R. v. P.B.D., 2019 BCPC 18

Citation: R. v. P.B.D. 2019 BCPC 18 Date: 20190114 File No: 40109-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. P.B.D. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: G. Tomlin Counsel for the Accused: C. Hunt Place of Hearing: Duncan , B.C.

Date of Hearing: December 4, 2018 Date of Sentence: January 14, 2019 Introduction [ 1 ] THE COURT: P.B.D. is before the court on an allegation contained in an information that on or about the 7 th of July, 2016, at [omitted for publication], British Columbia, he made a visual recording of K.C. by electronic means in circumstances that give rise to a reasonable expectation of privacy, as K.C. was in a place in which she could reasonably have been expected to expose her genital organs or anal region or her breasts.

[ 2 ] This is an offence which is contrary to s. 162(1) (

a) of the Criminal Code , under the provisions entitled "Voyeurism". [ 3 ] Crown has outlined the circumstances relating to this offence. Those circumstances are not disputed. Those circumstances will be summarized below for the purposes of sentencing. [ 4 ] The task of this court is to determine a fit sentence. On one hand, Crown is seeking a suspended sentence with a term of probation and various orders; defence seeks the court to consider and grant a conditional discharge.

Facts Circumstances surrounding the offence [ 5 ] The circumstances of the offence are set out in a Forensic Psychiatric Services Commission report dated September 24, 2018 (the “Forensic Report”), which was prepared by Dr. Shauna Darcangelo, PhD, who is a registered psychologist with the Forensic Psychiatric Services Commission. [ 6 ] Crown says, and I agree, that on the basis of all the information I have received in this sentencing hearing, the Forensic Report summarizes and clarifies the circumstances. [ 7 ] In

summary, based on reports made to Crown counsel by the [omitted for publication] RCMP and referred to in court, the July 7, 2016 events reported to the police included an incident of voyeurism in a washroom of a local coffee shop in [omitted for publication], British Columbia. The complainant, K.C., had reported that she was using the washroom and noticed a partially hidden smartphone propped up under the sink. The complainant, K.C., picked up the phone and observed a video recording of her using the toilet.

She was also able to observe a video recording of a male placing the phone under the sink. [ 8 ] She left the coffee shop. In the course of doing so she observed a male wearing the same clothing that she had just seen in the video. Accordingly, K.C. and her husband contacted the police shortly after leaving the coffee shop. [ 9 ] Thereafter the police identified the offender, P.B.D. (hereinafter the "Offender") as the male who had been shown on the video placing the phone in the coffee shop washroom.

On May 3, 2017, P.B.D. admitted to the RCMP that he had placed the phone in the washroom in order to surreptitiously record for a sexual purpose a female disrobing and using the bathroom facilities.

He also stated that he had not had a date in over a decade and it was a “time of weakness" that precipitated his actions. [ 10 ] As a result of the guilty plea entered by P.B.D., two reports were ordered, one is the aforementioned Forensic Psychiatric Services Commission report dated September 24, 2018 (being the “Forensic Report”) and the second is a presentence report dated November 30, 2018 (the “Presentence Report”). It was prepared by Kurt Sharpe, who is a probation officer with Duncan Community Corrections. Both of those reports are extensive in nature, they are comprehensive, and they are useful.

Circumstances of the Offender [ 11 ] Based on submissions before me, as well as the Presentence Report and the Forensic Report, the Offender is a relatively young man. He is 32 years of age. He comes before the court with an unrelated criminal record. He was previously convicted back in 2009 of driving with more than 80 milligrams of alcohol in his blood. He has no other criminal convictions. [ 12 ] The Forensic Report delves into the background, sexual history, education, mental health history, psychological testing, and opinions gained from those reviews and testing.

The result of the information indicates that the Offender came from a family which was broken by matrimonial discord. The Offender has maintained a relationship with his father and has resided with his father for a significant period of time. [ 13 ] The Offender has not completed his Grade 12 equivalency. He describes his time in school in negative terms. He changed schools, became isolated at his new school, then he turned to the use of illicit substances. He describes himself to the author of the Forensic Report as being isolated.

