R. v. R.M.V., 2015 BCPC 469

Citation: R. v. R.M.V. 2015 BCPC 469 Date: 20150826 File No: 59496-3KC Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.M.V. BAN ON PUBLICATION s. 486.4(3) CCC s. 486.5(1) RESTRICTION ON ACCESS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. SMITH

Counsel for the Crown: G. Nelson Counsel for the Defendant: E. Warren Place of Hearing: Richmond , B.C. Date of Hearing: June 29, 2015 Date of Sentence: August 26, 2015 A Corrigendum was released by the court on March 20, 2018. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] THE COURT : This matter came before me on the 29th of May, 2015 for sentencing. The sentencing submissions proceeded that day and continued on June 29th, 2015 in relation to four counts on Information 59496-3KC.

The Record of Proceedings will reflect that on the 29th of May, 2015, R.M.V. entered a guilty plea to all four counts on that 3KC Information. [ 2 ] By way of background, there had been a KC2 file before the court in February of 2015 reflecting allegations embodied in the four counts before me, and R.M.V. entered pleas of guilty to some of the charges set out in that Information. On the 29th of May, 2015, the 3KC Information had been sworn for one day, and he entered the pleas, as I say.

I set out this background because it indicates that R.M.V. dealt with this matter in what I believe is agreed by both parties to be an early guilty plea which is relevant for the purposes of sentencing. [ 3 ] A pre-sentence report with a psychiatric component had been ordered and was available to counsel and to the court commencing at sentencing. The pre-sentence report prepared by the probation officer in this matter is dated the 27th of May, 2015, and the report prepared by B.C.

Mental Health Forensic Psychiatric Services was prepared by Registered Psychologist Kathy Lewis and is dated May 22nd, 2015. [ 4 ] R.M.V. pled guilty to Count 1 on the 3KC Information which is a charge that from the 20th of July, 2005 to the 22nd of September, 2014, inclusive, at or near Richmond and elsewhere in British Columbia, he did possess child pornography, contrary to s. 163.1(4) of the Criminal Code ; Count 2 charges R.M.V. that on or about the 13th of November, 2005, at or near 100 Mile House and elsewhere in British Columbia, he did make child pornography, digital images or photographs, contrary to s. 163.1 of the Criminal Code ; Count 3 charges R.M.V. that from the 1st day of January, 2004 to the 13th day of November, 2005, inclusive, at or near 100 Mile House in British Columbia, he did sexually assault R.V., contrary to s. 271 of the Criminal Code ; finally, Count 4 charges R.M.V. from the 1st day of November, 2005 to the 13th day of November, 2005, inclusive, at or near 100 Mile House, in the Province of British Columbia, he did unlawfully observe or record R.V. by video-recording and by taking photographs of her for a sexual purpose, contrary to s. 162(1) (

c) of the Criminal Code. SENTENCING RANGE [ 5 ] With regard to sentencing provisions in relation to these particular offences, given that the Crown has proceeded by way of indictment, sexual assault carries a maximum sentence of ten years' jail; making child pornography carries a maximum sentence of ten years with a one-year jail minimum. The Criminal Code provides a maximum sentence of five years for the offences of possession of child pornography and voyeurism.

BACKGROUND [ 6 ] The offender came to the attention of the RCMP in Richmond in August of 2014. [ 7 ] Analysts from the Child Exploitation Integrated Unit identified him as using addresses believed to be associated to child pornography between August 31st, 2013 and August 5th, 2014: police identified 218 unique internet files categorized as child pornography. The RCMP analyst viewed 79 of those files and confirmed that they met the child pornography definition of the Criminal Code . [ 8 ] The analyst gave the files to Cst.

Yung of the Richmond RCMP; this was because, as of August 2014, the accused and his wife had lived in Richmond for about a year. Cst. Yung reviewed five of the files and confirmed that they were, in his view, child pornography within the meaning of the Criminal Code . Cst. Yung obtained a search warrant for the R.M.V. residence on September 17th, 2014; it was executed on September 22nd. [ 9 ] R.V., the complainant in Counts 3 and 4, is R.M.V.'s wife. She was at home when the police attended on September 22nd. She phoned her husband and he came home.

