Her Majesty the Queen ) D. Buors ) for the Crown ) v. ), 2018 MBPC 44

Citation: 2018 MBPC 44 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) D. Buors ) for the Crown ) and ) ) ) S. Newman Chowdhury Khalid Dastagir ) for the Accused ) ) ) Reasons for Decision delivered: ) November 6, 2018 Restriction on publication: By court order under s. 486.4(1) (

a) of the Criminal Code , any information that could identify the complainant/witness shall not be published in any document or broadcast or transmitted in any way. MARTIN, P. J. INTRODUCTION [ 1 ] Chowdhury Dastagir has pleaded guilty to one count of voyeurism contrary to s. 162 of the Criminal Code . The issue for this Court is the appropriate sentence as well as the available ancillary orders when the Crown proceeds by

summary conviction. [ 2 ] The Crown submits the Court should impose a custodial sentence in the range of three to four months with supervised probation, arguing that denunciation and deterrence are paramount sentencing principles given the gravity of the offence, the manner in which it was committed and Dastagir’s high moral blameworthiness. She also points to the significant impact to the victim and the need for offenders such as Dastagir to be separated from society where sexual offender rehabilitation can take place in a locked facility. The Crown also seeks several ancillary orders:

i) a Sexual Offenders Registry Act (SOIRA) order pursuant to s. 490.11 of the Code; ii) a DNA order pursuant to s. 487.051 of the Code ; iii) a weapons prohibition pursuant to s. 110 of the Code ; and iv) a restitution order pursuant to s. 737 of the Code. [ 3 ] Defence counsel submits that while denunciation and deterrence are important sentencing principles, proportionality and parity militate in favour of a conditional discharge.

He points to the facts of this particular case, the lack of prior or subsequent criminal involvement by Dastagir, as well as the consequences these proceedings have had to his employment and could have to his immigration status under the Immigration and Refugee Protection Act , S.C. 2001, c. 27. He further submits that there is no basis for the Court to order any of the ancillary orders the Crown seeks. FACTS [ 4 ] Dastagir is a 33 year old permanent resident from Bangladesh.

He came to Canada to further his studies in computer engineering, eventually abandoning those studies due to their prohibitive cost, taking instead a business administration diploma. These latter studies led to full-time employment in the banking industry which he has recently lost. [ 5 ] He comes before the Court without a prior record and without any further involvement since this offence. [ 6 ] In 2015, the victim, her boyfriend and his brother began renting the basement of the house Dastagir shared with his wife and young son. During this time, Dastagir and his wife were having marital problems.

They are now separated and divorce proceedings are

anticipated, if not commenced. [ 7 ] Sometime around March, 2017 the victim noticed that when she was in the downstairs bathroom, Dastagir would come downstairs. Finding the timing of his attendance suspicious, she talked to her roommates about it and they confronted Dastagir who passed it off as simply a need to do laundry in the room next to the downstairs bathroom. [ 8 ] It was not until July 12, 2017 that the victim and her roommates investigated further and noticed a small hole in the wall separating the bathroom from the laundry room.

The hole allowed someone standing in the laundry room to observe inside the bathroom, including the toilet and shower. Upon discovering the hole, they filled it in with dryer lint and silicone and then placed a hidden cell phone in the laundry room to surreptitiously record Dastagir’s actions. [ 9 ] On July 13, 2017 the victim went to the bathroom as usual and Dastagir attended downstairs to the laundry room.

The hidden cell phone captured Dastagir operating the dryer then attending to the hole in the wall to look into the bathroom. [ 10 ] There is no evidence as to the first time Dastagir began watching the victim or the exact number of times. However, once caught and arrested by police, Dastagir readily admitted to his offending behaviour. He explained that it was by pure happenstance that he noticed a hole in the wall and looked to see where it was coming from only to notice he could see into the bathroom and observe the victim.

He admitted that since discovering the hole, he would watch her occasionally, sometimes two to three times in a row, sometimes not for a month. He never saw her fully naked but he admitted to touching his penis on occasion, denying however that he ever masturbated. The evidence garnered by the police during a search of his home supported his denial. [ 11 ] Dastagir has apologized for his actions and expressed remorse. He says that the anxiety caused by his personal circumstances at the time, including his marital situation and young son’s developmental issues, caused him to ‘need something’.

