Her Majesty the Queen ) Debbie Buors, ) for the Crown - v. -, 2014 MBPC 57

CITE: 2014 MBPC 57 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN: Her Majesty the Queen ) Debbie Buors, ) for the Crown - and - ) ) ) G. M., Accused ) ) ) Greg Brodsky, for the Accused ) ) Judgment delivered: November 6, 2014 ) JANICE L. LEMAISTRE, P.J.

RESTRICTION ON PUBLICATION: Please note that, pursuant to s. 486.4(1), this decision is subject to an order restricting publication in any document or broadcast or transmission of any kind of any information that could identify the complainant or witness. [ 1 ] The accused (“G.M.”) is charged with two counts of Sexual Interference, Making Child Pornography, Possession of Child Pornography, Voyeurism, Criminal Harassment, two counts of breaching an Undertaking and two counts of breaching a Recognizance. [ 2 ] The offences occurred in April 2005 and between October 2011 and December 2012.

G.M. entered guilty pleas to these charges on May 12, 2014. The sentencing hearing was held on August 20 and September 4, 2014. FACTS Sexual Interference April 15 – 16, 2005 [ 3 ] On April 15, 2005 G.M. was at the residence of a friend consuming alcohol with the parents of the child victim, B.B. and other adults. G.M. stayed overnight at their residence due to his level of intoxication. At some point during the early morning hours of April 16, 2005 B.B.’s mother, K.B., heard her daughter laughing. When she went to B.B.’s room to investigate her daughter told her G.M. was tickling her.

K.B. told the accused to stop. [ 4 ] Later that morning K.B. noticed her daughter behaving strangely. She asked B.B. if G.M. did anything to her. B.B. disclosed that G.M. touched her and that she had to squeeze her legs together to prevent him from putting his fingers in her vagina.

B.B. was eight years old. [ 5 ] When this incident came to light and B.B. was asked to describe the events to police she was too upset to speak about it but provided the following details in writing: • G.M. took his clothes off; • G.M. touched her on the breasts, buttocks and vagina but did not penetrate her vagina; and • G.M. made her touch his penis Making Child Pornography October 8, 2011 – April 27, 2012 [ 6 ] In September 2012 the accused was working at a Winnipeg company as a salesman when the company became concerned that he was stealing company secrets.

As a result the company hired an information technology person who put a program on G.M.’s computer at work to capture screen shots. Images captured included images of child pornography. [ 7 ] The police were notified in October 2012 and began to investigate. During the course of the investigation police seized

computer equipment from G.M.’s residence and office as well as cellular phones and external storage devices. An analysis of these devices revealed that between October 8, 2011 and April 27, 2012 G.M. made images and videos of child pornography. There were images of B.B., G.M.’s twin daughters, Ke.M. and Ka.M. and J.P., a friend of the twins. The images of B.B. were made by taking photographs of her from her family’s Facebook page and putting her image in photographs with G.M. to make it appear that he was engaged in sexual acts with her.

There were fourteen such images. [ 8 ] The images of J.P. involved acts of Sexual Interference. [ 9 ] The videos primarily involve J.P. however in most if not all of the videos J.P. is playing with G.M.’s daughters. All three girls were prepubescent between the ages of seven and eight years. [ 10 ] Some of the videos were created by G.M. by setting up his laptop computer across from the toilet in a bathroom at his residence used by the girls. The videos depict the girls using the toilet. [ 11 ] The accused made other videos of J.P. and his daughters.

In some of the videos the girls are playing in a park on a play structure; in others they are playing at G.M.’s residence. The videos focus on J.P. who can be seen in more than one video wearing a bikini and the video is focussed on her feet, legs and vaginal area. In another video J.P., who slept over at the accused’s residence often, is seen naked in his bed with Ka.M. and Ke.M. who are also naked or wearing only panties. Sexual Interference April 7 – April 27, 2012 [ 12 ] There were two images and two videos found in the accused’s possession that show J.P. sleeping at his residence.

G.M. removes J.P.’s socks, rubs her foot and places his penis on her bare foot. Possession of Child Pornography October 8 – 25, 2012 [ 13 ] The analysis of the items seized from the accused revealed a substantial collection of child pornography.

