R. v. Rogers Date:, 2012 BCPC 518

Citation: R. v. Rogers Date: 20121011 2012 BCPC 0518 File No: 74486-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRUCE ALEXANDER ROGERS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J.A. Gaudet Counsel for the Defendant: A.E. King, Q.C. Place of Hearing: Nanaimo , B.C.

Date of Judgment: October 11, 2012 [ 1 ] THE COURT (orally): Bruce Alexander Rogers is before me on a charge that on or about the 6th day of October, 2010, at or near Nanaimo, in the province of British Columbia, he did possess child pornography, contrary to s. 163.1(4) of the Criminal Code . [ 2 ] While maintaining a plea of not guilty with respect to that particular count and pursuant to s. 606(4) of the Criminal Code , Mr. Rogers has entered a plea of guilty to an offence under s. 163(1) (

a) of the Criminal Code . That provision reads as follows, and I quote: 163(1) Every one commits an offence who (

a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever. [ 3 ] I have heard a joint submission from Crown counsel, Ms. Gaudet, and from Mr. King, who is counsel for Mr. Rogers. That joint submission has outlined the circumstances that surround the charges. The circumstances as outlined by Crown are not in any way disputed by the defence.

I find that the circumstances as described by Crown are the facts in this matter and that those facts are satisfactory to both support a plea of guilty and a finding of guilt with respect to the offence under s. 163(1) (

a) of the Criminal Code . [ 4 ] The circumstances were originally thought to be satisfactory in order to lay a charge of possession of child pornography. However, upon a full examination of the materials which were found to be in the possession of Mr. Rogers, as a result of the execution of search warrants at his place of business, his home and his car, and upon discussions with defence counsel, Crown has reconsidered the original charges and felt that the offence that actually had been committed was the one to which Mr. Rogers has entered a plea of guilty. [ 5 ] Many thousands of images were apparently seized.

The offending images were apparently about one percent of the total number of images that were actually the subject matter of the offence. In essence, Crown has described how Mr. Rogers had taken photographs of children, who I understand to be unknown to him and which were downloaded from the Internet, and then photoshopped himself into the photographs. He also had taken photographs of himself, and I understand that those pictures depicted him masturbating himself.

Accordingly the photos would then show him in the presence of those children while he was committing that act. [ 6 ] Crown has referred me to the seminal decision in R. v. Butler , [1992] S.C.R. 452. I need not go through the entire test that is laid down in Butler , but both Crown and defence agree that the first stage of the test has been met here. That first stage involves a determination of whether the particular material involves the undue exploitation of sex. Given the fact that there were photographs which showed the children in the presence of Mr.

Rogers which had been doctored in order to make it appear that he was there masturbating, the first stage of this test actually has been easily met. [ 7 ] The second stage of the test requires the application of a test of what is referred to as "internal necessities", and for the purposes of this definition the court in R. v. Butler referred to three categories of pornography. The one applies to this case is the second category, which is explicit sex without violence, but which subjects people to treatment that is degrading or dehumanizing.

As admitted by the defence, it is the Crown's position that the mere presence of the children in this circumstance makes the activity here fall squarely within that second category. My reference to R. v. Butler and the

summary of the information to which I have just referred can be found in the 2013 Martin's Judicial Edition at page 316. [ 8 ] Furthermore, there is an additional issue that I must look at, and that is whether the materials also create a substantial risk of harm to society. Again, there is no issue taken that the subject matter of the photographs which were in Mr. Rogers' possession falls squarely within the characterization of substantial risk of harm to society. That is the basis of our pornography laws in Canada.

There are protective provisions within our Criminal Code which rely upon ensuring that certain kinds of behaviour do not cause risk of harm and particularly substantial risk of harm to society. I am satisfied that in this case, as has been pointed out by Crown and defence, these materials in this circumstance do create a substantial risk of harm to society. [ 9 ] The sentencing position that has been presented to me by way of the joint submission would impose a conditional sentence order upon Mr. Rogers which would have a duration of 18 months.

A series of conditions have been proposed, and I will deal with those further. They include the statutory provisions, and also provisions which are particularly appropriate in matters of this nature. [ 10 ] The Crown is also suggesting, as part of the joint submission, that following the completion of the conditional sentence order that there would be a probation order which would extend for a period of three years.

Again, there would be the statutory conditions which would be similar to those contained in the conditional sentence order and then some further conditions which are again both protective in nature, that is protective of society, as well as conditions designed to assist in the rehabilitation of Mr. Rogers. [ 11 ] The situation with respect to Mr. Rogers from a personal perspective has been very clearly outlined by Mr. King. [ 12 ] I have a number of exhibits before me.

