R. v. Gardner Date:, 2017 BCPC 85

Citation: R. v. Gardner Date: 20170314 2017 BCPC 85 File Nos: 242414, 242414-2-A Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RONALD NEALE GARDNER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE N. PHILLIPS Counsel for the Crown: M. Donnelly Counsel for the Defendant: M. Fingas Place of Hearing: Vancouver, B.C. Dates of Hearing: March 1 & 2, 2017 Date of Judgment: March 14, 2017

A Corrigendum was released by the Court on March 15, 2017. The corrections have been made to the style of cause and text, and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] On March 1 and 2, 2017, Ronald Neale Gardner appeared before the court for sentencing. He has pled guilty on Information 242414 to two counts. On count one he admits that from February 8, 2016 to March 10, 2016, inclusive, in Burnaby, BC, he did by means of telecommunication, agree with a person or make an arrangement with a person, to commit an offence under s. 151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 with respect to another person whom he believed to be under the age of 16 years, contrary to s. 172.2(1) (

b) of the Criminal Code . On count two he has pled guilty that from February 15 to March 7, 2016, he made written child pornography contrary to s. 163.1(2) of the Criminal Code . [ 2 ] Mr.

Gardner has also pled guilty on Information 242414-2-A that on April 4, 2016, in Abbotsford, while being at large on a recognizance entered into before a Justice or a Judge and being bound to comply with that recognizance, he did fail without lawful excuse to comply with the condition that he not possess any computer system as defined in s. 342.1(2) of the Criminal Code , contrary to s. 145(3) of the Code. [ 3 ] The Crown proceeded summarily on the breach information and by indictment on the substantive matter. This is the decision of the court on sentencing.

CIRCUMSTANCES OF THE OFFENCES [ 4 ] On February 8, 2016 Mr. Gardner, then fifty-six years of age, made contact via an internet chat “room” with a police officer posing as a forty-five year old woman, Vicky, with two children who said she was looking for an “open family”. The internet channel the officer was on which was accessed by the offender is called “Dad - Daughter Sex” and is frequented by persons who have an interest in sexual relationships with children. Mr.

Gardner thereafter used various internet chat rooms and internet tools to further his communications with Vicky. [ 5 ] The Crown provided the court with some of the internet chats the offender and the officer had and referred to other discussions which took place until Mr. Gardner’s arrest on March 10 th , 2016. In their correspondence, Mr. Gardner is very open with Vicky and he provides a lot of true personal information about himself. He makes inquiries of Vicky learning the names of her ten year old son and six year old daughter. Early on, Mr.

Gardner asks Vicky about her sexual interests and the prospect of the daughter and son participating in sexual activities with the two adults. Mr. Gardner also establishes that he is not into role playing and prefers real life. Vicky offers that she is open to a sexual relationship between all members of her family to which Mr. Gardner replies “ok then we’re on the same page lol”. [ 6 ] Mr. Gardner converses about his own grandchildren and refers to intercourse with the nine and twelve year old daughters of his ex-wife.

He also tells Vicky about a pornography offence he had been convicted of in the past and says it ruined ten years of his life. The internet chat shows he is most interested in the six year old daughter and he offers grooming advice to Vicky as to how she can introduce her children to sexual activity with the end goal of the children engaging in sexual activity with the mother and Mr. Gardner. [ 7 ] On February 10 th , Mr. Gardner sends Vicky photos of a naked man with his penis exposed and he talks about a fantasy he has where he takes a young girl with him on a trip.

In an internet conversation on February 12 th , Mr. Gardner inquiries of Vicky as to whether she had masturbated in front of her children as they had discussed and suggests the next time she have the six year old, Sarah, help her to do so. He mentions speaking with other children on an internet platform and asking them what turns them on. [ 8 ] On February 15 th , Mr. Gardner tells Vicky he has had nice dreams about Sarah and says he will write them down and send them to her. The lengthy email he sends later that day details his fantasy about the four of them in bed together. In that story, Mr.

Gardner describes how Sarah watches the two adults in some foreplay and moves to a description of Mr. Gardner engaging in sexual intercourse with the six year old. [ 9 ] On February 16 th , Mr. Gardner sends another story to Vicky involving the four of them engaged in sexual activity. It is clear the protagonist in the lengthy email story is the offender. Mr. Gardner’s story involves oral, digital and genital penetration and the participation of the six year old girl and the ten year old boy. [ 10 ] In other correspondence on February 16 th , Mr.

Gardner tells Vicky that over the weekend he helped teach a ten year old female how to masturbate. He sends Vicky a photo of a fully clothed young female. Crown counsel advises the female depicted in the photo is young but her age is not ascertainable. The police were unable to identify the girl in the photograph. [ 11 ] The internet conversation carries on until March 10 th including a discussion about Vicky using pornographic photos and video sent to her on-line by Mr. Gardner to introduce Sarah to having sex. Mr.

Gardner tells Vicky during this discussion that he has shown adult porn before to children and says one child was eleven at the time. At one point, Vicky tells Mr. Gardner he seems like a nice guy causing him to say “other than wanting to ravage both you and your daughter”.

[ 12 ] In early March the conversation turns toward plans to meet at a White Spot restaurant in Burnaby for the purpose of the four of them participating in a sexual encounter. On March 8 th , Mr. Gardner discusses with Vicky his plan to greet Sarah by presenting her with a little girls’ gift (a plush toy) along with a big girls’ gift (a vibrator). He says he will tell Sarah the big girls’ gift is to make her feel good and he and Vicky talk about how to introduce the vibrator to the child. Mr.

Gardner also asks Vicky for hotel recommendations so he can have a place to stay when he drives down from the Okanagan to Burnaby for their get-together. [ 13 ] On March 10 th , Mr. Gardner emails Vicky telling her he is parked at the White Spot as agreed and at 9:55 am the police descend upon the site and arrest him in his truck. Upon his arrest, the police seize a number of items including: a cellular phone; two “My Little Pony” plush toys; a teddy bear holding a small vibrator; another vibrator; gel; roses; and hotel keys. A search warrant is obtained and a computer is seized from the hotel room Mr.

