R. v. Donald Lavern Snook, 2013 NBPC 17

PROVINCIAL COURT OF NEW BRUNSWICK 2013 NBPC 17 R. v. Donald Lavern Snook Before: Judge Alfred H. Brien At: Saint John, N.B. On: October 10, 2013 Counsel: Crown: Karen Lee Lamrock and Derek Weaver Defence: Dennis Boyle and Peter White REASONS ON SENTENCE Introduction [ 1 ] Seventeen (17) young males were sexually abused in various ways by the accused within a 12 year period. Many intimate details of these activities and of the lives of these youngsters were discussed in court. Chronologically many are still boys and teens as of this date.

The court is mindful of the need to protect them from further victimization in any form. Accordingly the court will once again draw attention to its prior order prohibiting the release of any information which would reveal their identities. [ 2 ] It is important for the victims to know, now and in the future should it take time for them to comprehend what happened to them at the hands of the accused, that it was not their fault. Even if there was some indication at the time that they were participants in some of the activities, that their age at the time did not allow them to be able to consent.

Should they have perceived that they had received any benefit or reward from the accused for participating, such as monetary rewards, intimacy, ability to have unrestricted liberties not appropriate in the circumstances, use of intoxicants, trips, and peer comfort, they must realize that such was provided by an irresponsible and reckless adult who practiced deceit, took advantage of their vulnerability and used them for his own unacceptable personal sexual satisfaction.

Charges: [ 3 ] The accused is charged with 46 counts under the Criminal Code (C.C.) in the same information, which can be grouped as follows: Child Pornography -making s. 163.1 (2) 9 counts -making available s. 163.1(3) 2 counts

- possession s. 164.1(4) 2 counts Sexual Interference s. 151 13 counts Invitation to Sexual Touching s. 152 10 counts Sexual Exploitation s. 153(1)(a) 1 count s. 153(1)(b) 1 count Child Luring s.172.1(1)(a) 4 counts Sexual Assault s. 271(1)(a) 3 counts Extortion s. 346(1.1)(b) 1 count Issues; [ 4 ] In addition to addressing the issue of an appropriate sentence, counsel raised two issues: 1 . The application of ss. 719 (3) and (3.1) C.C. dealing with pre-trial custody credit 2 .

The application of s. 476.1 C.C. dealing with delay of parole eligibility Facts: [ 5 ] In March 2011, a special police unit fromToronto were monitoring a peer-to-peer internet network known to be used for sharing child pornography. The site employed a permission based, password protected account providing a level of anonymity to users. The police had gained access to this network and noted a user from the Saint John area from whose account they were able to download child pornography. This user had 68 authorized contacts who had permission to access his files.

The child pornography mainly depicted pre- pubescent males engaging in sexual acts with one another. The IP address was for a Martha Avenue address. [ 6 ] A search warrant was obtained and executed at a particular Martha Street residence. It turned out that this residence was not of the user being sought. The Police observed nothing more from this user on the internet for the next year. [ 7 ] In March 2012 the police unit noted this user on line again with a new IP address and they are able to download more child pornography from his account. The user also engaged in the “chat” feature of the network site.

An undercover police officer, posing as a like minded user of child pornography, then engaged in chats with the user. This continued until December 2012. Excerpts of such chats were entered as an exhibit. The language is crude, brazen and singularly focussed on abuse of young boys. Subsequent investigation would confirm that such abuse occurred as represented by the user.

In the chat, the user notes that such is the hunt of his life. [ 8 ] Notwithstanding that the user was now operating with a new IP address, a joint task force involving the Toronto Police Dept, the Internet Child Exploitation (ICE) team and the local police department undertook to find the identity of this user.

Considerable efforts, including surveillance, lead them to another Martha Ave. residence yet not the same as on this new IP address. [ 9 ] On January 9, 2013, the undercover officer learned, through the on-going chat, that the user was intending to abuse a child that day, by getting the child to perform sexual acts on camera for live-streaming. Local police reported seeing a boy entering the residence of the accused. The task force then took action. While the user was online with the police officer, the local police force moved to interrupt such plan by going to the user’s door.

This action provided confirmation that they now had the correct residence as revealed when the user failed to answer the door and noted such to the police officer with whom he was online. [ 10 ] The user attempted to exit the residence with his laptop and was arrested by the police. The boy was present in the residence. The user turned out to be the accused. The laptop was found to be the instrument the accused had been using to make child pornography available and to chat on the child pornography site.

[11] Subsequent investigation disclosed that the accused had in his possession a total of 14, 457 unique images and 620 images whichconstituted child pornography. These were located in the laptop, an external hard drive found in his residence and a memory card. Thelatter contained the images created by the accused of the named victims. [12] Included in the total above, were 4,230 images and 416 videos accessible on the internet.

The investigation found no evidence thatthe images on the memory card were ever made available on the internet. [13] The Crown counsel described the majority of the collection of child pornography found in the accused’s possession as focussing onchildren involved in sex acts alone or with others, with a small number of images in the category of sex acts with adults, sadism and actsinvolving urine.

The Crown presented, in evidence, those she had chosen and described to be a small sample of the collection. [14] From the 471 unique images and 15 videos created by the accused, various young boys were identified by the police with thecooperation of the accused. In all 17 boys were identified. The investigation then proceeded to locate these victims. Some of the boyswere reluctant or unwilling to talk to the police about their contact with the accused. [15] The Crown related the accused’s abusive contact with each of the boys and noted that much of the information was provided orcorroborated by the accused.

The court has carefully considered the crimes against and circumstances regarding each of the victims, thedetails of which are set out in an appendix to these reasons. They are both disturbing and compelling especially in considering the ages ofthe victims.

However they provide insight as to how the boys fell prey to the accused. [16] As will be noted, the majority of the offences were committed at the accused’s residence, involved children who came in contactwith the accused at a program for children with which he was involved or were friends of such children or friends of his foster child, andinvolved sexual contact of touching, masturbation and oral sex. [17] With respect to the method used in the commission of the crimes on the 17 victims, there was some direct physical contact by or atthe direction of the accused with respect to 10 of the victims.

With respect to the other victims, 4 victims involved the internet and 3were video-taped with no direct physical contact by the accused. [18] As noted then, the sexual behaviour which is the subject of the offences charged includes the accused pulling down boys pants toview or photograph their genitals or buttocks, video-taping nude boys in a shower and a van, sexual touching, invitation to sexualtouching and counselling sexual touching of and by boys, oral sex on and by boys, masturbation, anal penetration on one boy, internetluring, and extortion for sexual purposes.

As well there is the illegal behaviour of making, making available and possessing childpornography. Principles of Sentencing [19] Sentencing is an extremely important and often difficult part of the trial process following a plea and finding of guilt. The court is obligated to structure its sentence keeping in mind the purposes and principles of sentencing and as well the various factors that arise in a particular fact situation [20] As stated in R. v. L.M. 2008 SCC 31 , [2008] S.C.J.

No 31 at para 17 To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal

characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code: - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment ofand reparations for the harm they have done (s. 718 Cr. C.) - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender (s. 718.1 Cr.

C.); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentenceshould be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and thatavailable sanctions other than imprisonment should be considered (s. 718.2 Cr. C.). [21] Our courts over the years have reiterated the concerns that society has for crimes, particularly sexual crimes, committed againstchildren.

I will refer to some of those cases, as I believe that they clearly set the tone when it comes to the principles and factors that theCourt should follow. [22] In R. v. Springer, (1988) (NB CA), 88 N.B.R.(2d) 177, Ayles, J. of the New Brunswick Court of Appeal stated: “In sexual assault cases against children ……….., the factors to be emphasized are general deterrence and specific deterrence of theaccused.