During the search, R.M.V. told the police that he was in possession of child pornography. He said that he would show them where it was. He said it was only on his hard drive. That was not accurate. He told Cst. Yung, "I admit I have a bit of an addiction." He made no reference to the video images that he possessed which he had taken of R.V. [ 10 ] With regard to R.M.V.'s background, he is 55 years old. He was a paramedic with BC Ambulance Services. He has retired voluntarily as a result of this investigation. He married the complainant, R.V., in 1997. He lived with her and her two daughters, A.C. and D.C.

A.C. was born in 1993 and is approximately 22 years old; she was about four when R.M.V. assumed the role of step-father. D.C. was born in 1995, she is approximately 20 now, and she was about two when R.M.V. became her step-dad.

[ 11 ] The family moved from Squamish to a house in 100 Mile House in about 2001. They moved to a new house in 100 Mile House in 2004. This is relevant to Counts 3 and 4 as the photographs taken of R.V. are identified by her as having been taken in that second 100 Mile House residence, and permits a calculation of the time of the offence. As I say, R.M.V. moved to Richmond in 2013. R.M.V. has no criminal record.

THE OFFENCES COUNT 1 - possession of child pornography - 20/7/05 to 22/9/14 [ 12 ] With regard to the charges, Count 1, the possession of child pornography spanning a period of over nine years, there are three images date-stamped July 20th, 2005. The police located two external hard drives with 93 images of young girls believed to be three years to fifteen years, posing nude, focused on their genital regions. There were nine extracted videos of young girls performing sexual acts on adults; the youngest of these was about three years old.

More than a hundred thumbnail extracts of three to sixteen year-olds performing sexual acts on adult males were located. There was child pornography also found in some loose CDs in R.M.V.'s possession. COUNT 2 - making child pornography on or about 13/11/05 [ 13 ] With regard to Count 2, the charge of making child pornography, Exhibit 2 (a binder containing photographs) is described by Crown counsel as a sampling of the photos seized from the offender, not the whole.

She describes the photographs as depicting two ‘collections’, and I will use that language to describe the contents of the exhibit. [ 14 ] Collection 1 encompasses photographs in three tabs: At the first tab there are four photographs of R.M.V. naked, alone in bed. In three he has an erection. In photograph number 1, 837jpeg, he is in the centre of a double bed, arms out beside him, looking towards his lower half with an apparently flaccid penis. In photograph number 2, 836jpeg, he is just to the left of centre of a double bed, lying on his left side with his right arm resting on his right hip area.

His left arm is under the pillow to his right where there is room for another person. He is looking toward the empty right side of the bed. In photo number 3, 835jpeg, R.M.V. is posed straight arms, missionary position or half plank, his knees are on the bed and his fists are on the bed, straight-armed and rising his body above the bed; his penis is at least partially erect.

In photograph number 4, 830jpeg, R.M.V. is in the centre of the bed [on his back], left hand on chest, right hand on bed, full erection, looking towards his lower body; his erect penis is in the foreground of the photo. [ 15 ] When one goes to tab 2 of Exhibit 2, there is one photograph of child pornography. It is a photograph of a young woman, or girl, in my estimation between eleven and fourteen years of age, performing fellatio on a young man, assisted by a topless adult woman. [ 16 ] When one goes to tab 3, all four photographs from tab 1 are there but they have been modified to insert the image of a child.

Photo 1/837jpeg, the photo of R.M.V. in the middle of the bed, now has a young child, I would estimate six or seven years old, holding and looking at R.M.V.'s penis which has now been modified to be erect. Photo 4/830jpeg now has the young woman, or girl, from tab 2 performing fellatio on R.M.V.'s erect penis. He has modified the photograph such that his left hand is on the back of her head.

The photograph of R.M.V. lying on his side with his arm under the pillow now depicts a young female child, perhaps five or six years old, wearing stockings to mid-thigh, now lying on the right side of the bed, such that her head is on the pillow under which R.M.V.'s left arm is resting. The little girl's legs are spread wide and she is inserting an object into her vagina, or that is what it appears. An object that has been inserted into her anus is visible.

