R. v. Campbell Date:, 2017 BCPC 126

Citation: R. v. Campbell Date: 20170406 2017 BCPC 126 File No: 77550-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRIAN MONTGOMERY CAMPBELL BAN ON PUBLICATION 486.4(2) CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. P. MacCARTHY Counsel for the Crown: C. Hagen Counsel for the Defendant: P. Hertzberg Place of Hearing: Nanaimo , B.C. Dates of Hearing: February 25, 27, 2015, June 1, 2, 9, 2015,

September 4, 29, 2015, January 14, 2016, September 15, 16, 2016, February 17, 2017, April 6, 2017 Date of Judgment: April 6, 2017 INTRODUCTION [1] THE COURT: Brian Montgomery Campbell (the "Accused") faces three charges prosecuted by way of indictment for offencesalleged to have occurred at or near Qualicum Beach, British Columbia. [2] On Count 1, it is alleged that from the 1st of August, 2013, to the 31st of August, 2013, inclusive, that he did for a sexualpurpose touch directly or indirectly with the part of his body or with an object, the body of M.A., a person under the age of 16 years,contrary to s. 151 of the Criminal Code. [3] On Count 2, it is alleged that the Accused from August 1st, 2013, to August 31st, 2013, inclusive, did sexually assault M.A.,contrary to s. 271 of the Criminal Code. [4] The fuller allegations on Counts 1 and 2 are that the Accused touched or rubbed an eight-year-old female, M.A., in her crotcharea, touched her under her shirt, and kissed her on her neck. [5] On Amended Count 3, it is alleged that the Accused from January 1st, 2013, to August 31st, 2013, inclusive, being a personbound by an Order of Prohibition made on the 13th day of July, 2005, at North Vancouver by Judge Moon, prohibiting him fromattending a public park where persons under the age of 14 years are present or can reasonably be expected to be present unless in thecompany of his parents, did fail to comply with the order by going to Springwood Dog Park, contrary to s. 161(4) of the Criminal Code. [6] An Order of Prohibition-Sexual Offence for a lifetime term was imposed upon the Accused on July 13th, 2005, as a result of aconviction for the offence of sexual interference contrary to s. 151 of the Criminal Code involving a male person under the age of 16years. [7] The prohibition order contains a prohibition under s. 161(1) (

a) of the Criminal Code, which prohibits the Accused fromattending a public park, public swimming area, daycare centre, school ground, playground, or a community centre where persons underthe age of 14 are present or can reasonably be expected to be present unless he was in the company of one of his parents. [8] There is a further prohibition under s. 161(1)(

b) of the Criminal Code which prohibits the Accused from seeking, obtaining, orcontinuing any employment whether or not remunerated or becoming or being a volunteer in a capacity involving being in a position oftrust or authority towards persons under the age of 14 years. [9] The final portion of the prohibition order is made pursuant to s. 161(1) (

c) of the Criminal Code which prohibits the Accusedfrom using a computer system for the purposes of communicating with a person under the age of 14 years. [10] A substantial portion of the trial heard on February 25th and 27th, June 1st, 2nd, 9th, and September 4th and 29th, all of 2015,was conducted largely within the context of a voir dire in order to determine the admissibility of two statements made by the Accused tothe police while in custody at the RCMP Oceanside detachment, namely, the following:

i) an exculpatory statement (the "First Statement") made on Thursday, October 31st, 2013, during an interview conducted between4:25 p.m. and 5:50 p.m. (the "First Interview"), and ii) an inculpatory statement (the "Second Statement") made on November 1st, 2013, during a police interview conducted between 8:12a.m. and 8:43 a.m. (the "Second Interview"). [11] The First and Second Statements together are hereinafter referred to as the "Statements". [12] RCMP Corporal Racz and RCMP Constable Kasunich were present and conducted the First Interview giving rise to the FirstStatement which was videotaped and presented in the voir dire to the court along with a transcript of the interview (the "First StatementTranscript") that gave rise to the First Statement. [13] Constable Kasunich joined Corporal Racz in the interview partway through the First Interview. [14] In the First Statement, the Accused denied the offences under s. 151 of the Code and under s. 271. [15] Constable Kasunich alone conducted the Second Interview that gave rise to the Second Statement which was also videotapedand presented in the voir dire to the court along with the transcript of that interview (the "Second Statement Transcript") that gave rise tothe Second Statement. [16] In the Second Statement, the Accused confessed to offending behaviour against M.A., being the subject matter of theallegations described in Counts 1 and 2. [17] On January 14, 2016, I rendered an oral ruling on the voir dire in which I held that both the First and Second Statements werevoluntary statements of the Accused and were admissible into evidence on that basis [see R. v.

Campbell, [2016] B.C.J. No. 364; 2016BCPC 43 ]. [18] Thereafter, on September 15, 2016, the trial resumed. At the outset of the continuation, the Accused applied to withdraw his

earlier plea of not guilty and to enter a voluntary plea of guilty to Amended Count 3, all with the consent of Crown. The application was granted and a voluntary plea of guilty was accepted from the Accused on Amended Count 3. [ 19 ] Following that plea, Crown called as its next witness, N.B., the mother of M.A. She testified and was cross-examined until the noon break.

At the commencement of the afternoon court session and at the request of counsel, the matter was stood down to permit the continuation of discussions. [ 20 ] Following those discussions, and in the late afternoon, the Accused applied to withdraw his earlier not-guilty plea and to enter a voluntary plea of guilty to Count 1 with the consent of Crown.

Some "core admissions" being "essential elements of the offence" were made by the Accused upon questioning of the Accused on the record by defence counsel for the purpose of that guilty plea made pursuant to s. 606(1.1). [ 21 ] Those "core admissions" are contained within the September 15, 2016, transcript of the proceedings at trial, see pages 56, lines 4 to 47, and page 57, line 1 to 16.

Thus, this formed the basis of the voluntary plea that was accepted by Crown and the court on Count 1. [ 22 ] On the following day, September 15, 2016, the matter was back before the court for further clarification of what evidence would be before the court for the purposes of sentencing and, in particular, what portion of the evidence heard in the voir dire was to be included. Crown and defence expressed agreement and were directed to settle Admissions of Fact to be utilized in the sentencing process. [ 23 ] Crown then directed a stay of proceedings on Count 2.

At the request of counsel, the court ordered the preparation of a Presentence Report and a Psychological Report for the Accused. [ 24 ] As a result of the guilty plea on Count 1, the young complainant, M.A., was not required to testify.

Similarly, J.K.D. (hereinafter referred to as "K.D."), the parent of two children who were both under the age of 14 years during the charge period for Amended Count 3, was not required to testify. [ 25 ] The Accused has been out of custody and bound by strict reporting bail conditions contained within a recognizance of bail, all since his court-ordered release from custody on November 1st, 2013.

That occurred following the making of the Second Statement and thereafter, while waiting and throughout the trial and while awaiting sentencing, the Accused has been bound by the strict reporting bail conditions. [ 26 ] Among those conditions, two are of special note. First, the Accused was ordered to reside at his parents' residence in Parksville, B.C., and not to be outside of that residence at any time unless accompanied by either of his parents.

That restrictive condition was subsequently modified to specify that either of his parents was to be within 20 feet of him and, latterly, modified to eliminate the 20-foot requirement and to permit him to be outside of his residence with either of his parents or legal counsel or any other person approved of in writing in advance by his bail supervisor.

Second, the Accused was not to be outside the boundaries of his parents' property at the specified civic address unless accompanied by either of his parents. [ 27 ] It is common ground that a custodial sentence in a provincial facility is warranted for the offences to which guilty pleas have been entered, namely, on Count 1 and Amended Count 3.

Also, it is common ground that the s. 151 charge proceeded by way of indictment on Count 1 and has a mandatory minimum sentence of one year. [ 28 ] The task of the court is to determine a fit and appropriate term of imprisonment, the duration of any probation order, and the nature and imposition of other ancillary orders being sought by Crown. CIRCUMSTANCES SURROUNDING THE OFFENCES Admissions of Fact [ 29 ] On September 22nd, 2016, Crown counsel and defence counsel executed Admissions of Fact dated September 26th, 2016, which were filed with the court on that date (the "Admissions of Fact").

