R v. N., 2013 MBPC 39

CITE# 2013 MBPC 39 THE PROVINCIAL COURT OF MANITOBA St. Pierre-Jolys BETWEEN Her Majesty the Queen ) M. Lavitt, for the Crown ) - and - ) ) Glenn BRANDT ) S. Inness, for the Defence ) ) ) Judgment delivered: June 25th, 2013 ) Lee Ann Martin, P.J. Introduction [1] On February 14, 2013, Glenn Brandt (Brandt) pleaded guilty to one count of voyeurism under s. 162 of the Criminal Code. [2] The circumstances giving rise to this charge are disturbing. In about 2005 to 2006, Brandt developed an obsession with M.F.,his subordinate at work.

His obsession manifested itself through fantasies of a sexual nature, including a desire to impregnate her. Tothis end, he monitored her menstrual cycle. On two or three occasions, he surreptitiously watched her as she showered at work as part ofan environmental requirement of her employment. Twice, he videotaped her with his cell phone while she showered. He latertransferred these images to his home computer where his wife discovered them in 2011.

Worst of all, he masturbated and ejaculated inher underwear just prior to her coming out of the shower. [3] Unbeknownst to M.F., several people were aware of Brandt’s criminal wrongdoings and yet did nothing to alert her to themuntil the summer of 2011. It turns out that Brandt confessed his wrongdoings to the local Pastor back in 2005, seeking guidance. ThePastor provided counseling to Brandt on a monthly basis until 2011 when he thought it was time to disclose to M.F., also a member of hisparish that someone had “sinned against her”.

It is thus that this matter came to light and Brandt was charged with voyeurism. [4] Voyeurism is a hybrid offence. In the present case, the Crown proceeded by indictment. The Crown asks the Court tosentence Brandt to a conditional sentence order; defence, to a suspended sentence. The Law [5] Sentencing has often been described by the courts as more of an art than a science.

That is because although the CriminalCode sets out the purpose and principles of sentencing the consideration given to those principles and the emphasis placed on themdepends greatly on the circumstances of the offence and the offender. [6] S. 718 of the Criminal Code indicates that the purpose of sentencing is to contribute to respect for the law and the maintenanceof a just, peaceful and safe society. This is done by imposing just sanctions that have one or more objectives of denunciation, deterrence,incarceration, rehabilitation, reparation and responsibility.

S. 718(2) further indicates that any sentence must also be increased ordecreased to account for mitigating or aggravating circumstances. In the end, however, it is fundamental that the sentence beproportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718(1) of the Criminal Code). [7] Case law provided by defence counsel indicates that voyeurism typically attracts a community-based disposition ranging froma conditional discharge to a conditional sentence order, though a suspended sentence appears to be the norm. [8] In R v.

N. (J.H.), 2010 BCPC 155 , 2010 BCPC155, a 32 year old accused with no prior criminal record repeatedlywatched two young girls aged 15 and 18 while they were at home, over a period of five months. On one occasion he trespassed on theirproperty and climbed onto the roof. The Court found that denunciation and protection of the public were the paramount principles andsentenced the accused to a one year suspended sentence.

[9] In R. v. Grice, 2008 ONCJ 476 , 2008ONCJ 476, the accused was sentenced to an 18 month suspended sentence forsurreptitiously filming his estranged wife while she was in the shower. In that case, the Court found that given the personalcircumstances of the accused and the complainant, the voyeurism was an abusive attack on the complainant’s personal privacy. TheCourt rejected the Crown’s submissions that a custodial sentence was required, and imposed an 18 month suspended sentence. [10] In R. v.

Weinheimer, 2007 ABPC 349, the accused surreptitiously took photographs of fifteen men using the urinal at his placeof employment. He stored these photographs together with the names, birthdates, addresses, insurance account numbers and notesregarding the genitals of the victims on his computer. The Court found that the primary sentencing objective was rehabilitation,deterrence and denunciation being secondary objectives, and sentenced the accused to a two year suspended sentence with supervisedprobation. [11] In R. v. R.

G.(F.), (NL PC), 2011 CarswellNfld 90 (NLPC), the accused installed a video recorder aimedtowards the bed of his 17 year old step-daughter capturing nude footage of her. He also would sniff her underwear. The Court noted thatgiven his position of trust, which was a statutorily aggravating factor, and his lack of prior record, denunciation and deterrence wereprimary considerations and sentenced the accused to a three month conditional sentence order. [12] In R. v. C. (R.), 2010 BCPC 470, the accused videotaped his 13 year old granddaughter. In that case, the accused had beensexually abused as a teenager.

He had undergone counseling and was determined to be a very low risk for sexual recidivism. He had nocriminal record and had begun counseling to address his behaviour. The Court noted that denunciation and protection of the public wereimportant factors. Despite noting these paramount factors and the relationship of trust with his granddaughter, the Court granted aconditional discharge for a period of three years. [13] In R. v. Pan, 2012 ABPC 203, the accused was caught videotaping a sexual encounter between his roommate and hisroommate’s girlfriend.

The Court found that the circumstances of that particular offence were at the low end of the spectrum ofvoyeurism offences. It noted his very early guilty plea and remorse and his lack of criminal record and sentenced the accused to aconditional discharge accompanied with 18 months of supervised probation. Analysis Circumstances of the Offence [14] The circumstances of this offence of voyeurism are particularly serious as they go beyond the mere invasion of privacy andaffect the physical and emotional integrity of the victim, M.F. [15] The surreptitious viewing of M.F. happened several times.

It also happened on work premises when M.F. was simplycomplying with occupational environmental requirements. Further, M. F. was captured on video such that Brandt could continue towatch her over and over again. [16] While these actions are certainly disturbing, the further steps Brandt took in connection with this offence are concerning. Thetracking of M.F.’s menstrual cycle is predatory in nature; the placing of his semen in her underwear fundamentally affected her physicalintegrity. Circumstances of the Offender [17] At the time of the offence, Brandt was 41 years old.