The last photograph, the photograph where R.M.V. is raised from his knees, depicts a child, perhaps the child from the photograph involving insertion of objects, depicted performing fellatio on R.M.V. That concludes collection 1. [ 17 ] Turning to collection 2, the accused took family photographs and school photographs which included pictures of his two step- daughters, and excised the photographs of them. He then photo-shopped those photos, that is their faces, onto child pornography. A.C. was shown these photographs by the police.

She advised that she was between 13 and 17 years old in the photos that R.M.V. used to create the child pornography. [ 18 ] With regard to the photos involving A.C.'s image, one photograph involves images relating to bondage, including tying of wrists. One involves sexual interaction with two males. There are also photographs involving D.C. which are, in my respectful view, particularly disturbing. One has her face superimposed on a photo of a woman with a large noose around her neck while performing fellatio, naked.

A second image also includes a noose with naked breasts exposed, with D.C.'s image superimposed where the initial woman's face would have been. There is a further photograph involving what could be described as bondage in relation to the photograph associated to D.C. and naked breasts. There is a photograph depicting sexual intercourse between D.C. and a male approximately 50 years old. In all of the circumstances, it is fair to expect that these photos would be extremely disturbing to either of the victims: D.C. was between 11 through 14 in the photographs that R.M.V. used.

COUNT 3 - Sexual assault of RV from 1/1/04 - 13/11/05 [ 19 ] With regard to Count 3, the charge of sexually assaulting R.V., Cst. Yung found a video last modified in November of 2005, depicting sexual intercourse between R.M.V. and his wife while his wife is either unconscious or deeply asleep. The video spans over ten minutes and is focused on the bed in the master bedroom. R.V. is seen lying on her back in the bed. R.M.V. attempts to put his penis in her mouth. She does not respond. He has full intercourse with her for three minutes; she does not respond.

He repositions her body and then moves the camera to capture a different angle. He moves her on her side and engages in full intercourse from behind; she does not move and is unresponsive.

COUNT 4 - (Sexual) Voyeurism - 1/11/05 [first legislated date] to 13/11/05 [ 20 ] With regard to Count 4, the underpinnings for this charge arise from the sexual assault video described above, plus still photographs of that sexual assault, as well as photographs taken at a different location: R.V. was shown the photographs and said that they [the latter photographs] were taken at the 100 Mile residence where they lived between 2001 and 2004. She did not know that they were taken and did not consent to their being taken. These photos include four photographs of R.V., clearly deeply asleep or unconscious.

They depict her breast and pubic area. One of the photos where she is positioned near the edge of the bed, legs off the

edge and spread, have been photo-shopped to superimpose the image of a young man between her legs with an erection. Another has a young naked woman or adolescent girl lying next to her, her hands just below R.V.'s breast. Two others depict bondage images involving nipple clamps. Clearly there was planning, time and energy into creating all of these images.

PRE-SENTENCE REPORT & PSYCHIATRIC / FORENSIC REPORT [ 21 ] In a warned statement, R.M.V. told the police that he began using a file-sharing program in the previous ten years; that he started watching adult porn and that it included child pornography by accident. He said that he had been watching child pornography for about five years, at first involving pre-teens.

There is no evidence that the images he created were uploaded or shared. [ 22 ] In the psychiatric/forensic report prepared in this matter, the writer states that R.M.V. explained that with regard to the child pornography possession count, he watched child pornography because he believed that he was addicted to pornography, and while he was aware that it was illegal, he accessed it anyway. He would sometimes delete the child pornography but would then return to it during stress and when abusing alcohol. [ 23 ] He said he put his step-daughters' faces on the images because he had those photographs available.

I note, parenthetically, images are available everywhere in our society. He denied using the images for masturbation, and was "unable to explain his rationale for creating pornography using his under-age family members' images, except to reiterate that he was experimenting with photo shop". He said that he thought that he did not just photo-shop adult porn images; he said that his behaviour was in part as a result of his use of alcohol.

He could not explain why he photo-shopped sexual paraphernalia into the pictures that he took of his wife while she was asleep or passed out. [ 24 ] The author of the forensic report noted that R.M.V. advised that he did not find the child pornography images to be sexually arousing, but could not explain why he continued to download them. He denied sexual arousal to children in real life. [ 25 ] R.M.V. says that he began binge drinking when he got home from nightshift as a paramedic. He would access pornography while his wife slept.