Gardner had rented. The electronic devices are later examined and the chat room correspondence referred to is located. [ 14 ] Crown counsel advised the chatting with Vicky was not an isolated matter and the computer search showed Mr. Gardner had initiated and engaged in conversations with other unknown persons from May 2015 until his arrest. Throughout this time Mr.

Gardner was bound by the terms of a s. 161 order prohibiting him from using a computer system to communicate with persons under the age of fourteen. [ 15 ] Crown counsel advised the court that the police were asked to locate and speak with any of the children, including Mr. Gardner’s relatives, who were identified as a result of this investigation to determine whether any improprieties had been committed. Crown counsel advised the court that no improper touching was disclosed but the now-adult daughter of a former girlfriend said Mr.

Gardner had watched her so that she felt uncomfortable and that he had fondled himself in her presence and asked her to put her head in his lap when he was wearing a bathrobe. Crown submitted this conduct spoke to Mr. Gardner’s long-standing sexualized behavior toward young children. Crown noted this information was not something the forensic psychologist was aware of when he conducted an assessment of the offender for this court. BREACH OF BAIL [ 16 ] Mr.

Gardner was released from custody on March 15 th , 2016 on bail terms including that he not have in his possession any wireless handheld devices from which the internet can be accessed and that he not access the internet at all. [ 17 ] As required by the bail order, Mr. Gardner reported to his bail supervisor on March 21 st and told him he was living in his truck. On March 24, the authorities visit the truck and observed an iPhone 6, a violation of the bail order. Mr.

Gardner was cautioned to get a phone which would be in compliance with his bail and he later produced a flip phone to meet that requirement. [ 18 ] On March 29 th , the police attended the home of Mr. Gardner’s mother in the Okanagan where he was then living. The police determined his mother had a computer with internet and Wi-Fi access and that Mr. Gardner had obtained yet another cell phone with internet and Wi-Fi capabilities. Mr.

Gardner told the authorities about his stroke in 2010 and offered that he did not understand his mother’s residence was unsuitable or there were problems with the computer being available, his phone, or a school being less than 100 meters away. Although the authorities were skeptical, they cautioned Mr. Gardner to arrange for another residence and to get a new phone. On March 31 st Mr. Gardner told his bail supervisor he was relocating to a shelter and had a new phone. [ 19 ] At approximately 11:00 pm on April 4, a police officer in Abbotsford checked Mr. Gardner upon finding his truck parked at a local mall.

The officer noticed a charging cable for an electronic device in the vehicle and asked Mr. Gardner about it and was told it was for his phone. The officer, however, checked and saw the cable did not fit the phone. When Mr. Gardner consented to a request to search his truck, the officer located a computer and noted the charging cord fit this device. The officer also noted the MacDonald’s restaurant in the area had free Wi-Fi available. [ 20 ] An examination of this computer revealed it had been connected to a server Mr. Gardner had used during this sex crimes investigation.

The computer had also been connected to the internet recently in that current weather information for Abbotsford had been downloaded, a violation of the terms of bail. The police also found 3000 images on the computer, two-thirds of which are said to be adult porn. The search also uncovered a sexualized internet conversation with “Rachel” Mr. Gardner had while out on bail. This person was not held out to be a child. PREVIOUS CRIMINAL HISTORY [ 21 ] In 2003, the police in Illinois created a 14 year-old female named Pam. Mr.

Gardner contacted the fictitious Pam on-line using the same screen name he used in the current offence and using the same or similar internet chat sites such as “Dad and Daughter Sex” and “Girl Sex.” Police investigation subsequently linked the IP address to a business computer located in Penticton. [ 22 ] On June 4, 2004, the police executed a search warrant and found Mr. Gardner alone at the business location. Five child pornography images were found on the work computer and forty-five images on a computer located at Mr. Gardner’s home.

Police also located in the residence graphic written child pornography depicting intercourse between a fifteen year old girl and an older male. The written material is a first person adult male account of him having an on-going sexual relationship with the female with full knowledge of a wife/mother, not unlike the offence before this court. [ 23 ] At the sentencing hearing on September 21, 2007, Mr. Gardner told the court the pornographic images were not made by him but were downloaded from the internet.

He provided letters of support from both his family and employer and said he had suffered considerable embarrassment as a result of the prosecution. He offered that he had been exploring and went too far and said he did not intend to ever be involved in anything in the future relating to child pornography. The court imposed a one year conditional sentence

followed by one year probation put forward as a joint submission. [ 24 ] Crown counsel advised the court that the probation officer who supervised the 2007 order identified as risk factors Mr. Gardner spending time alone and not having a social circle or network to assist him in the face of temptation. Mr. Gardner worked with a counsellor following his 2007 conviction and was noted initially to be resistant to treatment as well as being closed and minimizing of his conduct. The counsellor reported Mr. Gardner later expressed remorse and showed insight.

By March 2009 his counsellor described the offender as having made significant progress. REPORTS TO THE COURT AT SENTENCING [ 25 ] For the purpose of this sentencing hearing, Mr. Gardner met with Dr. Kropp, a psychologist with Adult Forensic Psychiatric Community Services, so that a psychological assessment could be prepared. [ 26 ] The report sets out that Mr. Gardner was raised in Grande Prairie and Edmonton. His father died in a car accident when the offender was nine years old.

Tragically, the offender was present in the vehicle when the accident took place and in the ambulance afterward when his father succumbed to his injuries. Mr. Gardner told the psychologist that just prior to his father’s death he had walked in on his teenage sister and saw her engaged in sexual activities in her bedroom with a female cousin. Mr. Gardner points to these two events as significant in his life. [ 27 ] Mr.

