R. v. L.S., 2023 BCPC 255

Citation: R. v. L.S. 2023 BCPC 255 Date: 20230921 File No: 55570-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. L.S. BAN ON PUBLICATION Pursuant to s. 486.4(2) of the Criminal Code of Canada REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. GUILD Counsel for the Crown: J. Bagan Counsel for the Defendant: L. Helps Place of Hearing: Vernon , B.C. Date of Hearing: March 30 and September 21, 2023 Date of Sentence: September 21, 2023 Date Judgment Filed: December 13, 2023

Introduction [ 1 ] On October 18, 2022, I found L.S. (Mr. S.) guilty of two of the four offences with which he was charged, where the Crown had proceeded by Indictment. The trial was adjourned for the preparation of a presentence report and a psychological assessment with respect to Mr. S.’s risk of re-offending. The sentence hearing began on March 30, 2023. [ 2 ] I ordered a conditional stay on one of the counts as a result of the application of the principle set out in R. v. Kienapple [1] .

He was convicted on Count 3, that on or about the 13th of February of 2021, at or near Vernon, British Columbia, by means of telecommunication, Mr. S. communicated with a person who he believed was under the age of 18 years, for the purpose of facilitating the commission of the offence of possessing or accessing child pornography, contrary to s. 171.1(1) (

a) of the Criminal Code . [ 3 ] As a result of developments in the law, including R. v. Morrison [2] and R. v. Friesen [3] , I raised an issue with respect to whether I was bound to follow the decision in R. v B.S . [4] , which had struck down the mandatory minimum sentence of one year. The mandatory minimum would have precluded the conditional sentence order that Mr. S. sought. Unsurprisingly, counsel needed time to prepare submissions on that point, and the hearing was adjourned.

I received written submissions and concluded, without a formal hearing, that the sentence hearing should proceed on the basis that I was bound by B.S ., as submitted by both parties. [ 4 ] The sentence hearing was further delayed by my absence due to medical reasons, and resumed on September 21, 2023. After hearing submissions, I provided brief oral reasons for sentence given the significant delays and the need to impose a sentence as soon as practicable as required by s. 720(1) of the Criminal Code . I indicated I would provide written reasons. These are my reasons.

Summary of the Offence [ 5 ] Mr. N. is the father of a teenage girl. He was inspecting his daughter's cell phone to ensure there was no inappropriate activity and came across a number he did not recognize, which had been blocked some time before. Mr. N. sent a text message to that number, inquiring who the number belonged to and why they had been blocked. That led to communication between Mr. N. and Mr. S., with Mr. N. posing as “M.”, a 14- year-old girl who turned 15 in the course of their two weeks of communication. Although Mr. S. ended their communication, he revived it quickly. The text messages from Mr.

S. changed to include communication with romantic and sexual connotations and comments. [ 6 ] Mr. S. then sent a picture of part of his naked body, including his penis, admitted he meant to send it to “M.” and asked if she liked it several times. He sought a photograph in return, as well as sending other text messages such as "I'd like to see more of your body". I found Mr. S. was engaged in “grooming” M. by building trust and offering to meet and buy “M.” alcoholic beverages, and that he sought a reciprocal photograph from “M.” - a nude picture of her.

That was the gravamen of the offence: communication by text messages so he could obtain child pornography. [ 7 ] The full details of the facts can be found in my reasons for judgement. [5] Crown’s Position on Sentence [ 8 ] The Crown sought a sentence of between 15 and 20 months jail, followed by a period of probation for two to three years, and related mandatory orders relating to DNA samples and the Sex Offender Information Registration Act ( SOIRA ) [6] . [ 9 ] The Crown argued that Friesen had changed the sentencing landscape for offences involving children.

Advances in the internet, cell phones and software applications have led to new ways for strangers to interact with children and have made it harder to detect predatory behaviour. The Crown relied on R. v. Tardiff [7] , R. v. Misay [8] , and R. v. Wall [9] to show that the proposed sentence was within the appropriate range. Defence Position on Sentence [ 10 ] Mr. S. did not disagree that Friesen was relevant, but argued that the facts in his case were at the lower end of severity of offending, and that specific deterrence was not needed.

He argued that his moral culpability was reduced, and sought a conditional sentence of 6 to 12 months followed by two years’ probation, relying on R. v. Koenig [10] and R. v. Fawcett [11] in support of that range. Mr. S.’s Circumstances Pre-Sentence Report (PSR) [ 11 ] Mr. S. is the youngest of three siblings. He was born in Vernon and raised on his parent’s hobby farm in Lumby, B.C. He was 36 years old at the time of sentencing.

