R. v. J.O. Date:, 2012 BCPC 442

Citation: R. v. J.O. Date: 20120831 2012 BCPC 0442 File No: 60236-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J. O. ORAL REASONS FOR JUDGMENT ON JUDICIAL INTERIM RELEASE OF THE HONOURABLE JUDGE MACKAY Counsel for the Crown: A. Ormiston Counsel for the Accused: R. Ballantyne Place of Hearing: Chilliwack , B.C. Date of Hearing: August 31, 2012 Date of Judgment: August 31, 2012

[ 1 ] THE COURT: The circumstances set out in the various counts of this Information, it is trite to say, are very grave and, in my view, the Crown has produced overwhelming evidence of guilt. Indeed, Mr. Ballantyne candidly advises that his instructions are to resolve these matters by way of pleas. The details, of course, of which counts and so forth, will be determined at some future point in time. [ 2 ] The material before me indicates that Mr.

O. has lived a rather secretive life and participated in child pornography, the acquisition, viewing and possession of the same, for a number of years; beyond this, has created some material of his own in his own home. The allegations include victimizing a boy that he adopted in 2008 who was when the search warrant was executed earlier this year, aged 14. That boy is now in restricted foster care--specifically in the care of Mr. O.'s parents in Abbotsford. They are here today in support of Mr. O.

They are acting as foster parents to young T. under the eye of the Ministry. [ 3 ] Also victimized, as set out in the balance of the counts, was another adolescent who I understand from the submissions was 13 years old at or about the time of the offences. He is the son of one of Mr. O.'s best friends. This boy was fondled by Mr. O., who had also in the course of his dealings with this boy, made videotapes of a shower. [ 4 ] When the police executed the search warrant on Mr.

O.'s premises, computer equipment and cameras were found at his residence containing numerous photographs depicting children engaged in various sexual acts, other photographs depicting nude children, acts of bondage and bestiality. [ 5 ] The background to this is disturbing. The accused has, in Ms. Ormiston's words, surrounded himself with children for a number of years.

This includes acting as a missionary in Mexico, where he did work in orphanages for, as I understand it, approximately a two- year period, missionary work in Albania, work in the United States of America and as a volunteer for Big Brothers, rather specifically mentioning a ten-year-old child through that organization, and hosting a Korean home-stay student. [ 6 ] There is, I am also told, another complaint that has been made to the police but has not yet resulted in any charges being laid. [ 7 ] The Crown seeks detention here on the primary and secondary grounds. [ 8 ] In support of her position on the primary grounds, to summarize what I understand Ms.

Ormiston's position to be, she notes the offences are very serious, that minimum jail sentences apply, and that it is a virtual certainty that Mr. O. will serve time on these offences. He has travelled quite frequently, it appears, to other countries and spent significant time outside Canada in recent years, suggesting that he has at least to some extent some roots, some sort of network elsewhere. [ 9 ] On the secondary ground, Ms. Ormiston points out although he has no criminal record, there is strong evidence of a long pattern of committing these sorts of offences.

There are, furthermore, in the material that has been presented to me today, no indications of any steps that have been taken by Mr. O. to address these inclinations. To be fair to him, it is not clear to me that there could be any steps taken on a very short-term basis to arrest what appear to be deep-seated characteristics of his personality. [ 10 ] The comments that he made to the police two days ago at or around the time of his arrest have been brought to my attention.

They suggest that he does not fully grasp the seriousness of this situation and continues to have a rather self-centred view of the circumstances. He appears not to understand why the contact with his adopted son, T., is necessarily prohibited and/or undesirable. He displays very little insight. [ 11 ] Mr. Ballantyne, in support of submissions that he be released, points out again that Mr. O. has no record, that he has had no difficulty for the past few months in abiding by the previous conditions.

I pause here to note the previous conditions related to only three counts and those counts related to possession and/or accessing child pornography rather than the direct involvement of any live complainants. [ 12 ] Mr. Ballantyne also points out that at the time the earlier Information was laid and the undertaking was given to a JP that resulted in his release, these further allegations were known to police and it was also known to his client says Mr.

Ballantyne that further charges relating to his stepson and this other young man were forthcoming. [ 13 ] He additionally on the evidence has the support of his family and again, that is evidenced by the attendance of his father and I am not sure if it is his mother or stepmother -- [ 14 ] MR. BALLANTYNE: No, that's -- [ 15 ] THE COURT: Stepmom? [ 16 ] MR. BALLANTYNE: That's my friend. [ 17 ] THE COURT: Oh, I see. [ 18 ] MR. BALLANTYNE: Just happens to be sitting beside him. Sorry. [ 19 ] THE COURT: The child is, as noted, well-protected under the eye of the Ministry.

The child, of course, I am referring to T. [ 20 ] The test on the primary ground under s. 515 of the Criminal Code makes reference to a necessity to ensure the accused's attendance in court. I have carefully considered all of the circumstances here and conclude that I am not satisfied it can be said that detention would be warranted on the primary ground. [ 21 ] There are certainly concerns, legitimate concerns. It is not particularly difficult if one puts one's mind to it to leave Canada.

There are roots in other countries; however, I would have to conclude, albeit having expressed those concerns, that those concerns can be

met with the imposition of conditions. [ 22 ] As to the secondary ground, it speaks of the necessity of detention for the protection or safety of the public, including victims or witnesses, having regard to all circumstances, including the substantial likelihood that the accused will commit further offences.

While in this case the Crown cannot point to past offences as a prediction of future behaviour, I am of the view nevertheless that there is a substantial likelihood of the accused committing further offences. [ 23 ] I come to this conclusion principally because, as related, two days ago, he made very telling comments to the police at the time of his arrest. And I am paraphrasing, but they were to the effect of it was like being in jail not being able to have contact with T. and/or access to the internet. These comments, in my view, reveal a startling lack of insight.

He has, as well, minimized the events with respect to his best friend's son in discussing that episode with his best friend, demonstrated by his lack of full and frank disclosure. He was prepared to conceal the whole truth from his best friend. He also minimized the nature of the possession offences in conversation with his sister, indicating to her that he had been accused of possessing something that he thought was legal. [ 24 ] No corrective measures, as I have indicated, have been taken to indicate that he could now exercise control over what Mr. Ballantyne refers to as his compulsion and/or addiction.

Compulsions and/or addictions are notoriously not amenable to willpower. Over the time covered by the Information here this man's whole life has been focused on this type of behaviour. [ 25 ] While it cannot be said with certainty that he will commit further offences, there is in my view a substantial likelihood of this occurring.

Given his capacity for self-delusion, his demonstrated willingness to minimize the circumstances and the recent concrete demonstration of his mind-set, evidenced by his statements to the police, I am not convinced that the substantial likelihood of his reoffending can be adequately addressed by any condition short of detention. [ 26 ] I, therefore, order him detained. “R.C. MacKay J.”