Gardner has a number of siblings but provided somewhat conflicting information on the status of his current relationships with them to the psychologist and the probation officer who prepared a pre-sentence report. The reports make clear that Mr. Gardner’s primary social support is with his elderly mother who resides in Okanagan Falls. [ 28 ] After graduating from high school, Mr. Gardner attended Olds College in Alberta where he studied agriculture. Later he studied architecture in a vocational program and worked as a draftsman for thirteen years using the skills he developed.

He lost his drafting job as a result of the use of the work computer relating to the previous offence. More recently, Mr. Gardner has worked as a long-haul driver. Mr. Gardner says he has grown tired of the isolation of that work and hopes to find employment driving locally when he is released from jail. [ 29 ] Mr. Gardner was married for eight years and has two children (fraternal twins) from that marriage. He told Dr. Kropp he has little contact with his children although he has sent each of them a letter informing them about his legal situation.

He has been single for over ten years and his last relationship was in 2003. During this relationship, the woman involved had two daughters, aged approximately six and eleven. [ 30 ] Mr. Gardner told Dr. Kropp he attended sex offender treatment for the 2007 conviction and said he thought at the time he had gotten a lot out of it and said he now guesses he did not and that he could probably use more treatment. Dr. Kropp reviewed the treatment file for the 2007 matter and noted Mr. Gardner attended one-on-one therapy with Dr. Cioe who observed: Although Mr.

Gardner was at first resistant to taking responsibility for the offence, he was quickly able to understand how his behavior could have affected an actual victim. He expressed deep remorse upon realization of the potential impact. He was very motivated to talking about his feelings and about his behavior and completed his homework fully and honestly. He is aware of the steps he needs to take in order to avoid future offending and has made significant changes and treatment gains. [ 31 ] Mr. Gardner told Dr. Kropp the fact he has gone on-line to “dad-daughter” sex chat lines is problematic.

He also told the doctor he now realizes he is attracted to adolescent and pubescent females but maintained he is not sexually attracted to pre-pubescent children adding “at least I don’t think I am”. Mr. Gardner denied to Dr. Kropp any unusual sexual interests but conceded he is confused about his attraction to children. Mr. Gardner conceded he intended to have sex with Sarah, the fictitious six-year old girl, and said “obviously there is something there… obviously I need help”. [ 32 ] Dr. Kropp found no signs of any significant mental health history or disorder in Mr. Gardner.

He noted the offender had a stroke about six years ago but stated he has not experienced significant cognitive problems as a result other than poor short term memory. He does have some medical issues related to the stroke including kidney problems and high blood pressure. [ 33 ] Dr. Kropp assessed Mr. Gardner as meeting the criteria for Pedophilic Disorder due to his history of having sexual fantasies involving prepubescent children, his attempt to act on such a fantasy, and his use of “dad-daughter” chat rooms and child pornography. Dr.

Kropp conducted a risk assessment and found the most important risk factors in Mr. Gardner’s case to be: (

a) his sexually deviant interests; (

b) his lack of self-awareness, or insight, into his motivation for the offense; (

c) his recidivism, despite completing past sex offender treatment; (

d) his isolation and lack of appropriate sexual outlets; and (

e) his violation of an Order of Prohibition not to engage in on-line sexual activity. [ 34 ] Dr. Kropp believes Mr. Gardner is a relatively good candidate for treatment in that he is motivated, reasonably intelligent, and he has participated well in the past. He notes Mr. Gardner’s interest in further treatment is a potentially mitigating factor but that past treatment was not successful in the long term and the current offences represent an escalation in the seriousness of his behaviour. Dr.

Kropp states there is evidence that sex offenders who engage in both child pornography and approach-behaviours have a higher probability of reoffending than pornography-only offenders. He concludes with the opinion that Mr. Gardner “represents a moderate to

high risk for sexual reoffending. I am concerned that his next offence could involve sexual contact with a child”. [ 35 ] The probation officer who prepared the pre-sentence report for this court spoke with the offender’s mother regarding his behavior. The mother told the officer when she collected her son’s personal effects from a storage locker she found numerous images of child pornography. She told the probation officer her son’s behavior has been many years in the making and he has struggled with “this” issue for many years.

She also expressed concern around her son’s lack of insight referencing that he would say “it’s just a few pictures, not a big deal”. [ 36 ] Mr. Gardner was unable to provide the probation officer with any information as to why he engaged in the offences before the court except to say he was lonely and he wanted to connect with the female he met on line. He referenced his lack of physical and emotional intimacy as contributing to his offending. Mr. Gardner told the probation officer he does not believe himself to be a pedophile but rather an opportunistic offender.

He told the author of the pre-sentence report: …he is unable to attribute his behaviours as being harmful and believes young females are more attractive than age appropriate females because they are not “loose and old”. He also states he did not see the risk in his offence, as he was simply conceding to the desires of the female participant through online dialog. [ 37 ] The probation officer found Mr. Gardner reluctant to discuss the sex offender treatment programming with him and noted the offender was unable to provide “any insight into his offending behaviors or any of his precursors to his criminogenic needs.

He presented ambivalent when asked about his willingness to comply with the terms of a community supervision order…” The probation officer found Mr. Gardner to have “very limited insight” into his offending and he said “it just happened” but he was unable to explain why except to offer he was acting from a place of loneliness.

The probation officer notes “there did not appear to be any sense of accountability for his actions and he was quick to deflect any responsibility in this matter.” [ 38 ] Crown counsel asked the court to compare the psychological and the pre-sentence reports and note some discrepancies in terms of what Mr. Gardner disclosed. It does appear the offender was more forthcoming with the psychologist than the probation officer and there is an element of impression management going on by him. Submissions made on behalf of Mr. Gardner [ 39 ] Counsel for Mr.