He indicated that his social interactions and sexual history with females has been very stunted. He has had little in the way of enduring relationships.

He has very low self-esteem when it comes to both his personal circumstances, as well as his ability to perform in a sexually proficient manner. [ 14 ] He is frequently reliant on use of masturbatory stimuli, including online pornography, about which he told the author of the Forensic Report, indicating that he has a preference for videos involving single females engaged in masturbation. [ 15 ] When he is not working in a local factory which builds trusses, he is in front of video games or by himself.

He is a person with limited resources and support networks, although as I previously indicated, he does maintain a positive relationship with his father. Interestingly enough, he would not consent to either the author of the Presentence Report or any other individuals contacting his parents to obtain collateral information. [ 16 ] He describes himself as having a substance abuse issue; he has utilized a wide variety of drugs. There have been periods of time where he has been using marihuana multiple times a day, as well as binge drinking.

He has been dealing with some of these issues on a more positive basis in recent months since becoming involved with this court process. [ 17 ] As a result of the testing that was performed on him as part of the Forensic Report, a determination was made that his risk for future sexual violence was rated at the “Moderate or Elevated” level.

The Forensic Report indicates that the persons in this category require some special management strategies, including at the very least an increased frequency of monitoring. [ 18 ] The Forensic Report at page 12 goes on to indicate as follows, and I quote [as read in]: Overall, based on a consideration of available information and given the overall pattern of risk factors, both in terms of lifetime presence

and recent functioning, P.B.D. is currently considered to be a "Moderate or Elevated" case priority. Although he presented with multiple areas of risk as outlined earlier, based on his RSVP ratings, the factors most relevant to his risk of violence include: Sexual deviance (i.e., sexual arousal to voyeuristic activities), chronic pornography use, lack of an intimate relationship / loneliness, sense of inadequacy / poor social skills and mental illness (i.e., Major Depressive Disorder and Generalized Anxiety Disorder).

Although substance misuse was not a significant factor in the current offence, it likely contributes to his risk of sexually reoffending by increasing his sense of inadequacy and disrupting his ability to think rationally about the potential consequences of his behaviour. [ 19 ] As part of the recommendation in the Forensic Report, it was concluded that P.B.D. should be referred to specialized sex offender treatment. [ 20 ] The Forensic Report also provides some useful information about some past issues that relate to his voyeuristic behaviour. There is a

part contained within the

Summary and Recommendations which references back to an earlier part of the report, wherein it is acknowledged that for his own sexual arousal the Offender watched online videos of unsuspecting females being recorded; reference is then made to the Offender’s own desire to record unsuspecting females as a response to his chronic loneliness and frustration and inability to develop an intimate relationship, for a period going back some 15 years. [ 21 ] In this particular instance, the Offender told the author of the report that he thought it would be "more special" if he recorded his own video of an unsuspecting female, rather than relying on the videos posted by others on pornographic websites. [ 22 ] There is an indication that the Offender did recognize that recording unsuspecting females would not meet his need for an intimate relationship.

However, he reasoned that masturbating to a video of a woman that he had recorded would at least be some form of human interaction. [ 23 ] The Forensic Report is clear that the Offender expressed significant remorse and regret for his illegal behaviour, and, as well, an appreciation that his arrest has brought his difficulties to the forefront. He expressed to the author of the Forensic Report that he hoped that he would now get the help that he desperately needs. [ 24 ] The Forensic Report and the Presentence Report paint a life of loneliness and isolation for the Offender.

Both reports also indicate the same level of insight being expressed by the Offender. The recommendations contained in the Presentence Report reference a specific program referred to as the B.C. Corrections Sex Offender Treatment Program (“SOTP”). That particular program is available through both incarceration at Ford Mountain Correctional Centre and it is also offered in the community as a 15-session low-intensity program in both Victoria or Nanaimo, along with a follow up Sex Offender Maintenance Program (“SOMP”).

