R. v. Vandermeer, 2021 BCPC 94

Citation: R. v. Vandermeer 2021 BCPC 94 Date: 20210325 File No: 52455 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HOMME VANDERMEER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: B. Bellrichard Counsel for the Defendant: N. Jacob Place of Hearing: Vernon , B.C. Date of Hearing: March 3, 2021 Date of Judgment: March 25, 2021

[ 1 ] Mr. Homme Vandermeer pleaded guilty before trial to one count of possession of child pornography contrary to

section 163.1(4) of the Criminal Code . The offence was committed on June 30, 2017. This matter is before the court for sentencing. [ 2 ] The Crown has re-elected to proceed summarily. The Crown seeks a four-month jail sentence, to be followed by 24 months’ probation and certain ancillary orders. [ 3 ] The defence submits that all of the principles and objectives of sentencing could be met by a longer sentence if it was served in the community under the terms of a conditional sentence order.

The conditional sentence would be followed by probation. [ 4 ] As written, the Criminal Code calls for a mandatory minimum sentence of six-months’ incarceration. However, in R. v. Cole , 2021 BCSC 293 , the mandatory minimum sentence of six-months’ imprisonment was declared to be of no force and effect. With no minimum penalty in effect, the law permits a conditional sentence order. [ 5 ] Counsel agree that in cases of possession of child pornography, a jail sentence is called for except in exceptional cases. They disagree about whether this is an exceptional case. Circumstances of the Offender [ 6 ] Mr.

Vandermeer is a 78-year-old retired school principal. He has been happily married for 54 years. He enjoys the full and unconditional support of his wife, his two adult sons and his adult grandchildren. [ 7 ] Mr. Vandermeer has enjoyed good health for most of his life, but his health has declined in recent years. A letter from his family doctor described the “cascade of medical illnesses that have afflicted him over the past two years”. In January 2019, he developed a gangrenous gallbladder infection and subsequently developed septic shock, kidney failure and a heart attack.

He has had a tube draining bile to an external bag ever since. In May 2019, he developed a blood clot in his right leg. On September 4, 2019, he underwent open heart surgery. He is now awaiting surgery to have his gallbladder removed. The doctor did not offer an opinion about the impact of incarceration on Mr.

Vandermeer’s health, but I think it would be reasonable to infer that incarceration would raise a risk of a serious adverse impact on his physical health. [ 8 ] The offender has recently completed four sessions with a counsellor, to gain insight into the factors that led to his offence. [ 9 ] He has no previous criminal history. His record as a schoolteacher was unblemished.

He has complied fully with bail supervision conditions since his release in June, 2017. [ 10 ] Before this offence became known, the community saw him as a man of good character; however, his circle of community support has since narrowed, as friends and acquaintances have distanced themselves from him. Circumstances of the Offence [ 11 ] In March 2017, the police commenced an investigation based on information that child pornography was being accessed over the internet at a particular IP address.

That IP address was located in Armstrong, BC. [ 12 ] On September 5, 2017, the police executed a search warrant at the address. It was the residence of Mr. Vandermeer and his wife. The police seized several electronic devices, including an HP laptop computer. [ 13 ] Analysis of the HP laptop led to the discovery of 91 images of child pornography. The images appeared to have been part of a set depicting the same five girls. The girls appeared to be aged between eight and 13-years-old.

They were photographed posing naked, but with no sexual activity. [ 14 ] Counsel described the images as being consistent with the lowest level of the five-level Oliver scale. That was a reference to the decision of the England and Wales Court of Appeal (Criminal Division) in R. v. Oliver , [2002] EWCA Crim 2766. In that decision, the court categorized child pornography into five different levels of activity, in order of increasing seriousness.

At paragraph 10, the court observed that neither nakedness in a legitimate setting, nor the surreptitious procuring of an image would give rise, of itself, to a pornographic image. The court went on to describe the five levels of child pornography as: (1) images depicting erotic posing with no sexual activity; (2) sexual activity between children, or solo masturbation by child; (3) non-penetrative sexual activity between adults and children; (4) penetrative sexual activity between children and adults; (5) sadism or bestiality. [ 15 ] Mr.