He says that he has not consumed alcohol since admitted to the hospital in 2014 for depression arising from these incidents. He suffered suicide ideation after his arrest in September. He began working with Transitions in Richmond with regard to coping skills. According to the forensic report, he is no longer following up on mental health issues as he has moved to Hope with his wife and is too busy with the move and renovating the new house. [ 26 ] There was some self-reporting in the forensic report of possible Post Traumatic Stress Disorder or trauma from his work, but there is no diagnosis as such.

R.M.V. said that he feels sad due to the consequences of his illegal behaviour. He told the writer that he brought the sex tape of his wife to the Lower Mainland [when he came here to work]. [ 27 ] It was the opinion of the writer that R.M.V. would be at the low to moderate risk for future sexual offending. [ 28 ] The writer noted that R.M.V. expressed numerous cognitive distortions that minimized the sexual nature of his offending and his possible risk for relapse to substance abuse.

He is described as having little insight into the choice he made regarding using the victims' images to create pornography, and with the apparent disregard of others’ rights when he chose to create a video of his wife in the circumstances. [ 29 ] With regard to the pre-sentence report filed, again R.M.V. tells the report writer that he is not sexually aroused by child pornography and does not masturbate in relation to it.

I will say that those statements seem at odds with regard to the photographic evidence before me. [ 30 ] With regard to the victims, the pre-sentence report writer refers to D.C.'s victim impact statement which has been filed which I will address shortly, but notes that the writer spoke with A.C. in a phone interview. She indicated that she had not had any contact with her mother or step-father since she was sixteen. She felt incredibly violated learning that photographs from her youth had been digitally manipulated onto a range of female bodies.

She said that she is a private person who does not use social media, and the sense of violation was exacerbated given that the images were created by a person who had obtained them in a position of trust. She recounted the fears that the images had been shared: she suffered anxiety and stress which impacted her ability to work for two weeks or so. VICTIM IMPACT [ 31 ] I will now step away from the pre-sentence report and deal just with the victims since it seems like a fitting place. [ 32 ] Part of A.C.'s victim impact statement reads as follows: R.M.V. broke my trust.

The pain and sadness I felt when I heard what he did to a photo of me is difficult to articulate. He was in my life as a father figure. The photos he used were taken during the time I lived with him and my mother. She describes the stress as "overwhelming". [ 33 ] Her sister, D.C., describes the contact by the police as changing her life forever. She says that she is left worrying for her family, that she looks at people more closely and wonders what is going on behind closed doors.

As an illustration of the impact of this breach of trust she writes that while having wisdom teeth removed she refused to undergo anaesthesia because of concern about what would happen when she was unconscious. [ 34 ] In the victim impact statement filed on behalf of R.V., there is reference to a relationship of 25 years, stress associated with R.M.V.’s job, and reference to lack of insight. At page 2 she writes: I am frustrated by the fact that R.M.V. has not seemed to realize the impact, both emotionally and financially, this has affected us. As much as we can talk about certain issues are not discussed.

PRE-SENTENCE REPORT, CONTINUED [ 35 ] Returning to the pre-sentence report, the writer notes that R.V. engaged in counselling weekly but has exhausted this resource through her husband's work; that the offences have taken a toll on her personal and psychological health, and that during the interview she broke into tears and shook uncontrollably. Notwithstanding this, she supports R.M.V. - contingent on his alcohol abstinence and treatment.

The report writer notes that R.M.V. says he would participate in a sex offender maintenance program. [ 36 ] In the pre-sentence report R.M.V. tells the writer that he made the photos of his step-daughters out of family photographs into pornography out of anger. He stated to the effect that D.C.'s behaviour to her mother and estrangement caused emotional pain to R.V., and he achieved some level of stress release from this behaviour. He said that the behaviour in relation to A.C. was a "spinoff".

According to the report writer, he appeared to minimize the recording of the sexual acts with his wife without her knowledge, stating that he does not believe that his wife has a desire to pursue the charges; that the video was created for his own pleasure, and the video is of his wife. [ 37 ] The writer concludes that R.M.V. appears to be genuinely remorseful. POSITION OF THE PARTIES The Crown [ 38 ] With regard to the position of the parties, the Crown seeks a global sentence of three years.