It is noted that there are significant wait lists for offenders who seek to access the SOTP, and that a minimum 18-month community sentence is recommended in order for this program to be completed in the community. [ 25 ] There is a suggestion in the reports before me that the Offender had been at age six subject to inappropriate sexual touching by a 10-year-old person. There is also a suggestion in the reports, based on information provided to the author of the Forensic Report, that there had been inappropriate sexual advances made by the Offender's mother against him when he was a teenager.

Other than this self-reporting, there is no other corroborating information about this disturbing allegation. [ 26 ] The information in the reports indicates, at the time of the authorship of those reports, there existed something that could be characterized as a reluctance on the part of the Offender to take treatment, counselling, and similar programs or to take such suggestions as seriously as he should.

Based on the submissions made by defence counsel today and based on the direct submissions made by the Offender to the court, I accept that greater reliance is now being placed on such programs and acknowledged as being required for rehabilitation by the Offender; now he seeks to get what he considers to be the necessary help in order to deal with a number of his underlying issues, as well as to deal with his behaviour and the matters which have specifically become the subject matter of these charges. [ 27 ] This matter was previously before the court to deal with sentencing, but was adjourned in order to permit the Offender to look into the ability to obtain residential treatment or programming.

However, that treatment is not possible through his employment benefits. But it is clear from the current submissions made directly to the court by the Offender that he is looking to participate in such programming and he is pursuing that with the assistance of his counsellor at Duncan Mental Health. [ 28 ] Also there has been significant attempts made by the Offender to reduce his reliance on both alcohol, as well as on drugs, and in particular marihuana. Victim Impact [ 29 ] I have before me a victim impact statement provided by the victim identified as K.C. in the information.

The victim was actually visiting Vancouver Island in the capacity as a tourist and, as I understand from the submissions before me, she is a resident of Michigan, USA. Crown indicated that the victim was prepared to come and testify had this matter proceeded to trial. [ 30 ] The results of this offence on this particular victim are quite serious. She indicates in her victim impact statement that she has been left with a fear of using public restrooms. She now tries to avoid them at all costs.

She indicates that she now requires someone to stand by doors if she has to use a public restroom and she cannot avoid that requirement. She spends her time examining washrooms for cameras, phones, and similar devices. She makes it clear that she felt violated by this particular event. Position of the Crown on Sentencing of the Offender [ 31 ] Crown counsel seeks a suspended sentence. Crown is suggesting that there be a term of probation for 18 months, including a provision for sexual offender treatment.

Crown is not seeking a restitution order for the amounts that are itemized and described in the victim impact statement, which essentially can be characterized as travel expenses that were incurred by virtue of the victim’s interrupted vacation trip.

[ 32 ] Crown indicates that deterrence and denunciation should be the primary focus of any sentence imposed by this court, and further indicates that rehabilitation can be achieved through the counselling as recommended in the Presentence Report. [ 33 ] Crown submits that there was been a degree of planning on the part of the Offender in this case. He acted out on what was a socially unacceptable and criminal impulse by placing the phone in the washroom at the coffee shop.

As a result of the harm to the victim, the Crown says that consideration of a discharge, whether it is a conditional discharge or an absolute discharge, is inappropriate. [ 34 ] In other words, Crown rejects the notion that the actions of the Offender in this case can be considered to be impulsive in nature, but rather having a significant amount of premeditation which requires increased denunciation and deterrence. Defence Position on Sentencing of the Offender [ 35 ] Defence seeks a conditional discharge. The basis of that conditional discharge is the test in R. v.

Fallofield . [ 36 ] The defence points out that the Offender had a significantly disrupted childhood with great periods of loneliness, struggles with social interaction with persons of the opposite sex, was sexually assaulted at an early age, and has had extensive feelings of worthlessness, hopelessness and inadequacy.