Any sentence imposed must reflect society’s abhorrence of such crimes.” [23] Later on in the same judgement, Justice Ayles referred to the importance of general deterrence, adopting the statement: “General deterrence is effected in part by imposing a sentence which affirms that certain conduct which strikes at the core values in oursociety is unacceptable. The sentence imposed is also directed at like-minded individuals.

That is to persons who might otherwise beinclined to embark on a similar calculated course of conduct involving young children.” [24] The sentiments and comments of Justice Ayles have been referred to and adopted in subsequent decisions of the Court of Appeal ofNew Brunswick. Appellate courts of other provinces have taken a like position. [25] Recently in R. v.

D.C. and M.G., 2009 NBCA 59 our Court of Appeal canvassed the issue of child pornography stating as follows: “On the other hand, this Court has, on more than one occasion, made it clear that in sexual crimes involving breach of trust betweenparents or adults and children, the primary focus for sentencing is denunciation and general deterrence. This weighs heavily against anymitigating factors. Although such cases usually involve sexual assaults rather than child pornography, the principles are neverthelessapplicable in this case. (See the cases referred to by Larlee J.A. in R. v.

R.F.G. 2006 NBCA 104 , (2006), 308 N.B.R. (2d) 133,[2006] N.B.J. No. 511 (QL), 2006 NBCA 104, particularly at paras. 32-34.) “ [26] Noting, as I have, that the Code provides for courts to consider both aggravating and mitigating factors, I think that they are easilyidentifiable in this particular case. [27] I will start with the aggravating factors which are those factors which make the matter more serious, and they are very evident. Aggravating Factors 1. Objective Gravity

[28] Parliament of Canada indicates the seriousness of an offence by means of legislated penalties. In this case the maximum andminimum penalties for the offences considering the specified time periods, vary. [29] Each of the nine offences under s. 163.1(2) (production of child pornography) and each of the two offences under s 163.1(3)(making child pornography available) carry a maximum sentence of 10 years and a minimum penalty of 1 year. [30] Each of the two offences under s. 163.1(4) (possession of child pornography) carry a maximum sentence of 5 years.

One carries nominimum sentence and, with a change in legislation, the other carries a minimum sentence of 45 days [31] Each of the thirteen offences under s. 151(a) (sexual interference) carry a maximum sentence of 10 years. Seven carry a minimumsentence of 45 days and with a change in legislation, six carry a minimum of 1 year [32] Each of the ten offences under s. 152 (invitation to sexual touching) carry a maximum sentence of 10 years.

Seven carry aminimum sentence of 45 days and three carry a minimum of 1 year [33] Each of the two offences under s. 153(1) (sexual exploitation) carries a maximum sentence of 5 years and no minimum [34] Each of the 4 offences under s. 172.1(1)(a) (child luring) carries a maximum sentence of 10 years. Two carry no minimumsentence and, with the change in legislation, two carry a minimum sentence of 1 year. [35] Each of the three offences under s. 271(1)(a) (sexual assault) carries a maximum sentence of 10 years.

One carries no minimumsentence and two, by virtue of the complainant being under 16 years of age, carry a minimum sentence of 1 year. [36] The one offence under s. 346(1.1) (extortion) carries a maximum sentence of life imprisonment and no minimum sentence. 2. Nature of the Offences [37] These are sexual offences committed against 17 named children, most of whom had not reached the emotional or chronological ageto consent to any sexual activity with an adult or at the direction of an adult.

While the children were of varying ages at the times inquestion, and some more active participants than others, their participation neither mitigates nor negates the crimes and the seriousnessof these sexual crimes against children. [38] The majority of the offences Involved sexual contact of touching, masturbation and oral sex.

There is one victim of analpenetration and one of attempted or simulated anal penetration. [39] With respect to the child pornography offences, the files which the accused possessed and made available, allowed for thecontinuing victimization of the children photographically captured in such and encouraged like minded deviants to do so. [40] As to the nature of the offence of production of child pornography, and its incidence the court in R. v. D.G.F. {2010 ONCA 27, 2010] O.J. No. 127 succinctly phrased it in the following words: “ 22.

Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated,encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who becomeprops in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.”

[41] With respect to all of the offences, it is clear that the accused used his personal skills and easy access to vulnerable children to exploit such for his own sexual gratification. He continued to use a very positive public persona to gain and hold the trust of others to allow him to continue his predatory ways almost with impunity.

While there may be events in his own personal life that contributed to his deviant predilection nevertheless it is clear that he was aware of such before he deliberately placed himself in the positions to abuse young boys and seriously harm the community which supported him. [42] He became emboldened in pursuing his desires, reckless and uncaring towards the very children who trusted him to help, not harm, them.

He set a permissive atmosphere in his residence, with alcohol and marijuana use by children, viewing of pornography, providing financial incentives and rewards for sexual activity all with the aim of providing gratification. He was prepared to share children with other predators by live streaming. He produced child pornography, which is clearly dehumanizing and base. [43] While physical violence and the threat of such were not part of his modus operandi, he was prepared to see harm visited upon young males in satisfying his obsession.

He was prepared to manipulate boys through threats of internet exposure to get his way. He was prepared to complain about a foster child and allow that youth to suffer correction for his own sexual inappropriate conduct .while withholding that fact from authorities. He was prepared to allow another child to suffer ostracism for complaining about what the accused had done to him. He was prepared to allow 6 year old boys to be exposed to potential physical danger so that he could videotape them nude and behaving in a sexually inappropriate manner in a vehicle. 3.

Abuse of Children [44] Abuse of persons under the age of 18 years is an aggravating factor ( s. 718.2(a)(ii.1). The children ranged from around 6 to 15 years of age. The imbalance of age between the victims and the accused was evident. [45] He encouraged older children to sexually interact with younger children. He exploited their friendships with him and their friendships with other children. [46] He broadened his reach to access children on the internet and social media.

Had the police not tracked his conduct on line and intervened, his conduct to that date indicates that he would have continued to wreck more harm. There is no indication that he would have stopped on his own. While he states that he was relieved to have been caught and stopped by these charges, there is no indication that he was attempting to be stopped. If anything, he was doing what took to prevent detection, right up to trying to escape with evidence prior to his arrest. He was using an internet connection without authority to hide his activity and fictitious names to disguise his identity, 4.

Abuse of trust [47] As set out in s. 718.2(a)(iii) an aggravating factor is an abuse of trust. In at least one case the accused was the victim’s foster child. Notwithstanding that the victim may have consented to the sexual liaison, the accused had been placed in a position of trust to protect the child. .

The accused had a responsibility to protect the child and he violated that responsibility for personal gratification. [48] With respect to the other boys, it is clear that the accused was provided access by his employment and by the trust of parents who viewed him as a positive influence on their children. [49] He, in essence, duped all of these people and the children, as well, into trusting him with access to the children. He deliberately exploited that trust. 5. Modus operandi

[50] As noted the accused used techniques to commit the offences on the children, including what is referred to by the Crown as ‘grooming’, a term the accused boastfully used in describing his approach to the undercover police officer.

He befriended them, took them to his home, engaged in sexual acts with them, allowed some to watch pornography, established the permissive atmosphere to which reference was made and encouraged group sex activity amongst the boys. [51] This grooming behaviour was detailed in the very thorough and well written psychological report as well. [52] He used personal guile to continue the abuse for so long, and at the same time hold public office and promote children’s programs. [53] It may well have been that he did contribute to his community when in such positions, but the converse is also true.

His conduct, when truly revealed, caused great harm to the community. His conduct undermined the efforts of all those who had supported him in community endeavours. His conduct has fanned the negative sentiments of skepticism and distrust in community leadership and organizations. [54] As noted he was emboldened, perhaps by his unsuspected and uninterrupted progression from boy to boy, and to newer ways to achieve his aim of gratification. . [55] As observed in other cases, a pedophile may use various methods to achieve his desire. This accused exploited friendships, trust and the vulnerable to a high level 6.

