. He appealed his sentence. Mr. Pitts participated via the web in a number of “live shows” where he directed adults, located in the Philippines, as to how pre-pubescent children should be engaged in a variety of sexual acts.

The appellant directed the nature of the abuse inflicted upon the children, for his own sexual gratification. Mr. Pitts was diagnosed as a paedophile assessed as being a high risk to re-offend against children. The five counts of conspiracy resulted in concurrent five year sentences. The production and accessing child pornography resulted in two year sentences and the possession of child porn resulted in 2 year consecutive sentence. [ 80 ] Crown notes that although Mr Pitts was charged differently the gravamen of the offences is similar. I agree. Although it is not precisely on all fours, the facts are similar.

Totality Principle [ 81 ] I have considered the totality principle in determining whether the sentences should be consecutive or concurrent, and I have considered whether the sentences arise from the same transaction and whether the offences infringed different societal interests. [ 82 ] I find that none of these offences arise from the same transaction. I find also the offences target different legally protected interests.

The offence of possession of child pornography seeks to target those who would collect the material, the making arrangement offence and the counselling commission of an indictable offence is specifically directed at protecting future child victims from sexual harm. [ 83 ] I am required by operation of 718.3(7) of the Criminal Code to impose consecutive sentences on the three counts of luring as well as the possession of child pornography. Even if I were not so required I would have so ordered.

The arranging offences Wayne Brown committed against JA and the counselling offence Wayne Brown committed against AT were both aggravated both in their depravity and their extended duration and by the offender’s role in the commission of the offences. Moreover these latter two offences target two completely separate vulnerable child victims. Sentences will be consecutive on all counts. These two offences are more serious that the three counts of luring and I would have imposed a three year consecutive sentence on each.

However in applying the totality principle, I have reduced each of these sentences to 1 year concurrent each in order to make the global sentence appropriate.

If I were not to do so the sentence as a whole would be unduly harsh or disproportionate taking into account the gravity of the offences and the moral blameworthiness of the offender. [ 84 ] Therefore the sentence will be as follows: File/ Offence Minimum Maximum Appropriate Sentence Sentence Adjusted Totality Court file 51340-2C Count 1 Luring AB 1 year Consecutive 14 years 1 year 1 year Consecutive Count 2 Luring IM 1 year Consecutive 14 years 1 year 1 year Consecutive Count 3 Possession of child porn 1 year Consecutive 10 years 1 year 1 year Consecutive Court file 52194 Count 4 Arranging sex offence (JA) 1 year 10 years 3 years 1year Consecutive Count 6 Luring (CC) 1 year Consecutive 14 years 1 year 1 year Consecutive Count 7 Counselling (AT) ½ of 45 days ½ of 10 years 3 years 1 year Consecutive

Total Sentence 6 years Total Sentence of 6 years = 2,190 days less time served since August 16, 2017 = 414 days x 1.5 = 621-120=501 days credit Total Amount of time to be served = 1,689days 365 days credit on count 1, 136 days credit applied on count 2 [ 85 ] I hereby make the following Ancillary Orders: Under s. 109 - You are prohibited from possessing: a. any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, (continued) ammunition and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. Under s. 161 Pursuant to

section 161 of the Criminal Code , you are prohibited for life from: a. attending 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 a position of trust or authority towards persons under the age of 16; c. having contact or communication with a person who is under the age of 16 years; d. using the Internet or other digital network.

Except in the following circumstances: i. in the presence of (under the supervision of) a person approved in writing by the court, your probation officer, (your conditional sentence supervisor), your parole officer, a member of the Royal Canadian Mounted Police, or the person to whom you are reporting under the Sex Offender Information Registration Act .

You must carry a copy of the written permission with you. ii. lawful employment, with the circumstances of employment being approved in advance in writing by the court, your probation officer, (your conditional sentence supervisor), your parole officer, a member of the Royal Canadian Mounted Police, or the person to whom you are reporting under the Sex Offender Information Registration Act .

You must carry a copy of the written permission with you. iii. as approved in advance in writing by the court, your probation officer,(your conditional sentence supervisor), your parole officer, a member of the Royal Canadian Mounted Police, or the person to whom you are reporting under the Sex Offender Information Registration Act . You must carry a copy of the written permission with you. [ 86 ] Under s. 490.1 - Pursuant to

section 490.1 of the Criminal Code , I am satisfied on a balance of probabilities that the cell phone, tablet and laptop are offence-related property in relation to the indictable offences of which you have been convicted, and I order that it be forfeited to Her Majesty, to be disposed of in accordance with the directions of the Attorney General, as defined in

section 2 of the Criminal Code. [ 87 ] Under s. 487.051 - Primary: possession of child pornography, internet luring, invitation to sexual touching are primary designated offence. Pursuant to

section 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. [ 88 ] Under

Section 490.012 and 490.013 - You have been found guilty of more than one designated offence and pursuant to

section 490.013(2.1) you are required to comply with the Sex Offender Information Registration Act for life. ___________________________ The Honourable M. McParland Provincial Court Judge ______________ By agreement, Crown and Defence included chat logs between the offender and ES in Exhibit 3. Crown and Defence jointly submitted that all the material contained in Exhibit 3 met the definition of child pornography, and was tendered to support the global possession of child pornography count. During the course of delivering my reasons, Crown and Defence made me aware that ES was actually an

adult, not a child. I advised Counsel this correction/clarification does not have any impact on my decision and does not impact the sentence imposed.