As also indicated in the reports, he has suffered from periods of depression and anxiety. [ 37 ] Defence also points to a provision contained within the Forensic Report that describes that the Offender self-reports that at age 17, he had what was described as a “breakdown”. [ 38 ] Notwithstanding the challenges that the Offender faces, he has had steady employment at the local truss plant. However, he views that job, which he has held for some 24 months, as a temporary job.

His past employment record has been somewhat spotty and at times he has lost jobs as a result of performance issues, which may have been contributed to by his substance abuse issues. [ 39 ] However, the submission on behalf of the Offender is that he has future plans which he hopes will lead him to obtaining his qualification as a heavy duty mechanic. [ 40 ] Accordingly, defence says that a criminal conviction of this sort will have significant limitations on the employment opportunities of the Offender going forward. [ 41 ] In addition to the extreme remorse that has been expressed, both in the reports as well as directly by the Offender to the court, there is now significant recognition on the part of the Offender that he does require treatment and he is open to taking that treatment without reservation or qualification. [ 42 ] The suggestion is made by defence counsel that there may be some inaccuracies when considering the classification of “Moderate or Elevated risk” in the Forensic Report, although I do not have anything by way of other reports that would contradict that classification opinion.

However, the suggestion is made by defence that in coming to that conclusion in the Forensic Report, there is not a satisfactory link between some of the risk factors which were utilized to assess the Offender and the conclusions that have been drawn to that effect. [ 43 ] Although the Forensic Report makes mention of those issues and has the drawn the conclusion that there is a “Moderate or Elevated” risk for sexual reoffending, defence says that the Forensic Report further notes that there is a lack of extreme minimization and a denial of sexual violence.

There is also a lack of psychopathic personality disorders, and there is a lack of other of the contributing factors which should give the court concern about future sexual reoffending. [ 44 ] Defence agrees that taking a sexual offender program should be a necessary part of the rehabilitation program that the sentence should address. [ 45 ] Thus, in

summary, defence says that we have an individual who has a heightened awareness of his inappropriate behaviour.

He has insight, is remorseful, and has the ability to address changes through his treatment. [ 46 ] It is also suggested by defence that on the scale of culpability, that this offence by this Offender should be regarded as not being at the high end because of the various issues that were influencing the behaviour of the Offender, namely his unaddressed mental health issues and his great social isolation. [ 47 ] Accordingly, it is suggested both that the public interest would not be negatively impacted if I were to grant a conditional discharge in this matter, and of course as a result of the other significant implications of a criminal record that it would certainly be in the best interests of the Offender to not have a criminal record. [ 48 ] Defence also indicates that there may be positive benefits for a longer period of probation if a conditional discharge is granted, which would assist in the rehabilitation of the Offender. [ 49 ] Initially in the course of this sentencing, case authorities were not presented to the court.

However, during the various breaks, I have sought and obtained various relevant decisions. Some of these decisions result from some research that I conducted during the breaks. The cases that I have before me dealing specifically with cases of voyeurism are as follows: 1. R. v. Law , [2018] B.C.J. No. 3329 , 2018 BCSC 1683 ; 2. R. v. Bosomworth , [2015] B.C.J. No. 546 , 2015 BCPC 7 ; 3. R. v. Pan , [2012] A.J. No. 878 , 2012 ABPC 203 ; 4. R. v. J.H.N ., [2010] B.C.J. No. 1450 , 2010 BCPC 155 ;

5. R. v. R.H.C., [2010] B.C.J. No. 2960, 2010 BCPC 475; and 6. R. v. Laskaris, [2008] B.C.J. No. 865, 2008 BCPC 130. [50] I have also had the opportunity to look at some further decisions, that are relevant to the operative sentencing principles: R. vBigg, [1994] B.C.J. No. 174; R. v. Anderson, [2004] B.C.J. No. 2801; R. v. Lennox, 2013 BCPC 273; R. v. Soberano (B.C. Prov.