Duration of Crimes and Number of Victims [56] These crimes spanned a period of 12 years, itself an aggravating factor. As well the number of victims reveals the extent of the abuse.

As noted, but for the intervention of the police, the offences would have continued, as evidenced by the arranged ‘camming’ session, and there would be more victims. [57] It should be noted however, that many of the victims, ten (10) in number, were only involved with the accused in single occasion incidents from which there may have been more than one charge; Four (4) of the victims were involved in between two and four incidents from which there were more than one charge; and three (3) of the victims had longer term regular sexual contact with the accused for which there are more than one charge.

With respect to the long term victims, the periods were 3 months, 5 years and 7 years. [58] This case should alert others who may consider committing child pornography crimes, and internet luring crimes, that authorities do have the means of detecting such crimes, and will use resources to identify and stop perpetrators, such as the accused, even though such may consume time. 7. Nature of the Child Pornography [59] As noted, of the child pornography seized, the majority contained images of pre-pubescent males engaged in various sexual acts. It was a large collection.

With respect to the child pornography created by the accused, such involved sexual contact of touching, masturbation and oral sex. The accused appeared in some of the videos, while in others the accused does not appear but his voice and the children’s voices are heard speaking in hushed manner. Apparently, at times, there was another person living in the residence and such conduct was to avoid detection. [60] Although neither a mitigating nor aggravating factor, the accused maintains that the child pornography he created was not posted on the internet or not shared with anyone.

It may serve as a fact distinguishing this from other cases.

[61] Given the accused’s progression to utilize the chat lines and his plan to expose boys to live streaming, the existence of the child pornography in the form in which it was found, could potentially have become distributed or shared. 8. Motive [62] In her Psychological Assessment report, Dr. Mary Anne Campbell noted that the accused “….meets the DSM-5 diagnostic criteria for Pedophilia: Exclusive Type, Sexually Attracted to Males. Based on Mr. Snook’s report and victim statements, he has deviant sexual interest and arousal only to male youths.

His preferred age range is between 8-12 years of age (pre-pubescent stage of development) though he has offended against boys outside of this age preference.” [63] In addressing motive Dr. Campbell concludes” The primary factor driving Mr. Snook’s sexual offending appears to be his deviant sexual interest in children, and this interest is not likely to go away as it is part of his sexual orientation…..A secondary factor that appears to contribute to Mr.

Snook’s sexual offending behaviour is his poor coping skills to manage his loneliness and interpersonal losses. [64] Apart from the obvious and perverse motives which could be ascribed to these criminal acts it is clear from the conduct of the accused that he was continuing his hunt for more gratification at the expense of others He espoused his motive in one of his chats with the undercover police officer.

Equally telling is that he acted in accordance with the stated motive. [65] Against that background, is the explanation given by the accused in his psychological assessment and in his statement to the court on sentencing. Particular reference is made to his feeling of relief at being caught, the realization at that time of being out of control with his obsession, his desire to be rehabilitated and willingness to undergo treatment. [66] The facts do support that the vast majority of his crimes were committed in the last half of the time span in question and were escalating in the last 6 months prior to arrest.

There is also some evidence that many years prior, when the accused was 19 or 20 years old, he had identified his own attraction to young boys and sought some help from his then employer the Salvation Army. He documented this in a letter written at the time but not mailed. [67] However there is no evidence or indication that at any time thereafter, did he seek help for his problem. Further he took no steps to remove himself from what he knew to be a trigger, namely young boys. The evidence is that he in fact took the opposite approach and deliberately engaged with young boys in his work and community involvement.

A most telling event is when one youth made an allegation of sexual assault in 2007. If the accused had wanted an opportunity to come to grips with his problem, this was an occasion to have done so. It would not have been a case of wanting to be caught; it was a case where he was caught.

Even if it was not made public, he then knew enough to take steps to remove himself and he did not. [68] The accused, in what the court considers to have been a sincere and genuine presentation of his heartfelt remorse and contrition to the court, made clear that he was offering no excuse for his behaviour but outlined his life’s challenge with his ‘addiction’ or obsession for young boys. He related his own sexual abuse and his difficulty in knowing that he turned out to be an abuser.

He re-iterated his sense of relief at being apprehended thus putting a stop to his abusive behaviour. [69] Yet left unanswered is why he took no steps in the last years of his abusive conduct to remove himself or seek help. The sexual gratification, the motive for his conduct, seems to have trumped all else and was escalating In essence, this is not a case of a man who was struggling with a problem as he went through treatment , self guided or externally provided, and the failures which might have enfolded.

Further, it is noted that he took deliberate and devious ways to avoid detection so that he could not be caught. He appeared prepared to allow others to suffer pain at his expense to allow him to carry on undetected. He abandoned the children, the families and his community. The relief and calm which he now says are present, will ring hollow to many in the face of such stark reality. 9. Impact on children

[70] This is a weighty aggravating factor. Notwithstanding the fact that a number of children or their parents chose not to file a victim impact statement anyone considering the facts would naturally appreciate the inherent damage the accused’s conduct would cause to these boys. [71] One victim, the only youth to have made a complaint against the accused for sexual assault, observed that “what happened to me will stay with me forever. Constantly reminded of what happened by little things as simple as being woke up.

I find it hard to live a normal life due to what I was put through at such a young age.|” [72] In his statement he recounts how he was treated after disclosing the assault. He was not believed by parents yet made the complaint in a video statement, apparently to police. He writes that he ‘was shunned out of my friends houses, teachers who were personal friends with him were singling me out in class, people from bible camp would no longer talk to me and bible study groups made me sit alone. Then I started to get older and started getting rejected from certain summer jobs because of what I said.

I even switched schools and tried to pick up other extra-curricular activities but got the same treatment due to his involvement in a lot of the programs I was interested in like hockey and basketball” [73] While this statement is as much an indictment of the community and its failure to recognize the truth of and follow up on the boy’s allegation, it also shows the extent of the harm that was initiated by the accused’s conduct towards a 12 year old. [74] Other victims set out their feelings of anger, fear, sadness confusion and embarrassment.

Those parents who filed statements refer to the loss of trust and the pain and suffering felt within the family [75] Perhaps one of the most compelling statements is from the mother of the young victim who suffers from a mental disorder of anxiety and a form of autism. She recounts how her son experienced communication problems and hardship in and out of the family until he met the accused. He changed and became a happy boy. She had confided in the accused about her son’s difficulties. Now experiencing the sense of betrayal she writes: “ I feel betrayed by Mr. Snook and I’m certain my son feels the same way.

I spoke with Mr. Snook on numerous occasions about my son’s disabilities and I now know that he took complete advantage of him in more than just one way.” [76] Some parents expressed the guilt they carry for entrusting their children to the accused.

One wrote as to the effect on her sons’ lives: “I live in daily fear that my oldest son will either end his own life thru accident or suicide with the drugs and alcohol he has turned to, to numb the pain of his memories and emotions because of what he has endured. [77] Regretfully, not all of the victims have yet come to terms with the abuse and are willing to talk about such. Also not all victims are seeking help through counselling. 10. Impact on Community [78] A community which cherishes its children is repulsed by predators such as the accused.

His actions are attacks on the community’s core values. [79] In this case the accused held an elected municipal office in the City. He was held up as a role model, not only for children, but for others to follow in their endeavours to help the disadvantaged. His sudden and spectacular fall from grace has, as noted, a profound

negative effect on the community. [80] While the accused maintains that he never intended to use his public position and employment to further his predatory practices on young boys, it is not difficult to understand how it might shield him from suspicion or from complaints alleging inappropriate behaviour on his part. Given his decision to allow others to suffer when a complaint he knew to be true was not acted upon, he would have sensed the potential protection his public persona afforded him. Mitigating Factors 1 .