Pursuant to the provisions of the Offence Act , R.S.B.C., c. 338, and the Criminal Code , the facts contained therein were admitted for the purpose of dispensing with the proof of those facts.

The Admissions of Fact were marked as an exhibit in the sentencing proceedings. [ 30 ] In some instances, the syntax and the wording that appears in the Admissions of Fact is somewhat unusual because it has been taken directly from sources such as the statements made by M.A., N.B., and K.B. to the police and quotes provided by those individuals that were contained within those police statements. [ 31 ] The Admissions of Fact numbered 1 to 49 with the substitution of some initials by the court to protect the identity of some of the witnesses and thus the complainants and the intermittent use referencing the Accused as "Brian" and referencing him by the un- capitalized term the "accused," are as follows: 1.

That Brian Montgomery Campbell (hereinafter called the "accused") attended to the residence at (A Road) Qualicum Beach, B.C., (hereinafter called the "residence") on two occasions, one day after the other during the time frame in the indictment, to help [N.B.] (hereinafter called N.B.) with outside chores around the property; 2. That on both of these occasions, when the accused was at the residence, M.A. was present and interacted with the accused; 3.

That on one of these occasions, in the presence of N.B., M.A. asked the accused to come with her to look at something on N.B.'s computer in N.B.'s room, in a separate building, Exhibit #8 refers; 4. That N.B. told the accused that he could go (with M.A.) for a few minutes and N.B. will make tea and sandwiches;

5. That N.B. thought it was a pretty long time they were gone so she walked outside the house and the accused was coming in with M.A; 6. That the accused sat down at the counter top in the kitchen and M.A. pulls a stool seat between his leg(

s) and they are kinda tickling and playing; 7. That M.A. grab(

s) his hand and put it on her lap and said, "can you rub me like ..." and N.B. saw the accused putting his hand on M.A.'s mouth to stop her talking; 8. That N.B. found this to be suspicious and could not stop thinking about whatever would have happened there so N.B. finished the conversation with the accused, said she needs to go and asks him to leave, which he did; 9. That N.B. asked M.A. if anything had happened before and why she have said Brian said rub me like, and then why did he cover her mouth and stuff and M.A. said nothing; 10.

That N.B. asked M.A. if anything happened in the bedroom when he was there in N.B.'s place in the other building, Exhibit #8 refers, and M.A. said: "yes"; 11. That N.B. asked what happened and M.A. said: "I don't remember"; 12. That N.B. said to M.A. she really needed her to say and asked M.A. if the accused had touched her inappropriately, like in her private part and M.A. said: "yeah"; 13. That N.B. said to M.A. can you do what exactly he did to you and she said: "yes"; 14.

That N.B. was sitting on a chair and M.A. kinda pulled back to N.B. like putting her back against N.B.'s chest and M.A. grabbed N.B.'s hand and put them on her legs and said: "Mum, he was rubbing my leg there and I said to him that feel good. My Mum rubbing my back too at night and then he continued to rub me and he went closer between my legs higher and higher ..."; 15. That N.B. asked: "What else?" and M.A. said: "He rubbed my pee pee and I thought it was pretty weird"; 16. That N.B. asked M.A.: "Was on top of your clothing?" and M.A. replied: "yes"; 17.

That on the day before the allegation, the accused was at the residence, M.A. sprayed him with a hose, his clothing became wet, he took off his shirt and borrowed a dry shirt from N.B.'s boyfriend; 18. That on the same day the accused and M.A. were on the other side of the property, while the accused was weed eating, and the accused stopped his machine, went to his truck and got M.A. a pair of goggles to protect her eyes; 19. That on the same day N.B. heard from M.A. that she had seen the accused's pee pee because he went for a pee and she "peeked"; 20.

That upon hearing that from M.A., N.B. looked at the accused and said: "What?" and the accused said, "I guess I didn't turn fast enough or something"; 21. That M.A. provided a statement to Cst. Kasunich on May 15th, 2014, at the Oceanside RCMP detachment that was audio and video recorded; 22. That M.A. talked about walking at the Dog Park with her dog "M" and a bunch of people; 23. That they (the bunch of people) were her mom's friends: Brian, ["Person C"] and some other guy; 24. That the dogs were "Molly" and "Cisco" (I think) and Brian's dog is "Gunner"; 25. That M.A. was asked to tell Cst.

Kasunich about Brian, she said: "He's also nice"; "and he's really fun to play with" (on walks) and M.A. agreed he used to talk to M.A. a lot. He fixed the computer; 26. That the accused came to the residence and do some stuff and then leave; 27. That M.A. sprayed the accused with the hose at the residence; 28. M.A. was asked what happened, said she doesn't want to talk about it and is asked by Cst. Kasunich to tell the truth; 29.

That M.A. said: "I asked him to rub my back." M.A. says: "he kind of rubbed like right here." M.A. gestures to her crotch area at the front of her pants and says, when asked, what she calls that area, she says her: "pee pee"; 30. M.A. is asked: "And did he rub anywhere else?" M.A. responds: "Um my back, I mean I'm okay with just my back"; 31. That M.A. said it happened when they were on the computer, in the office at her Dad's house; 32. That her Mom's bed and computer are in the same room; 33. That M.A. was asked by Cst. Kasunich to go back to when she got into the room and tell what happened, like a story; 34.

That M.A. said: "We started playing games and I told him can you rub my back and he did that"; 35. That M.A. said: "I was in the room. I was bored so I started playing video on the computer and I was like, I'm still bored. So I went

to the house and I said Brian, can you play with me? And of course he was drinking beer and stuff and like man's do ... so he comes back, I'm sitting on his lap ... and I said, can you rub my back? And he's like, okay. So he starts rubbing my back and then gets down and does the thing"; 36. That M.A. was asked what "the thing" is and she replies: "The pee pee thing." M.A. will not elaborate and is asked: "How did that make you feel when he did that?" to which she responded: "A little uncomfortable"; 37. That M.A. thinks she then went in for lunch; 38.

That [J.K.D.] (hereinafter referred to as K.D.) met the accused at the Springwood Dog Park in Qualicum Beach, B.C., in April 2011; 39. That a (dog walking) group had gathered including [Person C] and the accused joined the group with dog "Gunner" in late summer, July or August of 2011; 40. That the group carried on for a couple of years, two years, with other changes, and K.D. stopped going in June of 2013; 41. That K.D.'s dog was named "S"; 42.

That from January 2013 until K.D. stopped going to the Springwood Dog Park in June, 2013, he was sometimes accompanied on his walks by his two children, both under the age of 14 years; 43. That the accused still played video games as K.D.'s son did, so they had quite a bit in common and, on dog walks, they would talk about gaming and X-box; 44. That a couple of times, between April and June of 2013, while K.D. was at the dog park, his son, J.D., plays baseball at the park and the accused would show up to watch the games; 45.

That the dog park is right beside the playing field (Exhibit #9 refers) and the accused would text K.D. and say: "Oh, I'm watching your kid's game right now. And they're winning or they're losing or whatever, right?"; 46. That at the baseball games there are "kids all over the place"; 47. That K.D.'s son got a ride home from the accused a couple of times when the cars were overloaded - the accused would take one of the kids - they (the dog walkers) would interchange kids and vehicles to the restaurant; 48. The accused visited K.D.'s home for occasional, short visits; 49.

That [Child C.C.'s] date of birth is [omitted for publication]. Sources of Evidence and Other Undisputed Facts [ 32 ] In Crown's written submission, the accepted evidentiary sources of the circumstances surrounding the offences that are before this court for sentencing purposes are set out as follows: 1) Warned statements of Mr. Campbell taken November 1st, 2013 (20 pages) (Exhibit #6) [being the "Second Statement"]; 2) Evidence of Cpl. Racz dated February 25th, 2015; 3) Evidence of Cst. Kasunich dated February 27, 2015; 4) Cpl. Carey's evidence taken on February 27, 2015 and repeated by Mr.