Gardner highlighted material set out in the pre-sentence and psychological reports including his positive work history and his compliance with the 2007 Conditional Sentence Order and probation and supervision orders. Regarding the discrepancies in the two reports, counsel for Mr. Gardner noted the offender experiences a great deal of embarrassment and finds it difficult to open up to others about his offending behavior, and that he developed a better rapport with Dr. Kropp. The court was asked to consider that Mr.

Gardner’s lack of insight into his offending behavior is not unlike other sex offenders and is perhaps not surprising given that professionals dealing with these offenders do not have a lot of understanding as to the cause of the disorder. [ 40 ] The court was told that before Mr. Gardner moved to the Okanagan to work as a draftsperson he had worked in his brother’s Alberta construction business for a number of years. In 2010 Mr. Gardner suffered a stroke and was in the hospital for six months.

After his release he followed an extensive path of rehabilitation for two years to regain much of his motor and speech functioning. He still has a limp and reduced use of his left arm, along with some short-term memory impairment. The diminished use of his left arm forced him to give up work drafting and to become a long-haul truck driver. [ 41 ] Although it was not vigorously pressed, the court was asked to consider that Mr. Gardner’s short-term memory impairment may be a factor in the lasting impact of the sex offender treatment Mr. Gardner took in 2008. The fact Mr.

Gardner did not re-offend between 2004 and 2016 was highlighted. Mr. Gardner said he began feeling depressed in 2015 and that he became quite isolated. These factors led him to entering the chat room where he met the fictitious Vicky. He acknowledged being aware that a chat room called “Dad - Daughter Sex” would not involve adult-only contact. [ 42 ] Counsel for Mr. Gardner provided the court with a three-page extract of a chat room conversation involving the offender and Vicky to show not all of the discussion was of a sexual or improper nature.

Indeed, some of the conversation is about mundane and normal events and experiences. The court was also asked to note that in all of the chat room material, Vicky is engaged and the sexual conversation involves both participants. Although the defence was careful to point out Mr. Gardner was not suggesting there was any element of entrapment, it was noted the undercover officer encouraged him to engage in conversation which was criminal in tone. [ 43 ] As well, counsel pointed out that the victims in this case were not real and thus no actual harm was caused.

It was submitted that this factor places this case along the spectrum of offending at a less serious point than some of the sentencing authorities the court was referred to. [ 44 ] Mr. Gardner also noted the eleven-plus months he has been in custody while this case has been outstanding has been a very big wake-up call for him and has provided an element of specific deterrence. He has been in a remand facility and has mostly been in segregation or isolation during his time there due to the nature of the offences. [ 45 ] Finally, Mr. Gardner addressed the court at the conclusion of the submissions of counsel. Mr.

Gardner apologized to the court, to the police officer, and to his own daughter for his “impulsive” actions. He acknowledged had matters gone further he could have severely hurt the child. He added he is repulsed by and truly sorry for his own conduct and said he appreciates he has a problem and an attraction and that he is more than willing to take programming and counselling. APPLICABLE CRIMINAL CODE PROVISIONS

[46]

Section 172.2(1)(

b) of the Criminal Code deals with the offence of making an agreement or arrangement involving a sexualoffence against a child (referred to as luring). The offence was first enacted in 2012. Subsection (5) states “it is not a defence to acharge under paragraph (1)(a), (

b) or (c): (

a) that the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of apeace officer; or (

b) that, if the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the directionof a peace officer, the person referred to in paragraph (1)(a), (

b) or (

c) did not exist. [47] Child pornography is defined under s. 163.1(1) of the Criminal Code to mean: …. (

b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age ofeighteen years that would be an offence under this Act; (

c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under theage of eighteen years that would be an offence under this Act; or …. [48]

Section 161 of the Criminal Code deals with prohibition orders which may be imposed when sentencing a person under s.172.2. The provision permits a court to prohibit an offender from doing certain things and going to certain locations as set out in thesection. The prohibition may be for life or for any shorter duration that the court considers desirable. [49]

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

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [50]

Section 718.01 states “when a court imposes a sentence for an offence that involved the abuse of a person under the age ofeighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” [51]

Section 718.1 sets out the fundamental principle of sentencing: “A sentence must be proportionate to the gravity of the offenceand the degree of responsibility of the offender.” [52]

Section 718.2 directs sentencing courts to take into account additional sentencing principles and provides that where, in thecommission of an offence, the offender abused a person under the age of eighteen years, it shall be deemed to be an aggravatingcircumstance.

Section 718.2(

b) and (

c) state: (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; [53]

Section 718.3(7) provides additional direction to sentencing courts: When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct (

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

section 163.1 be served consecutively to a sentence of imprisonmentit imposes for a sexual offence under another

section of this Act committed against a child;… APPLICABLE CASE LAW [54] Both counsel provided the court with extensive case law to assist in crafting an appropriate sentence in this case. I thank counselfor their helpful submissions in this matter. Although I may not refer to all of the cases provided, I have considered them all. [55] In R. v. Allen, 2012 BCCA 377 , [2012] BCJ 1945, Justice Ryan reviewed a number of sentencing cases dealing with

child pornography and observed there was little guidance to be taken from them (due to the disparate facts involved) in terms of adiscernible sentencing range. Accordingly, Justice Ryan noted courts must look to the principles which govern sentencing to determinethe proper sentence in these types of cases. The court noted the objective of denunciation is to be given primary importance and sheadopted the following passage on point by Lamer, CJC in R. v. C.A.M. (@ paragraph 59): Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation.

Retribution requires that a judicialsentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App.

R. 74, at p.77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can showthis is by the sentences they pass". The relevance of both retribution and denunciation as goals of sentencing underscores that ourcriminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasingthe cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values.

A sentence whichexpresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negativeconsequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set ofcommunal values shared by all Canadians as expressed by the Criminal Code. [emphasis in original] [56] The Court of Appeal went on to observe (@ paragraph 60): Parliament has made it very clear that the protection of children is a basic value of Canadian society which the courts must defend.