He is an educated, pro-social man with no prior record. Unfortunately, ata very young age, he was the victim of a sexual assault for which he had never received counseling. [18] To his credit, Brandt recognized his wrongdoing as early as 2005 – 2006 and disclosed it to both his wife and his Pastor. HisPastor advised him not to speak to anyone about it and undertook to provide Brandt with counseling once a month.

It wasn’t until 2011,when Brandt’s wife found a video of M.F. on the family computer, that the Pastor decided it was time to approach M.F. with the truth. [19] When these matters came to light in 2011, Brandt enrolled in sexual addiction counseling with a qualified therapist. Accordingto his therapist, Brandt has now addressed his sex addiction and is “sexually sober”. The therapist recommends continued attendance atgroup meetings and maintenance of an accountability partner. It is his belief that Brandt will never commit voyeurism again.

This beliefis consistent with the risk assessment done by Probation Services, which finds him to be at a low risk to re-offend criminally andsexually. [20] Brandt’s guilty plea, the steps he has taken to acknowledge his wrongdoing and address his underlying issues and his apology toM.F. are indicative of his level of remorse. Victim Impact [21] M.F.’s life has been turned upside down as a result of these matters. It is unclear to what degree the impact to her is a result ofBrandt’s actions, her Pastor’s inaction, or the perceived reaction of the congregation. To M.F., it is irrelevant.

The trusting life she led aspart of the same congregation as Brandt is gone. She cannot fathom how people she believed would protect and support her could hidethis offending conduct from her for so many years. [22] If this blow was not enough, she anguished over the possibility that she might have contracted a sexually transmitted disease, orworse, borne Brandt’s child. [23] The impact to M.F. has been pervasive and life-changing. It has impacted her employment, her friendships and herrelationships. Principles of Sentencing

[ 24 ] In this particular case, this Court finds the paramount principles of sentencing to be denunciation, and to a lesser degree general and specific deterrence and rehabilitation. [ 25 ] The circumstances of this particular offence are distinguishable from the average voyeurism case.

Although there was no breach of trust, there was certainly an opportunistic and predatory nature to this offending. [ 26 ] Further, although there was no trespassing on private property, the wearing of M.F.’s panties and the ejaculation into them in the hopes of impregnating her make this particular case distinguishable from the precedents provided to this Court. [ 27 ] This Court does recognize the steps that Brandt took, both by disclosing the offending to his wife and Pastor, the years of counseling with his pastor, as well as the more recent counseling with qualified therapists.

This Court also notes both his admission to the police and his guilty plea as well as his lack of prior record. All of these factors serve as mitigating circumstances. [ 28 ] In considering the circumstances of the offence and the offender, and keeping in mind the purpose and principles of sentencing, the overriding one being proportionality, I find that a probationary period would be unfit - a custodial sentence of less than two years is required. I have turned my mind as to whether that custodial sentence could be served conditionally in the community and find that it can.

There is no minimum sentence for this offence, Brandt is at a low risk to re-offend, and given the significant mitigating circumstances, including, in particular, his disclosure and efforts at rehabilitation, this Court finds that a conditional sentence order would be consistent with the purpose and principles of sentencing. The period will be for 18 months and the conditions will be as follows: • Keep the peace and be of good behaviour; • Appear before the Court when required to do so by the Court; • Report to your supervisor within 2 days by calling 1-800-334-8792.

After you report the first time, you must continue to report when and how you are told to by your supervisor. • Stay in Manitoba unless you get written permission from your supervisor or the Court to go outside the Province; and • Notify your supervisor or the Court before you change your name or address, and promptly tell your supervisor or the Court if you change your job or occupation; • For the first 6 months you are to observe an absolute curfew – 24 hours a day, seven days per week except in the following circumstances: ▪ To attend employment or job training or job interviews and travel directly to and from; ▪ To comply with the terms of the conditional sentence order; ▪ In the case of a medical emergency involving yourself or an immediate member of your family, and in such case to report the emergency to your conditional sentence supervisor within 48 hours; ▪ For regularly scheduled doctor and dental appointments as preauthorized in writing by your conditional sentence supervisor; ▪ To accompany your child to and from school and attend your child’s extracurricular activities as preauthorized in writing by your conditional sentence supervisor; ▪ Five hours per week to attend to personal errands as preauthorized by the conditional sentence supervisor; ▪ Such other exceptional absences as preauthorized by your conditional sentence supervisor, not to exceed 10 hours per month. • For the remainder of your conditional sentence order, you are to observe a curfew from 10 p.m. to 7 a.m. daily with the following exceptions: ▪ To attend employment or job training or job interviews and travel directly to and from; ▪ To comply with the terms of the conditional sentence order; ▪ In the case of a medical emergency involving yourself or an immediate member of your family, and in such case to report the emergency to your conditional sentence supervisor within 48 hours; ▪ Such other exceptional absence as preauthorized by your conditional sentence supervisor. • You are to attend, participate and complete all counselling as directed; • You are to abstain absolutely from the possession or consumption of all alcohol and illegal drugs; • You are to have no contact or communication with M.F. or T.F.; • You are not to attend within 200 metres of where they live, work, worship or go to school or their person; • You are to carry a copy of your conditional sentence order on you at all times when you are outside of your residence and to present it upon any interaction with a peace officer;

• You are to attend to the door of your residence or answer a landline telephone in the case of a curfew check by the RCMP, Probation Services or their designate; [ 29 ] Given Brandt’s current financial situation this Court is prepared to waive costs and surcharges. “Original Signed By:” Lee Ann Martin, P.J.