He knows however, and knew at the time, that what he was doing was wrong but did not stop until arrested by the police. [ 12 ] A risk assessment of Dastagir completed by Dr. Somers opines that he presents as a low risk of engaging in violent or sexual offending. In addition to interviewing Dastagir, his father, and the therapist who he is seeing for general counselling, Dr. Somers was provided with much of the disclosure, including the police report, video of Dastagir captured by the tenants’ cell phone and his inculpatory statement to the police. Dr.

Somers did not find any evidence of underlying clinical psychopathology. He opines that Dastagir presents as an individual who is not psychologically in tune with his own emotional issues experiences, tending instead to conform to his understanding of what others expectations of him are, seeking social approval and commendation. In other words, he presents with limited insight into his thoughts and behaviour. He notes that Dastagir is open to treatment and has in fact sought that out in terms of general counselling, something that Dr. Somers believes could benefit him. [ 13 ] Dr.

Somers also states that Dastagir impresses compellingly as being invested in maintaining a healthy lifestyle with distinct goals and values and aspiring to conventional and pro-social personal, familial and vocational goals. He did not present as being grossly impulsive, aggressive, emotionally callous, or grossly lacking capacity for empathy. [ 14 ] Overall, Dr. Somers concludes: While anxious and, as such, somewhat emotionally guarded during the assessment process, Mr.

Dastagir presents without intellectual barriers to the development of insight and of accurate empathy, and he presents as being both intrinsically inclined and externally motivated (maintaining an accurate awareness of the penalties that could be imposed by the Court with the incidence of any future transgression) to make positive, healthy choices for himself, with consideration given to long-term consequences. He reportedly maintains appropriate personal support systems in the community. Mr.

Dastagir’s score on the Static-99R suggests that counselling likely would be of benefit to him, even while his risk of engaging in offending behaviour is appraised as being low. VICTIM IMPACT [ 15 ] The impact of this offence on the victim has been significant. Immediately after July 13, 2017 she needed to move out and find another place to rent which resulted in her missing time from work and school. She also suffered emotionally, feeling anger and fear at thoughts that Dastagir might have taken images of her that he could disseminate on social media or physically harm her.

This emotional and psychological harm continues to this day. SENTENCING PRINCIPLES [ 16 ] The purpose, objectives, and principles of sentencing are set out in s. 718 and following of the Code . Briefly, these sections require a court to consider and weigh the circumstances of the offence and the offender so as to arrive at a proportionate sentence that takes into consideration the aggravating and mitigating factors as well as parity, keeping in mind that parity is secondary to proportionality. ( R. v.

Lacasse, 2015 SCC 64 at paras. 53-54 ). [ 17 ] As noted in Lacasse at para. 1 : Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code , R.S.C. 1985, c. C-46, and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.

VOYEURISM [ 18 ] The offence of voyeurism is set out in s. 162(1) of the Code:

Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if (

a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (

b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or (

c) the observation or recording is done for a sexual purpose. [ 19 ] Voyeurism is a hybrid offence. As the Crown proceeded by way of

summary conviction, the maximum sentence is six months of custody. All forms of sentence are available, including a conditional discharge. [ 20 ] The offence of voyeurism is found in

Part V of the Code dealing with sexual offences. It is an offence that affects the sexual and privacy interests of the victim. ( See: R. v. McFarlane, 2018 MBCA 48 at para. 25 ) As noted by the Ontario Court of Appeal in R. v. Jarvis, 2017 ONCA 778 at paras. 26-29 : The offence has a number of components and requirements. It can be committed in two ways, one by observation and the other by visual recording. Although both ways of committing the offence are contained in the same section, the consequences of recording versus just observing another person can be much more pernicious.

A recording can be shared with one or more other people, thereby significantly increasing the breach of privacy and indignity to the victim. Most seriously, a recording can be posted in numerous ways on the internet, including on pornography sites, for profit or even for blackmail. As a result, the scope of the harm from recording can be extreme. To criminalize this harm specifically, Parliament created a separate offence, found in s. 162(4), which prohibits the printing, publishing, and distributing of voyeuristic recordings.

To come within the voyeurism offence, the observation or recording must be done surreptitiously. Also the person who is observed or recorded must be in circumstances that give rise to a reasonable expectation of privacy. There are then three alternative elements that further delimit or define the offence. All three indicate that it is the sexual integrity of the victim that is intended to be protected.