He had a relatively unremarkable upbringing in a fairly stable home, although his father’s employment in the forestry industry involved shift work, and his mother had troubles with alcohol. His family remains supportive of him.

[ 12 ] In elementary school he had difficulty with reading and writing and was held back one year. He was diagnosed as having dyslexia with slow word processing. After graduating from high school he moved out of the family home and worked locally with a company in the wood industry for over a year. He then obtained employment with [omitted for publication], where he has worked ever since in various capacities. Although drinking alcohol was problematic when younger, that changed when he met his wife. His work at the time of the offence and at sentencing involved shift-work.

He met his wife in his early 20’s as they worked at the same company. They married in 2010 and have two children. Their eldest child was diagnosed with being on the autism spectrum before the age of two. The challenges that created coupled with his shift-work eventually led to tension in his marriage, with the couple eventually working opposite shifts to assist in raising their children. That resulted in reduced contact and communication and, from Mr. S.’s perspective, some degree of estrangement.

That was exacerbated by t he COVID-19 pandemic restrictions, which meant he had little opportunity for meaningful social contact. That led to him feeling lonely and disconnected by the time of the offence, aggravated to some extent by his having few close friends, mostly some of the people he worked with. Since a number of those friends had children and his release terms preclude contact with children, he has lost contact with those friends. [ 13 ] In the PSR, one work friend described Mr. S. as "a good guy with good intentions" but having low self-esteem, leading to Mr.

S.’s "over-the-top people pleasing behaviour" which made it challenging to develop healthy relationships. Mr. S.’s bail supervisor noted that he was polite, respectful, and compliant with the terms of his release. [ 14 ] With respect to Mr. S.’s attitude and understanding of his offending, the PSR stated that he was ashamed of and took responsibility for his actions. Mr. S. told the report writer that he did not consider the consequences of his communication and that at the time he was focused on feeling better about himself, arising from his marital disharmony and feelings of loneliness.

The desire to feel better and less lonely were the motivating factors in his continued communication with “M.” despite knowing he should not. [ 15 ] It is important to note that he did not initiate contact with “M.”. He was not looking, also called “trolling”, for others to have contact with, let alone a young girl. How it came to pass that the number he had was in “M.’s” phone was unexplained. It could have been innocent, such as a change in telephone numbers, and I assumed it was. [ 16 ] Mr. S. was arrested at work, which led to some difficulties there.

As a result of the charges, his wife separated from him and the divorce was finalized in November 2022. Being charged also led Mr. S. to become suicidal. Psychological Assessment [ 17 ] A psychologist employed by Forensic Psychiatric Services, BC Mental Health & Substance Use Services, prepared a pre- sentence psychological assessment of Mr. S.’s risk of reoffending on January 16, 2023. [ 18 ] In his interview, Mr.

S. stated he took responsibility for his actions but also said that he had told a co-worker about the conversations with “M.”, and that co-worker encouraged him to communicate further and send the image of his penis. Mr. S. stated that influence was only a small factor in his offending. He also stated, as he had to police, that he was not at all attracted to young girls. Mr. S.’s explanation of his thoughts at the time of sending the picture of his penis was similar to that when testifying: that he was just trying to make himself feel better, hoping to get a positive reaction.

That minimizes the facts as I found them. However, there is no suggestion that he has engaged in, or has any desire to engage in, communication with anyone in a similar way. [ 19 ] The report noted that Mr. S., who previously had no mental health issues, first started expressing suicidal thoughts at the police station after his arrest. He was then taken to hospital and certified under the Mental Health Act . He reported trying to commit suicide at the hospital, and hospital records indicated that Mr. S.'s suicidal ideation was intense, active, and driven as a direct reaction to his arrest.

His suicidality was considered chronic because he faced criminal charges. He was prescribed medication for depression and anxiety. Mr. S. reported having significant ongoing suicidal ideation after his discharge from hospital and physically harmed himself numerous times to “feel something”, although he did not attempt suicide. He also engaged in counselling and was open to sexual offence treatment, as he indicated in the PSR. [ 20 ] With respect to risk, the assessment stated: “In conducting a risk assessment of Mr. S., I consulted the Risk for Sexual Violence Protocol (RSVP).