Court)unreported: September 18, 2013, Vancouver Registry No. 22645 per Bahen J. [51] I am going to stand down briefly. [52] THE CLERK: Order in court. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [53] THE COURT: I have also had referred to me a decision of my brother Judge Cutler in the case of R. v. Livingston, DuncanRegistry 40636-1, it is an unreported decision which deals with sentencing in a voyeurism case. In it, I understand that a conditionaldischarge was suggested to the court and granted in similar circumstances to these, all by way of a joint submission.

Purposes, Objectives, and Principles of Sentencing [54] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender (see R. v. Shoker, 2006 SCC 44 at paragraph 14, and R. v. Angelillo, 2006 SCC 55 atparagraph 22). [55] As the sentencing judge, I must direct myself to consider all of the principles of sentencing contained in the Criminal Code, butalso be mindful that, depending on the nature of the offence committed, certain principles will receive more emphasis than others (see R.v.

McCormick, 2006 ABCA 410 at paragraphs 9 to 12). [56] In R. v. Nanji, [2009] B.C.J. No. 521, 2009 BCPC 79 , the Honourable Judge Woods of our Provincial Court providesa useful

summary to deal with the purposes and principles of sentencing as set out in the Criminal Code, by drawing from the decision ofour British Columbia Supreme Court in R. v. Pommer. Quoting Judge Woods from paragraph 12 in the Nanji decision, he says: [12] In R. v. Pommer, 2008 BCSC 737, D. Smith J. (as she then was) recently provided a strikingly succinct, complete and "to thepoint" generic

summary of the relevant purposes, principles and objectives of sentencing with which I find myself in respectfulagreement. I reproduce that

summary below, believing it to be fully applicable to the case at bar: "The 'normative' principles of sentence are set out in ss. 718, 718.1, and 718.2 of the Criminal Code (see. R. v. L.M., 2008 SCC 31).

Thefundamental purpose of [the sentence] is to contribute, along with crime prevention initiatives, to respect for the law and the maintenanceof a just and peaceful society by imposing fair sanctions that reflect the objectives of sentencing as identified in s. 718 of the CriminalCode: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders fromsociety, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and topromote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender.

Section 718.2 lists other sentencing principles to be considered including aggravating or mitigatingcircumstances relating to the offence or the offender, evidence that the offender in committing the offence abused the offender's spouseor a position of trust in relation to the victim; that a sentence should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances; an offender should not be deprived of liberty, if less restrictive sanctions may beappropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should beconsidered. [57] As noted by Romilly J. in R. v.

Ralph, [2014] B.C.J. No. 485, when considering the requirements of s. 718.2(

b) that a sentence"should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" requires ananalysis of what is commonly referred to as the range of sentence for a specific offence (see paragraph 26). [58] However, because of the proportionality principle, individualized sentences, the parity program does not preclude disparitywhere warranted by the circumstances. There is no such thing as a uniform sentence for a particular crime (see R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163).

Conditional Discharges [59] The position having been put forward by defence counsel with respect to granting of a conditional discharge requires that I haveregard to the decision in R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559. Fallofield is the leading authority withrespect to the granting of conditional discharges.

The test that is outlined in Fallofield is that the granting of a discharge must, first of all,be in the interests of the accused, and the second leg of the test is that it must not be contrary to the public interest. [60] Fallofield draws the following conclusions with respect to the application of s. 730 for discharges. They are as follows: 1. The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by lawor the offence is punishable by imprisonment for 14 years or for life or by death. 2. The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

3. Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation. 4. The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest. 5.

Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction,that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that theentry of a conviction against him may have significant adverse repercussions. 6. In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions. 7.

The powers given by [what is now s. 730] should not be exercised as an alternative to probation or suspended sentence. 8.

Section [730] should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in theapplication of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstancesof cases. Suspended Sentences [61] The British Columbia Court of Appeal in a recent decision of R. v. Voong, 2015 BCCA 285 , [2015] B.C.J.

No. 1335;2015 BCCA 285, reviewed the nature of a suspended sentence and noted at paragraphs 19 and 20 as follows: Nature of the Suspended Sentence [19] Where no minimum sentence is required, the Criminal Code permits a court to suspend the passing of a sentence, rather thanimpose a sentence (s. 731(1)(a)), and to place a person on probation for a maximum of three years (s. 732.2(2)(b)). If an offender who ison probation is convicted of an offence, the suspension of the sentence may be revoked and the offender may be brought back before thecourt for sentencing.