The first exhibit is a letter from Dave Owen who, as I understand it, is responsible for the running of a program known as the Upper Island Sex Offender Program. Mr. Owen has provided a letter dated October 9, 2012, which outlines information concerning Mr. Rogers and his attendance at a program designed to deal with people with sexual addictions, including the sexual addiction which Mr. Rogers has obviously acknowledged. In addition to Exhibit Number 1, I have a book containing eight letters of reference. I will make further reference to these two exhibits later on in my reasons for judgment. [ 13 ] Mr.

Rogers was born in 1946. He has a brother, Scott Rogers, who is six years older than he is. Mr. Rogers' family moved throughout Eastern Canada owing to his father's participation in the banking industry. Mr. Rogers was a good athlete in his youth, both

in tennis and swimming. He graduated from high school in 1963 and then gained an undergraduate degree at St. Mary's University in 1970. I understand that his background is in geology. He first married to Carol Rogers in 1974 and they produced a son, Darren, who is now age 36. They divorced; it appears from the letter written by Carol Rogers that it was apparently a very difficult marriage. In 1987 Mr. Rogers married his present spouse, Karen Rogers. [ 14 ] He lived for a period of time in Calgary during which period he was pursuing his work successfully in the field of geology.

In 1997 he moved to Vancouver Island at which point he became an entrepreneur in a business on Vancouver Island which he continued to be involved with from 1997 up to March of 2011, at which time he retired. [ 15 ] Mr. Rogers, both through his counsel and through the other information available to me, has clearly acknowledged that he has a significant and troubling sexual addiction. It is also significant, that the information that led to the arrest of Mr. Rogers and which brings him before the court was information that had been provided by employees of his business.

It should be stressed as part of the circumstances that surround this matter that Mr. Rogers apparently only made and used these photographs for his own personal purposes. They were neither distributed nor apparently shown to others. I gather the discovery of the material by an employee was somewhat of an accident. [ 16 ] The arrest of Mr. Rogers occurred in December of 2010. Having been confronted very publicly with his addiction by way of that arrest on December 15, 2010, he then took some very concrete steps to address those problems.

As I understand it, that was done with the full assistance and support of his wife, Karen Rogers, who has stood behind him and supported him through what has obviously been a very difficult experience. [ 17 ] What Mr. Rogers undertook was a course of treatment, that being through the Upper Island Sex Offender Program. Exhibit Number 1, being the letter from Mr. Dave Owen, indicates that Mr. Rogers entered into the program in January 27, 2011. According to the letter provided by Mr. Owen, Mr. Rogers attended 81 out of a potential 86 weekly three-hour group sessions.

He was given permission not to attend the five meetings that he did miss. The programs are offered in Campbell River, British Columbia, which has necessitated Mr. Rogers driving from his residence in Nanaimo to attend those meetings. [ 18 ] Mr. Owen's letter is very telling and helpful, insofar as it provides the following report of the admissions made by Mr. Rogers while attending the programs, and I quote [as read in]: Mr. Rogers has admitted that he is a sex addict and that he has committed criminal offences by viewing child pornography.

As a result of admitting to these two facts, he has committed himself to identifying and changing his deviant thought and behavioural patterns. As part of this change, he has taken full responsibility for the impact of his behaviour on others and himself. [ 19 ] Mr. Owen goes on to confirm what I have also heard from Mr. King. That is to the effect that Mr. Rogers has also participated on a consistent basis in a 12-step program put on by Sex Addicts Anonymous. I understand that he has fulfilled all obligations with respect to that program and has been attending sessions on a twice a week basis here in Nanaimo.

That participation commenced in April of 2011 and has continued to today's date. In Mr. Owen's letter he provides a

summary of the potential risk of Mr. Rogers to reoffend, and I quote from the letter as follows: In our experience, offenders who admit to their deviancy and commit to maintaining safe, cognitive and behavioural routines that stop them from acting out their deviancy are of less risk to reoffend. At this point, Mr. Rogers demonstrates that he has the ability and the commitment to follow and use these routines.

Thus, we consider him a low risk to reoffend. [ 20 ] As part of the submissions in support of the joint submission that I have received are the letters of support and letters of reference from a wide variety of individuals. I will make reference to some of them. A number of these individuals have known Mr. Rogers and his present wife, Karen, for an extended period of time. A good number of the letters have a similar theme within them. That theme is that the authors of the letters were astounded to find out about the charges against Mr. Rogers and the addiction issues to which he had succumbed.

The theme is also that these addictions seem to have been totally out of character with the individual who they knew as a successful professional and a successful businessman. [ 21 ] That said, these individuals have stood by and behind Mr. Rogers. I am told by Mr. King that Mr. Rogers and his present wife, Karen Rogers, have been stigmatized by the charges having been laid against Mr. Rogers.