Hertzberg on September 16th, 2016, see September 16, 2016 Transcript, page 13, line 44 to 47 to page 14, line 1 to 7; 5) Transcript of [N.B.'s] evidence, dated September 15, 2016, at pages 10 to 49 inclusive and her further evidence referred to at paragraphs 1 through 20 of the Admissions of Fact; 6) The evidence of M.A. found in paragraphs 21 through 37 of the Admissions of Fact; 7) In regard to Count 1, refer as well to the transcript dated September 15, 2016, page 56, line 4 to page 57, line 16; 8) In regard to Count 3, see the transcript dated September 15, 2016, page 2, line 1 until page 4, line 40 and the Admissions of Fact at paragraphs 22 to 25 and 38 to 46; 9) Further in regard to Count 3, Cst.

Kasunich provided evidence, see Transcript dated February 27, 2015 at page 6, line 30 and page 14, line 21; 10) See Exhibits filed that are photographs of the dog park and the ballfield. See Exhibits 9 and 10; 11) See the Admissions of Fact, paragraphs 22, 23 and 38 through 49 inclusive. [ 33 ] Crown has also provided, in its written submissions, a further brief

summary of the circumstances with which, I understand, defence takes no issue. They provide a further context to the overall circumstances. They are numbered one to 14 and read as follows with the substitution of some initials by the court to protect the identity of some of the witnesses and, thus, the complainants: 1. The allegation is one of touching the complainant M.A., 8 years old, at her family home located at [A Road] Qualicum Beach, B.C.

2. The complainant lived there is the main house with her father and mother, but her mother shared a coach house, next to the main house, with her boyfriend. 3. It was the computer room, in the coach house, where the sexual interference occurred. 4. The accused was a family friend whom her mother, [N.B.], had met when she lived in Parksville in 2012. 5. During this time, [N.B.] shared custody of M.A. with her husband, G.A., and when M.A. was with her, every second weekend, they would walk their dog M at the Springwood Dog Park located on Despard Avenue. 6.

They met a number of adults and children who would join them to walk their dogs over the next year including [K.D.] and his children [D.C.] and his daughter, [Child C.C.], (11 years) who would often be unaccompanied and others. 7. They met the accused who walked his dog, Gunner, at the Park. 8. The accused would walk with M.A., talk to her, carry her items, hold her hand and she would give him hugs. 9. The group would go to the DQ or Smitty's afterwards and M.A. would sit beside the accused or on him. 10. The accused helped with the move into the house on [A Road] and came over two additional times.

These occasions are referred to in the Admissions of Fact. 11. On this second occasion is when the offence occurred. The Crown is relying on the accused having kissed M.A. on the neck, put his hand under her clothing, and rubbed her in the tummy area and that he put his hand over her clothing between her legs and touched the genital area of M.A. (Referred to in the Admissions of Fact at 10 to 16.) 12. The Crown also relies on paragraphs 25 to 36 in the Admissions of Fact wherein M.A. is speaking to Cst. Kasunich about the offence. 13.

The paragraphs in the Admissions of Fact regarding Count 3 are contained at paragraphs 38 through 49. 14. Cst. Kasunich's evidence in regard to Count 3 is contained in the Court Transcript of her evidence dated February 27, 2015 at pages 8 through 18. CIRCUMSTANCES OF THE ACCUSED Prior Criminal Record [ 34 ] The Accused admits to a prior criminal record.

He was convicted July 12, 2005, in North Vancouver, B.C., for sexual interference contrary to s. 151 of the Criminal Code for which he received a sentence of 15 months (four months and 15 days of presentence custody) plus three years of probation and was bound by a lifetime Order of Prohibition made under s. 161 of the Criminal Code containing conditions prohibiting him from attending at locations specified in s. 161(1) (

a) where persons under the age of 14 years are present or can reasonably be expected to be present unless in the company of one of his parents together with prohibitions contained in s. 161(1) (

b) and (

c) of the Criminal Code , but again with references to persons under the age of 14 years. [ 35 ] As noted above, the victim in that case was a young male who at the time of the offence was older than the complainant, M.A. The historical offence against the older child included sexual activity including fellatio that occurred over a longer period of time. [ 36 ] The Accused served his previous custodial sentence at Ford Mountain Correctional Centre where he completed the sex offender program. Reports About the Accused Before the Court [ 37 ] I have before me two important sources of information about the Accused.

The first is a Pre-Sentence Report completed November 9, 2016, by Tammy Kushner, a probation officer with Nanaimo Community Corrections (the "PSR"). [ 38 ] The second is a Pre-Sentence Report and Psychological/ Psychiatric Assessment completed November 7, 2016, by Dr. Murray Ferguson, a registered psychologist with the Forensic Psychiatric Services Commission, Nanaimo Regional Clinic (the "Forensic Assessment"). [ 39 ] Both the PSR and the Forensic Assessment are comprehensive, detailed, and useful.

Crown and defence agree that the court can and should rely upon these reports and that there are no manifest errors contained within them. [ 40 ] Based on this information, it is established that the Accused, now approaching 53 years of age, has enjoyed a close emotional relationship with his mother whom he describes as warm, caring, and emotionally supportive.

His relationship with his father has historically been extremely strained and dysfunctional with descriptions of his father as being stubborn, controlling, argumentative, and emotionally and psychologically abusive to him with instances of constant bullying and extreme criticism. [ 41 ] There are also reports by the Accused of degrading corporal punishment and physical abuse being meted out to him by the Accused's father who is also described as having an explosive temper.

Except during his previous period of incarceration and for some relatively short periods of time, the Accused has always resided with his parents. [ 42 ] Historically, the Accused did not have regular friends at school or during his adulthood and had a limited number of relationships. The Accused characterizes himself by saying he was quiet, introverted, and shy growing up. He felt that he was socially awkward at school and suffered from "extreme anxiety from a very early age.” He was in a relationship with a woman for approximately

two years, during which period of time, they lived together for a period of approximately one year. [ 43 ] The Accused identifies himself as having a homosexual orientation. He reported to the author of the Forensic Assessment that he was attempting to convince himself and others that he was not homosexual.

His sexual orientation is apparently a further issue in his relationship with his father. [ 44 ] He reported that debilitating anxiety has been an ongoing issue for him throughout his adult life as have depression, poor coping skills, inability to perform under pressure, and poor problem-solving skills. [ 45 ] The Accused achieved his grade 12 standing at age 22. He has an unstable and very limited amount of work experience in a variety of unskilled positions.

In the Forensic Assessment, he described that employment history to the author as "very chaotic" with numerous ongoing personality conflicts with colleagues and supervisors. His attempt in recent years to establish and operate his own landscaping business was unsuccessful resulting in his personal bankruptcy.

He has in the past relied upon his parents for financial support. [ 46 ] The Accused told the author of the PSR that he spends most of his day sleeping in, playing videogames, or helping his ailing and elderly father with yard work. [ 47 ] The Accused is diabetic and apparently has a number of other physical health issues including hip and shoulder problems. He described suffering from stress-related "blackouts" which have apparently continued for some time, but have not been historically or frequently reported by the Accused.

These episodes have not been professionally diagnosed nor treated. [ 48 ] Presently, the Accused receives and relies upon income assistance which is a continuing issue between the Accused and his father. The PSR states that the Accused "has a lot of shame about his current circumstances.” [ 49 ] During Dr.

Ferguson's discussion with the Accused's father, the father described his son, the Accused, as a "loner and an introvert" and, further, as a "jolly giant who is willing to help the underdog.” The father also noted that the Accused "likes to be looked up to and seeks approval" from which the father concluded that this may be "one of the reasons [the Accused] is less anxious around kids and feels more accepted by them.” [ 50 ] While there is a degree of inconsistency between the PSR and the Forensic Assessment, substance misuse does not appear to be problematic for the Accused. [ 51 ] The Accused reported to both report authors, with some inconsistency in details, that he had been sexually abused by three separate individuals, including two adults and a youth, while he was between the ages of four and 12 years of age.