At that point, the judge may impose any sentence that could have been imposed at the time the sentence wassuspended (s. 732.2(5)(d)). [20] If probation is ordered, the judge must impose certain mandatory conditions found in s. 732.1(2) and may also impose optionalconditions (s. 732.1(3)(a)-(g.2)).

Under s. 732.1(3)(h), the Court may also impose any other "reasonable condition . . . for protectingsociety and for facilitating the offender's successful reintegration into the community". [62] Clayton Ruby in Sentencing, 8th Edition, at pages 434 to 436 canvasses the use of a suspended sentence and accompanyingprobation. He notes that a suspended sentence and probation are useful in cases that do not require a period of incarceration ordeterrence or denunciation. The learned author further notes that the imposition of a suspended sentence is not confined to offences thatdo not require deterrence.

The suggestion is made that where a suspended sentence and probation are imposed, general deterrence byway of a period of imprisonment remains a possibility if the offender chooses to avoid the controls selected by the court for hisrehabilitation. Thus an offender who "chooses to avoid the controls" by breaching may very well end up in prison (see Ruby, pages 434to 435, paragraph 10.5). [63] As further noted in Ruby, the most obvious use of a suspended sentence and a probation order is in the case of first offenderswho have committed crimes that are not too serious.

In such situations, courts should explore other dispositions which are open to it andimpose a custodial sentence only "where the circumstances are such that the offence is of such gravity that no other sentence can beappropriate": see Ruby, pages 435 to 436 at paragraph 10.7. Aggravating and Mitigating Factors Aggravating Factors [64] In this case, the important aggravating factor at play is the significant negative impact that occurred with respect to the victim inthis case. Also as described in R. v. Law, cases of voyeurism are offences in which the victim's essential human dignity has beenviolated.

Crimes of this nature show a complete disregard for those people's autonomy or the right to determine which, if any, of theirmost intimately private actions will be video recorded and the recordings thereafter maintained by other persons outside their control(see: Law at paragraph 100 citing R. v. Berry, 2014 BCSC 284 at paragraph 63). [65] It is that breach of the autonomy of the victim which, in my view, is particularly aggravating in this type of offence and in thisparticular set of circumstances.

Mitigating Factors [66] I accept that there has been a guilty plea proffered by the Offender in this particular matter that has avoided the necessity of atrial. I also accept as being somewhat mitigating are the significant underlying psychological issues that this Offender apparently hashad for some period of time, and which have remained untreated.

I do accept that there has been a significant amount of remorse andinsight now expressed by the Offender in this case. [67] I am also satisfied that although there was not an extensive amount of preplanning, that there has been a measure of planning onthe part of the Offender, but I put that at the lower end, and hence consider that to be somewhat mitigating.

Although I do not accept thatthis is completely a situation of impulsive behaviour, because deliberately planned steps were taken by the Offender in completing thisoffence, however his level of planning is less than the appearance of planning in the other case authorities which are before me. Hence

there is a degree of planning, combined with a degree of impulsivity in committing this offence. [ 68 ] What I am also taking into account, as a somewhat mitigating factor, is the level of assessment or level of risk of the Offender committing further offences, even though it is phrased in the Forensic Report as “Moderate or Elevated”. Looking at the various factors which are taken into account in coming to that conclusion, I am satisfied that it is more than likely that the risk is at the lower end of what is described as “Moderate or Elevated” classification.

Analysis [ 69 ] The various decisions which are before me are useful. Each of them provides a consideration of whether or not a suspended sentence or conditional discharge is appropriate. [ 70 ] In R. v. Bosomworth , the court ordered a suspended sentence with 12 months of probation. That was a situation in which a restauranteur installed a camera in the restaurant’s public washroom. That resulted in significant embarrassment to his business partners and eventually the restaurant business was lost. The offender in that case expressed remorse and accepted full responsibility.