Vandermeer searched for and downloaded these images from the internet using peer-to-peer file sharing software. There is no suggestion that he purchased these images, or that he added to the profits of those who produced this child pornography. Victim Impact Statements [ 16 ] No victim impact statements were filed. This is hardly unusual in child pornography cases. I do not know the names of the five children or where they live, but I know they exist somewhere. I know that, as the Supreme Court of Canada observed at paragraph 48 of the court’s decision in R. v.

Friesen , 2020 SCC 9 , these children will be burdened with the knowledge that others may see the images and

that the images may reappear in their lives at any time. Psychological Assessment and Presentence Report [ 17 ] Mr. Vandermeer cooperated in the preparation of a presentence report and a psychological assessment. The author of the presentence report observed that he admitted that possessing child pornography was terrible and that his behaviour was unacceptable. Although he was unable to explain why he collected the pornographic images, Mr. Vandermeer acknowledged his guilt and was willing to accept responsibility. [ 18 ] The psychologist found Mr.

Vandermeer to be articulate, with no indications of thought disorder or memory impairment. There was no indication of major mental health disorder, nor any reported history of such a concern. [ 19 ] She observed that Mr. Vandermeer’s insight appeared to be very limited and that in order to be rehabilitated, he would need to identify the factors that contributed to his offence. To some extent, she linked his rehabilitation to his physical health.

She said on page 9 of 10: It is important to remember that his physical health is tenuous, and while this does not excuse his behaviour or accountability, he does need to be well and remain well so any intervention will need to keep his physical health concerns in mind. [ 20 ] She recognized that her assessment was based on the limited information available in the file and from the offender’s self-report during the video interview. She did no psychometric testing. She somewhat tentatively concluded that Mr.

Vandermeer represented a lowered risk of reoffending, with external controls contributing to risk mitigation. Offender Addressing the Court [ 21 ] Following the submissions of Crown and defence counsel, Mr. Vandermeer addressed the court. He emphasized his long and unblemished history of working with children, both as a teacher, a school administrator and as a swim coach. [ 22 ] I noted that at one point Mr. Vandermeer said, “I have never acted inappropriately with an actual child, anywhere.” As the authors of the presentence report and the psychological assessment both noted, Mr.

Vandermeer still lacks the insight to understand that each child in the pornographic images he possessed was an actual child, somewhere. It is beyond question that possession of pornographic images of a child harms that child and contributes to the harm of others. Sentencing for Child Pornography in British Columbia [ 23 ] In recent years, sentences for child pornography offences in British Columbia have been increasing. This reflects a growing understanding of the offence. In R. v. S.D.M. , 2015 BCPC 112 , at paragraph 49 , Judge Hicks described the harms caused by the possession of child pornography.

His description has now been widely cited. He said: 49 Children are victimized in the most brutal and intrusive way at every stage of the child pornography continuum; from the grooming to the undressing, to the posturing, to the exposure, to the forceful intrusion into their most private places, to the physical force and restraint of the child, to threats and physical violence, and to the emotional struggle many of these children will endure over a lifetime.

There is a concern that this offending against children is increasing and that the easy ability to circulate this material over the internet is encouraging that growth. Once these images are introduced to the internet, there is no ability to control where they appear, what use is made of them, how often they are re-sent and viewed. Those who possess, view, chat about and exchange child pornography provide the encouragement and the audience for those who abuse children in order to produce that content.

Thus the emphasis on deterrence and denunciation as the primary sentencing objectives in cases involving those who possess and circulate this material. [ 24 ] The trend toward longer sentences was accelerated by the decision of the Supreme Court of Canada in R. v.

Friesen , 2020 SCC 9 , when that court sent a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and which cause profound harm to children, families and communities. [ 25 ] In child pornography cases, those guilty of possessing such material will be incarcerated “except in exceptional cases”. See R. v. Swaby , 2018 BCCA 416 , at para. 67 . [ 26 ] Counsel provided a number of sentencing decisions from courts in this province.

Those decisions generally find that, unless the case is exceptional, a jail sentence is required for denunciation and deterrence. [ 27 ] The alternative to a conditional sentence is a sentence of incarceration for some period. Since the circumstances of the offence and of the offender are almost infinitely variable, it is difficult to identify the high end and low end of the range of sentence with precision.