He apparently has never reported any of these incidents to his parents or other persons in authority or any counsellors or mental health professionals, nor during his earlier sex offender treatment. [ 52 ] The Accused acknowledged to Dr. Ferguson, among other things, that: (

a) He has a primary sexual attraction to male children, but said he has “a bit of sexual attraction to women.” (

b) He masturbates regularly and that his fantasies involve him being a child who is being sexually abused. (

c) In the past, he has accessed child pornography online and was involved in Internet chat relays with adults in relation to sex with children. He apparently continues to access images of children online, but denies the content is sexual in nature. (

d) He denies attempting to groom children online noting that he would get caught. [ 53 ] Dr. Ferguson completed a comprehensive risk assessment of the Accused regarding sexually re-offending. Dr. Ferguson also had access to documentation regarding the Accused's prior conviction including a May 2005 forensic psychological assessment report authored by Dr. Elizabeth Speth, a psychiatric report from Dr. Alexander Levin, completed March of 2005, a May 2005 Pre-Sentence Report, and a final

summary from the Ford Mountain Correctional Centre Sex Offender Treatment Program, dated December 2005. [ 54 ] The important conclusion of the professionals who dealt with the Accused following his first conviction was that notwithstanding that he did well in the sex offender program, “his risk would need to be carefully managed.” [ 55 ] Based upon Dr. Ferguson's tests administered upon the Accused and other material before him (referred to as "actuarial and structured professional judgment instruments"), Dr.

Ferguson presented the opinion in the Forensic Assessment that the Accused "is estimated to be in the moderate risk category for sexual recidivism.” Dr. Ferguson goes on to note: While Mr. Campbell did not express specific attitudes that condone sexual violence, his behaviour would suggest at least some level of acceptance of sexual violence towards children. Mr. Campbell impressed as having limited self-awareness into his offending, his level of risk and his poor management of risk. [ 56 ] Given his past and current behaviour patterns, Dr.

Ferguson concluded that the Accused continues to meet the criteria for paedophilia. Dr. Ferguson goes on to further say as follows on pages 10 and 11: In terms of his current offences, Mr. Campbell's longstanding paedophilic interests and greater feelings of comfort and connection with children led him to seek contact with children to meet his social needs and perhaps sexual in terms of fueling his fantasies. Further, his lack of empathy and understanding of the impacts of offending as well as a somewhat dismissive attitude towards the court allowed him to justify his continued seeking of contact with children.

While he may not have intended to engage in contact offending, he impressed as being aware that his continued social contact with children would have significantly increased his risk for offending, yet he continued to do so in breach of his order. With respect to the contact offence, it appears that his offending was opportunistic in the sense that he had

not planned to be alone with the child but under the circumstances he allowed himself to justify his behaviour and act on his sexual urges by telling himself she was promiscuous and precocious and she wanted him to touch her. This was similar to his past offending where he made out that the victim wanted him to engage in sexual acts with him. ... He accepts and acknowledges his primary sexual attraction to male children, but impressed as failing to appreciate his level of risk and his need to avoid unsupervised contact with children. [ 57 ] Dr.

Ferguson makes mention of the Accused's “distinct lack of empathy for his victim.” [ 58 ] In juxtaposition, Tammy Kushner, author of the PSR, states the following about the Accused: He admits to the offence and displays appropriate remorse and victim empathy. [ 59 ] That conclusion is apparently based upon the following provision that is contained within the PSR which states: When asked about the impact of his actions on the victim, Mr. Campbell states: "She has had a hell of a time. It has been traumatic for her.

I am really sorry it has caused grief for her and her family.” [ 60 ] Among the four recommendations made by Dr. Ferguson are that the Accused would: benefit from further participation in a sex offender treatment program; benefit from participation in a program to build his limited social skills; and benefit from accessing mental health services and individual counselling to deal with mood and anxiety symptoms. [ 61 ] The fourth recommendation raises some concerns. It states: Mr. Campbell is likely to require a significant support in the community to manage his risk of recidivism. While Mr.

Campbell's mother remains supportive, his father is unsure of his willingness to continue to support him. In the absence of parental support and management of his access to children, Mr. Campbell's risk of offending is likely to increase. He impressed as being able to manage his risk in the short term, but over the longer term, it appears that Mr. Campbell may benefit from more significant external controls. VICTIM IMPACT [ 62 ] Crown counsel did not receive a formal victim impact statement. However, the author of the PSR did speak with N.B., the mother of the complainant, M.A. Ms.

Kushner reports as follows: She tells this Officer her daughter was disturbed by the offence and it has left her with feelings that “something was wrong.” [N.B.] confirms her daughter has received counselling for the victimization and at the present time she appears to be doing well. She is now eleven years old. [N.B.] states Mr. Campbell's actions have also impacted her. It has caused her to become “very anxious” and she now has “an inability to trust.” [ 63 ] N.B. told Ms.

Kushner that she was seeking protection conditions that would prohibit the Accused from contact with her daughter and with immediate family members and also conditions prohibiting him from attending their residence, place of education, or employment. PURPOSES, OBJECTIVE, AND PRINCIPLES OF SENTENCING [ 64 ] The purposes and principles of sentencing are found in s. 718 to 718.2 of the Criminal Code . These sections codify them and plainly state the intention and rationale for imposing particular sentences. [ 65 ]

Section 718 of the Code outlines the fundamental purpose of sentencing as: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community. [ 66 ]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility. [ 67 ]

Section 718.2, under the heading of "Other sentencing principles," states, in part, that: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing ... (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, ... shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 68 ] Of particular importance in this case is the provision of 718.01 which deals with offences against children and provides: When a court imposes a 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. [ 69 ] In addition, s. 151 of the Criminal Code states: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days. CASE AUTHORITIES RELIED UPON BY CROWN [ 70 ] Cases submitted to the court and relied upon by Crown are as follows: (

a) R. v. Maxmenko , [2015] B.C.J. No. 2611 ; 2015 BCSC 2224 ; (

b) R. v. Rennie, [2013] B.C.J. No. 1061 ; 2013 BCSC 909 ; (

c) R. v. O.C.M. , [2012] B.C.J. No. 2924 . [ 71 ] I have read each of these cases and I have considered them in coming to a determination of the sentence. I may not necessarily refer to each of these cases, but the principles outlined in them and the guidance that they provide with respect to a fit sentence in this case has been taken into account. Also, I have considered the case authorities referred to within each of Crown's authorities and any other cases that I have noted in these reasons. [ 72 ] Defence referred to Crown's authorities and did not present any additional case authorities.

POSITION OF CROWN ON SENTENCING [ 73 ] In furtherance of the objectives of denunciation and deterrence of offences against children, Crown seeks a custodial sentence in the range of 18 to 22 months on Count 1 and a consecutive sentence on Amended Count 3 in the range of 60 to 90 days.

Crown further says that the totality principle of sentencing should be applied with a resulting sentence of two years less a day to maintain a provincial sentence and to maximize the amount of supervision of the Accused by way of a three-year probation order upon his release. [ 74 ] Crown submits that the range of sentence on Count 1 is informed by the mandatory minimum sentence of one year for charges under s. 151 of the Criminal Code when Crown proceeds by indictment, noting that Parliament increased the mandatory minimum sentence by way of legislation effective August 9, 2012. [ 75 ] Crown also submits that a lengthy sentence is justified by the Accused's own admission in the Second Statement that he cannot control his deviant urges.

Thus, a lengthy sentence offers protection to those most vulnerable in society from this type of behaviour. [ 76 ] Crown points to the Accused's prior conviction for the same offence under s. 151 , albeit committed eight years prior to the commission of the current offence.