The first focuses on the location of the victim: the offence occurs when the victim is in a place where a person can reasonably be expected to be nude, to expose their genitals, breasts or anal region, or be engaging in sexual activity. The second focuses on what the victim is doing: the offence occurs if the victim is nude or is engaging in sexual activity and the purpose of the perpetrator is to observe or record the nudity or the sexual activity. The third element is not circumscribed by the victim's location, his or her state of undress, or sexual activity.

The offence is committed if the observation or recording is done for a sexual purpose. Of course, all these elements are governed by the overall requirement that the person observed or recorded must be in circumstances that give rise to a reasonable expectation of privacy. [ 21 ] There is a range of sentences for the offence of voyeurism given the different manners in which the offence can occur and the broad spectrum of seriousness of offending. Counsel only provided two cases to the Court, R. v. Brandt, 2013 MBPC 39 (provided by defence counsel) and R. v. Cassels, 2013 MBPC 47 (provided by the Crown) .

Brandt surveys the case law on lower end voyeurism offending, observing that community-based dispositions appear to be the norm, ranging from conditional discharges to conditional sentence orders. R. v. Muggridge, 2015 NLPC 1314 A00585 which considers the Brandt decision makes similar observations. The cases reviewed in these two decisions follow: Cases where a conditional discharge was imposed • R. v. C. (R.) , 2010 BCPC 475 : The accused videotaped his 13 year old granddaughter. In that case, the accused had been sexually abused as a teenager.

He had undergone counseling and was determined to be a very low risk for sexual recidivism. He had no criminal record and had begun counseling to address his behaviour. It is unknown how the Crown proceeded. The court noted that denunciation and protection of the public were important factors. Despite noting these paramount factors and the relationship of trust with his granddaughter, the court granted a conditional discharge for a period of three years. • R. v. Pan , 2012 ABPC 203 : The accused was caught videotaping a sexual encounter between his roommate and his roommate’s girlfriend.

The Crown proceeded summarily. The court found that the circumstances of that particular offence were at the low end of the spectrum of voyeurism offences. It noted his very early guilty plea and remorse and his lack of criminal record and sentenced the accused to a conditional discharge accompanied with 18 months of supervised probation. Cases where a suspended sentence was imposed • R v. N. (J.H.), 2010 BCPC 155 : A 32 year old accused with no prior criminal record repeatedly watched two young girls, aged 15 and 18, while they were at home, over a period of five months.

On one occasion he trespassed on their property and climbed onto the roof. The Crown proceeded summarily. The court found that denunciation and protection of the public were the paramount principles and sentenced the accused to a one year suspended sentence. • R. v. Grice , 2008 ONCJ 476 : The accused surreptitiously filmed his estranged wife while she was in the shower. The Crown proceeding summarily. In that case, the court found that given the personal circumstances of the accused and the complainant, the voyeurism was an abusive attack on the complainant’s personal privacy.

The court rejected the Crown’s submissions that a custodial sentence was required, and imposed an 18 month suspended sentence. • R. v. Weinheimer, 2007 ABPC 349 : The accused surreptitiously took photographs of fifteen men using the urinal at his place of employment. He stored these photographs together with the names, birthdates, addresses, insurance account numbers and notes

regarding the genitals of the victims on his computer. The Crown proceeded by indictment. The court found that the primary sentencingobjective was rehabilitation, deterrence and denunciation being secondary objectives, and sentenced the accused to a two year suspendedsentence with supervised probation. • R. v. Bosomworth, 2015 BCPC 7: The accused who was the co-owner of a restaurant, surreptitiously set up a video camera in therestaurant’s unisex bathroom, capturing six victims. It is unclear how the Crown proceeded.

The judge denied the accused’s request fora conditional discharge and imposed a suspended sentence and probation. The court noted at paras. 34-35 that: “where the offence was done for a non-sexual purpose such as detecting theft at a place of employment (R. v. Laskaris), or done onceimpulsively, briefly and on the spur of the moment (R. v. Pan; R. v. Bertuzzi) a discharge has been found to be not contrary to the publicinterest….

Cases of voyeurism in which a discharge was found to be unsuitable generally disclose greater moral blameworthiness, suchas a planned or pre-meditated course of conduct, multiple surreptitious recordings or voyeuristic acts, or those involving more than onevictim: R. v. Grice, R. v. Weinheimer; and R. v. Dekker. • Muggridge: In Muggridge, the 57 year old accused with no prior record surreptitiously recorded his employee in the bathroom onat least three separate occasions. The Crown proceeded by way of

summary conviction. The court denied the accused’s request for aconditional discharge and sentenced him to a suspended sentence with twelve months of supervised probation. Cases where a conditional sentence order was imposed • 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. The Crown proceeded by indictment.