The collection includes: • 139 videos of child pornography which includes 134 unique videos and five duplicates; • 16,896 images of child pornography which includes 6935 unique images and 9961 duplicates; • 1 video of child nudity; • 16,691 images of child nudity; • 284 videos of child other; and • 289,984 images of child other. [ 14 ] The videos and images of child pornography involve prepubescent girls between the ages of eight to thirteen years posing in a sexually explicit manner and performing sexual acts that include fellatio and vaginal and anal intercourse and there is one instructional cartoon video that purports to teach young girls to perform fellatio on men. [ 15 ] While not part of the offence of Possession of Child Pornography, the accused also had a video of himself masturbating with and ejaculating on small pink bikini bottoms that appear to be worn by J.P. in some of the videos and the screen captures contain images of the accused using a web camera to masturbate in the presence of teen girls.

Voyeurism February 1 – October 25, 2012 [ 16 ] In February of 2012 the accused began a sexual relationship with S.P. who was 21 years old and the receptionist at his place of work. During their relationship, S.P. allowed G.M. to take photographs of her feet touching his penis. G.M. was found in possession of videos of sexual acts between himself and S.P., which included fellatio, cunnilingus and intercourse in his office and in a bedroom. S.P. was not aware that the accused recorded these acts.

Criminal Harassment October 31 – November 19, 2012 [ 17 ] The police became aware of the videos of S.P. in late October of 2012, as there were images from these videos captured by the screen shot software that G.M.’s employer had installed on his computer. When the police told S.P. about the screen shots and about G.M.’s arrest for Possession of Child Pornography on October 25, 2012 she ended her relationship with him. [ 18 ] G.M. made ongoing efforts to communicate with S.P. On October 31, 2012 police left voice and text messages for G.M. advising him to stop his contact with S.P.

S.P. changed her cellular telephone number and moved to a different residence. G.M. acknowledged the communication from police but continued his attempts to contact her. [ 19 ] On November 1, 2012 as S.P. was leaving school, the accused approached, gave her flowers, told her he loved her and told her not to call police. [ 20 ] On November 5, 2012 the police met with G.M., told him not to contact S.P. and cautioned him that he could be charged with Criminal Harassment [ 21 ] On November 9, 2012 S.P. found a sign under the tire of her vehicle that had been placed there by G.M.

The vehicle was parked at her new residence, which suggests he followed her.

[ 22 ] On November 12, 2012 S.P. was at home sick during the day. At 4:30 p.m. she found a note on her windshield from G.M. that referenced his love for her. [ 23 ] On November 15, 2012 G.M. sent S.P. an email requesting a meeting. [ 24 ] On November 16, 2012 G.M. left a note on S.P.’s windshield that had an angry tone, suggested she had abandoned him and requested a meeting.

On the same date G.M. sent S.P. an email requesting a meeting. [ 25 ] On November 19, 2012 G.M. confronted S.P. as she left a grocery store. [ 26 ] On November 20, 2012 police left a card and messages at G.M.’s residence that went unanswered. [ 27 ] On November 21, 2012 police were called to S.P.’s residence. They found the accused outside her apartment leaning on her door playing music on an iPad computer. He was arrested for Criminal Harassment and found to have a five-inch knife in the pocket of his jacket.

Failing to Comply with an Undertaking October 31 – November 19, 2012 and November 21, 2012 [ 28 ] When G.M. was arrested police looked at the iPad in his possession and found four or five photographs of girls who they described as young and nude or partially nude. At the time he was subject to an Undertaking that prohibited him from possessing a computer and nude images of children.

Failing to Comply with a Recognizance December 20, 2012 x 2 [ 29 ] The accused was released on a Recognizance on November 29, 2012 with conditions, which included a prohibition regarding contact with S.P. and regarding access to the Internet. [ 30 ] On December 20, 2012 G.M. sent S.P. three email messages including one in which he expressed an intention to end his life and blamed her, had a friend contact her to communicate a message and called her place of work 25 times. The email messages were sent by accessing the Internet. [ 31 ] G.M. was arrested and has been in custody since December 21, 2012.

CIRCUMSTANCES OF THE OFFENDER [ 32 ] The accused is 40 years of age and has no prior criminal record. A forensic report prepared by Dr. Lawrence Ellerby dated January 28, 2014 (the Ellerby Report) provides considerable information about G.M. [ 33 ] He is currently single and has twin daughters who are 10 years old.

As a result of his involvement in these offences G.M. lost his job as a salesman and has no contact with his daughters or their mother. [ 34 ] G.M.’s mother, father and sister have been supportive of him since his arrest, his brother less so. [ 35 ] G.M.’s upbringing is unremarkable in the sense that it appears to have been normal and his family has always been supportive of him. He is an educated man having completed high school and post secondary programs.