That offence resulted in a significant period of incarceration and the imposition of the s. 161 Order of Prohibition which the Accused breached and which breach is the subject matter of Amended Count 3. [ 77 ] Among numerous aggravating factors cited by Crown, significant reliance is placed upon the behaviour of the Accused putting himself in a position where he had regular access to children at the dog park and at the local baseball park by way of his multiple visits to those locations. [ 78 ] His attendances at the dog park, in contravention of the s. 161 Order of Prohibition, permitted the Accused to cultivate the friendship with N.B. wherein she liked him and trusted him.

This, in turn, led to his opportunity to establish a relationship with the complainant, M.A., marked by her affection towards him and the trust she had in him.

[ 79 ] Crown suggests that there are elements of grooming by way of the attention that the Accused paid to M.A. and that led to the establishment of their relationship. [ 80 ] Crown acknowledges that in his discussions with the report authors, the Accused denied this type of grooming activity was at play in the current offences. I understand that Crown says that it is nonetheless a reasonable inference. [ 81 ] R. v. Maxmenko is a case involving sexual touching contrary to s. 151 by the offender against his 12-year-old grandniece. The offence included touching of her bare breast and buttocks under her clothes.

The offences occurred in her grandparents' home. The victim subsequently suffered from ongoing depression and struggled at school. The offender had a prior record for exposing himself to two children. [ 82 ] The court found that the offender was in a position of trust and imposed a six-month custodial sentence and 18 months’ probation with ancillary orders. A late guilty plea was accepted as a reduced mitigating factor. At the time of the offence, the mandatory minimum on indictment was 45 days.

The offender was accepted to be a moderate risk to reoffend. [ 83 ] In the present case before me, Crown is seeking a much higher sentence than in Maxmenko . Crown submits that the decision in Maxmenko , citing and relying upon R. v. B.C.M. , 2008 BCCA 365 , is authority for the proposition that a minimum sentence does not oust the sentencing principles of proportionality, but a mandatory minimum sentence introduces a higher starting point and therefore a narrower range within which that principle will operate.

Thus, the notion of a fit sentence must be adjusted accordingly, if the principle of proportionality is to remain operative (see paragraphs 16 and 17). [ 84 ] I understand that Crown cites R. v. Rennie in support of the sentence that it seeks here. In R. v. Rennie , the offence under s. 151 involved female victims who were five years old and six years old. The offender rubbed their genitals and buttocks, putting his tongue in their mouths, and licked the back of the youngest. The offender was in a romantic relationship with the mother of the victims and in a trust relationship with the victims.

There was a serious impact on the victims. [ 85 ] The offender had no prior convictions for sexual offences. He denied responsibility. He had significant mental health issues. The sentence imposed gave primary consideration to the objectives of denunciation and deterrence. Two 11-month consecutive sentences were imposed (for a total of 22 months of custodial time) and one year of probation. [ 86 ] Similarly, Crown relies on R. v.

O.C.M. where two concurrent 22-month sentences followed by a three-year period of probation were imposed on the 47-year-old offender for two counts of sexual interference of a person under age 14. The victim was seven to nine years of age during the offence period between 2006 and 2009 and was the daughter of a close family friend of the offender. There were three incidences, two occurring on the same day involving the offender having the victim squeeze his penis with his hand over top of hers and one incident where he touched her breast under her shirt.

Each incident lasted 30 to 40 minutes. [ 87 ] The offender had no criminal record, but was deemed at high risk to offend. The young complainant was affected emotionally and psychologically. A position of trust was apparent in the circumstances.

DEFENCE POSITION ON SENTENCING [ 88 ] Defence agrees that provincial custodial time is a fit sentence. [ 89 ] However, defence submits that concurrent custodial sentences in the aggregate totalling at most around 18 months would be a fit sentence. [ 90 ] In defence submissions, the circumstances relating to the Accused's first conviction were more aggravating and serious than in the matter presently before the court. Defence notes that the custodial time for that first offence was at the high end of a provincial sentence for that more serious offence.

In addition, the defence notes that the Order of Prohibition for lifetime was imposed. [ 91 ] Thus, defence rejects the notion that the first conviction should be regarded as the floor or the base for the sentence in the current offences before the court. [ 92 ] Defence notes that this offence involved an opportunistic intimate touching of M.A. over her clothes. [ 93 ] Defence refers to s. 153 of the Code , often referred to as the sexual exploitation provision.

In part, it creates an offence for a person who is in a position of trust or authority towards a young person and who: ... for a sexual purpose, touches directly or indirectly, with a part of the body of with an object, any part of the body of the young person ... [ 94 ] In the defence's submission, they say that by virtue of Crown laying the present charge under s. 151 and not under s. 153, there is a strong indication that the Accused was not in a position of trust with M.A.

In other words, as I understand the argument, there is not either a statutory element of a position of trust relationship or a statutory relationship of trust between the Accused and the child complainant, M.A., by virtue of Crown proceeding under s. 151 . No authority is cited for that proposition.

I do note that the term "a position of trust or authority" is not defined. [ 95 ] Defence further submits that a guilty plea on Count 1 was not proffered at the outset because of the arguable case as to the admissibility of the Second Statement, but was entered prior to N.B.'s cross-examination and prior to M.A. actually testifying at the trial. Hence, the guilty plea should be regarded as a mitigating factor. [ 96 ] Mr. Hertzberg describes the Accused as a "Peter Pan" figure which I take to mean that he has never grown up emotionally and is childlike in his view of the world.

Defence does acknowledge that this “Peter Pan” figure engages in inappropriate conduct.

[97] It is suggested by defence that the Accused has been negatively impacted by his own abuse as a child suffered at the hands ofthree perpetrators. [98] With respect to the present case, the abuse was by way of sexual touching over clothes and, as noted above, opportunistic innature. It is rejected that this was a planned sexual offence.

Therefore, it is suggested it is significantly less serious than the actualsexual events surrounding the Accused's first conviction and, furthermore, less serious than the surrounding circumstances in that firstconviction. [99] The Pre-Sentence Report notes the Accused's remorse for his conduct and the acknowledgment of the adverse effect on M.A. The Accused's father opined to Dr. Ferguson about the Accused's remorse. [100] According to defence submissions, the Accused has insight into his offending because of his own personal experience at beingsexual abused.

Therefore, defence submits that the court should take into account that background experience. [101] Also, defence says the court should take into account that the Accused has effectively been under house arrest with his parentsserving as his de facto jailers since the charges were laid.

Defence does concede that no applications other than one relatively minor onewere made to relieve the onerous conditions requiring the Accused to be in the constant presence of either of his parents when outside ofhis residence or beyond the boundaries of his residence. [102] Defence further says and concedes that, when taking this into consideration, it should not be given the same effect as credit forpretrial custody. ANALYSIS [103] As noted by Justice Voith in R. v.

Maxmenko at paragraph 15, in addition to the explicit statutory provisions contained in theCode that relate to offences and sexual offences against children, including the mandatory minimum sentence provisions, the case lawconsistently provides a further set of sentencing principles, guidelines, or considerations that address sexual offences against children. [104] The first being confirmation of the statutory direction that the primary sentencing objectives when dealing with offences againstyoung victims, must focus upon denunciation and deterrence. [105] Another theme in the case law is the need to protect children from sexual offenders and the recognition that these offenders havethe prospect of causing lasting harm to their victims [see R. v.

Maxmenko at paragraphs 18 and 19]. [106] In our Court of Appeal's decision in R. v. R.E.L., 2010 B.C.J. No. 2571 (B.C.C.A.), the court cautioned about using earlier casesthat predated the enactment of s. 718.01 of the Criminal Code. Specifically, the court continues as follows at paragraph 10: The harm to young children that results from sexual assaults is well known, and recognized by the requirement that denunciation anddeterrence must be a primary sentencing consideration pursuant to s. 718.01 of the Criminal Code.

Such assaults not only violate thechild’s physical integrity, but erode the child’s ability to develop emotional trust, and create the sort of profound and long-lastingconsequences that are evident in the appellant’s victim. [107] In R. v.