The court notedthat given 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. • Brandt: In Brandt, the offender surreptitiously watched his subordinate shower at work, videotaping her twice and transferringthese images to his home computer where his wife discovered them over five years later. After watching the victim in the shower, hewould masturbate and ejaculate in her underwear in hope of impregnating her. The Crown proceeded by indictment.

The courtdistinguished the case law referred to it given the serious and predatory nature of the offending and sentenced the offender to an 18month conditional sentence order. • R. v. Dekker, 2014 ABPC 61: The accused surreptitiously recorded 80 individuals in a public bathroom and on one occasion in herhome. An analysis of the images depicted on the videos revealed 77 video clips and a total of 251 minutes of video. The Crownproceeded by indictment. The court imposed a nine month conditional sentence order. [22] There are however, cases where a period of incarceration is ordered such as in Cassels.

A review of that case and otherssuggest that incarceration tends to be reserved for those offenders who engage in egregious conduct, often alongside other types ofoffending, such as sexual assault or child pornography. In Cassels, the Crown proceeded by way of indictment. After a review of thecase law, the court commented that the accused’s conduct went well beyond the mere watching conduct at issue in most of the reportedcase law: ..[the victim] not only knew about the recording she tried to get them back – to no avail. Mr. Cassels’ scripted his voyeurism.

He forcedhis victims to sleep nude to facilitate his actions. He positioned their bodies so that he could take incredibly intimate image of them. Thisbehaviour goes beyond the circumstances of many of the cases reviewed.” Cassels at para. 92 [23] The court sentenced Cassels to six months of custody, consecutive to other sentences including, sexual assault, unlawfulconfinement and uttering threats. [24] One of the cases referred to in Cassesls is R. v. Keough, 2011 ABQB 312, varied on appeal, 2012 ABCA 14.

Keough receiveda nine month custodial sentence, the Court commenting at para. 233 that “no Court has faced voyeurism of the kind engaged in by theOffender. He is also a different kind of voyeur.” The accused was found guilty at trial of possession of child pornography, makingvoyeuristic material and voyeurism. The accused was a community youth worker who befriended young people and invited them to hishome, occasionally allowing them to stay in his spare bedroom to engage in sexual activity.

This sexual activity was recorded and endedup in the possession of the accused who had offered some type of consideration for it. The Crown proceeded by indictment. [25] Custody was also the outcome in R. v. M.(G.), 2014 MBPC 57 where the Crown proceeded by way of indictment on thevoyeurism offence, in addition to multiple other offences including sexual interference, make and possess child pornography andcriminal harassment. The facts behind the voyeurism offence included surreptitiously recording sexual activity. The court found a seriousbreach of trust and profound violation of the victim’s privacy.

Noting that the offender minimized and justified his conduct, the courtheld that denunciation and deterrence were paramount sentencing principles, requiring a nine month custodial sentence. [26] In McFarlane, at paras. 25-48, the Manitoba Court of Appeal endorsed the court’s comments in M.(G.) that the range ofsentence for a first offender on a guilty plea to the offence of voyeurism from the low end to the high end of the spectrum is between adischarge and twelve months' imprisonment.

In McFarlane, the accused (then age 19) surreptitiously video recorded the victim (thenage 17) undressing and showering when she was in the bathroom of his family home. He kept, but did not share, the recording. Heexplained his conduct resulted from his interest in pornography relating to "peeping toms" and that he was aroused when he was in"control." The Court of Appeal held that given the circumstances of the offence and the age of the victim, a three month custodialsentence was warranted. [27] There are of course many other reported decisions.

The above are simply an illustration of the spectrum of conduct invoyeurism offences and the sentencing range that is commensurate with that conduct. As such, although voyeurism offences usuallyattract community-based dispositions, that tends to be the case for conduct that falls on the lower to middle range of offending conduct.For those offences where the conduct is more egregious, custodial sentences are often warranted.

ANALYSIS [ 28 ] In the case before this Court, I find that the seriousness of the offence falls towards the middle of the spectrum. [ 29 ] There are several aggravating circumstances surrounding the commission of the offence: • The offence took place in the victim’s home, a place she had been renting for approximately two years where she was living in very close proximity to Dastagir.