He has been employed since 1995 most recently at a Winnipeg company where he worked for three years prior to termination when he was charged. [ 36 ] G.M. began drinking at 15 years of age but decreased his use of alcohol at 18 years of age to focus on college. G.M. describes his use of alcohol as social. While he does not feel he has a problem with drinking, he told Dr. Ellerby he was very intoxicated when he offended against B.B., he drank to excess after being charged and he drank heavily and used drugs during a period when he and S.P. were apart while she was working on her relationship with another man.

G.M. reported past drug use but does not have concerns about drug abuse or future use. [ 37 ] The Ellerby Report details the accused’s relationship history including his relationship with M.M., the mother of his children, which seems to have become difficult for both of them after the twins were born. In 2012 G.M. had an affair with S.P. and his relationship with M.M. ended. She filed for divorce after he was charged. [ 38 ] G.M. describes himself to Dr.

Ellerby as a good father although there is no collateral information that confirms this and his behaviour when the girls were with J.P. contradicts this assertion. [ 39 ] The Ellerby Report provides considerable information regarding G.M.’s sexual history and interests.

He has had significant involvement with pornography for much of his life; he has had many sexual partners including sex trade workers over the years; and he has a foot fetish. [ 40 ] G.M. acknowledges being aroused by children, has accessed child pornography since he was 18 years old and is voyeuristic. [ 41 ] Notwithstanding his sexual attraction to children, G.M. denies any sexual interest in his daughters although Dr. Ellerby finds this assertion to be questionable. [ 42 ] According to Dr.

Ellerby, G.M. accepts responsibility when it comes to his use of child pornography but he has little insight into why he began and continues its use. [ 43 ] Dr. Ellerby expresses concern about G.M.’s credibility regarding his assertion that he has not and would not touch a child in a

sexual manner given the video of his assault on J.P. and his creation of child pornography images involving B.B. and himself. [ 44 ] Dr. Ellerby also indicates a tendency by G.M. to minimize, justify and project blame regarding the offences of Voyeurism involving S.P. [ 45 ] At page 16 of the report Dr.

Ellerby writes, G.M.’s “test responding did not evidence marked psychopathology, however he did demonstrate some moderate and moderate-high elevations indicating some problem areas.” These include “trauma symptomology… cognitive, emotional and behavioural avoidance… and a clinically elevated response to difficulties in his functioning in relationships.

Although he is interested in relationships, he appears to be uncomfortable with, and attempts to avoid intimacy; wants to maintain independence from others; avoids close relationships and keeps people at a distance; and does not want to be known or understood by people. Efforts to maintain relationships are likely stressful for him. This constellation has been attributed to the experience of early relational losses and/or parental unavailability or maltreatment including neglect, inadequate empathic attunement and frightening behaviour.

G.M.’s responses also indicated that given his present circumstances (likely his criminal charges, being incarcerated and the associated losses) that his life is in turmoil and crisis and he feels powerless to control his life.” (see The Ellerby Report pages 16 and 17) [ 46 ] The accused is motivated to obtain treatment and, according to Dr. Ellerby, is likely to respond well to treatment. [ 47 ] G.M. is a low risk to commit a sexual offence according to the Static 99R and the Risk Matrix 2000 and a moderate–high risk according to the VRS:SO. Overall Dr.

Ellerby opines that G.M. is a low risk to commit a hands on offence, although the risk is linked to situational factors, and a moderate risk to commit a child pornography offence. Dr. Ellerby expresses his “impression that it is likely G.M. has experienced a significant traumatic event or events that he has yet to … disclose or perhaps even yet to access in his memory.” (see the Ellerby Report page 19). [ 48 ] Dr. Ellerby expresses concern regarding the escalation of G.M.’s risk to commit a hands on offence to moderate-high if he were to have unsupervised access and be in a caretaking role with a child.

The risk would escalate to high if he were also to be under the influence of alcohol and drugs. Dr. Ellerby also expresses concern about G.M.’s ability to “refrain from accessing the computer, the Internet and pornography, particularly in times of stress.” (see the Ellerby Report page 20) [ 49 ] Dr. Ellerby concludes that the accused needs long term, intensive and specialized interventions and long term community based follow up treatment and offers insight into programs available through the provincial and federal systems.

He also outlines the necessary treatment goals to ensure G.M.’s future risk is managed appropriately. [ 50 ] According to reports from Corrections and information provided by Mr. Brodsky, the accused completed programming while in custody including the Coming to Terms program in May 2013 and the Partner Abuse Short Term program in May 2014. There have been no behavioural issues with G.M. since he has been at Milner Ridge Correctional Centre. He has been held in protective custody due to the nature of his offences and has eight hours of free time per day.