B.S.B., 2008 BCSC 1526, Justice Romilly of our Supreme Court, commencing at paragraph 36, provides acomprehensive review of the aggravating and mitigating circumstances that must be taken into account in each individual sentence,which may increase or reduce the offender's sentence for sexual offences. [108] In his analysis, Justice Romilly relies upon the decision of the Supreme Court of Canada in R. v. L.M., 2008 SCC 31, and thencites a significant number of authorities for each of the factors that should be taken into account. Reliance is also placed upon thedecision of R. v.

J.-J.L., (QC CA), [1998] R.J.Q. 971, 126 C.C.C. (3d) 235 (C.A.). In

summary, those factors are asfollows: (

a) the nature and intrinsic gravity of the offences which is affected by, in particular, the use of threats, violence, psychological threats,and manipulation, et cetera; (

b) the abuse of trust and the abuse of authority which are involved in the relationship between the offender and the victim; (

c) the disorders underlying the commission of the offences: the offender's psychological difficulties, disorders, and deviancy,intoxication, et cetera; (

d) the offender's previous convictions: proximity and time to the offence charged and the nature of the previous offences; (

e) the offender's behaviour after the commission of the offences: confessions, collaboration in the investigation, immediateinvolvement in a treatment program, potential for rehabilitation, financial assistance if necessary, compassion and empathy for thevictims (remorse, regret, et cetera); (

f) the time between the commission of the offence and the guilty verdict as a mitigating factor depending upon the offender's behaviour(the offender's age, social integration, employment, commission of other offences, et cetera). (

g) the victim: gravity of the attack on his or her physical or psychological integrity reflected by, in particular, age, the nature and theextent of the assault, the frequency and the duration of the assault, the character of the victim, his or her vulnerability (mental or physicalhandicap), abuse of trust or authority, lingering effects, et cetera. [109] Defence’s submission about the absence of a position of trust relationship between the Accused and M.A. requires specificcomment. I am of the view that the Crown’s choice to proceed under s. 151 of the Code rather than s. 153 is not determinative of theexistence of that position of trust relationship.

[ 110 ] The court must look at the whole of the circumstances of the relationship. Clearly, there is a spectrum within what may be considered a position of trust. At one end are the many varieties of parenthood. At the other end are persons who are babysitters and childminders. [ 111 ] Having regard to all the circumstances that are before me, I am satisfied that N.B. permitted the Accused to be responsible for minding M.A., albeit for a brief period of time. The nature of that responsibility in these circumstances is sufficient to place the Accused in a position of trust towards the child, M.A.

AGGRAVATING FACTORS [ 112 ] Based upon the circumstances before me and the submissions of Crown and defence, I accept as aggravating factors the following: 1. The young age and the vulnerability of the complainant, M.A.; 2. The position of trust held by the Accused as it related to the complainant, M.A.; 3. The Accused’s previous conviction for the same offence in 2005 and the resulting period of lengthy incarceration; 4. The Accused’s present moderate risk of re-offending; 5.

The apparent disregard by the Accused of the protective conditions afforded the community under the Order of Prohibition and specifically children; 6. I further add to this list of aggravating factors the extent of the significant impact that the offending behaviour has had on the young complainant and her mother; 7. Although it may not necessarily be considered an aggravating factor, but rather it is a risk factor that must be considered, the apparent historical lack of insight of harm done and a measure of victim-blaming by the Accused that is described in the Forensic Assessment.

MITIGATING FACTORS [ 113 ] Again, based upon the circumstances before me and the submissions of Crown and defence, I do accept the following as mitigating factors: 1. The guilty plea proffered by the Accused which has spared the very young complainant, M.A., having to testify at the trial of this charge. I do put less weight on this factor given the late timing of that plea; 2. The Accused’s success in abiding by restrictive bail conditions over an extended period of time; 3.

That I take to be a growing insight into his offence and its impact on the complainant, M.A. and her mother, N.B., and the apology made by the Accused in open court which I accept as an expression of remorse; 4. The Accused’s cooperation and engagement with the authors of the PSR and the Forensic Assessment. CONCLUSIONS [ 114 ] I agree, in general, with the submissions made by Crown. [ 115 ] Given all of the circumstances that are before me in this sentencing, a lengthy custodial sentence is warranted. [ 116 ] Concurrent sentences on Count 1 and Amended Count 3 are not warranted.

While there may be a connection in time, the serious breach of the Order of Prohibition in these circumstances requires a separate consecutive sentence. [ 117 ] I am also very mindful of the recommendations and observations that have been made by Dr. Ferguson in the Forensic Assessment and, in particular, his fourth recommendation that I have outlined above. [ 118 ] I am also mindful that sentencing is a very individualized process. [ 119 ] Will Mr.

Campbell please stand. [ 120 ] Having regard to all of the purposes and principles of sentencing, the objectives in dealing with offences against children, the fundamental principle of sentencing, and other relevant sentencing principles, I am of the view that a custodial sentence of 21 months is appropriate on Count 1. [ 121 ] I am also of the view that a two-month sentence on Amended Count 3, to be served consecutively to the sentence on Count 1, is appropriate.

Accordingly, I am imposing a total custodial sentence upon you of 23 months. [ 122 ] You may take a seat. [ 123 ] I am also imposing a three-year probation order upon you with the following terms, most of which have been recommended in the Pre-Sentence Report. [ 124 ] THE CLERK: Your Honour, that probation order is on both counts?

[ 125 ] THE COURT: Yes. [ 126 ] THE CLERK: Thank you. [ 127 ] THE COURT: Number -- I will utilize the numbered Picklist for the benefit of Madam Clerk, starting with number 200. [ 128 ] You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 129 ] Number 202: within 72 hours after completion of your jail sentence, you shall report in person to the probation office, and I am going to specify in Nanaimo, British Columbia, the address will be provided to you and, after that, you shall report as directed. [ 130 ] Number 207: you shall commence the term of this order by residing at a residence approved by your probation officer and you shall not change your residence at any time without first obtaining the written consent of the probation officer. [ 131 ] Number 208: you shall obey all rules and regulations of your residence. [ 132 ] You shall provide reasonable access to the police or to a probation officer to enter into your residence for the purposes of determining your compliance with the requirement of residing at a residence approved by the probation officer.

I am going to pause for a moment. [ 133 ] MR. HERTZBERG: I would like to speak to that, Your Honour, because just I think there are problems, but I will wait until Your Honour -- [ 134 ] THE COURT: All right. [ 135 ] MR. HERTZBERG: -- is finished pronouncing it. [ 136 ] THE COURT: I just want to check with respect to assessment and counselling. I take it for the purposes of the probation order, Mr. Campbell is going to consent to assessment, counselling, and programming; is that correct? [ 137 ] MR. HERTZBERG: He is today, Your Honour. [ 138 ] THE COURT: All right.

The next one is, after consenting in court, to attend, participate in, and successfully complete any assessment, counselling, or program as directed by and to the satisfaction of your probation officer. [ 139 ] Number 219: you shall have no communication directly or indirectly with, and then the full name of the complainant, M.A., will be inserted, or any member of her immediate family, including without limitation, her mother, N.B., the full name will be inserted. [ 140 ] Number 223: you shall not attend at any place which you know to be the residence, school, or workplace of M.A. or any member of her immediate family, including without limitation, and then the full name, of N.B. [ 141 ] Next number, you shall not attend at or near the dog park located at Springwood Park on Despard Avenue in Parksville, British Columbia.

I am going to pause for a moment. [ 142 ] I was asked by Mr. Hertzberg in submissions to make that subject to the same condition as contained within the existing Order of Prohibition. Is that what is being sought at present time? [ 143 ] MR. HERTZBERG: I am going to, Your Honour. I believe the parents will continue to reside at the current address and Gunner is still alive and hearty and it is not a problem when he is their presence. So -- [ 144 ] THE COURT: All right. So I will add in, "Except" -- [ 145 ] MR.