The Crown says that a sentence of two years with regard to the sexual assault charge and one year with regard to the making of child pornography to be served consecutively, along with a one-year jail sentence with regard to possession of child pornography to be served concurrently, and a further one year of jail with regard to the voyeurism count, also to be served concurrently, would be appropriate. The Crown notes that there is no time in custody to be calculated.

The Crown also seeks the mandatory DNA order, a SOIRA order, and specific provisions pursuant to s. 161 of the Code , along with a firearms prohibition. [ 39 ] Crown counsel says that the following are aggravating factors:

a) Statutorily, she points to: i.) s. 718.2(a)(ii) in relation to Counts 3 and 4, noting an abuse of a spouse; ii.) s. 718.01 with regard to Count 1 involving children under 18, also in relation to Count 2; iii.) 718.2(a)(iii) with regard to Count 2 in relation to the altered photographs of the step-daughters;

b) With regard to factual aggravating factors, Ms. Nelson states that the sexual violation of the spouse while unconscious, including planned videoing of same, is an aggravating factor, and that this happened on at least two occasions. [ 40 ] The mitigating factors identified by the Crown are R.M.V.’s lack of criminal record and his guilty plea. The Offender [ 41 ] On behalf of R.M.V., counsel says that Crown's position is reasonable and within the case law; however, counsel submits that a sentence within the provincial range, that is, less than two years, would still have a deterrent impact.

Counsel says that R.M.V. has taken steps to rehabilitate himself, he has stopped drinking, and has had some medical treatment as a result of these events. He says he has lost everything; his work and his home in Richmond. He notes that he had been a contributing member of the community, saving people's lives as a paramedic. He refers to the spectre of trauma arising from that work. He also confirms that there is no evidence that R.M.V. distributed the pornography. He submits that he is remorseful and that the main key is monitoring.

He suggests a sentence of two years less a day with up to three years of probation would be the appropriate sentence in these circumstances. DISCUSSION AND CONCLUSION [ 42 ] Turning to the provisions of the Criminal Code in relation to sentencing principles, s. 718 of the Criminal Code sets out 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 following objectives. The objectives include:

a) to denounce unlawful conduct;

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

c) to separate the 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 acknowledgement of the harm done to victims and to the community.

Section 718.01 is relevant here. It states:

When a court imposes sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Section 718.1 of the Criminal Code sets out the principle of proportionality which brings into play moral blameworthiness and culpability. It states: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 sets out other sentencing principles. [ 43 ] The statutory aggravating principles here include − 718.2(a)(ii): Evidence that the offender, in committing the offence, abused the offender's spouse… − 718.2(ii.1): Evidence that the offender, in committing the offence, abused a person under the age of eighteen years. − 718.2(iii): Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. [ 44 ] Subsections 718.2(

b) through (

e) set out the principles of parity, totality, restraint, and the principle that other options than jail should be considered. [ 45 ] The Crown provided 14 cases. I have read and considered them all, even if I do not refer to all of them. No cases were provided by the defence. [ 46 ] With regard to sexual assault, in R. v. G.M. 2015 BCCA 165 , the Court of Appeal made it clear that, absent exceptional circumstances, denunciation and deterrence are the paramount sentencing objectives in serious sexual assault cases. (See: para. 17 and 18).

There are no exceptional or unique circumstances in this case, thus, applying G.M. , supra, denunciation and deterrence are at the fore. At paragraph 22 the court notes that the range of sentences for sexual assault involving intercourse is between two and six years. [ 47 ] In R. v. Berry 2014 BCSC 284 , Madam Justice Holmes sentenced Mr. Berry with regard to sexual assault and voyeurism. As a result of the handling of the case by the defence, the complainant did not have to testify with regard to the content of videos and the court found this to be a mitigating factor.

The facts in Berry did not include vaginal intercourse or penile penetration; rather, it involved the creation of four videos showing Mr. Berry sexually touching and digitally penetrating the victim, his then partner's vagina and anus while she was either soundly asleep or unconscious in the bed she shared with him at the time. He had, as well, set up a camcorder to record the genital area of people using a toilet as well. [ 48 ] At paragraph 26 of the decision, in discussing the PSR and forensic report, the judge noted that the authors were of the view that Mr.