Pleas of guilty [81] Perhaps the most significant mitigating factor is that by his plea, the state and the victims were spared a lengthy and difficult trial. His pleas of guilty came after the police had an opportunity to investigate the information given to them by a cooperative accused. His actions confirm his acceptance of responsibility for the offences [82] With respect to the timing of the pleas, I am satisfied, on the basis of the representation of his counsel that he was prepared to plead guilty on the initial appearance involving a few of the charges and rejected any suggestion to plead otherwise.

The matter was adjourned for the investigation to conclude, during which the accused had advised his lawyer of his intent to plead guilty. [83] In the court’s mind, the accused signalled his intention to plead guilty at the first opportunity and through counsel never diverted from that position in discussions with the police and Crown. 2 . Level of Cooperation with Police [84] The accused provided police with a complete and detailed account of his criminal behaviour. Crown counsel noted his level of cooperation. His counsel advised that the accused wanted to disclose all the information about the crimes.

Some of these would have remained unknown, or the details would have remained unknown to authorities without his disclosure. 3 . Absence of a criminal record [85] At the time of sentencing the accused did not have a previous criminal record. 4 . Pre-sentence report [86] In what would be categorized as a positive pre-sentence report, the circumstances and background of the accused were set out. [87] He is 41 years of age born in Newfoundland and raised by his parents, both of whom retired as majors in the Salvation Army.

The report states the accused: “…enjoyed a strong supportive home life free from any chaos or malajust. His comments about his family were positive suggesting support and guidance were commonplace throughout the developmental years. [88] Supporting that statement are the letters of character reference submitted to the court from family members.

As well, they recall the accused’s strong interest and calling, even at a young age, to the church and to ministering to people in need, in particular, children. [89] The accused attended numerous schools in Canada as his parents moved to various postings with the Salvation Army. He

completed high school and graduated from the Salvation Army College for Officer’s training. He was ordained as a pastor and became a full time employee of the Salvation Army working in Newfoundland and then New Brunswick. [90] In 1999 he worked with the local John Howard Society and helped develop a program known as KIDS ZONE, which involved working as an outreach worker with kids on the street. He also worked for the Inner City Youth Ministry as Executive Director since 1999 [91] The accused reports having numerous close friendships but never having been in a romantic adult relationship.

He fostered young teenage males until 2007 when his fostering parental responsibilities were suspended through the Department of Social Development. [92] The report notes that the accused was known in the city as a strong community activist mostly for the southern end of the city. He was involved in a host of community organizations and while employed for the inner city youth ministry founded the Chicken Noodle Club, a hot lunch program designed to assist underprivileged children. He was elected to City of Saint John Council for a second 4 year term in May 2012.

He was well respected in the local community, both as a councillor and a community activist. His choice of peers was pro social [93] With respect to the current charges the report notes: Snook suggests he was sexually victimized at the age of ten and feels this assisted in his path of self destructive behaviours that he began to acknowledge when he was nineteen years of age. Mr. Snook does not blame his past victimization on the present sexual abuse, however feels this contributed to his sexual appetite for young males. Mr.

Snook described his arrest as a ‘rescue’; himself being rescued from acting out and the victims being rescued from him” 5 .

Remorse [94] In the pre-sentence report, the author notes that: “In regards to remorse the accused suggests during his offence cycle he found himself sexually excited prior to the offence and immediately afterward feeling guilty and ashamed of his behaviours. [95] In his address to the court he appeared to express genuine remorse for his conduct, although as noted in both the pre-sentence report and the psychological report, he had difficulty in empathizing with the victims notwithstanding his own reported sexual abuse. [96] He also apologized to those whom he had hurt by his conduct. 6 .

Psychological Assessment Report and Risk to Re-offend [97] While the results of the report might best be considered as an aide to the court on determining sentence, discussing many of the factors noted above, it does address a critical issue of risk to re-offend and rehabilitation. [98] In her report, Dr Campbell concludes as follows: “Based on the completion of structured formal risk assessment instruments, Mr. Snook’s GENERAL RE-OFFENDING RISK ( i.e. any offence) is currently assessed as LOW if he were to return to the community in the near future.. This means that Mr.

Snook has few, if any, traditional criminogenic needs and has a low probability of engaging in a criminal offence (e.g. non-violent or violent crime) However, Mr. Snook’s current SEXUAL RECIDIVISM RISK in the community was estimated as falling in the high end of the MODERATE risk range .”

[99] With respect to treatment she observes: “…with the aid of evidence-based intervention for sexual offending behaviour, Mr. Snook can learn to manage his inappropriate sexualarousal, disrupt deviant sexual fantasies that fuel this arousal and challenge thought processes that contribute to this behaviour. [100] Before making any recommendations Dr Campbell notes: To his credit, Mr.

Snook appears to have accepted responsibility for his sexual offending behaviour, acknowledges the harm that he hascaused these boys and their families, and has expressed what appears to be a genuine interest in treatment to help him manage his risk ofsexual recidivism and sexual interest in boys.

He appears to be a good candidate for psychological treatment to address issues related tohis sexual offending behaviour.” [101] She then recommends that the accused’s risk would likely be best managed in a custodial setting where he can receive intensivetreatment that will help him manage his deviant sexual interests and develop skills to circumvent future victimization of children.

With respect to other recommendations, correctional authorities may benefit from the report. [102] While recognizing that deterrence and denunciation are to receive prominence in considering any sentence in this case, prospectsfor rehabilitation should also be considered. The court is aware that regardless of the length of any sentence it imposes today includingany ancillary orders, the accused will be eventually released into a community. Addressing treatment for his mental disorder, whileincarcerated, should help to reduce the potential of recidivism.

Pre-trial custody (remand) credit: [103] Clearly some credit is in order the question being as to the ratio to the time spent on remand. This will be considered later. Range of Sentences [104] Sentencing is fundamentally an individualized process, the court having to consider and tailor its sentence having regard to all ofthe circumstances of the case and of the accused person. There is no uniform sentence for a specific crime ( see R. v.

Zinck (2003) 2003SCC 6 , 1 S.C.R. 41) [105] However, it is helpful to review other reported cases with similarities to establish a range of sentences [106] The Crown submitted seven cases relating to range of sentence. These cases range from sentences of 9 years to 18 years. Each ofthe cases contains a review of other cases comparative to the facts and issues of the case under consideration. [107] R. v.

D.D. (ON CA), 2002 O..J No 1061 (Ont C.A.) imposed a global sentence of 9 years and one month (lessremand time) on a 32 year old male accused on 11 charges of sexual assault and indecency committed on 4 children between the ages of5-8 years. The duration of the offences was 2-7 years. The accused was in a position of trust and the activity included all forms of homosexualactivity. Violence was used [108] R. v. K.J.B. [2005] O.J. No 2304 (Ont C.A.) imposed a sentence of 14 years on a 43 year old accused for possession of childpornography and multiple counts of sexual assault.

The victims were 4 youngsters between the ages of 3 and 11 years, (children of hiscommon-law wife) and his 17 year old son. The assaults involved digital penetration, fellatio, sexual touching , cunnilingus and otherintrusive acts. The accused videotaped the abuse and had other child pornographic images. The court noted that the appropriate sentencefor a sexual assault against young children of this nature was in the range of upper single digit to low double digit penitentiary terms.