While counsel agree there was no position of trust, Dastagir and the victim certainly knew each other because of the tenancy. • Although the offence was not initially planned or premeditated, Dastagir took advantage of an opportunity that presented itself and continued to do so on several occasions over a period of time. • Even when confronted about what was at that time suspected voyeurism, Dastagir continued to offend. • The voyeurism took place while the victim was in the bathroom, a place where one is often unclothed and tending to matters of personal hygiene. • The impact to the victim has been significant. [ 30 ] There are also mitigating factors: • Dastagir has pleaded guilty and expressed remorse for his actions. • He was extremely forthcoming with the police, going so far as to give them the access code to his cell phone so they could search it for any images of the victim. • He has expressed a willingness to engage in counselling. • He has no prior record. [ 31 ] Dastagir concedes that the voyeurism was for a sexual purpose as it aroused him.

There is no evidence that Dastagir took any recordings of the victim. He not only denies having done so, the police found no evidence of any recording and the surreptitious recording the victim and her roommates captured of Dastagir on July 13, 2017 shows no evidence of any such recording. These facts are neither aggravating nor mitigating. They simply outline the circumstances of the offence and assist when assessing issues of parity of sentence. [ 32 ] Dr. Somers has assessed Dastagir as a low risk to re-offend.

He does however recommend sexual offender counselling for him, noting that he has limited insight into his emotional health. The Crown has urged the Court to place little weight on Dr. Somers’ assessment given that part of the assessment is based on Dastagir’s self-reporting, reporting that should cause the Court some pause given Dastagir’s own limitations as to his emotional health. I find no reason to limit the weight I place on Dr. Somers’ report.

It is clear that he had much if not all of the disclosure, including Dastagir’s statement to the police, the video of Dastagir captured by the tenants and the police report. Dr. Somers also completed a variety of tests which alerted Dr. Somers to Dastagir’s limited insight, something that he pointed out in his report. As already noted, Dr. Somers recommends sexual offender counselling, something Dastagir has not sought out of his own accord.

Rather, he has sought general counselling for his anxiety resulting from his personal circumstances and the current proceedings, indicating a step in the right direction towards rehabilitation. [ 33 ] Considering all of the circumstances of the case, I find that denunciation and general deterrence are the primary sentencing objectives but that a relatively significant emphasis should also be placed on rehabilitation. [ 34 ] As noted previously, defence counsel submits that Dastagir should receive a conditional discharge.

He relies on Pan , a case referred to earlier which he says is similar to the facts of this case and where a conditional discharge was granted.

The Crown says that a conditional discharge would be contrary to the public interest. [ 35 ] S. 730 of the Code provides: Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [ 36 ] As noted by Clayton C.

Ruby et al., Sentencing , 8th ed. (Markham: LexisNexis Canada Inc., 2012) at para. 9.3: There is a wide, albeit judicial, discretion vested in the trial court when considering a discharge. In applying the statutory criteria, the court must consider all the circumstances of the offender and the nature and circumstances of the offence, against the background of proper law enforcement in the community. [ 37 ] As the Crown proceeded summarily, a conditional discharge is not precluded, and it would be in Dastagir’s best interests.

The issue is whether granting a conditional discharge is contrary to the public interest. R. v. Foianesi , 2011 MBCA 33 considered some broad propositions in making such a determination at para. 21: When considering the “contrary to the public interest” factor, a few propositions are matters of common sense and of general

application. The more serious the offence, the less likely a discharge should be granted (see Sanchez-Pino). The more serious theoffence, the greater the need for mitigating circumstances to be present before granting a discharge (see R. v. Tschirhart, unreported (14January 1975) (Ont. C.A.)). Other considerations, which are more specific to the case at hand, include whether the resulting convictionwill impact the accused’s occupation (see R. v. Etienne (1989), (BC CA), 49 C.C.C. (3d) 572 (B.C.C.A.)) andwhether the accused was under a “reasonable mistake in belief as to the law” (see R. v.

Campbell and Mlynarchuk (1972), (ABQB), 10 C.C.C. (2d) 26 at 35 (Alta. Dist. Ct.)). [38] This offence is Dastagir’s only involvement in the criminal justice system. As noted previously, he has expressed remorse forhis offending and was very cooperative with the police. The proceedings have been very stressful for him, both personally andprofessionally as he has recently lost his employment.