Berry still minimized his behaviour and tended to blame it on the alcohol and drugs he was consuming at the time of the offences. I note parenthetically that I find some elements of minimization and blame on alcohol misuse present in this case as well. At paragraph 26 of Berry the court notes that Mr. Berry is predicted to be at a low to moderate risk of re-offending, the same as the offender here. [ 49 ] At paragraph 52 Madam Justice Holmes noted that the offender's moral blameworthiness factors into the application of the case authorities before her.

She observed that the sexual assault was made more egregious as a result of making the video and maintaining it. I agree with this observation. The judge noted that Mr. Berry had magnified some of the assaults by close-up views. I note that a person can zoom in on portions of a recorded picture, even if the original does not include a zoomed-in shot. It is not a difference that I afford much weight. [ 50 ] Mr. Berry was sentenced to two years' jail for the sexual assault count, and nine months with regard to the voyeurism in relation to his sexual assault victim. [ 51 ] In R. v.

D.S . 2012 SKQB 118 , the court noted the high degree of moral culpability in sexual assault sentencing cases where the victim is asleep. (See: para. 15). [ 52 ] The decision of R. v. C.G . , [2001] OJ No. 1243 is a decision that I did not find particularly helpful in light of the judge's findings set out at paragraph 3 in relation to the nature of the crime. They are so different from what is before me that I do not rely on that decision. [ 53 ] With regard to the voyeurism cases before the court, the Berry decision affords some instruction. Like here, there was no evidence that Mr.

Berry distributed the video recordings; however, the judge there noted that the voyeurism offences were clearly planned in some detail and were committed in a deliberate manner. Here, I find there was significant planning and deliberation. I note the two different locations of the pictures and the fact that R.V. appears to be positioned and the camera angle moved. [ 54 ] In Berry there was no evidence with regard to when the video recordings were made, whether it was a short or long time; however, the court noted that Mr.

Berry had opportunities for reflection to reconsider the actions he was taking and he failed to take those opportunities, (see: paragraph 62 of the Berry decision). I find Madam Justice Holmes’ observations apposite here: Some of these offences span an almost ten-year period and R.M.V moved house a number of times and carried the offending material with him. [ 55 ] In Berry , Madam Justice Holmes at paragraph 63 stated: Like the sexual assault offence, the voyeurism offences violated the essential human dignity of the people shown in several different ways.

They show a complete disregard for those people's autonomy, or their right to determine which, if any, of their most intimately private actions will be video-recorded…

[56] With regard to the non-distribution factor, Madam Justice Holmes noted the risk that making and keeping the recordings posedto the victims - a further victimization and vulnerability. In this case, it appears that R.M.V. took the recordings of the sexual assaultfrom the residence in 100 Mile House to the Lower Mainland when he travelled here for work, and then (when he moved here) he tookall of the images from the 100 Mile House area to Richmond where it was found. [57] With regard to the case law relating to sentencing on voyeurism, the decision of R. v.

Grice 2008 ONCJ 476 is factually quitedifferent than here. The ex-husband of the complainant took pictures through the bathroom window of the complainant. The courtdescribes the offence as thoughtless and self-centred in nature. In the case before me there is nothing thoughtless about R.M.V.'sconduct; to the contrary, it is premeditated, it requires planning and significant energies expended. In Grice a suspended sentence wasgranted, and in my respectful view that would be wholly inappropriate for the case before me. [58] In R. v.

G.F. (NL PC), 2011 CarswellNfld 90, the court there dealt with a situation where a step-fatherinstalled a video recorder in the bedroom of his 17-year-old step-daughter. The court noted the facts involved one incident which wasdiscovered; a guilty plea, and an accused with no record. While denunciation and deterrence are the primary considerations, in thecircumstances before that court a three-month conditional sentence order was appropriate. [59] In R. v. Kidd 2015 ONSC 2391, Mr.

Kidd had altered a number of images with photo-editing software, much like R.M.V., toinclude himself naked and aroused in sexual encounters with S.T. and her school-aged friends. He had captured eighteen individuals onthe video that he had installed. He was a firefighter, he had no substance abuse issues. He had minimal explanations for his actions. Hereceived a sentence of two years with regard to the making of the child pornography in relation to S.T. and S.V. [60] R. v.