[109] R. v. L.M. 2008 SCC 31 , [2008] S.C.J. No 31 (S.C.C.) in which the Supreme Court of Canada upheld a 15 yearsentence imposed by the trial judge on an accused who sexually assaulted his 4 year old daughter , making, distributing and possessingchild pornography. At the time of arrest, his computer contained approx 3,500 pornographic photos and 540 videos involving children,many were of his daughter, a friend of his daughter or both. He received the maximum sentence for the sexual assaults, namely 10 yearsand 5 years consecutive for the other offences.

He had a criminal record for sexual assaults of minors and was assessed as a high risk tore-offend. In upholding the sentence the Supreme Court made it clear that the range can reach well into the double digit level dependingon the number of charges and the confluence of circumstances then existent. [110] In R. V. J.P. 2008 ONCJ 484 , [2008] O.J. No 4001 in which a 36 year old first time offender was sentenced to 10 yearsconcurrent on 8 counts of sexual interference and 2 years consecutive on counts of making child pornography and possession of childpornography for a total sentence of 14 years.

The offences involved the ongoing abuse of 8 young boys between the ages of 2 and 14years over a collective span of 4 years. At all times he was in a position of trust, the children were repeatedly violated through acts ofincreasing intrusiveness from fondling and fellatio to attempted and anal intercourse. The abuse occurred while the children slept andwas recorded by the accused. He also amassed a vast collection of pornography and was diagnosed as a pedophile with a moderate riskto re-offend. There were no acts of overt violence above and beyond the sexual abuse itself. [111] R. v.

Gilbert 2011 NBPC 10 in which this court imposed a global sentence of 15 years (less remand time on the basis of 2:1) on a40 year old male for 11 offences of making child pornography, possessing child pornography, sexual assault, sexual interference andsexual exploitation committed against 6 male children between the ages of 4-16 years. The accused had a prior unrelated criminalrecord. The accused was in a position of trust and he used grooming techniques, supplied incentives and targeted younger boys.

Theoffences spanned .11 years [112] In Gilbert, the accused also was apprehended through the cooperative efforts of a special police unit, using internationalresources. The fact that Gilbert made child pornographic images of his victims which were found on the internet, assisted in identifyingand tracking the accused. In this case the images created by the accused were not so posted on the internet.

Anal penetration with nocondom was a more frequent method used by the accused in Gilbert than in other cases. [113] Similarities between Gilbert and this case include the young age of victims, the period of time over which the offences werecommitted and the fact that victims availed themselves of or were supplied alcohol and drugs, While the number of victims and chargesin Gilbert is less than this case, there is a similar number of multiple incident and long term victims. [114] R. v.

K.D.H. 2012 ABQB 471 in which a sentence of 18 years was imposed on a 41 year old male for offences committed on 4children, two of whom were his biological children, between the ages of 6-10 years, and an adult daughter of his common-law spouseover a 9 year period. He pled guilty to 27 charges which included making, possessing and distributing child pornography, forcibleconfinement, incest, bestiality, sexual assault with a weapon, penetration, administering a drug to assist commission of an offence andcounselling sexual touching.

In advising his children that such was educational and loving, he directed his children to have sex with oneanother and involved his children in sex activities with his adult partners and their children. [115] In comparison with this case, it is noted that both involved young children, breach of trust, child pornographic images taken of thevictims and similar quantity of child pornographic material found. As will be noted, the offences in KDH included more sordid sexualbehaviour than in this case, as well as the use of weapons and forcible confinement. In addition the accused had a criminal record forassault.

KDH did allege being a victim of sexual assault as a young boy. [116] The court in KDH had neither a pre-sentence report nor a psychological assessment but commented upon the accused’s distortedperspective of his activities, his contradictory testimony and refusal to acknowledge his wrongful conduct during the offences. Such isin contrast to the circumstances in this case. Global Sentence [117] The aggravating factors in this case far exceed the mitigating factors.

Deterrence and denunciation are the paramountconsiderations in all of the offences. [118] The court is also mindful of other considerations in fashioning a global sentence.

[119] With the introduction of more and increased minimum sentences for these types of offences, courts are left to factor theinflationary effect when considering sentences and sentence ranges. Recalling that ranges are only one guide, they can assist inconsidering the critical parity and proportionality principles. [120] Where a court determines to impose consecutive sentences, it should also be mindful of the totality principle of proportionality. (see R. v. M.(C.A.) (SCC), [1996] 1 S.C.R. 500 para 42) [121] In R. v. Cuttell, 2010 ONCJ 139 the court observed as follows: In R. v. Jewell; R. v.

Gramlick, (ON CA), [1995] O.J. No. 2213, the Ontario Court of Appeal suggested that thecorrect approach to determining a sentence involving multiple offences was first to identify the gravamen of the conduct giving rise tothe offences, next to determine the appropriate total sentence, and finally to impose sentences for each offence that appropriately reflectthe overall criminal conduct. A similar approach was recently suggested in R. v.

D.G.F., 2010 ONCA 27 , 2010 ONCA 27, 2010 ONCA 27 , 2010 ONCA 27 (January 18) where the court indicated that in a child pornography case, thesentencing judge must consider and assess the overall gravity of the offence or offences committed and the circumstances in which theywere committed.

This reflects the basic tenet of fairness that the punishment fit the crime: see para 18. [122] Here, the gravamen of the offences is the sexual abuse of the victims for the gratification of the accused aggravated by the breachof the position of trust, the overall extent of the abuse , the number of victims over the duration period and the progression of the abusivescope. [123] In this case the moderate range risk to re-offend assessment and the positive prospects for rehabilitation prospects can temper asentence [124] Subsequently the Supreme Court of Canada in R. v.

L.M. considered global sentencing as noted in a decision cited by the Crown,R. v. KDH, at paras 69 and 70 as follows: [69] Justice Lebel commented recently in R. v. L.M. on how an offender’s sexual misconduct should not be dissected into itscomponents, but rather reviewed for interrelationship and synergistic effect. The sentencing judge ought not view each offence inisolation, but instead in context with one another. In R. v.

L.M. the isolated offences consisted of recording the sexual abuse of a child,and distribution of that recording worldwide in a marketplace network: 31 The judge also correctly understood the close relationship between the offences, the overall situation they gave rise to and the needto impose a global sentence suited to that situation. Viewed as a whole, the crime was complex. The offence of sexual assault was closelyconnected with three other offences of making, possessing and distributing child pornography that are subject to express sanctions underthe Criminal Code.

Each aspect of the offender's conduct could be considered only in light of all these charges, viewed as a whole. AsJudge Wilhelmy concluded, the global sentence was the crucial factor in determining the sentence in the case at bar. [Emphasis added.] [70] The gravity of the offender’s misconduct was disclosed by his overall scheme of action: 27 Moreover, the gravity of L.M.'s acts is clear from his modus operandi. A portion of the collection of pornographic photographs andvideos he posted on the Internet were the product of sexual assaults on his own little girl.

His acts must be considered as a whole.[Emphasis added.] [125] In considering sentence I have considered the gravamen of the offences, the aggregate sentence, the moral blameworthiness of theaccused, and the seriousness of the offences. As the New Brunswick Court of Appeal in R. v. F.S.A. (NB CA),[1996] N.B.J. No 396 stated, “The aggregate of the terms imposed reflects the seriousness of all the offences and the impact it ought to have on the offender. As a

general deterrent it also shows that crimes, hidden and dormant for many years, will not go unpunished or will not be treated lighter than they ought to be once they eventually surface. I want to add that in varying the sentences in this case, I have taken into account the fact that Mr.