He is also at risk of not being able to work in his field if a conviction is entered.While these factors militate in favor of a discharge not being contrary to the public interest, the circumstances of the offence do not.Though conditional discharges have been granted for voyeurism cases, such as Pan, that case involved a one time recording of sexualactivity between the offender’s roommate and girlfriend which he immediately deleted and apologized for, circumstances which are verydifferent from those before the Court.

Further, though Dastagir is a permanent resident, his continued stay in Canada is not at risk underthe Immigration and Refugee Protection Act, S.C. 2001, c.27 given that the Crown is not seeking a custodial sentence of six months ormore. [39] This is not however, a case which rises to the level of offending which requires a term of incarceration. [40] In all of the circumstance of this case, I find that a suspended sentence with 18 months of supervised probation is appropriate.The conditions of the probation order are: 1) keep the peace and be of good behaviour; 2) appear before the court when required to do so by the court; 3) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probationofficer of any change of employment or occupation; 4) Report to the Provincial Director or designate by calling 1-800-334-8792 within two days after today’s date.

After you first report, youmust continue to report and be supervised by your Probation Officer when and how you are told by your Probation Officer; 5) Attend, participate and complete all counselling, treatment and programming as directed including but not limited to sexual offendertreatment as directed; 6) No contact or communication with the victim; 7) Not attend where she lives, works, worships or goes to school and not attend her person. [41] Pursuant to s. 737 of the Code there will also be a $100 surcharge with $2 in costs, payable within nine months.

ANCILLIARY ORDERS [42] The Crown seeks SOIRA and DNA orders as well as a discretionary weapons prohibition and restitution. For the reasons thatfollow, I am not granting her applications. SOIRA Order [43] S. 490.012(2) provides: When a court imposes a sentence on a person for an offence referred to in paragraph (

b) or (

f) of the definition “designated offence” insubsection 490.011(1), it shall, on application by the prosecutor, make an order in Form 52 requiring the person to comply with the SexOffender Information Registration Act for the applicable period specified in

section 490.013 if the prosecutor establishes beyond areasonable doubt that the person committed the offence with the intent to commit an offence referred to in paragraph (a), (c), (c.1) (d),(d.1) or (

e) of that definition. [emphasis added] [44] The offence of voyeurism is included in para. (

b) of subsection 490.011(1). The issue is therefore whether the Crown hasestablished beyond a reasonable doubt that Dastagir committed the offence of voyeurism with the intent to commit an offence referred toin para. (a), (c), (c.1), (d), (d.1) or (

e) of that same subsection. Those paragraphs are attached as an appendix. [45] In this case, there is no evidence of any such intent to commit any of the offences referred to in these paragraphs such that theCrown has failed to meet its legal onus and its application for a SOIRA order is denied.

DNA [46] S. 487.051 of the Code sets out the jurisdiction of a court to make a DNA order, defining when the jurisdiction of the court ismandatory or discretionary as well as the conditions under which a court can make a discretionary DNA order for a secondary designatedoffence. [47] By virtue of s. 487.04 of the Code, voyeurism is a secondary designated offence. As voyeurism is not a specificallyenumerated offence under the definition of “secondary designated offence”, it falls under the more general subsection under 487.04 (a): (

a) an offence under this Act that may be prosecuted by indictment — or, for

section 487.051 to apply, is prosecuted by indictment — forwhich the maximum punishment is imprisonment for five years or more.. (emphasis added)

[48] For the Court to have jurisdiction to consider the Crown’s application for a secondary designated DNA order for voyeurism,the Crown must have proceeded by indictment. In this case, as the Crown proceeded summarily, the Court has no jurisdiction to make aDNA order. S. 110 Weapons Prohibition [49] S. 110 of the Code provides: 110

(1) Where a person is convicted, or discharged under

section 730, of (

a) an offence, other than an offence referred to in any of paragraphs 109(1)(

a) to (c), in the commission of which violence against aperson was used, threatened or attempted, or (emphasis added) (

b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, aprohibited device, ammunition, prohibited ammunition or an explosive substance and, at the time of the offence, the person was notprohibited by any order made under this Act or any other Act of Parliament from possessing any such thing… [50] As no violence was used or threatened or attempted and no weapon was involved in the commission of the offence, there is nojurisdiction for the Court to make a s. 110 weapons prohibition.