It hasdone this by creating a minimum sentence of imprisonment for the distribution of child pornography (s. 163.1(3)(a)) and by requiringthat offences that involve the abuse of persons under 18 years of age be both an aggravating factor in sentencing and the subject of asentence which primarily addresses denunciation and deterrence (ss. 718.2 and 718.01). Thus the sentence imposed on Mr. Allen oughtto have communicated society's condemnation of his conduct.

It ought to have been one which represented a symbolic, collectivestatement that the offender's conduct "should be punished for encroaching on our society's basic code of values as enshrined within oursubstantive criminal law". [57] In R. v.

Sharpe, 2001 SCC 2 , [2001] SCJ 3, Chief Justice McLachlin commented on the harm caused by possession ofchild pornography (@ paragraph 86): The Crown argues that prohibiting possession of child pornography is linked to reducing the sexual abuse of children in five ways: (1)child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders; (3) prohibiting its possession assists lawenforcement efforts to reduce the production, distribution and use that result in direct harm to children; (4) it is used for grooming andseducing victims; and (5) some child pornography is produced using real children. [58] The Court elaborated on the harm caused by cognitive distortions (@ paragraph 87): The first alleged harm concerns cognitive distortions.

The Crown argues that child pornography may change possessors' attitudes inways that makes them more likely to sexually abuse children. People may come to see sexual relations with children as normal and evenbeneficial. Moral inhibitions may be weakened. People who would not otherwise abuse children may consequently do so. Banning thepossession of child pornography, asserts the Crown, will reduce these cognitive distortions. [59] In R. v. DCM, [2015] OJ 6231 (Ont.

CJ), Justice McGowan also considered the harmful effects of the sexual abuse of children(@ paragraphs 35 and 36): In considering the fundamental principle of proportionality all of the other principles come into play. In dealing with cases involving theabuse of children, whether through assaultive behaviour or possession and distribution of pornography, the overriding consideration isgeneral deterrence and the protection of vulnerable children.

Weighing the degree of responsibility of the offender must be clearlyassessed against society's view that the abuse of innocent children, and in particular the sexual abuse and exploitation of children, causesgrievous harm and must result in grave consequences. In R. v. D., supra, Moldaver J. (as he then was) noted that society is much more knowledgeable concerning the harmful effects of sexualabuse on children and the need to protect innocent children from these effects. The need to deter offenders and denounce such conductmust be given precedence over other considerations.

It follows then that in considering proportionality as the fundamental principle thedegree of responsibility thrust on the offender is heightened. It is not sufficient to claim that paraphilia is an excuse or that one's ownvictimization is somehow the cause of the conduct. I don't mean to say that considerations such as these should be excluded from aproper assessment of the offender's degree of responsibility, but they take on less significance when weighed against society's perceptionof the gravamen of the offences. [60] In R. v.

Paradee, 2013 ABCA 41 , [2013] AJ 75, the Alberta Court of Appeal considered the appropriate sentence forthe offence of using the internet to lure a teenager to commit a sexual act. The court described the purpose behind criminalizing thebehavior and the harms caused by the conduct (@ paragraphs 11 and 12):

Section 172.1 makes it an offence to communicate with an underage person for the purpose of facilitating the commission of any one of anumber of sexual offences, including accessing child pornography. The Supreme Court of Canada has described internet luring as apreparatory crime that "criminalizes conduct that precedes the commission of the sexual offences to which it refers", in order to "closethe cyberspace door before the predator gets in to prey": R. v. Legare, 2009 SCC 56, [2009] 3 SCR 551 at para 25.

The purpose ofcriminalizing the conduct of luring is to protect children, who are by definition vulnerable members of society and are particularlyvulnerable to exploitation by potential predators through the use of internet communications…

Luring is dangerous and, as the Crown points out, serious. It involves pre-meditated conduct specifically designed to engage an underageperson in a relationship with the offender, with the goal of reducing the inhibitions of the young person so that he or she will be preparedto engage in further conduct that is not only criminal but extremely harmful. Parliament has recognized that the internet has infinitelyexpanded the opportunity for predators to attract or ensnare children.

The anonymity of the internet allows the predator to hide his or hertrue identity, to mask predatory behaviours through seemingly innocuous but persistent communication, and to count on the victimsletting their guard down because the communication occurs in the privacy and supposed safety of their own homes. A proportionatesentence for internet luring must recognize the serious nature of this offence. [61] In R. v.

Alicandro, 2009 ONCA 133 , [2009] OJ 571, the Ontario Court of Appeal reviewed a matter involving anoffender who had used a computer chat room to strike up an on-line conversation with a detective posing as a young girl. JusticeDoherty made a helpful observation regarding how the crime of luring is policed (@ paragraph 38): …A review of the case law demonstrates that police officers posing as young persons is almost the exclusive manner in which thisprovision is enforced. This is hardly surprising. Children cannot be expected to police the Internet.

The state is charged with theresponsibility of protecting its children. That responsibility requires not only that the appropriate laws be passed, but that those laws beenforced… [62] In R. v. Levin, [2015] OJ 2768, Justice McArthur sentenced a well-known and respected educator with no criminal history tothree years’ imprisonment for possessing and making child pornography and counselling sexual assault. Part of the criminal behaviourinvolved Mr. Levin joining an internet group where he counselled other users about having sex with their children.

Justice McArthursaid the following about this conduct (@ paragraphs 16, 73 and 75): …Mr. Levin knew that he might be wrong; the woman he was chatting with could, in fact, be a mother who was sexually interested inher eight-year-old daughter. …Mr. Levin displayed a conscious disregard of the substantial and unjustified risk inherent in hiscounselling of the 'mother' to sexually assault her child. He knowingly counselled the 'mother' to sexually assault her daughter whileaware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of his conduct.