Adams pled guilty, thus sparing his victims additional trauma and embarrassment.” Sentence [126] In the circumstances, the appropriate sentence is a Federal Penitentiary term of eighteen (18) years, less pre-trial custody credit, where it is hoped that the accused will avail himself of sex offender treatment for his mental disorder. [127] In order to give effect to the global sentence the following will be assigned: -for the 9 offences of making child pornography involving 11 victims Counts Nos:_3,17,19,29,33,35,37,41,44 3 years on each count concurrent to each other and consecutive to any other sentence (CAS); -for the 2 offences of making available child pornography Count Nos.:7,8 18 months on each concurrent to each other and CAS . -for the 2 offences of possession of child pornography, Count Nos:1,2 18 months on each concurrent to each other and CAS. - for the 28 offences of sexual interference, invitation to sexual touching, sexual exploitation and sexual assault the total sentence will be 11 years as follows: Sexual interference s. 151 Counts 4,5,6 3 years on each concurrent to each other and CAS Counts 14,15,16 2 years on each concurrent to each other and CAS Counts 9, 34 1 year on each concurrent to each other and concurrent Counts 20,21 25,32,30,36 – 2 years on each concurrent to each other and concurrent to any other sentence Invitation to sexual touching s. 152 Counts 13,22,23,24 2 years on each concurrent to each other and CAS Counts 18,26,27,39,43, 2 years on each concurrent to each other and CAS

Sex exploitation s. 153 Counts 10,11, 1 year on each concurrent to each other and CAS Sex assault s. 271 Counts 12, 28,31, 1 year on each concurrent to each other and CAS -for the 5 charges of child luring and extortion the total sentence will be 1year as follows: Child luring s172.1(1)(

a) Counts 38,42,45,46 1 year on each concurrent to each other and CAS Extortion s. 346 Count 40 6 months concurrent Pre-trial custody (remand) credit: [128] Clearly some credit is in order, the question being the appropriate ratio to the time spent on remand. [129] The Criminal Code ss. 719(3) and (3.1) deal with pre-trial custody credit. In this case it is the time period from the accused’sinitial remand on January 9, 2013 until the date of sentencing [130] The Crown argues that he should only be given one day for each day of pre-trail custody.

The accused argues that the creditshould be 1.5 days for each day in pre-trail custody [131] Both parties have submitted case law. It appears that at least four provincial Courts of Appeal have dealt with this issue to date. InR. v. Carvery 2012 NSCA 107, R. v. Stonefish 2012 MBCA 116 and R. v.

Summers 2013 ONCA 147 , 2013 ONCA.147 itwas concluded that a sentencing judge has the discretion to grant enhanced credit to achieve a fair and just sanction and that justificationfor such may include ineligibility for remission and parole while in remand custody. [132] The Nova Scotia Court of Appeal in Carvery summed up its conclusion at para 85 [85] In the end, taking into account the words of ss. 719(3) and (3.1) in their grammatical and ordinary sense and read in the entirecontext of the legislative scheme and the object of the Act, the legislation provides for judicial discretion to grant credit of up to 1.5:1 fortime spent in pre-sentence custody if a judge is satisfied that the circumstances justify it, which includes consideration of the potentialloss for the offender of earned or statutory remission and parole.

I see no error by the trial judge in her

interpretation of the statutoryprovisions. Accordingly, I would dismiss this ground of appeal. [133] At least one provincial Court of Appeal has taken another

interpretation and position. In R. v. Bradbury 2013 BCCA 280 it wasconcluded that circumstances that would justify enhanced credit must have a qualitative characteristic individual to an offender, butdistinct from those characteristics universally, or almost universally held by other similarly situated offenders. Examples given ofcommonly held circumstances include the loss of remission or parole eligibility. Further, circumstances to justify enhanced credit mustbe ones that are outside the common experience of most offenders in remand custody.

[134] The Crown advises that the issue of pre-trial custody credit is scheduled to be heard by the Supreme Court of Canada early next year.

In as much as sentencing in this case must proceed today without the benefit of a decision of the Supreme Court, the court will proceed to make its ruling on the issue. [135] After a careful reading of the above decisions, the court can easily identify with the position of Prowse, J.A. in his dissenting reasons in Bradbury where he remarks: [60] I do not propose to reinvent the wheel by reviewing the many arguments for and against interpreting s. 719(3) , when read together with s. 719(3.1) , as precluding enhanced credit for loss of statutory remission and parole eligibility.

That exercise has been engaged in with considerable skill by many trial judges, by the Court of Appeal decisions to which I have referred, and by my colleague in this case. As earlier stated, I am content to rely on the reasoning in the Carvery decision, in particular. ....... [136] In my opinion the logic and

interpretation advanced in Carvery , Stonefish and Summers to which Prowse J.A. refers, is compelling, as are his responses to those of his colleagues. [137] Further, with respect to the onus to justify enhanced credit, Prowse J.A. refers to the analysis in Stonefish that the new sections effectively ensure that the onus is on the offender by reference to his or her individual circumstance. In his opinion there must be an evidentiary or informational basis for obtaining enhanced credit.

This position appears consistent with the three C.A. decisions noted. [138] Prowse J.A. addresses what he considers to be the proper approach to considering the issue of pre-trial custody as para 67 67 ............

While I accept that it is not generally appropriate to take loss of statutory remission and parole eligibility into account in determining a fit sentence (primarily because those decisions are in the separate hands of provincial and federal prison and parole authorities), it is apparent from the three Court of Appeal decisions upon which I rely that the provisions under consideration call for a more flexible approach.

Under these provisions, the generally accepted view, reflected in Stonefish (at para. 99 ), appears to be that a fit sentence is first determined by taking into account all of the relevant sentencing objectives and principles, before the question of credit for time spent in pre-sentencing custody is determined.

For that reason, I accept that it is open to offenders seeking enhanced credit to support their attempt to justify such credit by providing information or evidence which tends to show that they would be likely candidates for earned remission or early parole eligibility, and/or that they would likely have taken advantage of any rehabilitative/educational opportunities available in prison, or that they are entitled to enhanced credit for other reasons. [139] Support for this position is found in Summers where the court states at para 122 et seq [122] .......

The same general principles that govern the admission of evidence and the provision of information to the court for the purpose of sentencing also apply to determining the amount of credit, if any, to be granted for pre-sentence custody under ss. 719(3) and (3.1) . See Joseph , at paras. 32-33. [123] Thus, the provision of information relevant to a claim for enhanced credit need not be an onerous task.

While formal evidence of an accused’s likely prospects for remission or parole eligibility may be lead at a sentencing hearing, information bearing on these issues ( e.g. information regarding an accused’s conduct during detention; an accused’s co-operation with authorities and adherence to prison rules; or an accused’s efforts to advance to trial) may also be furnished to a sentencing judge through counsels’ sentencing submissions, by agreement between the prosecutor and the defence, or otherwise as contemplated under ss. 720 - 727 of the Code . [140] In considering the evidence and information present before the sentencing judge, the court in Summers observed at para 124 [124] In this case, minimal evidence and information was before the sentencing judge bearing on the respondent’s prospects for remission or parole eligibility.

The sentencing judge, of course, was aware that the respondent had pleaded guilty at a relatively early stage, thus saving Kaitlyn Ingram and her family the anguish of a potentially prolonged and emotionally difficult trial. The evidence also established that the respondent had accepted full responsibility for his actions, both in his communications with Kaitlyn and with the police, from the outset.

Further, the respondent conveyed his remorse to the Ingram family at the sentencing hearing. [141] The evidence and information presented to this court includes: - Information from his counsel that the accused has indicated, from the date of his arrest, that he would be pleading guilty to the offences. - Coupled with this is the information provided by both counsel that while in police custody and on remand, he provided details of his

offences, including disclosure of offences then undetected and which may never have been detected. In some cases it is the informationhe provided upon which the evidentiary base rests. - Information from his counsel that, with respect to the initial 8 charges laid in court, the accused instructed him that he would notenter a plea of not guilty, a position open to him as he awaited completion of the investigation which included verification of informationhe provided to police, for the reason that he had admitted his guilt to police and would not vary from such position.