The court reviewed a number of cases, but did reject the application for a conditional discharge. [ 71 ] In R. v. Pan , being a decision out of the Alberta Provincial Court, there is a significant review of various authorities dealing with charges of voyeurism (see: paragraphs 43 to 49). I will not provide details about those authorities, other than to say that they are useful when looking at the overall considerations of whether a conditional discharge or a suspended sentence should be imposed, in each of those particular circumstances.

In Pan the court ordered a conditional discharge. [ 72 ] The decision in R. v. J.H.N. is a decision in which a suspended sentence with one year of probation was imposed. The circumstances in that case, in my view, were more egregious than the ones that are presently before me, partly insofar as there was a significant degree of planning on the part of the accused in J.H.N . [ 73 ] In R. v. R.H.C. , there was a conditional discharge granted.

The situation in that case, given the tender years of the victim, aged 13, the family relationship between the accused and the victim and the significant degree of planning, in my view is much more troubling than in the case before me. However, there were other factors which were taken into account by the court in granting a conditional discharge in that particular case. [ 74 ] The final decision that I considered is R. v. Laskaris .

In that matter a conditional discharge was granted to a dentist who had installed, set up a video camera in order to try to deal with theft, which had the resulting consequences of photographing female staff members using the toilet facility. [ 75 ] While those cases are all useful in their analysis, of course they are all based upon the individual circumstances in each of those cases.

Conclusion [ 76 ] Having regard to all the circumstances in this case, I am satisfied that the test in Fallofield is met and that a conditional discharge is an available and appropriate disposition. [ 77 ] In doing so, I do acknowledge that there are decisions of our courts in British Columbia which indicate that deterrence and denunciation can be properly accomplished by terms of a conditional discharge. In that regard, I refer to R. v. Soberano , and also I refer to the decision in R. v. Lennox , which cites R. v.

Pham , 2013 SCC 15 , for the proposition that when considering a sentence where there are two possible sentences that are both appropriate, as regards the gravity of the offence and the responsibility of the offender, the most suitable one may be the one that better contributes to the offender's rehabilitation ( see R. v. Lennox at paragraph 55 , citing R. v. Pham at paragraph 11 ). [ 78 ] Before I proceed to the sentencing, I take it that what is being looked for in terms of conditions are those that are set out in the Presentence Report, is that correct, Mr. Tomlin? [ 79 ] MR.

TOMLIN: Correct. [ 80 ] THE COURT: Okay. Are you looking for a no-go to the coffee shop? [ 81 ] MR. TOMLIN: Yes. [ 82 ] THE COURT: And are you looking -- that is a chain, so are you looking to all of the locations-- [ 83 ] MR. TOMLIN: No, just the one. [ 84 ] THE COURT: Just the one. [ 85 ] P.B.D., could you stand, please. I am going to grant you a conditional discharge. However, the conditions that I am going to impose upon you and the duration is going to be longer than what was being proposed. I am going to make it a conditional discharge with the conditions extending for a period of 30 months.

The conditions will be as follows: [ 86 ] 2001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 87 ] 2101: You must report in person to a probation officer, and it will be here in Duncan, by 3:00 p.m. tomorrow, being Tuesday, January 15, 2019.

[ 88 ] MS. HUNT: Your Honour, could I speak on that? My friend and I discussed no later than 4:00 on Friday or you could say 3:00 on Friday. He has missed the entire day today and isn't sure if he can get off early tomorrow to report, so -- [ 89 ] THE COURT: All right, are you content with that? [ 90 ] MR. TOMLIN: That's fine. [ 91 ] THE COURT: All right, so that is -- so report no later than 4:00 p.m., when? [ 92 ] MS. HUNT: Friday is what we had discussed. [ 93 ] THE COURT: Okay, Friday, January the - [ 94 ] MS. HUNT: 18 th . [ 95 ] THE COURT: -- 19th, 2019. [ 96 ] MS.