However, the low end of the range of sentence for a first-time offender convicted of possession of child pornography would be somewhere between four and six months and the high end would be between 15 and 24 months. See for example R. v. Alexander , 2019 BCCA 100 , at para. 37 , or R. v. Humphreys , 2020 BCPC 136 , at para. 18 , or the decisions canvassed by Judge Doulis in R. v. Neasloss , 2020 BCPC 161 , between para. 35 and para. 55 .

Principles and Objectives of Sentencing [ 28 ] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 29 ]

Section 718 says that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the stated objectives. The objectives that are important in this case are denunciation, deterrence and rehabilitation.

[ 30 ]

Section 718.01 requires me to give primary consideration to the objectives of denunciation and deterrence when imposing a sentence for an offence that involves the abuse of a person under the age of 18 years. [ 31 ] Other sentencing principles apply. One of them is the principle of restraint. The offender should not be deprived of liberty if less restrictive sanctions may be appropriate and reasonable in the circumstances. “Exceptional Cases” [ 32 ] As I said earlier, counsel agree that incarceration will be necessary in all cases of possession of child pornography, except the exceptional cases.

Their agreement is completely appropriate, based on authorities like R. v. Alexander , supra, at para. 39 . They disagree only on whether the circumstances of this offence or the circumstances of the offender make this an exceptional case. [ 33 ] In explaining when a sentencing judge would be justified in imposing a noncustodial suspended sentence in drug trafficking offences, in R. v. Voong , 2015 BCCA 285 , at para 59 , Justice Bennett used the phrase “exceptional circumstances”. A suspended sentence is less restrictive than a conditional sentence order.

Justice Bennett described what she meant by “exceptional circumstances” saying: 59 … Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a noncustodial sentence.

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. … [ 34 ] In R. v. Swaby , supra at 416, the Court of Appeal dismissed a Crown appeal against sentence in a child pornography case. The child pornography included 480 image files and 400 video files, some of which depicted sadistic behaviour and penetrative sexual activity between adults and children.

Speaking in the context of an application for a declaration that the mandatory minimum sentence for possession of child pornography violated

section 12 of the Charter , the Court of Appeal described a jail sentence for that particular offender as grossly disproportionate. [ 35 ] The offender was a 23-year-old man living with a significant level of mental impairment. One psychologist opined that from a mental health perspective, incarceration would be very detrimental. In the opinion of a second psychologist, the offender’s depressive symptoms had been partially alleviated by new employment and increased social engagement and this progress would be endangered by a period of incarceration. [ 36 ] The Court of Appeal upheld the findings of the sentencing judge and the

Summary Conviction Appeal Court judge and agreed that although Mr. Swaby’s offending was extremely serious, it was ameliorated by his personal circumstances. His mental impairment decreased his moral culpability and it meant that incarceration would set back his rehabilitation. The court held that a jail sentence would have been grossly disproportionate and would have breached the standards of decency of most informed Canadians: Swaby, supra , para.87.

Discussion [ 37 ] After considering the cases referred to me by counsel and applying the principles and objectives of sentencing, it seems that the sentencing factors that could make for an “exceptional case” of possession of child pornography might include: • prior good character and the absence of a criminal record; • sincere remorse; • acknowledgement of the harm caused to children; • significant steps towards rehabilitation; • low risk to reoffend; • demonstrable risk of very serious adverse physical or mental health impacts arising from incarceration; • child pornography capable of categorization at the low end of the range of child pornography, in terms of both the volume of material and the nature of the activity depicted, and • child pornography obtained from non-commercial sources. [ 38 ] Most cases will have few of those factors and they will be the unexceptional cases in which a jail sentence is appropriate.

This case is close to the line. [ 39 ] Mr. Vandermeer was widely viewed as a man of good character. He had an exemplary teaching career, no prior record of criminal convictions and he has complied with all conditions of bail since his arrest in June 2017. [ 40 ] I accept that he regrets the shame he has brought to his family and the loss of much of his circle of friends and acquaintances. [ 41 ] He has pleaded guilty and acknowledged his responsibility for the possession of child pornography. He has voluntarily started to engage in counselling.

However, he does not yet appreciate how his conduct has contributed to the harm caused to the five children depicted in the images he saved and to other children caught in the child pornography industry. He has started the important process of rehabilitation, but he has a ways to go. Even now though, the risk of him reoffending is low.