A number of individuals with whom they had developed relationships in the Nanaimo area have abandoned them and have obviously not wished to maintain a relationship with them. [ 22 ] The letter which I find very compelling is a letter written in support of Mr. Rogers by Carol Rogers. That is a letter dated August 22nd, 2012. Carol Rogers was the first wife of Mr. Rogers. I had made earlier mention of the fact that her letter confirms that there was a significant dysfunction within their marriage. I will directly quote Carol Rogers. The context of this quote is that it was after Mr.

Rogers had been charged with the offences and obviously had undergone some treatment. The quotation is as follows [as read in]: He wrote a letter of apology to our son for having been so strict with him as a child and followed up with a personal apology to me for the emotional and verbal abuse I suffered while married. He had been angry because I divorced him using the grounds of emotional and verbal abuse because he did not recognize what those terms meant.

Once he had spent several months in therapy he understood exactly what emotional and verbal abuse actually is and that the grounds for divorce I used at the time were the correct ones. Quite frankly, I had never expected that he would be open to seeing that in his lifetime, nor did I expect to receive an apology. Continuing on with the quotation in the next paragraph:

I have seen a much more sensitive, compassionate and more authentic Bruce Rogers in the past 18 months, a person who recognizes hisweaknesses and is working hard to overcome them. The "critical and judgmental aspects of his personality" have been set aside becauseof the new and deeper awareness of himself.

The next quotation is contained in a following paragraph: I believe that the therapy he has received is enabling him to become a much more compassionate and sensitive member of society, and Ifully believe that he has learned to look at all his relationships in a much more honest and sensitive way and that he will make a greatercontribution to society for willingly assuming this healing work. [23] I draw from that letter and other letters contained within the letters of reference that Mr.

Rogers has been very sincere inpursuing the counselling and that it is starting to pay dividends for both himself as well as those around him. [24] The type of conduct for which Mr. Rogers is before the court is no doubt abhorrent, but, as correctly pointed out by Mr. King,there is no minimum sentence. [25] I have been provided with two cases by Mr. King. The first is R. v. McIntyre, Nanaimo Registry Court File 72137, a January18, 2012, unreported decision of my brother judge, the Honourable Judge Iverson. In this case Mr. McIntyre had entered pleas of guiltyto four counts of sexual assault on children.

On three of the counts there was a sentence for a period of incarceration of 18 months, andon Count 6 a sentence for a period of six months less a day. In that decision Judge Iverson ordered that the sentences be served by wayof a conditional sentence order. In my view, the offences for which Mr. McIntyre was convicted are certainly much more serious thanthe ones that are before me and faced by Mr. Rogers. [26] The other decision that has been referred to me is R. v. Hurtubise, , a decision of Justice Singh of ourSupreme Court of British Columbia.

That is a decision dealing with a number of counts of possessing for the purpose of publication,distributing or circulation of obscene written matter, as well as possession for the purposes of publication of child pornography. In thatcase the learned justice granted the accused appellants a conditional discharge. The point that Mr. King makes is that there is a widerange of sentences that have been considered and imposed by the courts and of course they are fact specific. [27]

Section 718 of the Criminal Code, under the heading of "Purpose and Principles of Sentencing", provides as follows, and Iquote: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

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

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

Section 718.1 of the Code provides under the heading "Fundamental Principle": 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [28] As part of the sentencing process I must take into account both the aggravating and the mitigating factors. As noted both byCrown and defence, the aggravating factors in this matter are the fact that Mr. Rogers was engaged in utilizing images of children andthat, of course, is in itself of great concern to society and, as indicated in the Butler case, that in itself creates a substantial risk of harm tosociety.

[ 29 ] From a mitigation perspective, I am very mindful of the very positive steps that Mr. Rogers has taken with respect to volunteering on his own initiative to start dealing with his addictions. His participation in the two sets of programs is something of which I am cognizant. He has obviously had tremendous support from his wife, who herself has participated in the programs to assist in learning about the addiction and learning about the method of treatment that Mr. Rogers requires in order to address these concerns. [ 30 ] I am mindful of Mr. Owen's conclusion that Mr.

Rogers has taken steps to maintain safe cognitive and behavioural routines. I am also aware from a mitigation perspective that Mr. Owen has concluded that Mr. Rogers is considered a low risk to reoffend. [ 31 ] Having taken into account those aspects, as well as what I accept as a deep remorse expressed by Mr. Rogers to me in open court, I am of the view that the joint submission being proposed to me is an appropriate disposition of this matter. [ 32 ] Accordingly, if you would stand, Mr. Rogers, please. On the count to which you have pled guilty, being an offence under s. 163(1) (

a) of the Criminal Code , I am going to sentence you to 18 months. That will be served pursuant to a conditional sentence order. [ 33 ] I will pause here for a moment to state to you something which I am sure that you have discussed with your counsel. That is that a conditional sentence order is, in fact, a jail term, but it is a jail term which you have been given the opportunity to serve within the community. It is not to be considered a lesser sentence. In fact, there is a significant risk to a person subject of a conditional sentence order who breaches that conditional sentence order.