The RSVP is a structured professional judgment tool meant to inform the assessment and management of sexual violence, which is based on the presence and relevance of static and dynamic risk factors (i.e., factors known to increase the likelihood of sexual violence). For Mr. S., certain RSVP risk factors were present and relevant… Mr. S. has partially present RSVP factors, including problems with attitudes supportive of sexual violence (i.e., distorted views about sending unsolicited sexual images to women/girls) …”. [12] [ 21 ] The assessment also noted that Mr.

S. had a number of factors that protected against violence, and continued: “In light of these risk and protective factors, Mr. S. was assessed as having a relatively moderate case prioritization (indicating moderate needs to manage his risk) and moderate risk for future sexual violence. His risk of serious physical harm was assessed as relatively low. It is noteworthy that Mr.

S. does not have prominent antisocial personality features, he has no previous criminal history, and there is no clear pattern of evidence of sexual deviance”. [13] The assessment noted that if he was able to establish a healthy sexual relationship with an age- appropriate intimate partner, his risks would diminish. Mr. S has tried to do so but when the woman discovered his criminal history, she ended their contact. It would not be surprising if developing a relationship will continue to be problematic. [ 22 ] The psychologist recommended that Mr.

S. be referred to the Forensic Sexual Offence Program for an assessment for treatment suitability, and that he take individual counselling for mood and stress management, assertiveness, and relationship building. The counsellor he had seen was identified as an appropriate resource. Analysis Purpose and Principles of Sentencing

[ 23 ] Sentencing an offender for a crime is an individualized process, where the sentencing judge must give effect to the purposes and principles of sentencing as set out in the Criminal Code . The relevant principles are set out in s. 718 to s. 718.2 of the Criminal Code . Proportionality is a fundamental principle of sentencing. It requires that a sentence be proportionate to the seriousness of the offence and the offender’s degree of responsibility. That is where regard must be had to sentences imposed on other offenders for similar crimes and in similar circumstances.

No one case is identical to another, but guidance can be had from relevant cases. The cases referred to by counsel demonstrated that the sentences sought were within the appropriate range. [ 24 ] The main purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful society. The relevant objectives in this case are to denounce Mr. S.’s conduct and the harm done to the community by it, and to deter others from committing offences. He also needs some help in his rehabilitation.

One important principle of sentencing is restraint, also set out in s. 718.2 of the Criminal Code : Mr. S. should not be deprived of his freedom and imprisoned, if a less restrictive sanction will fulfil the relevant sentencing principles and objectives. [ 25 ] Denunciation and deterrence are the most important sentencing considerations. I have concluded that specific deterrence is not needed in all of the circumstances. General deterrence is important given the prevalence of child pornography, but responsibility for that should not be shouldered entirely by Mr. S.

As stated in Friesen , it is important to recognize, denounce and address the damage that is done not just to children but to society by the commission of sexual offences against children. Rehabilitation is also important and must be given real weight. Risk of Reoffending [ 26 ] The psychological assessment identified various risk factors for Mr. S., but as noted by the psychologist, “risk assessments are dynamic and are only as valid as the information upon which they are based”. Other relevant information about Mr. S. could impact the risk assessment at the time of sentencing. In January of 2023 Mr.

S. was assessed as having a moderate risk of committing a similar offence. [ 27 ] I note that a number of risk factors were not present at the time of offending, for example, a recent divorce. Mr. S.’s thoughts and actions relating to suicide also were post-offence conduct. Although those are factors relevant to risk, from the information provided at the sentence hearing, those factors have significantly diminished in importance. [ 28 ] Some time has passed since the separation and divorce, and his life is more settled. He has partial care of his children and his family supports him.

He is on medication and receiving treatment for his depression, which he had not done at the time of the offence. He is no longer expressing any thoughts of suicide, but the report also noted that incarceration in a correctional facility would increase his risk of suicide. I conclude he is now at a lower risk to re-offend than at the time of the report, January 16, 2023. Moral Culpability [ 29 ] Mr. S. argued that he had a reduced moral culpability because his emotional and intellectual abilities were below normal.

It was submitted that the way he communicated in the text messages was like a teen, which was a reflection of his alleged below normal emotional and intellectual capabilities. While it may be true that he communicated like a teen, Mr. N. also communicated like a teen, and there was no suggestion or evidence that he had any emotional or intellectual deficits. In fact, he testified that he tried to communicate in that way to try to establish a connection with the person that was blocked, because he assumed that person was a teen. [ 30 ] Even if I assumed that Mr.