Mitchell, December 1, 2006, Red Deer, APBC, (unreported), involves another situation where an accused downloadedillicit images of child pornography and then used photo-manipulation software to alter the images, superimposing photographs of thefaces of children that Mitchell knew, and then altering them again to insert photographs of himself engaged in apparent explicit sexualactivity with the known children. He pleaded guilty.

The court stated there: Among the aggravating factors of the accused's criminal conduct are the following factors: Circumstances are predatory in nature in that the children in the neighbourhood occupied for a time by the accused have had theirprivacy and personal integrity violated by a stranger for sexual gratification through the making of the altered child pornography images. [61] What these cases show is that one of the foreseeable consequences of this type of offence - that is so damaging - is the violationof personal integrity; in this case, rather than a stranger committing this violation, it is somebody in a position of trust, somebody whooccupies the role of father.

There is still a predatory aspect in the offence in that R.M.V. takes what are photographs of an innocentnature and converts them into illicit images. R.M.V. says that it is not for his sexual gratification; I find that very difficult to accept. [62] At page 4 the Court in Mitchell notes that, further, the nature of the unlawful materials possessed by the accused depicted insome of the images and videos explicit instances of bondage and varieties of sexual violation involving pre-pubescent children. Thosecircumstances or factors apply to the case before me. [63] Finally, in R. v.

S.B. 2013 ONSC 5189, S.B. was being sentenced in relation to attempting to administer a substance to enablethe commission of an indictable offence, attempt sexual assault, attempt to make child pornography, voyeurism and possession of childpornography. He had secreted a camera in the family bathroom for six years and recorded his niece, his eleven year-old daughter'sfriends and other children aged 11 - 16, for about six years.

The police found one still picture of the offender, created by him cutting andpasting one of the photographed youth’s face into an image so it appeared that she was performing fellatio on him. He had no criminalrecord, there was a joint submission, and he was sentenced to three years' jail with regard to all of the offences. [64] (I just want to correct myself; I used the word "predatory", I should have used "opportunistic" in reference to Mitchell and thecase that is before me, at paragraph 61, above.) [65] I have looked at the evidence in this case closely. I have considered the cases put before me.

I have considered the forensicreport. I have considered the pre-sentence report and I have considered R.M.V.'s expression of remorse to the court last day. Themitigating factors here are R.M.V.'s guilty plea and the fact that he has no criminal record. I also note that he says that he is willing toundergo treatment. I agree with Crown counsel that for all of the offences, the principal sentencing factors are denunciation anddeterrence. [66] I am satisfied that the statutory aggravating factors which I referred to earlier apply.

As well, the length of time that the offenceset out in Count 1 spans and the fact that R.M.V. retained possession of the illicit images that he created for years, in my respectful view,are aggravating. I find that he has, on the spectrum of moral blameworthiness and culpability, reached the very high end when he went tothe effort of finding family photographs; taking the images of his step-daughters, and using those images to create child pornographyinvolving them as a result of viewing and apparently selecting images [of other child pornography] that met his satisfaction.

With regardto the collection number 1, he clearly set up the camera in his bedroom, he chose his poses carefully, and then superimposed thechildren's images. This is not a fleeting action at the low end of responsibility. [67] I also find as a result of the reports that there is a degree of minimization by R.M.V. He says that he is not sexually aroused bychild pornography, and as I say, in my respectful view having reviewed the exhibits, I do not accept that.

He blames alcohol to a degree,and while he says he has not been drinking, he has not taken any formal steps that I have heard of in terms of substance counselling oreven attending community groups to address that. He initially engaged mental health professionals to deal with his depression, but nolonger has any contact with professionals with regard to his behaviour, citing his move to Hope and activities surrounding his new home. [68] The range of sentence for sexual assaults involving intercourse as set out by the Court of Appeal and referred to earlier is two tosix years.

The minimum sentence with regard to the making of child pornography is one year. Even taking into consideration the effectof the guilty plea and the lack of record, I am not satisfied that this is a sentence that should be at the lowest end, and so this is thefollowing sentence that I view as appropriate.