HERTZBERG: Perhaps, "In the presence of one or other of your parents?" [ 146 ] THE COURT: Yes, except in the presence of either your father, Allen Campbell, or your mother, Rita Campbell. [ 147 ] The next condition, you are not to contact or communicate directly or indirectly with any child under the age of 16 years nor be alone in the presence of any person you know to be or who reasonably appears to be -- [ 148 ] MS. HAGEN: It does not say "under". [ 149 ] THE COURT: Yes, appears to be under the age of 16 years -- [ 150 ] MS.

HAGEN: Thank you, Your Honour. [ 151 ] THE COURT: -- except in the presence of either your father, Allen Campbell, or your mother, Rita Campbell -- [ 152 ] MR. HERTZBERG: And, Your Honour, perhaps, "Or otherwise a person approved of?” [ 153 ] THE COURT: -- or any person approved of in advance in writing by your probation officer. [ 154 ] Number 243: you shall not attend at any public park, school ground, daycare centre, swimming pool, playground, skating rink, community centre, or recreational centre where persons of the age of 16 years or less are present or might reasonably be expected to be

present, except as follows, and that is, in the presence of either your father, Allen Campbell, or your mother, Rita Campbell, or in the presence of an adult third party approved in writing in advance by the probation officer. I am going to pause for a moment. [ 155 ] Are there any comments or submissions with respect to the conditions that I have outlined as far as the probation order is concerned? [ 156 ] MR. HERTZBERG: Thank you, Your Honour. Your Honour is essentially tracking the recommended conditions contained in Ms.

Kushner's report and I want to address condition 3 there. [ 157 ] THE COURT: On reflection, I think Mr. Hertzberg has raised some legitimate concerns, especially given the duration of the probation order, of some three years. There is going to be a time where Mr. Campbell is going to have to demonstrate his compliance with all conditions and, in particular, he is going to have to make sure that the important condition of residing in an approved residence is being met. So I am going to delete that -- [ 158 ] THE CLERK: Yes, Your Honour. [ 159 ] THE COURT: -- delete that particular requirement. [ 160 ] MR.

HERTZBERG: And that was pronounced as condition four. [ 161 ] THE COURT: I believe it was condition four. [ 162 ] MR. HERTZBERG: Thank you, Your Honour. [ 163 ] THE CLERK: That was the "providing reasonable access to the police?” [ 164 ] MS. HAGEN: Yes. [ 165 ] THE COURT: Yes, I am deleting that provision. [ 166 ] THE CLERK: Thank you. [ 167 ] THE COURT: All right. [ 168 ] MR. HERTZBERG: I have no further -- [ 169 ] THE COURT: With respect to those conditions? [ 170 ] MR. HERTZBERG: -- submissions on probation. [ 171 ] THE COURT: All right.

Now, while we are dealing with submissions and it occurred to me because, although I think it is clear in Crown's submissions that they were seeking a further prohibition order similar in nature to the one that Mr. Campbell is presently bound by -- [ 172 ] MS. HAGEN: Yes, are you referring to the 161 ancillary order, Your Honour? [ 173 ] THE COURT: Correct. [ 174 ] MS. HAGEN: Yes, that is mimicked in the probation order. As well, Your Honour, the prohibition imposed by His Honour Judge Moon -- [ 175 ] THE COURT: Moon. [ 176 ] MS. HAGEN: -- still applies. [ 177 ] THE COURT: Well, the -- [ 178 ] MS.

HAGEN: It is a lifetime prohibition. [ 179 ] THE COURT: -- difference being is, of course, with Judge Moon's prohibition order makes reference to persons 14 -- [ 180 ] MS. HAGEN: And younger. [ 181 ] THE COURT: -- under the age of 14, and there has been an amendment to that section, has there not? [ 182 ] THE COURT: The new Order of Prohibition under s. 161 of the Criminal Code will be of a lifetime duration. The conditions which I will attach will be pursuant to s. 161(1) (a), which will prohibit Mr.

Campbell from attending a public park, public swimming area, daycare centre, school ground, playground, community centre where persons of the age of 16 years are present or can reasonably be expected to be present unless he in company of either his father, Allen Campbell, or your mother, Rita Campbell, or another person approved of in writing by -- I guess it -- I am going to say, by a probation officer, is that - [ 183 ] MS. HAGEN: By his probation officer, yes. I know that -- [ 184 ] THE COURT: -- or I am going to say, "Or further order of the court.” [ 185 ] MS. HAGEN: Yes --

[ 186 ] MR. HERTZBERG: It should be the -- [ 187 ] MS. HAGEN: -- because I know they can be reluctant to exercise their -- [ 188 ] THE COURT: Yes. [ 189 ] MS. HAGEN: -- discretion in that manner. [ 190 ] MR. HERTZBERG: Well, they will not have any discretion because he will not be bound by them afterwards. Hence -- [ 191 ] MS. HAGEN: Oh, yes, I see what you are saying. Yes, sorry, Your Honour. [ 192 ] MR. HERTZBERG: -- deterrence. [ 193 ] MS. HAGEN: My friend is correct. [ 194 ] MR. HERTZBERG: "Approved of by the court.” [ 195 ] THE COURT: Yes, all right. [ 196 ] MS. HAGEN: "Approved by the court," yes.

Thank you. [ 197 ] THE COURT: I will delete the reference to the probation officer and it will be, "Or approved of in writing” -- “Or approved of in advance by the court.” [ 198 ] THE CLERK: So the probation order -- probation officer is removed out -- [ 199 ] THE COURT: I am taking out the probation officer as it relates to the Order of Prohibition which I am just giving the terms for. [ 200 ] THE CLERK: All right. [ 201 ] THE COURT: Okay. So, then, there will be a provision under s. 161(1) (

b) of the Criminal Code prohibiting Mr. Campbell 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 years; and then I am going to make, under s. 161(1) (c); the prohibition will be for Mr.

Campbell, having any contact, including communicating by any means, with a person who is under the age of 16 years, unless he does so under the supervision of a person with -- whom the court considers appropriate or while under the supervision of either his father, Allen Campbell, or your mother, Rita Campbell. [ 202 ] THE CLERK: Those are just further orders -- [ 203 ] THE COURT: They are all -- [ 204 ] THE CLERK: -- probation conditions? [ 205 ] THE COURT: No, no -- [ 206 ] THE CLERK: Oh. THE COURT: -- they are not probation. It is all pursuant to a s.161 order.

This is -- I have been giving all the provisions under s. 161 of the Criminal Code . It is what is called a prohibition order -- [ 207 ] THE CLERK: Prohibition order. [ 208 ] THE COURT: Yes, or Order of Prohibition. [ 209 ] MS. HAGEN: It is s. 161 . [ 210 ] THE CLERK: Okay. [ 211 ] THE COURT: Yes, Order of Prohibition. [ 212 ] MR. HERTZBERG: You should just -- Your Honour, Madam Clerk, there is a set of boxes in the DARS for that prohibition order, but His Honour is not imposing the boilerplate on the system.

He is giving specifically pronounced ones and His Honour is referring to sections of the Criminal Code that may not be reflected in the DARS. Your Honour, that is something that I can help with the registry. [ 213 ] THE CLERK: Okay. [ 214 ] THE COURT: Thank you. [ 215 ] THE CLERK: I am going to need some help -- [ 216 ] THE COURT: Yes. [ 217 ] THE CLERK: -- with that, Your Honour.

[ 218 ] THE COURT: Thank you, Mr. Hertzberg. [ 219 ] THE CLERK: If I -- [ 220 ] THE COURT: All right. [ 221 ] THE CLERK: If I could just have those sections, Your Honour? [ 222 ] THE COURT: All right. It is s. 161 -- [ 223 ] THE CLERK: Yes. [ 224 ] THE COURT: -- (a) -- [ 225 ] MR. HERTZBERG: Excuse me, Your Honour, 161(1). [ 226 ] THE COURT: Sorry, 161(1)(a) -- [ 227 ] THE CLERK: Sub (a), okay. [ 228 ] THE COURT: -- 161(1)(b) -- [ 229 ] THE CLERK: Okay. [ 230 ] THE COURT: -- and 161(1)(c), but I have provided some exceptions which, for the most part, relate to people either approved of by the court or Mr.