They may come back before the courts and Crown may be seeking to have the conditional sentence order collapsed; the result being that a person subject to the conditional sentence order would then be required to serve the balance of their sentence in a custodial setting. [ 34 ] So having said that, I am going to outline terms. These are court imposed terms. These are not suggestions. These are things that you must abide by in order to fulfill the provisions of the conditional sentence order. 1. The first provision will be to keep the peace and be of good behaviour. 2.

You must appear before the court when required to do so by the court. 3. The third is to report to a supervisor within 48 hours at the 1st Floor, 17 Church Street, Nanaimo, British Columbia, in person and thereafter when required by the supervisor and in the manner directed by the supervisor. 4. The fourth provision is you must remain within the province of British Columbia unless written permission to go outside of the province is obtained from the court or the supervisor. 5.

The fifth is you must notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation. 6. The sixth is you are not to possess, use or access any computer or other device that accesses the Internet, except you may reside in a residence in which your spouse possesses a computer with Internet access. 7. You are to abstain absolutely from viewing, accessing or possessing any form of pornography, and that includes what Crown has described as "legal pornography". 8.

For the first nine months of your conditional sentence order you are to remain within your residence within the hours of 8 p.m. to 6 a.m. at all times except: (

a) for the purposes of employment or travelling directly to and from employment;

b) to attend or travel to and from counselling sessions; (

c) with the prior written permission of your supervisor. 9. You shall present yourself to the door of your residence within five minutes of any supervisor or peace officer attending at your door for the purposes of determining your compliance with the curfew conditions of this order. 10. You shall respond personally and immediately to the telephone in your residence when any supervisor or peace officer makes a telephone call to your residence for the purpose of determining your compliance with the curfew portion of this order. 11.

You shall attend, participate in and successfully complete any assessment and/or counselling as may be directed by your supervisor. 12. You shall not possess or consume any alcohol or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act except with a valid prescription as provided by a physician licensed to practice in British Columbia. [ 35 ] In addition to the conditional sentence of 18 months, there will be following on that a three-year probation order. That probation will contain the following provisions: 1.

First of all, you must keep the peace and be of good behaviour. 2. Appear before a court when required to do so by the court.

3. You must report in person to a probation officer upon -- I am going to say within 48 hours of completion of your conditional sentence order, at 1st Floor, 17 Church Street, Nanaimo, British Columbia, and thereafter when required by the supervisor and in a manner directed by the supervisor. 4. The next condition is you must remain within the province of British Columbia unless written permission to go outside of the province is obtained from the court or the supervisor. 5.

The fifth condition is that you shall notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation. 6. The sixth condition for the probation order is not to possess, use or access any computer or other device that can access the Internet, except you may reside in a residence in which your spouse possesses a computer attached to the Internet. 7. You are to abstain absolutely from viewing, accessing or possessing any form of pornography, and that includes what Crown has described as legal pornography. 8.

You shall attend, participate in and successfully complete any assessment and/or counselling as may be directed by your -- I guess in this case it is the probation officer. [ 36 ] Those, as I understand it, are the conditions that are being sought by Crown. [ 37 ] As I understand it, it is agreed by Crown and defence that this is not a situation which a SOIRA order applies or a DNA order applies. [ 38 ] I believe I have dealt with all matters before the court, unless there is something I have overlooked that requires some clarification. [ 39 ] MR. KING: If I may just make one comment, Your Honour?

When you talked about probation, and I think it's all correct, you referred to supervisor, and I guess when you talked about probation, you meant probation officer. [ 40 ] THE COURT: I did. When I made reference to supervisor under the probation terms, that should have been a reference to a probation officer rather than to a supervisor. [DISCUSSION] [ 41 ] THE COURT: Now, is there anything further you need me to do with respect to Count 1 on the indictment? [ 42 ] MR. KING: I don't believe so. [ 43 ] THE COURT: All right. So the plea of guilty has been entered with respect to the other Code section. [ 44 ] MS.

GAUDET: I think the -- [ 45 ] MR. KING: I think there's a -- [ 46 ] MS. GAUDET: I think there should be a dismissal on the outstanding count, Your Honour. [ 47 ] THE COURT: All right. That was what I was asking. [ 48 ] MR. KING: Thank you very much. [ 49 ] THE COURT: All right, then I will dismiss the original charge. [ 50 ] And there is a victim surcharge that applies to this? [ 51 ] MS. GAUDET: Yes, there would be. [ 52 ] THE COURT: All right, then in the circumstances, that will apply. (REASONS CONCLUDED)