He attends recreation daily and has held several jobs in the unit. He has had two minor arguments with other inmates that were resolved without incident. G.M. had surgery booked for ligament tears in his knee which he was unable to attend while in custody. POSITION OF THE PARTIES [ 51 ] The Crown submits that a sentence of 10 years’ incarceration is appropriate having regard to the need to address deterrence and denunciation as paramount sentencing principles; the aggravating and mitigating factors present in this case; and the principle of totality.

The Crown provided a recommendation for each incident which she suggests ought to be served consecutively as follows: • Sexual Interference involving B.B. – two years • Sexual Interference involving J.P. – two years • Making Child Pornography – four years • Possession of Child Pornography – two years • Voyeurism – one year • Criminal Harassment – two years • Failing to Comply with Undertaking (nude images) – two months • Failing to Comply with Undertaking (computer) – two months concurrent • Failing to Comply with Recognizance (contact with S.P.) – four months • Failing to Comply with Recognizance (Internet) – four months concurrent [ 52 ] The consecutive sentences total 13 years and six months but the Crown suggests the principle of totality calls for a reduction in the total sentence of three years and six months for a total sentence of 10 years. [ 53 ] The Crown says that the time the accused has spent in custody should be credited a rate of 1 to 1.

She points out that G.M. was released on bail but his bail was revoked when he was re-arrested for breaching his bail and he is therefore not entitled to enhanced credit. [ 54 ] Mr. Brodsky, on behalf of the accused, argues that the time G.M. has spent in custody is an appropriate sentence particularly

when coupled with a period of probation. The defence submits that G.M. is entitled to enhanced credit for pre-sentence custody at a rate of 1.5 to 1 having regard to G.M.’s behaviour while in custody, his conditions of detention and the length of time it has taken for the matter to proceed to sentencing. On that point Mr. Brodsky says that he advised the Crown in December 2013 that G.M. wished to plead guilty; he provided Dr. Ellerby’s first report to the Crown in March 2014 and the pleas were entered on May 12, 2014.

He expressed concern with delay from the time G.M. was ready to proceed to sentencing until the dates of the sentencing hearing, which commenced on August 20, 2014 and continued on September 4, 2014. [ 55 ] The defence position is that the protection of the public is best achieved by a sentence that provides the accused with treatment that addresses his risk level and factors and points to information filed with the Court as support for this assertion. [ 56 ] In the second report prepared by Dr.

Ellerby dated July 31, 2014 he provides information to supplement the opinion provided in the report dated January 28, 2014 and he offers the opinion that a sentence served in a provincial facility followed by probation would provide the most appropriate and intensive treatment options for G.M. [ 57 ] Dr. Ellerby details the programming offered in provincial and federal institutions and indicates that individuals assessed as low risk in a federal institution are not typically provided with programming for sex offending. Dr.

Ellerby also provides information regarding services available to individuals on parole and on probation and offers his view that there is a better possibility of more intensive and specialized programming and a higher level of supervision for G.M. if he is subject to probation as opposed to parole. PRINCIPLES OF SENTENCING [ 58 ] The purpose and principles of sentencing are set out in

section 718 of the Criminal Code .

The objectives are denunciation; deterrence both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to victims or the community and promotion of a sense of responsibility in offenders and acknowledgement of the harm done. [ 59 ] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 60 ] The sentence should be increased or decreased to account for any aggravating or mitigating factors relating to the offence or to the offender. [ 61 ] The sentence should be similar to those imposed on similar offenders in similar circumstances, the combined duration of consecutive sentences should not be unduly long; an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered. [ 62 ]

Section 718.01 requires the Court give primary consideration to the objectives of denunciation and deterrence for an offence that involves the abuse of a child. [ 63 ]

Section 718.2(a)(ii) deems it to be aggravating if an offence involves the abuse of the offender’s spouse or common-law partner. CASE LAW AND OTHER SENTENCING MATERIAL [ 64 ] Counsel have filed 25 cases that deal with sentencing for the various offences in this case.

While these cases were helpful in terms of what principles ought to guide the Court and how to balance the applicable principles, and while many of the cases involved similar circumstances to this case and/or to this offender, there was no case that involves the complete constellation of facts and circumstances as the matter now before the Court. [ 65 ] Some of the principles gleaned from the cases that are applicable in this case include the following: • Sentencing is an individualized process and each case turns on its facts (see R. v.