HUNT: 18 th . [ 97 ] THE COURT: And after that you must report as directed by the probation officer. [ 98 ] 2203: You must reside at a residence approved in advance by the probation officer. You must provide your probation officer with your phone number and you must not change your residence or your phone number without written permission from your probation officer. [ 99 ] 2212: You must provide your probation officer with the particulars of your employment or relationship status.

You must inform your probation officer within two business days of any change in your employment or relationship status. [ 100 ] 2401: You must not -- [ 101 ] MR. TOMLIN: Not seeking that one, Your Honour, that's the -- [ 102 ] THE COURT: You are not seeking the drug or alcohol abstention? [ 103 ] MR. TOMLIN: No, no. [ 104 ] THE COURT: All right, that will not be part of it. [ 105 ] 2501: You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the probation officer.

Without limiting the general nature of this condition, the intakes, assessments, counselling, or programs may relate to: (

a) anger management; (

b) alcohol or drug abuse; (

c) spousal abuse prevention; (

d) mental health; (

e) sexual offence prevention; or (

f) gambling addiction. [ 106 ] 2503: Having consented, you must attend at the direction of your probation officer for a psychiatric intake, assessment, counselling, or treatment program through Forensic Psychiatric Services. Such programs may include, but not be limited to, the SOTP Program, otherwise known as Sex Offender Treatment Program. [ 107 ] I am going to make a further order with respect to providing community service. 2509: You must complete 40 hours of community work under the direction of a probation officer.

Your community work service must be completed within 12 months of the date of this order. [ 108 ] MR. TOMLIN: Your Honour, I appreciate the chance of contact is probably pretty minimal, barring P.B.D. doing something incredibly stupid, but if you think it would be appropriate for there to be a no-contact term with the victim of the offence, that is K.C. I do not think there is any risk of him attending her residence, but I would seek the no-go to the [omitted for publication] at [omitted for publication]. [ 109 ] THE COURT: British Columbia. Both orders will go. [ 110 ] MS. HUNT: No issues.

Your Honour, just to clarify the reporting, I think you said January 19 th , but Friday is the 18 th . [ 111 ] THE COURT: Oh, I am sorry, January -- I meant January the 18 th , I meant the Friday. [ 112 ] MS. HUNT: Perfect. [ 113 ] THE COURT: All right. Anything further? [ 114 ] MR. TOMLIN: SOIRA does not apply. [ 115 ] THE COURT: Yes. [ 116 ] MR. TOMLIN: It is a secondary designated DNA offence. I do think it would be appropriate for him to provide a DNA sample, given the surreptitious nature of this matter. I understand that is not opposed.

If you do grant it, I would suggest it be provided to the [omitted for publication] detachment on or before 4:00 p.m. on the 25 th of January of this year. That gives him a couple of weeks to arrange a date to attend and provide that.

[ 117 ] THE COURT: Ms. Hunt? [ 118 ] MS. HUNT: No submissions about that. [ 119 ] THE COURT: All right, I will make -- [ 120 ] MS. HUNT: Sounds like a fair timeframe. [ 121 ] THE COURT: I will make that order on those terms. [ 122 ] MR. TOMLIN: And finally, the cellphone itself, while the image was deleted, it is conceivable that it is retrievable with some sort of technical expertise. My understanding is that he is not seeking return of it. Given the potential for that to be there, I think a 490 order just forfeiting it to Her Majesty would be appropriate. [ 123 ] THE COURT: Any issue? [ 124 ] MS.

HUNT: That is correct, no issue. [ 125 ] THE COURT: All right. There will be the order for forfeiture of the cellphone in question. [ 126 ] MR. TOMLIN: Thank you, Your Honour. [ 127 ] THE COURT: Does that conclude all -- [ 128 ] MS. HUNT: Thank you. [ 129 ] MR. TOMLIN: It does. [ 130 ] MS. HUNT: It does, thank you. [ 131 ] THE COURT: Thank you. (REASONS CONCLUDED)