S. communicated like a teen, that was just as reflective of trying to establish a connection and build trust with “M.” as having stunted intellectual and/or emotional intelligence. Further, the risk assessment noted that Mr. S. described his attraction to “M.” as follows: "I was attracted to the person ... they seemed mature ... and they didn't seem like a child." That also diminishes the force of that submission. I am not persuaded by that argument, and find he knew exactly what he was doing, but I accept that he was suffering from low self-esteem at the time. Remorse [ 31 ] It was very clear that Mr.

S. is very remorseful for what he did. That is evident in a number of ways. The presentence report and psychiatric report say he is exactly that. He was and is willing to accept treatment. He has taken responsibility for his offending and has significant insight. His suicidal ideation, the attempted suicide and his depression were not just because he was caught, but specifically that he was very concerned that he had actually emotionally harmed “M.”. He cooperated with an investigation by the Ministry of Children and Family Development, and his file is closed.

He accepted the consequence that he will miss many of his children’s school activities, which will have a great impact on him. The psychologist noted in the risk assessment that Mr. S. was visibly upset when discussing the fact that he had to miss his child's first play recital at school. His apology in court also made his remorse clear. Aggravating and Mitigating Factors [ 32 ] The aggravating factors I must consider include that Mr. S. knew it was wrong to communicate as he did with a 14-year-old, yet after stopping, he re-instigated the communication, initiated sexual flirting, and offered to buy alcohol.

He sought to build trust with “M.”, grooming her to go along with what he sought. He sought a nude or partially nude photograph of “M.” more than once. I am not sentencing Mr. S. for this, but the reality is that he sought to have, as far as he knew, a young teenager create child pornography and distribute it.

He encouraged a teen to commit a serious offence so that he could access and possess child pornography. [ 33 ] The fact that there is no victim and that he has no criminal record are neutral factors. [ 34 ] The mitigating factors, in my view, are that he was assessed at a moderate risk of reoffending in January, and that risk has

diminished as time has elapsed. This is his first offence, so there should be restraint. He is very remorseful and has accepted full responsibility for his conduct. Collateral Consequences [ 35 ] There are also some collateral consequences to consider. Mr. S. has children and takes care of them. If incarcerated, he would lose his employment, which would affect any spousal and child support he is liable to pay. As a result of release conditions, he was not able to attend various school and other events with his children. That is also a loss to his children.

He lives in a small community, where his case has been reported by the press. His offence is well known, and his family was threatened after the guilty verdict was reported. He has received threats and a dead animal was left at his parents’ door, where he lives. His work environment has been far more difficult. [ 36 ] I am also mindful of the delay in sentencing Mr. S. and the undoubted stress that has caused by not knowing what the result will be. He has been on fairly strict release terms for a significant period, and has been fully compliant. Although Mr.

S. recognized that was not sufficient to amount to a mitigating factor, it does demonstrate that he will likely comply with court orders. Sentence [ 37 ] It is clear that I must impose a jail sentence to fulfil the sentencing objectives in this case. I now must consider whether that could be served in the community rather than in a correctional facility. [ 38 ] In R. v. Proulx [14] and subsequent cases, the Supreme Court of Canada has made it clear that there can be significant denunciation and deterrence provided by a conditional sentence.

Those sentencing objectives can be achieved particularly where the offenders’ community knows about the offender and the offending, as is the case for Mr. S.; and because a conditional sentence may be longer than a jail sentence. [ 39 ] The first stage of the analysis for whether a conditional sentence order may be suitable requires that the sentence be less than two years. That has been met. Second, I must consider whether the public would be put at inordinate risk if Mr. S. remains in the community. Since this is his first offence and he has been very compliant with his release, the risk is low and manageable.

The third consideration is whether a conditional sentence order would be a fit sentence, in the circumstances, taking into account the goals of sentencing. Given the public notoriety of his offending, all of the sentencing purposes and objectives, and the collateral consequences, I am satisfied a conditional sentence is appropriate. [ 40 ] The sentence I am imposing is a conditional sentence for a period of 18 months. For the first nine months, Mr. S. must obey a term of house arrest by being inside the place where he lives at all times, with limited exceptions for work and health.

For the subsequent nine months, Mr. S. will be subject to a curfew by being inside the place where he lives between the hours of 9 p.m. and 7 a.m., with similar exceptions. [ 41 ] That will be followed by a period of probation for 12 months. Both the Conditional Sentence Order and the Probation Orders will restrict his contact with people under the age of 16, including public areas frequented by children and require him to participate in counselling. There will also be ancillary orders with respect to taking samples of Mr. S.’s DNA and registration under the SOIRA . _______________________ The Honourable J.

Guild Provincial Court Judge