There are a number of aggravating factors as well. Mr. Levin counselled someone posing as a mother to sexually violate her daughter. In so doing, he "urged the destruction of one of our society's core values: the trust between parent and child and the expectation that theparent will protect the child from harm". (R. v. Fisher, supra, at para. 17) Mr. Levin encouraged her to disregard her feelings of guilt andhesitation at hurting her own child and instead counselled her to do "whatever feels good to you". Mr. Levin's counselling to commit sexual assault was not impulsive or isolated.

For several weeks he encouraged a mother to abuse heryoung child. When the 'mother' reported back that she had abused her daughter as directed, Mr. Levin at no time stopped to say, "Whatare you talking about? This is all just a fantasy, right?" Instead, there was a back and forth, as Mr. Levin took on a role as a deviantmentor, suggesting that the mother commit yet more invasive and disturbing assaults. [63] In R. v.

Reynard, [2015] BCJ 2426, the Court of Appeal reviewed a sentence imposed on an offender found in possession of avast collection of child pornography “of the worst sort” along with other sexual offences involving children including luring. JusticeNewbury stated that the offence of luring (under s. 172.1(1)(b)) seeks to protect children from predatory adults who use the anonymity ofthe internet to entice them into sexual activities (@ paragraph 19). The Court held “…that different societal interests are sought to beprotected by each of the offences with which Mr.

Reynard was charged and that it was appropriate for the court below to pronounceconsecutive sentences on the three charges” (@ paragraph 20). [64] In R. v. Campbell, [2017] NJ 1, Judge Gorman dealt with the sentencing of an offender for sexual offences involving children andfor breaching his bail. The court commented on the s. 145 offence at paragraph 42: In this case, the breach of undertaking which occurred is particularly serious. It is because though charged with serious sexual offencesagainst children, Mr.

Campbell was released on an undertaking designed to protect children from him by limiting his Internet access. Herefused to comply with this requirement. [65] Finally, regarding one of the ancillary orders sought by the crown, in R. v. K.R.J., 2016 SCC 31 , [2016] SCJ 31, thecourt considered the use of a prohibition order under s. 161 of the Code (@ paragraph 72): The amendments were enacted within the context of a highly discretionary provision that is tailored to its objective.

Prohibitions listed ins. 161(1) are to be imposed only when a judge is satisfied that the specific offender poses a continued risk to children upon his releaseinto the community and that the specific terms of the order are a reasonable attempt to minimize the risk… POSITIONS OF COUNSEL [66] The crown says denunciation and deterrence are the primary sentencing principles in determining a fit disposition for Mr.Gardner. The Crown highlighted a number of aggravating circumstances and submitted that the guilty pleas were the only significantmitigating factor. The Crown agreed Mr.

Gardner should be credited one-and-a-half times for the period he has been in custody since his arrest on the breach on April 4th, 2016. [67] Crown counsel noted the minimum penalty for making child pornography increased in 2015 to one year and the maximum wentfrom ten to fourteen years. Similarly, the offence of luring, which became a crime in 2012, now has the same minimum and maximumsentence. Crown submitted an appropriate global sentence in this case would be three and a half years in jail.

Taking into account timeserved, the Crown submits a fit sentence would be a further two years in jail combined with three years’ probation in order to have themaximum amount of oversight of Mr. Gardner that can be achieved in the circumstances. Although the Crown recognizes Mr. Gardnerhas not been compliant with bail, he did not breach his CSO or probation and there is some benefit to be had in monitoring him upon hisrelease into the community. A number of ancillary orders are also sought which are mostly uncontentious.

[68] The Crown also made submissions on the availability of sex offender treatment in the provincial and federal correctional services. Crown submitted the federal system, which would attach to a sentence of two years or more in jail, is best able to accommodate Mr. Gardner and would ensure he starts programming as soon as he begins his jail sentence. The Crown also told the court that eligibility requirements for the provincial jail system could mean Mr.

Gardner might not be enrolled in sex offender treatment or that he has to wait before he is accepted and space becomes available. [69] Defence counsel highlighted a number of background circumstances on behalf of Mr. Gardner and also submitted Mr. Gardner is very amenable to treatment and realizes he has a problem to deal with. Counsel agreed denunciation and deterrence are the paramount principles of sentencing in this case but submitted other principles are still involved. The court was asked to bear in mind the principles of parity and restraint and, in light of Mr.

Gardner’s willingness to engage in any form of treatment imposed, to not lose sight of his rehabilitation. [70] Counsel on behalf of the offender asked the court to carefully assess the circumstances in the case at bar in an effort to place the offending behavior along a spectrum relative to other sentencing cases. In sum, defence submitted a three month sentence on the breach and something at or near the minimum one year sentences mandated for both of the substantive offences would be fit. With that in mind, counsel for Mr.

Gardner submits a fit disposition would be a total sentence in the range of 24 to 27 months. It was submitted a federal penitentiary term is not necessary and that Mr. Gardner can continue to access any programming in the community when he is released. After crediting Mr. Gardner with the time he has served (as enhanced), the court was invited to impose a further period of 7.5 to 10 months in custody followed by a significant period of probation. Defence counsel did not take issue with the sentences imposed being consecutive but asked the court to also bear in mind the totality of the sentence.

ANALYSIS [71] In R. v. Murphy , [2014] AJ 1338 , the Alberta Court of Appeal set out a helpful analytical framework to be used by judges in determining a fit sentence (@ paragraphs 29-56). Firstly, the court is to ascertain whether Parliament has declared in the Criminal Code the start and end points; in other words, are there minimum and maximum sentences for the offence. Secondly, the court should examine the physical and mental elements of the offence in question in order to assess its level of gravity or egregiousness. Thirdly, in accordance with s. 718.2 (

a) of the Criminal Code , a judge must consider the aggravating factors involved in the offence and the offender. Fourth, the court must determine whether there are any mitigating factors relating to the offender or the offence. Finally, the court must consider whether the objectives set out in s. 718 or the principles in s. 718.2 require further adjustments be made to the sanction being considered. [72] The offences of luring and child pornography both have mandatory minimum one year sentences and attract a maximum punishment of fourteen years in prison.

