R. v. Concepcion Date:, 2017 BCPC 153

Citation: R. v. Concepcion Date: 20170327 2017 BCPC 153 File No: 63240-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. IAN SAN JUAN CONCEPCION ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: S. Bains Counsel for the Defendant: H.W. Chambers Place of Hearing: North Vancouver , B.C. Date of Hearing: March 27, 2017 Date of Judgment: March 27, 2017

[ 1 ] THE COURT: Ian San Juan Concepcion pled guilty to one count of unlawfully recording a person by camera where the person was nude with her breasts exposed contrary to s. 162(1) (

b) of the Criminal Code . The offence occurred on June 2, 2016, in Squamish. The Crown proceeded summarily. A presentence report was prepared. [ 2 ] Mr. Concepcion is 29. The victim is in her 40s. He is the friend of the younger brother of the victim. The victim and the offender shared a close and trusting relationship. She treated him like a younger brother. The offender and the victim live in the same apartment complex. The victim and her 17-year-old daughter lived together in one suite. [ 3 ] On the day of the incident, Mr. Concepcion visited the victim in her apartment.

During that visit, he used the bathroom. After he left, the victim went to the bathroom and began disrobing as she was intending to bathe. She removed the clothing from the top of her body and then noticed a camera hidden behind a plant on a shelf. She threw a towel over the camera and got dressed. She took the memory card out of the camera and viewed the contents. The images depicted the offender setting up the camera and of her disrobing.

The images were not transmitted and only the police and the victim have seen them. [ 4 ] The victim reports feeling violated in terms of her sense of privacy in her home and her trust in the offender. She has had ongoing concerns about whether the images may have been transmitted to the offender and distributed by him. She also worried about what the impact on her daughter might have been if she had been recorded while using the bathroom. She, her daughter, her brother, and Mr. Concepcion are all members of the [omitted for publication] in Squamish. [ 5 ] Mr.

Concepcion is from the Philippines and his parents continue to reside there. He provides substantial support to his parents, in particular, to cover the cost of medications required by them. He reports having enjoyed a positive upbringing free of abuse, neglect, or poverty. He has one sister in Squamish with whom he shares a residence and another sister lives in the United States. [ 6 ] He immigrated to Canada in the spring of 2013 and has remained here since under a work permit which expires in June of 2017. He has no criminal history.

A conviction would result in him being unable to renew his work permit or to make application for permanent residency. Mr. Concepcion trained as a nurse in the Philippines, but his credentials are not recognized in Canada. He works full-time at a fast-food chain restaurant. He does not face any substance abuse, cognitive, health, or mental health challenges. He has prosocial friends, one of whom was interviewed and reported being shocked at the offender's conduct. [ 7 ] Mr. Concepcion is involved in a longstanding romantic relationship with a prosocial female.

He has not told her about this criminal charge because she is close to his mother and he is concerned that information about his offending conduct would negatively impact his mother's health. He reports having a healthy sexual relationship with her. His prior relationships have been age-appropriate and healthy. He denies any deviant sexual interests including voyeurism. [ 8 ] Mr. Concepcion accepted responsibility early and was cooperative with the police. He has been compliant with his terms of interim release.

He is remorseful and has been anxious over the potential consequences to him resulting from his conduct. He is most concerned about not being able to remain working in Canada. Mr. Concepcion has not been able to offer any explanation for his criminal conduct. I cannot find he has any insight into the causes of his criminal behaviour or has an understanding of the serious nature of the impact of the offence on the victim. [ 9 ] The Crown is seeking a suspended sentence with probation for two years. Counsel for Mr. Concepcion is seeking a conditional discharge with probation for two years.

There is no issue as to the appropriate terms to be imposed regarding treatment and protection of the victim. There is also no issue that a conditional discharge is in the offender's interests. The issue I must resolve is whether a conditional discharge is not against the public interest in these circumstances for this offender. [ 10 ] Counsel for the Crown relied on R. v. Bosomworth , 2015 BCPC 7 , and R. v. Muggridge , [2015] N.J. No. 80 . Counsel for Mr. Concepcion relied on R. v. Pan , 2012 ABPC 203 .