Counsel informs thatthe Crown was advised that he would be admitting his guilt at an early stage. - Upon the Crown presenting an information containing all 46 charges, he plead guilty at an early opportunity, taking thus a positionconsistent with his stated intent, and thus saving the victims from a prolonged and emotionally difficult trial. - There is no evidence or suggestion that the accused was attempting to take any advantage of delays occasioned by the investigationprocess, the assessment and report process and sentencing process. - Evidence from the pre-sentence report and the psychological assessment report that the accused cooperated fully in the preparationof such - His acceptance of full responsibility for his actions appears evident in his communications with police, is referred to in the pre-sentence report, the psychological report, in representations by his counsel in open court and his own representation in open court. - Evidence from the pre-sentence report and the psychological assessment report confirms his recognition of a mental disorder andmental health problems and his stated intent, willingness and desire to undertake treatment.

His representation in court is consistent withsuch. - Evidence in the psychological assessment report that the accused is a good candidate for treatment for this mental disorder. - No information or evidence was advanced as to any conditions, restrictions or harshness relating to the remand facilities and theperiod in question [142] It is noted that, unlike the case in Summers, the Crown in this case opposes the granting of enhanced credit. Included in itsargument is that it was the accused who wanted the delay attributable to the investigative process so that he could deal with all matters atthe same time.

The Crown contends that it thus was the accused who was responsible for the delays and hence he should not benefitfrom such with enhanced credit. [143] Apart from the obvious benefit to victims, police and court administration to have all charges dealt with in a timely and completemanner, there does not appear to be any evidence supporting the Crown’s position on this issue of delay. [144] In my opinion the information and evidence present before the court shows that the accused will take advantage of anyrehabilitative opportunities available in prison and in the circumstances appears a likely candidate for earned remission.

As observed byProwse J.A., the court recognizes that such is an assessment not unlike an assessing a risk to re-offend, or the degree of potential dangeran accused presents, or their likelihood of overcoming a mental disorder. It is not a guarantee. [145] Following then the logic and

interpretation of Carvery, Summers and Stonefish, in this case the court is prepared to grantenhanced pre-trial custody credit at 1.5:1. Delay of Parole Application [146] In this case the Crown has requested that the court apply s. 743.6 of the Criminal Code to delay parole eligibility for the accused,thus increasing the amount of time he would serve in jail before eligible for full parole. [147] In this case reference need only be made to those offences set out in

Schedule I and II of the Corrections and Conditional ReleaseAct. By the court’s count this would include 31 of the charges in this case. [148] The court has reviewed the decision in R. v. Zinck 2003 SCC 6 , [2003] 1 S.C.R. 41 which clarifies the procedural anddecision making processes to be used by a court in applying this section. It is clear that the onus rests on the Crown to satisfy the Courtthat the additional penalty be imposed. [149] However, having followed Zinck in fixing an appropriate sentence without consideration of parole eligibility, there is apreliminary issue as to the application of this

section where the court imposes a global sentence and some of the offences which make upthat global sentence are not listed in either Schedule.

[150] This court in R. v. Gilbert considered a like situation and referred to R. v. Smith (2008) 2008 SKCA 20 , 232 C.C.C.(3d) 176 (Sask C.A.) which appears to support the position that parole ineligibility is permissible in a global sentence only if all of theoffences qualify for an order deferring full parole. ( see para 66) [151] In this case each party represented and the court accepted that a global sentence was in order. To attempt to apply this

section to aportion of the global sentence in this case with this number of offences in overlapping situations may result in not achieving the aim ofadditional punishment or an unfair result. [152] So while the Crown might wish to have it applied to the full global sentence, Smith would indicate that that approach is notavailable. [153] Should the court be in error on this preliminary issue, I am not persuaded that the Crown has discharged its onus of satisfying thecourt that this additional penalty should be imposed.

I come to that conclusion after revisiting the sentencing principles and thecircumstances of the offences and the circumstances and character of the accused. [154] As stated in R. v. Gray 2013 ABCA 237 @ para 22 [22] If the sentencing judge is of the view that society’s denunciation of the offence and the objectives of specific and generaldeterrence are adequately served by a period of parole ineligibility, as set out in the Corrections and Conditional Release Act, S.C.1992, c. 20, no order pursuant to s. 743.6(1) of the Criminal Code should be made. [155] Further, while the New Brunswick Court of Appeal in R. v.

Cormier (NB CA), [1999] NBJ No 83 held anopinion contrary to the Ontario Court of Appeal in R. v. Goulet on the limits of the

section in question, both courtsacknowledged that within the aspect of the character and circumstances of the accused, would be included the likelihood of the accusedbeing deterred or rehabilitated within the normal period of parole eligibility. [156] It is noted that Cormier involved the offences of attempted murder and break and entry of which the trial judge court made noteof the degree of violence, brutality and length of the offences committed in the sanctity of the victim’s home and the Court of Appealreferred to as an odious and vicious assault.

Both courts noted the need for specific deterrence in addition to denunciation for thejustification of the additional penalty. [157] Goulet also considered the factor of unusual violence brutality or degradation as a factor to be considered, in addition to a historyof prior parole or conditional release violations. [158] So while not relying upon any exclusive list of factors to consider on the re-visitation of the circumstances of the case and theaccused, in my opinion in this case the position referred to in Gray above appears appropriate. [159] As the SCC observed in R. v.

M.(C.A.) (SCC), [1996] 1 SCR 500 @ para 62 “…….But even though the conditions of incarceration are subject to change through a grant of parole to the offender's benefit, theoffender's sentence continues in full effect. The offender remains under the strict control of the parole system, and the offender's libertyremains significantly curtailed for the full duration of the offender's numerical or life sentence. The deterrent and denunciatory purposeswhich animated the original sentence remain in force, notwithstanding the fact that the conditions of sentence have been modified.

Thegoal of specific deterrence is still advanced, since the offender remains supervised to the extent and degree necessary to prevent possiblecrime, and since the offender remains under the shadow of re-incarceration if he or she commits another crime. As well, the goal ofdenunciation continues to operate, as the offender still carries the societal stigma of being a convicted offender who is serving a criminalsentence. ANCILLARY ORDERS

[160] In addition to the sentence of 18 years, less remand time, the following ancillary orders are as follows:

Section 487.051 DNA Order Pursuant to s. 487.051(1) of the Criminal Code , the accused is ordered to provide such samples of his bodily substances as may be required for forensic analysis.

Section 164.2 Forfeiture Order Pursuant to s . 164.02 of the Criminal Code , the Crown has identified property it considers subject to forfeiture and at its request the application will be heard on a date set by this court allowing for proper notice to be given to any interested party..

Section 490.012 Order Pursuant to s . 490.012(1) of the Criminal Code , for those offences identified in s. 490.012(10 the accused is ordered to comply with the requirements of the Sex Offender Information Registration Act . effective today and will continue in force for life.

Section 161 Order With respect to this section, being satisfied that there is a nexus between the prohibition and the offender and his conduct as referred to R. v. M.K. 2010 NBCA 71 and pursuant to s. 161 of the Criminal Code , the accused will be prohibited from attending the places and doing the things enumerated therein. This order will take effect on the day the defendant is released from custody and will continue in force for a period of life.

Section 743.21 Order Pursuant to s. 743.21 of the Criminal Code , the accused is prohibited from communicating directly of indirectly with the victims identified in the order whose names have been provided by the Crown to the court for the duration of the custodial period of the sentence.