The minimum and maximum sentences for both offences were re-visited by Parliament in 2015 and the penalties were increased. I take from those increases the public’s on-going concern about this abhorrent behaviour and that periods of imprisonment are thought to be important means by which to deter people from committing these crimes. As well, the mandatory periods of imprisonment reflect the need to isolate these offenders from society for a period of time.

The s. 145(3) offence does not have a minimum sentence and is subject to a maximum of six months in custody when prosecuted summarily. [73] Regarding the subject matter of the two substantive offences, I find the conduct prohibited under the Criminal Code for both crimes has a high degree of moral blameworthiness. The conduct involved in the luring offence is serious because it presented a high risk of causing both physical and mental harm to the potential child victims. Mr.

Gardner’s written pornography make clear that the child “Sarah” would feel pain which he was prepared to accept or ignore for his own momentary sexual pleasure. [74] I find there to be a number of aggravating circumstances in this case. I am cautious in considering these factors so not to count them twice against Mr. Gardner and repeat them here by way of a

summary and for ease of reference: • Mr. Gardner’s related criminal record. • His profound lack of insight into his offending behaviour despite the fact he told the undercover officer (Vicky) that his previous conviction messed up his life for ten years. I am mindful of the need to temper the weight put on this factor given that even the professionals who deal with offenders like Mr. Gardner struggle to objectively determine the cause for this type of criminality and how to treat it. • The fact the material Mr.

Gardner wrote in 2004 foreshadowed his offending behavior this time suggests his pedophilic thinking patterns are well-entrenched. • His criminal behaviour has escalated from his earlier conviction. • The current offences were planned and deliberate and occurred over a one month period. • The fictional victims in this case were young children, ages six and ten.

• Mr. Gardner encouraged a mother to breach the sacred trust she had with her children by encouraging her to corrupt them and expose them to highly inappropriate sexual behaviour that would likely scar them for life. • The offender has shown he is unable to abide by court orders and a willingness to be manipulative to circumvent efforts to monitor his conduct in the community. He breached his bail not long after his initial release when one would have expected him to be hyper- vigilant about the need to comply.

This speaks to the strength of his internet addiction and the need to address this criminogenic factor in the sentence imposed. [75] The key mitigating factor in this case is the guilty pleas which have been entered in a timely way. Although there is some discrepancy between what the offender told Dr. Kropp and what he told the probation officer, I find he was reasonably cooperative in the preparation of the two reports for the sentencing. While Mr.

Gardner expressed his remorse to the court and said he was willing to participate in treatment, his comments in this regard are to be tempered with his long-standing sexual interest in children and the fact he re-offended after taking sex offender treatment. [76] Finally, in terms of the analytical framework to be applied, I am mindful of the provisions of the Criminal Code relating to sex offences involving children as set out in

section 718 (and the sections which follow). [77] Other courts who have sentenced individuals for the offences of luring and child pornography have observed it is particularly difficult to identify sentencing ranges. That is likely due to the fact the criminal conduct involved can cover a vast spectrum compared to other criminal offences (for example, commercial break and entries). As well, each offender presents with unique backgrounds, and, perhaps more unique to child sex offences, presents a different risk to re-offend.

Thus while I have considered all of the cases both counsel provided to this court with a view to trying to place Mr. Gardner’s offences in context in order to craft a fit disposition, ultimately I find the task is very much a case-specific one. [78] Regarding the offence of internet luring contrary to s. 172.1(1)(b), I find the circumstances in this case were more serious than some of the other cases courts have dealt with in that the crime involved two fictitious children one of whom was quite young. The grooming involved the despicable plan by Mr.

Gardner to convince the mother to breach the sacred trust she had with her children so that he could ultimately be the beneficiary of direct physical gratification from the children. Despite the fact Mr. Gardner told the probation officer the offences just happened, clearly they were planned out and carefully considered. [79] While the offence involved fictitious children, Mr. Gardner thought they were real given he went to the trouble of driving from the Okanagan to Vancouver where he rented a hotel room and planned to meet the three people at the White Spot.

The fact the police found a sex toy attached to a teddy bear in his truck is a troubling indicator of the cognitive distortions employed by him. [80] However, I am also mindful the luring offence was not as prolonged as in other cases counsel referred the court to and there were not multiple families victimized. As well, absent in Mr. Gardner’s case are some of the more manipulative or abusive behaviours used by other offenders to obtain compliance by victims in order to satisfy the sexual wishes of the perpetrators.

I note that most of the sentencing cases referred to involved guilty pleas and the imposition of one to three years in custody. [81] I find the aggravating circumstances of this offender, especially his related criminal record, merits a sentence above the mandatory minimum for both substantive offences. However, I do not find the facts in this case severe enough to warrant the imposition of a sentence much greater than the low end of the sentencing range. [82] Regarding the child pornography offence, I find the writing of Mr.

Gardner very disturbing in that it graphically details the introduction of sexual intercourse to a six year old girl in a way that will clearly cause her pain so that the adults can receive sexual gratification. The written materials, in my view, are highly offensive and in that sense serious in terms of assessing their criminality for the purposes of placing them along a spectrum for sentencing purposes. [83] But for the guilty pleas and Mr.

Gardner’s willingness to participate in sex offender treatment, I would have found the luring and child pornography offences should have resulted in two years imprisonment on each count consecutive. However, I find these two factors are significant enough to temper the jail sentence and also note the benefit of an extended period of community supervision to be obtained through probation. [84] I calculate the credit to be given to Mr.

Gardner for the time served on these matters prior to sentencing to be 21 days shy of an entire year (i.e. 344 days) plus a further 4 days’ credit for the time he spent in custody following his arrest on March 10 th before bail was granted. Accordingly, Mr. Gardner is credited with 348 days’ time served enhanced for a total of 522 days or 17.4 months. I credit him 8.4 months of that time against the child pornography offence and 9 months on the luring charge.