Each of these authorities considers many previous authorities dealing with the range of sentence for voyeurism offences and the application of the discharge provisions of the Criminal Code to voyeurism offences and to other offences. I have considered the circumstances and range of sentence set out in the authorities. In particular, I adopt the analysis of the application of the principles and range of sentence set out by Judge Dhillon in Bosomworth at paragraphs 20 to 39 .

At paragraph 35 of the Bosomworth decision, she said: Cases of voyeurism in which a discharge was found to be unsuitable generally disclose greater moral blameworthiness, such as a planned or pre-meditated course of conduct, multiple surreptitious recordings or voyeuristic acts, or those involving more than one victim ... [ 11 ] At paragraph 38, she said: It is my view that given the times in which we live, where privacy in the public sphere has been eroded by the prevalence of surveillance cameras or the ready deployment of cell phone cameras in public places, the expectation of personal privacy in highly private places must be protected.

Members of the public who use the restroom facilities of any bar, restaurant or similar establishment must be assured of their utmost privacy. The law must protect that privacy by ensuring a deterrent and denunciatory sentence which sends the message that a criminal record is likely to result if criminal acts involve a serious breach of personal privacy. [ 12 ] Mr. Concepcion is person of otherwise good character. He has accepted responsibility by admitting to the offence and entering a guilty plea. I accept he is sincere in his expression of remorse and has been specifically deterred.

As noted above, he lacks insight into his motivation for committing the offence. He appears to lack insight into the harm he caused to the victim. Nevertheless, his prospects for rehabilitation are positive and can be met through the imposition of terms requiring him to attend and accept sex offender treatment and counselling. [ 13 ] I have considered the likelihood that, if convicted, Mr. Concepcion will not receive a further work permit to allow him to remain in Canada. This is a consequence he must have been aware of when he determined to engage in the criminal conduct before the court. Mr.

Concepcion deliberately gained access to the home of a friend who trusted him in order to plant a video camera in her

bathroom. He would have known it was likely he would be recording not only the adult victim, but also her teenage daughter. There is no evidence as to how long the camera was capable of running, but I infer the offender would have known that it would record for at least several hours. Mr. Concepcion not only violated the trust of his friend, but also the sanctity of her home. [ 14 ] I find surreptitiously video-recording in the bathroom of a person's home to be a serious violation of the expectation of privacy of the victim.

A strong message must be sent that such conduct is of high moral blameworthiness and will result in a criminal conviction being imposed. In all the circumstances, I find that the imposition of a conditional discharge would be contrary to the public interest. I find that such a sentence would not meet the principles of general deterrence and denunciation. [ 15 ] Mr.

Concepcion, if you will stand, please. [ 16 ] There will be a suspended sentence with probation for two years. [ 17 ] You may be seated while I impose the terms. [ 18 ] The first term will be that you will keep the peace and be of good behaviour, and appear before the court when required to do so by the court. [ 19 ] You must report by no later than 4:00 p.m. tomorrow in person to a probation officer at the Squamish Community Corrections Office, and I will delegate to the clerk of the court to insert the address, and report thereafter as and when directed. [ 20 ] You will attend for, accept, and complete to the satisfaction of your probation officer any psychiatric or psychological assessments, counselling, or educational programming including, but not limited to, the forensic sex offender program. [ 21 ] You are to have no contact directly or indirectly with E.C. [ 22 ] You must not attend at [omitted for publication], Squamish, British Columbia, and that is [omitted for publication]. [ 23 ] You are not to attend any residence, place of employment, or place of education at which you know E.C. to reside, work, or attend. [ 24 ] Were you seeking any other ancillary terms? [ 25 ] MS.

BAINS: No, Your Honour, the Sex Offender Registry Act does not apply to this so there are no ancillary orders that I am seeking. [ 26 ] MR. CHAMBERS: Thank you, Your Honour. [ 27 ] THE COURT: Thank you. [REASONS FOR SENTENCE CONCLUDED]