Campbell's parents. [ 231 ] THE CLERK: Okay. All right, Your Honour. [ 232 ] THE COURT: All right. Now -- [ 233 ] THE CLERK: Thank you. [ 234 ] THE COURT: -- as to other ancillary orders, there will be a DNA order under s. 487.051. [ 235 ] There also will be an order pursuant to s. 490.01 -- is zero-one-two or zero-one-one? [ 236 ] MS. HAGEN: I will look right now. I usually check them, Your Honour, but I will double check. 490.011 is the

interpretation

section that indicates -- [ 237 ] THE COURT: The four -- the reference. [ 238 ] MS. HAGEN: -- s. 151 is a designated offence so the order is under the .012, Your Honour. [ 239 ] THE COURT: All right, so s. 490.012(1) in Form 52 of the Criminal Code , I believe? [ 240 ] MS. HAGEN: Yes. [ 241 ] THE CLERK: What is that, Your Honour? [ 242 ] THE COURT: That the DNA order. [ 243 ] MS. HAGEN: Oh, that is the SOIRA order, Your Honour - [ 244 ] THE COURT: SOIRA order, I am sorry, I misspoke, SOIRA order. [ 245 ] MS. HAGEN: -- and the order to comply is s. 490.012. [ 246 ] THE COURT: Okay.

So the offender will be required to comply with the Sex Offender Information Registration Act and that is pursuant to s. 490.013(2)(b), and this is a lifetime, as I recall, is it not? So it has been -- [ 247 ] MS. HAGEN: Yes, Your Honour. [ 248 ] THE COURT: There will be a further order regarding firearms pursuant to the provisions of s. 109 for a duration of 10 years. [ 249 ] MR. HERTZBERG: Sorry, Your Honour, that is 10 and life for the -- for the -- Madam Clerk, for the -- [ 250 ] THE CLERK: And that is the mandatory one? [ 251 ] MR.

HERTZBERG: Yes, Your Honour. [ 252 ] THE COURT: So is it mandatory for life? [ 253 ] MS. HAGEN: Sorry, 109 is discretionary -- [ 254 ] THE COURT: Discretionary. That is what Crown --

[ 255 ] MS. HAGEN: -- and it is 10 years. [ 256 ] THE COURT: -- was -- Crown was seeking the discretionary 109, not the -- [ 257 ] THE CLERK: Discretionary 109, okay. [ 258 ] MR. HERTZBERG: It is apt, Your Honour. I am not opposing it. Your Honour is imposing it. So it is -- it is 10 for restricted and life for prohibited, I think is what Your Honour is asking. [ 259 ] THE COURT: Okay, but I think in this case, it is -- the 10-year order is satisfactory under s. 109 -- [ 260 ] MS. HAGEN: Yes. [ 261 ] THE COURT: -- is that correct? That is what the Crown is seeking. [ 262 ] MS.

HAGEN: Yes, Your Honour. [ 263 ] THE CLERK: Yes, okay, and that is -- [ 264 ] THE COURT: Okay, and Mr. -- [ 265 ] THE CLERK: -- discretionary, right? [ 266 ] MS. HAGEN: Yes. [ 267 ] THE COURT: Yes -- [ 268 ] THE CLERK: Thank you. [ 269 ] THE COURT: -- and then I am being asked to make the order under s. 743.2(1) which is no contact while in custody and -- that is for both M.A. and N.B.? [ 270 ] MS. HAGEN: Yes, Your Honour. [ 271 ] THE COURT: All right. I will make that order, also. With respect to the issue of the victim fine surcharge, Mr. Hertzberg, any submissions with respect to -- [ 272 ] MR.

HERTZBERG: He has been unemployed because he has been on bail so tight for three years. I would urge Your Honour to evoke either Bailey or Barinecutt . [ 273 ] THE COURT: I will -- Madam Crown, any issue with respect to that? [ 274 ] MS. HAGEN: No, Your Honour. [ 275 ] THE COURT: All right. With respect to the victim fine surcharge, given the lack of employment that Mr. Campbell has been able to pursue and his current and prospective financial circumstances, I am going to follow the decision of Judge Gove in R. v. Bailey . I am being invited to make an immediate order for payment of the victim fine surcharge.

That is with respect to both counts, one and Amended Count 3, to make the victim fine surcharges payable forthwith and, in default, one day on each. That one day is to be served concurrently with the sentences that I have imposed today. [ 276 ] Is there anything else with respect to that? [ 277 ] MS. HAGEN: No, Your Honour. [ 278 ] MR. HERTZBERG: No, Your Honour. [ 279 ] THE COURT: All right. Mr. Campbell, I urge you to read carefully the Forensic Assessment Report prepared by Dr.

Ferguson -- [ 280 ] THE ACCUSED: Okay. [ 281 ] THE COURT: -- and specifically the four recommendations that he makes in that report which I have made reference to in my reasons for judgment for sentencing. It is very important that you speak with mental health and professional counsellors and in the course of your sex offender treatment program that I expect you will be engaged at likely at the Ford Mountain Correctional Centre, and that you come out with strategies to deal with the matters of concern that have been raised by Dr. Ferguson.

Do you understand that? [ 282 ] THE ACCUSED: I do. [ 283 ] THE COURT: Okay and I wish you well in pursuing your rehabilitation. Thank you. [ 284 ] MR. HERTZBERG: Thank you, Your Honour. [ 285 ] THE COURT: Anything further? [ 286 ] MR. HERTZBERG: No, thank you, Your Honour.

[ 287 ] MS. HAGEN: No, Your Honour, thank you. [ 288 ] THE COURT: All right. I will stand down and allow counsel to -- [ 289 ] THE SHERIFF: Order in court [ 290 ] THE COURT: -- leave. Thank you. [PROCEEDINGS ADJOURNED] [PROCEEDINGS RECONVENED] [ 291 ] MR. HERTZBERG: Thank you, Your Honour, there is an issue regarding the nature of the firearm prohibition. It is s. 109 and it is mandatory if Your Honour -- sorry, I am standing instead of my client as he is down in the cellblock. I have those instructions. [ 292 ] THE COURT: Thank you. [ 293 ] MR.

HERTZBERG: That was the first question, and the second, aside, we had told Madam Clerk the spelling of the names of the various people whom Your Honour referred to by initials. So you need not concern yourself further, I think. [ 294 ] MS. HAGEN: Yes, thank you, Your Honour. [ 295 ] THE COURT: All right. So with respect to the firearms prohibition? [ 296 ] MS. HAGEN:

Section 109 is mandatory -- [ 297 ] THE COURT: Thank you. [ 298 ] MS. HAGEN: -- not discretionary as I indicated. [ 299 ] THE COURT: All right. So it is a mandatory s. 109 and the duration is -- [ 300 ] MS. HAGEN: Ten years. [ 301 ] THE COURT: -- 10 years. All right. [ 302 ] MR. HERTZBERG: Yes, Your Honour. When I was speaking of 10 and life, that is because the sentence is structured for restricted and life always for prohibited.

Thank you, Your Honour. [ 303 ] THE COURT: All right, thank you, and I thank counsel for their able submissions throughout this rather long matter that is been going on for about a year now, I guess, or -- [ 304 ] MS. HAGEN: Two. [ 305 ] THE COURT: -- two -- [ 306 ] MR. HERTZBERG: Or three. [ 307 ] THE COURT: -- or three. [ 308 ] MS. HAGEN: Two-plus, it was started in January of 2015. [ 309 ] MR. HERTZBERG: Well, the offence date was 2013, Your Honour. [ 310 ] MS. HAGEN: Yes, but the trial started in January. [ 311 ] MR. HERTZBERG: It took forever to decide whether to lay charges. [ 312 ] MS.

HAGEN: Thank you for your comments, Your Honour. [REASONS FOR SENTENCE CONCLUDED]