[ 42 ] Given the range of medical issues that have arisen since he was charged, there is a clear risk that incarceration would have serious effects on his physical health.

If his physical health deteriorates, the chances of his rehabilitation will diminish as well. [ 43 ] Finally, and without minimizing the odious nature of the material, the child pornography that he possessed was limited to 91 images and consisted of part of a set of photos of five female children made to pose erotically, but not made to engage in sexual activity by themselves, with each other, or with adults. [ 44 ] In cases of possession of child pornography, the law requires incarceration to denounce the crime and to deter others, except in exceptional cases. I find that this is an exceptional case.

I reach this conclusion because of Mr. Vandermeer’s advanced age and very poor health, as well as the particular circumstances of the crime he committed. Jailing an elderly man in physical decline is not the right way to deter others when he is unlikely to reoffend, and the circumstances of the crime he committed are at the lowest end of the range of offending conduct. Sentence [ 45 ] I have concluded that a just sentence to impose on Mr. Vandermeer is a conditional sentence order. The term of the order will be 10 months. For the first four months he will be on house arrest.

Following the expiry of the conditional sentence order, Mr. Vandermeer will be on probation. The term of the probation order will be 24 months. There will be certain ancillary orders. [ 46 ] In drafting the conditions of the conditional sentence and probation orders, I have had reference to the decision of our Court of Appeal in R. v. Goddard , 2019 BCCA 164 , and the concerns expressed by the court about conditions that are overbroad or vague. [ 47 ] The conditional sentence order will contain the following conditions: [ 48 ] 3001: You must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. [ 49 ] 3103: You must report by telephone to the Vernon Community Corrections Office by 3:00 p.m. today.

If the office is closed, you must continue calling daily during regular business hours until you have spoken to a supervisor and received further direction to report. After that, you must report as directed by your supervisor. [ 50 ] 3203: You must live at an address approved in advance by your conditional sentence supervisor and provide your supervisor with your phone number.

You must not change your address or phone number without prior written permission from your supervisor. [ 51 ] 3209-2: For the first four months of the conditional sentence order, you must obey house arrest by being inside your approved residence (or on its lot) between 2:00 p.m. and 11:00 a.m. every day. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest.

You may be away from your residence during the house arrest with the written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other compelling reasons. You must carry the permission with you when you are outside your residence. [ 52 ] 3209-2-A: You may also be away from your residence during the house arrest hours: a. While at, or going directly to, or returning directly from a healthcare facility because of a medical emergency. If asked, you must provide your conditional sentence supervisor with proof of your attendance at the facility. b.

In the immediate presence of your wife but only with the prior written permission of your conditional sentence supervisor. [ 53 ] 3304: you must not have any contact or communication, directly or indirectly, or be in the presence of any person under the age of 18, except if your wife, or one of your children or adult grandchildren, is present. [ 54 ] 3501: you must attend, participate in, and complete any intake, assessment, counselling or education program directed by your conditional sentence supervisor.

This may include counselling or programming for sexual offence prevention. [ 55 ] 3601-2: While possessing and using any device capable of accessing images on any computer network including the internet, you must be in the presence of your wife, or one of your children or adult grandchildren, or a person approved of in writing by your conditional sentence supervisor, or you must have the prior written permission of your conditional sentence supervisor. [ 56 ] The conditions of the probation order will be identical, except that the compulsory conditions of a probation order and a condition requiring you to report within 48 hours of the expiry of the conditional sentence order will be included and the house arrest condition will be deleted. [ 57 ] This is a primary designated offence.

Pursuant to

section 487.051 (1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. You must attend at the RCMP detachment in Vernon, BC, no later than 3:00 p.m. on Friday, April 9, 2021, in order to provide a suitable sample of your bodily substances.

[ 58 ] You are required to comply with the Sex Offender Information Registration Act for 10 years. [ 59 ] A

section 161 prohibition is discretionary. After considering the circumstances of this offence and the circumstances of this offender, and knowing that Mr. Vandermeer’s behaviour will be supervised under the terms of the conditional sentence and probation orders, I am not prepared to exercise my discretion to impose the

section 161 prohibition. [ 60 ] All offence-related property will be forfeited to Her Majesty in right of the province of British Columbia to be disposed of. ____________________________ The Honourable Judge R. Hewson Provincial Court of British Columbia