Restitution [51] S. 737 and 738 of the Code deal with restitution orders. Briefly, they stipulate that a court must consider making a restitutionorder for an amount of losses and damages that is readily ascertainable. [52] As noted in Sentencing at para. 19.44: A court’s power to make a restitution order as part of the sentencing process is discretionary. The case law has recognized that thisdiscretion is to be exercised with regard to certain objectives and factors, and not as a “mechanical afterthought to a sentence ofimprisonment”. [53] R. v.

Siemens, 138 Man R (2d) 90 (MBCA)[1] deals with some of the factors courts consider when determining whether toimpose restitution: [8] From the wording of s. 738(1)(

a) and its predecessor, the old s. 725(1), it is obvious that it is discretionary as to whether the courtorders restitution or not. There is case law concerning both the old s. 725(1) and the present s. 738(1)(

a) which forms a useful guide as tohow that discretion should be exercised.

(1) The constitutional justification for a provision in the Code permitting restitution orders is that restitution is a part of the punishment.Where punishment is exacted in the form of a restitution order, there should be a corresponding reduction in other forms of punishmentwhich might be imposed. In some cases, a restitution order will be a significant factor, while in others it will be trivial, depending on thecircumstances, but it must be included as a factor in the totality of the punishment imposed.

(2) The means of the offender are to be considered as an important factor in determining whether restitution should be ordered. Thatfactor was specifically mentioned by Laskin C.J.C., who wrote for the majority of the Supreme Court of Canada, in R. v. Zelensky, (SCC), [1978] 2 S.C.R. 940, 41 C.C.C. (2d) 97. At p. 961, Laskin C.J.C. stated that the various factors, including the means ofthe offender, came down to this: [A]n order for compensation should only be made with restraint and with caution. In the subsequent decision of the Ontario Court of Appeal in R. v.

Scherer (1984), (ON CA), 16 C.C.C. (3d) 30,Martin J.A., speaking for the appeal panel, agreed that the means of the offender is a factor to be considered, but that it is not acontrolling factor in every case. Martin J. A. went on to note at pp. 37-38: It may be that in some cases it would be inappropriate and undesirable to make a compensation order in an amount that it is unrealistic tothink the accused could ever discharge.

(3) The impact of a restitution order upon the chances of rehabilitation of the accused, either pro or con, is a factor to be considered. In R.v. Spellacy (R.A.) (1995), (NL CA), 131 Nfld. & P.E.I.R. 127, at para. 79, the Court of Appeal of Newfoundlandapprobated a passage from Sentencing in Canada (1982), by R. Paul Nadin-Davis, which contained the following passage at p. 497: A compensation order which would ruin the accused financially, thus impairing his chances of rehabilitation, should not be imposed;

(4) The shorter the sentence, the more likely it will be that a restitution order will be appropriate. Where the amount is manageable, thereis every reason to impose an order of restitution when a sentence either does not involve imprisonment or is so short that it does notaffect the offender’s employment or the sentence can be served conditionally. Conversely, as an incarceratory sentence becomes longer,the futility of an order of restitution will become increasingly apparent.

(5) An order of restitution need not be for the full amount of the loss. As an example, in R. v. Ali (K.N.M.) (1997), (BC CA), 98 B.C.A.C. 239, a restitution order of $42,500 was reduced by the British Columbia Court of Appeal to $10,000 to betterreflect the accused’s capacity to meet the obligation which the order imposed.

(6) Difficulties in determining the amount of the victim’s loss will militate against a restitution order since it would be unwise for a criminal court to become involved in the determination of damages.

In Spellacy , O’Neill J.A. wrote at para. 75: The law is clear that an order ought not be made by a judge if it requires the court to make extensive inquiries and examine witnesses and evidence generally in an attempt to reach a conclusion. [9] Similar complications will arise where, as in this case, there are multiple victims, some with large claims and some with small, each entitled to a proportionate share of whatever monies are paid by way of restitution. [10] To these factors which have been delineated in previous judicial decisions I would add the following:

(1) Where there is a plea bargain, and restitution is not part of it, the court should be slow to make an order of restitution unless it is for a very modest sum.

(2) Even in a case where the discretion of the sentencing judge is not constrained by a joint recommendation, an order of restitution must not be made as a mechanical afterthought to an incarceratory sentence.

(3) The fact that there were multiple participants in the crimes, as there were in these break and enters, is a factor which militates against a restitution order enforceable against one accused, but not against the others. ( See also: R. v.