[ 69 ] With regard to Count 3, that you did, on the 1st day of January, 2004 to the 13th day of November, 2005, sexually assault R.V., I sentence you to two-and-a-half years' jail. [ 70 ] With regard to Count 2, the making of child pornography, I sentence you to one-and-a-half years' jail time. Those sentences are to be served consecutively.

You will serve a four-year jail sentence. [ 71 ] With regard to Count 1, possession of child pornography, you will be sentenced to one year jail, to be served concurrently with the other sentences, and similarly with regard to Count 4, voyeurism, you will be sentenced to one year jail, to be served concurrently. [ 72 ] There will be an order that you provide your DNA sample, and you will be placed on the Sex Offender Registry. Both of those orders are mandatory. [ 73 ] You are prohibited, under section 109(1)(a), from possessing firearms for ten years. [ 74 ] Pursuant to

section 161 of the Criminal Code -- Ms. Nelson, I am not sure I heard submissions with regard to the length of time for the prohibition under

section 161 . (SUBMISSIONS) [ 75 ] THE COURT: Pursuant to subsection 161 (a), you are prohibited for a period of ten years from attending a public park, 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. [ 76 ] Pursuant to subsection (b), you are prohibited from 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. [ 77 ] You are, pursuant to subsection 161 (c), prohibited from 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”. [ 78 ] Pursuant to subsection 161 (d), you are prohibited from using the internet or other digital network unless you do so in accordance with conditions set by the court. [ 79 ] All of those orders under

section 161 , including (b), (

c) and (d), are for a period of ten years. [ 80 ] There is a forfeiture order before me. There is also a seeking, I believe, of restitution by D.C. Do either counsel have submissions? (DISCUSSION) [ 81 ] THE COURT: In the circumstances, I will make a restitution order payable to the Clerk of the Court, in the amount of $849.20 in favour of complainant D.C. And I will sign the forfeiture order. [ 82 ] MS. NELSON: Just by way of further housekeeping, Your Honour, the victim fine surcharge, of course, doesn't apply in this case because it pre-dates the legislation. There -- [ 83 ] MR.

WARREN: Well, it applies, but Your Honour can waive it. [ 84 ] MS. NELSON: Yes. [ 85 ] THE COURT: I will waive it. [ 86 ] MS. NELSON: Given the changes in the victim legislation since we were last here, the Crown would -- and I hadn't asked for this earlier and I haven't had a chance to talk to my friend, ask for a no-contact from in custody with A.C. and D.C. pursuant to s. 743.21. I don't anticipate that that will be an issue, I don't know that he knows where they live, but we're now required to more fully consider things than we used to -- [ 87 ] MR.

WARREN: That is not opposed. [ 88 ] THE COURT: That order will go. Thank you. [ 89 ] MS. NELSON: And just for completion of the record, with respect to the new Victims of Crime legislation, I can advise Your Honour that the complainants were notified of today's date, the Victim Services worker has kept in close touch with them; they declined to be here, and we will report to them after court. [ 90 ] THE COURT: All right. Thank you, counsel, very much. [ 91 ] THE CLERK: Your Honour [indiscernible] the SOIRA order, is there a [indiscernible] for that? [ 92 ] MS.

NELSON: It's lifetime because it's indictable. [ 93 ] THE COURT: I think it's life. [ 94 ] THE CLERK: And the firearms is mandatory --

[ 95 ] THE COURT: Ten years. [ 96 ] THE CLERK: I need a subsection. [ 97 ] THE COURT: Oh, sorry, 109(1)(a), I believe. Yes, 109(1)(a). (REASONS FOR SENTENCE CONCLUDED) CORRIGEDUM – Released March 20, 2018 [1] In my Reasons for Sentence dated August 26, 2015, the following changes have been made: [2] In paragraphs 1, 2, and 4 where the Information number 59496-KC3 or KC3 is cited, the correct number should be 59496-3KC or 3KC. [3] In paragraph 2, the date of 19th of May, 2015, should be 29th of May 2015. The sentence should read: On the 29th of May, 2015, the 3KC Information had been sworn for one day, and he entered the pleas, as I say. [4] My Reasons for Sentence are amended accordingly.