Section 737 : In the circumstances, given the length of the sentence in jail, the victim fine surcharge is waived ______________________________________________________________________ Appendix Appendix To Reasons The victims are referred to by initials unrelated to their actual names. Victim A.B. In relation to this victim the accused acknowledged to making child pornographic images, to sexual interference and to inviting the victim to sexually interfere with other boys. The abuse of this boy spanned 7 years while he was between the ages of 9 and 15 years.

The accused met him through his work with the Chicken Noodle Club and Kids Zone, two programs established by the accused to address the needs of youngsters in particular those who were ‘underprivileged’ While the frequency of sexual contact was intermittent initially, over time it became weekly or bi-weekly. At the time the accused had been entrusted with a foster child who lived with him. The victim AB was a friend of the foster child and he would also stay overnight at the accused’s residence. The sexual abuse commenced with the accused performing oral sex on the boy.

The contact progressed to the boy performing sex acts

with the accused including anal penetration by the accused on occasion. In the words of the Crown the victim became ‘sexualized’ and became involved in sexual activities with other younger children whom the accused was abusing as well. The accused ‘groomed’ this victim, as well as other victims, by providing incentives such as trips, money, easily available alcohol and permissible marijuana use. The accused videotaped some of the sexual activities with this victim. In one, the boy appears to be shy and covers his face with a piece of clothing, until the accused asks him to remove it.

In others the boy is captured watching child pornography on an I-pad which had been provided to the accused in his position as a municipal councillor , engaging in sexual scenes with other boys and exposing another child for the accused’s camera. As the boy grew older, the accused was less attracted to him, but continued the sexual encounters. Also the accused expressed to police his worries that the youth would disclose the relationship if the accused were to end the encounters. Victim D.D.

While no images of this boy were found, the accused advised the police that on one occasion he sexually interfered with him. At the time the boy was 9 years old, was a friend of the accused’s foster child and was staying the night at t he accused’s residence. While the boy was sleeping the accused pulled down his pants and looked at his genitals. Victim C.C. In relation to this victim, the accused acknowledged to sexual exploitation on one occasion resulting in two charges. The youth was 14 years old and for a very brief period was placed in the care of the accused as a foster child.

After his arrest, the accused told police that the youth was very sexualized from the beginning and initiated mutual masturbation and mutual fellatio with the accused. At the time the youth was of the age of consent to such activity, but the current charges are based on the breach of the position of trust the accused held towards the child. After the encounter, the accused alerted the department which had placed the child with him of the child’s sexualized behaviour and the child was removed. The accused did not inform the department of his own conduct.

In a statement given to police, the victim recounted that it was the accused who had invited him to sleep in the same bed when he was having difficulty sleeping alone. and that the accused made him feel like he had acted inappropriately in initiating the sexual encounter. He also advised that upon his removal from the placement, he underwent corrective action for his behaviour Victim H.I. In relation to this youth, the accused sexually assaulted him on one occasion. The youth was 14 at the time and a friend of the accused’s foster child.

He was staying overnight after an evening of playing video games and awoke to find his pants pulled down and the accused performing oral sex on him. He recalled feeling pain and the next morning he awoke with his pants back on.

The youth disclosed the abuse to his parents, who did not believe him, and to Social Development Department. The matter was referred to the police and the Crown prosecutor’s office, but no charges were laid The accused was suspended from his job at the youth Ministry for three months while the matter was investigated. After making the allegation the youth was ostracized from community events involving the accused including hockey and the Chicken Noodle Club. Victim L.M.

Over a five year period, the accused sexually interfered with the child, invited another to sexually interfere with the child and made child pornography images of the child. The child was between the ages of 9 and 14 years and had met the accused when the latter was a counsellor at a summer camp. The accused would take him out for events and took him to his residence on Martha Ave. The abuse started with the accused performing fellatio on the child and then it ranged from masturbation, mutual oral sex, and attempted or simulated anal sex by the accused . This child had access to the accused on a weekly basis.

The accused took the child to a nudist beach in another province along with another child. He also forced him to watch a pornographic film. In a video made by the accused the boy attempts to hide his face from the accused’s camera prior to sexual activity. Victim B.C. The accused abused this youth of 12 years over a 6 month period. He sexually interfered with the youth, invited him to sexually interfere with other youth and made child pornographic images of the youth. The youth suffers from some cognitive difficulties and to this day has not disclosed any information about his interaction with the accused.

Accordingly the Crown has relied upon information from a video and the accused. The accused advised that it was during encounters with this child when he truly began to feel like a predator. The child was the friend of another abused child and attended the chicken Noodle Club. The accused took him on a camping trip and photographed his genitals. He encouraged sexual acts with other children, in which the victim was at first reluctant. Apparently something changed in the child and he became participatory in mutual group masturbation. This is the child who was at the accused’s residence at the time of his arrest.

The accused admitted that he had planned on carrying out ‘camming’ being a live streaming video of this child engaging in sex acts. Police later learned that the child had been withdrawn prior to meeting the accused , but the video reveals open and lively behaviour. When questioned after the accused’s arrest, the child is reported to have curled up into a ball and was non-responsive. Victim Y.Z. In relation to this 13 year old youth there are no recorded images. The accused abused him over a period of months. counselling him to sexually touch two other abused youth and sexually assaulting him.

The youth knew the accused through the Chicken Noodle Club and had assisted the accused post signs around town during his 2012 municipal election campaign.

The youth would engage in a strip game and be rewarded with money. This occurred at least 4 occasions and involved mutual masturbation and oral sex in the latter occasions. The youth accompanied the accused on several trips. The accused once gave the youth $50 following an encounter in which the accused had attempted to grab the victim’s genitals and upon the child’s resistance, then offered him the money to do what the accused wanted to do. When the youth ran, the accused caught up and eventually drove the youth home and gave him the money.

On another occasion the accused paid him $140 for allowing the accused to perform fellatio on him. This payment for this activity occurred on other occasions. The youth also participated with other youth in group masturbation . Victim G.H. The approach of this 14 year youth demonstrates the widening negative reach of the accused’s immoral conduct with children. The youth learned from other youth that the accused would pay for certain sexual acts. In an initial encounter at the accused’s residence, the youth was sleeping on the sofa and the accused pulled down his shorts and photographed his genitals .

Later the youth asked the accused how he could make $50-60 and then permitted the accused to masturbate him for $120 Victim V.W. In relation to this 15 year old youth, the accused sexually assaulted him and sexually interfered with him. Both charges are from one fact situation. The youth was a friend of another abused victim and had known the accused from his kindergarten days. He trusted the accused, who took both youth for drives on a regular basis. There were several incidents of contact. On one occasion the accused massaged the youth’s back, then his buttocks and then masturbated the youth.

The youth asked for $60. Eventually the youth’s mother complained to the youth’s school and the Chicken Noodle Club about the inappropriate hours of the day that the accused would interact with the youth, which seems to have ended the contact. Victim Q.R. This 9 year old boy was playing a game at a building at which a youth event was in progress. The accused had set up a video camera, apparently concealed, in a sectioned- off part of the room.

In a game which involved a glove being placed in the back of the pants of a youngster, the accused is seen with a very active child trying to supposedly place the glove, but obviously pulling down the back of the pants to reveal a part of the boy’s buttocks, and in the process touching same, all captured on video. The boy is observed squirming away, out of camera view, and a glove is seen thrown into the air. Given the accused’s admission and conduct to this date, the action of revealing, touching and videotaping the boy’s buttocks were for a sexual purpose.

While relatively minor overall, the fact that the accused was using the very place the children should have felt the safest, illustrates the length to which the accused was prepared to go to achieve his gratification. Victim J.K. Consistent with that illustration , is the video of Q.R. and another 9 year old boy, J.K. in the shower room of a community swimming

centre. These two boys and another unidentified child are naked, innocently playing

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