Wuckert , 2000 MBCA 5 ) [ 54 ] In the present case, the Crown is seeking restitution for the victim in the approximate amount of $1300 comprised of expenses related to moving out of Dastagir’s home as well as dropping out of a university course due to the emotional sequelae of the offence. [ 55 ] No receipts were provided to the Court in support of the request for restitution. It is unclear whether the moving expenses were solely the victim’s or whether they were shared with the two other tenants.

Given the language of the victim’s impact statement which refers to the other tenants, it would appear that the costs would have been shared by all three. As regards the victim’s university studies, contrary to the Crown’s submissions, the victim impact statement speaks only to missing a few days, not withdrawing from a course. [ 56 ] As already noted, Dastagir has lost his job as a result of these proceedings and it is uncertain whether he will be able to ever find employment in his field given his conviction.

He and his wife are separated and the Court is advised that he provides some financial support to her and acts as the main caregiver and financial provider for his son. His current financial situation is precarious, requiring him to sell his family home. [ 57 ] In considering all of the foregoing as well as totality, the Court is declining to impose an order of restitution. “Original signed by” MARTIN, P. J.

Appendix s. 490.011(1) of the Code (

a) an offence under any of the following provisions: (i) subsection 7(4.1) (offence in relation to sexual offences against children), (ii)

section 151 (sexual interference), (iii)

section 152 (invitation to sexual touching), (iv)

section 153 (sexual exploitation), (

v) section 153.1 (sexual exploitation of person with disability), (vi)

section 155 (incest), (vi.1) subsection 160(2) (compelling the commission of bestiality), (vii) subsection 160(3) (bestiality in presence of or by a child), (viii)

section 163.1 (child pornography), (ix)

section 170 (parent or guardian procuring sexual activity), (ix.1)

section 171.1 (making sexually explicit material available to child), (

x) section 172.1 (luring a child), (x.1)

section 172.2 (agreement or arrangement — sexual offence against child), (xi) subsection 173(2) (exposure), (xii) to (xv) [Repealed, 2014, c. 25, s. 25 ] (xvi)

section 271 (sexual assault), (xvii)

section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), (xviii) paragraph 273(2)(a) (aggravated sexual assault — use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization), (xviii.1) paragraph 273(2)(a.1) (aggravated sexual assault — use of a firearm), (xix) paragraph 273(2)(b) (aggravated sexual assault), (xx) subsection 273.3(2) (removal of a child from Canada), (xxi)

section 279.011 (trafficking — person under 18 years), (xxii) subsection 279.02(2) (material benefit — trafficking of person under 18 years), (xxiii) subsection 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), (xxiv) subsection 286.1(2) (obtaining sexual services for consideration from person under 18 years), (xxv) subsection 286.2(2) (material benefit from sexual services provided by person under 18 years), and (xxvi) subsection 286.3(2) (procuring — person under 18 years); (

c) an offence under any of the following provisions of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983: (

i) section 144 (rape), (ii)

section 145 (attempt to commit rape), (iii)

section 149 (indecent assault on female),

(iv)

section 156 (indecent assault on male), and (v) subsection 246(1) (assault with intent) if the intent is to commit an offence referred to in any of subparagraphs (

i) to (iv); (c.1) an offence under any of the following provisions of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by

section 19 of

An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof ,

chapter 125 of the Statutes of Canada, 1980-81-82-83: (

i) section 246.1 (sexual assault), (ii)

section 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), and (iii)

section 246.3 (aggravated sexual assault); (

d) an offence under any of the following provisions of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988: (i) subsection 146(1) (sexual intercourse with a female under age of fourteen), (ii) subsection 146(2) (sexual intercourse with a female between ages of fourteen and sixteen), (iii)

section 153 (sexual intercourse with step-daughter), (iv)

section 157 (gross indecency), (

v) section 166 (parent or guardian procuring defilement), and (vi)

section 167 (householder permitting defilement); (d.1) an offence under any of the following provisions of this Act, as they read from time to time before the day on which this paragraph comes into force: (i) paragraph 212(1)(i) (stupefying or overpowering for the purpose of sexual intercourse), (ii) subsection 212(2) (living on the avails of prostitution of person under 18 years), (iii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years), and (iv) subsection 212(4) (prostitution of person under 18 years); (

e) an attempt or conspiracy to commit an offence referred to in any of paragraphs (a), (c), (c.1), (

d) and (d.1); or