I order he serve 10 more months in custody on each count consecutive. [85] Regarding the breach charge, relative to other breach offences, proceeded summarily, it is very serious. Mr. Gardner was flagrantly in violation of a bail condition going to the heart of his criminal behaviour. He was manipulative of the authorities by his efforts to cover up his conduct. It will attract a jail sentence of three months in custody which I direct be served consecutive to the other two sentences. [86] In

summary, he is ordered to serve 23 more months in custody after taking into consideration and in addition to the enhanced time serve credit of 17.4 months for an effective total sentence of 40.4 months in custody. In addition to the jail sentence, the following will apply: Ancillary Orders

Probation [87] There will be a three year probation order on the two substantive offences (to run concurrently) mostly in the terms as put forward by crown, namely: 1) Report forthwith upon your release from custody to a probation officer and report thereafter as and when directed, but no less than once a week in person unless you have obtained the prior written approval of your probation officer to report by some other means for the specific purpose of maintaining your employment. 2) Reside in a place approved of by your probation officer, and do not change that residence without the prior written permission of the probation officer. 3) Provide your residential address to your probation officer. 4) Attend at the door of your residence and allow access to your residence as and when directed by a probation officer, or any person acting on behalf of the BC Corrections Branch to ensure compliance with the terms of this order. 5) Attend, participate in and complete to the satisfaction of your probation officer any individual and/or group counselling/therapy/programming as directed by your probation officer, including but not limited to counselling/therapy/programming for sexual offenders. 6) Attend, participate in and complete any psychiatric or psychological assessments, counselling, treatments or educational programming as directed by your probation officer. 7) Do not possess or own any computer or other device, including but not limited to a cellular phone, that can access the internet, except as allowed by condition 8. 8) Do no use any computer or other device, including but not limited to a cellular phone, that can access the internet, except that you may use a computer or device of a third party, who has been approved of in writing and in advance by your probation officer, and only under the direct supervision of that approved third party, and only for the purposes of seeking or maintaining employment or for correspondence with your family. 9) Do not have any contact with any persons under the age of 16 years, including communication by any means. 10) Do not engage in any activities and/or employment and/or volunteer work that would bring you into contact with children under the age of 16 years, without the prior written authorization of your probation officer. 11) Do not attend to any public park, school ground, daycare centre, swimming pool, playground, skating rink, community centre or recreation centre where persons under the age of 16 are present or might reasonably be expected to be present, without the prior written authorization of your probation officer.

Victim Fine Surcharges [88] $200 on each of the substantive offences and $100 on the breach for a total of $500. Mr. Gardner has not been employed for over a year and is not going to be employable until he has completed his jail sentence. In the circumstances, I direct the surcharges be payable forthwith and that any default time imposed be served concurrently to his 23 month jail sentence. DNA [89]

Section 172.1 is a primary designated offence and thus

section 487.051(1) of the Criminal Code applies mandating a DNA order in this case. An order will go accordingly. The Sex Offender Information Registration Act [90] Sections 172.1 and 163.1 of the Criminal Code are "designated offences" pursuant to

section 490.011 (

a) of the Criminal Code . Thus an order must be imposed pursuant to

section 490.013 of the Criminal Code for life. I have signed the draft order in the form provided by the crown. Forfeiture [91] The items seized from Mr. Gardner are forfeited to the Crown. I have signed the draft order (as amended) provided by the Crown. Estreatment [92] When Mr. Gardner was released on bail initially, he was required to post $1,000 cash in accordance with the terms of his recognizance. The Crown indicated an intention to make an application to estreat the money posted in light of Mr. Gardner’s guilty plea to breaching his bail.

Counsel have advised the court they are in agreement that $500 of the $1,000 should be estreated to her Majesty the Queen and the other half returned to the offender without the need to proceed to an estreatment hearing. Accordingly, an order will go in those terms.

Section 161 Order [93] In this case, Mr. Gardner has been convicted of offences involving child pornography and sexual luring. The circumstances of the offences and his prior record indicate Mr. Gardner constitutes a significant danger to children and that his contact with children should be limited. I also conclude this is one of those rare cases in which an almost total ban on Internet access is required. Accordingly Mr. Gardner is hereby prohibited for life from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) having any contact -- including communicating by any means -- with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; and (

d) using the Internet or other digital network, unless he does so for the purposes of counselling or employment purposes and only if on such occasions he is in the presence of a person from whom he is seeking counselling or by whom he is employed. ____________________________ The Honourable Judge N.N. Phillips Provincial Court of British Columbia CORRIGENDUM – Released March 15, 2017 In my Reasons for Sentence dated March 14, 2017, the following changes have been made: [1] On the cover sheet, Counsel for the Defendant “M. Fingus” should be “M.

Fingas”. [2] On page 5, at paragraph 16, the date should be March 15 th , 2016. The sentence should now read as follows: [16] Mr. Gardner was released from custody on March 15 th , 2016 on bail terms including that he not have in his possession any wireless handheld devices from which the internet can be accessed and that he not access the internet at all. [3] On page 31, at paragraph 88, first sentence, the total Victim Fine Surcharges are $500.

The sentence should now read as follows: [88] $200 on each of the substantive offences and $100 on the breach for a total of $500. [4] On page 32, at paragraph 93, the name should be changed from Mr. Campbell to Mr. Gardner, and in the first sentence, the offence of sexual interference should be deleted and replaced with luring. The paragraph should now read as follows: [93] In this case, Mr. Gardner has been convicted of offences involving child pornography and sexual luring. The circumstances of the offences and his prior record indicate Mr.

Gardner constitutes a significant danger to children and that his contact with children should be limited. I also conclude this is one of those rare cases in which an almost total ban on Internet access is required. Accordingly Mr. Gardner is hereby prohibited for life from:…