Pattison , [2012] SKQB 330); • Deterrence and denunciation are primary sentencing principles in cases involving the sexual abuse and exploitation of children (see R. v. Keogh , [2012] ABCA 14); • Those who possess child pornography are no less responsible for the abuse of children and resulting harm during the creation of child pornography than those who make it (see Pattison , supra ); • Cases which pre-date Bill C-2 which created a minimum sentence of 1 year for Making Child Pornography are of limited value (see R. v.

M. (B.C.) 2008 BCCA 365 , [2008] B.C.C.A. 22); • It may be appropriate to impose a consecutive sentence for pornography charges when the accused has also been convicted of sexual touching (see M. (B.C.) supra) ; • Enhanced penalties tend to be imposed for offences of possession of and making available child pornography particularly in cases which involve “actual contact child abuse” (see R. v. Mack, 2014 ONCJ 29 ; [2014] O.J. No. 372); •

Section 718.01 of the Criminal Code applies to cases involving possessing and accessing child pornography (see R. v. Riffon , [2014] ONCJ 262); • Deterrence and denunciation are to be emphasized in cases involving Voyeurism but rehabilitation and acknowledgement of wrong doing are also important (see R. v. Cassels, 2013 MPC 47, [2013] M.J. No. 380 ); • Sentences for the offence of Possession of Child Pornography range from eight months to 18 months; • Sentences for the offence of Making Child Pornography range from one to three years;

• Sentences for the offence of Sexual Interference range from two years less a day to four years; • A sentence of two months has been held to be an appropriate sentence for the offence of Criminal Harassment; • Sentences for the offence of Voyeurism range from a discharge to 12 months incarceration. [66] In addition to case law, Mr. Brodsky has filed materials that consist of articles and portions of reports. There are documentswhich provide information about the Static 99R and the VRS:SO which are risk instruments used by Dr.

Ellerby in his assessment ofG.M. [67] The remaining material paints a somewhat discouraging picture about access to programming and mental health professionals inthe Correctional Service of Canada but does little to supplement the information provided by Dr. Ellerby which provides more detailedinformation about services available to offenders in Manitoba. VICTIM IMPACT [68] B.B., K.B. and M.M. provided victim impact statements. I have considered carefully the harm done to and loss suffered byeach of them.

However, I have not considered the comments in the victim impact statements that do not accord with the legislationincluding criticism of the offender, recommendations as to the severity of punishment and statements addressed to the accused. (see R.v. McDonough (2006), (ON SC), 209 CCC (3d) 547). [69] As a result of being sexually interfered with by the accused, B.B. suffers from severe anxiety and panic attacks that requiremedication. She struggles in school, has lost her ability to trust and fears she will never be able to have a healthy relationship.

Sheattends sexual abuse counselling to help her deal with the trauma. [70] B.B.’s mother, K.B., blames herself for being unable to protect her daughter from G.M. and feels angry and hurt about whatG.M. did to B.B. and how his actions have affected her. [71] M.M. is not a named victim in any of the charges. However she is the mother of Ke.M. and Ka.M. who are victims of theoffence of Making Child Pornography and she is a victim of G.M.’s offending due to the emotional loss she has suffered. As a result ofthe offences M.M. suffers fear, anger, humiliation and guilt.

She struggles to provide for her daughters having lost her home and job andspoke of the trauma suffered by her girls and their loss of their father, provider and role model. [72] In terms of the impact of the offences on S.P., while there is no victim impact statement it is clear from the facts provided bythe Crown that S.P. feared for her safety and felt the sense of violation inherent in the offences of Voyeurism and Criminal Harassment.

She allowed G.M. to video tape her feet only and he took advantage of her trust when he recorded her during very intimate moments thatshe shared with him. [73] As for the impact on victims of child pornography, I am mindful of the comments of Chief Justice McLachlin in R. v. Sharpe,2001 SCC 2 , [2001] S.C.J. No. 3 at paragraph 158: “The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and tosociety.

This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of thepornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography isinherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rightsof children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children.

Itpreys on preexisting inequalities.” [74] There is also no victim impact statement from J.P. but I am mindful of the comments in R. v.

Foley 2013 ONCJ 26, [2013] O.J.No. 4 at paragraph 34, “The babies, toddlers, young children and adolescents whose victimization is captured forever by these imagesand technology are further harmed with each viewing and act of acquisition, leaving aside transmission which is not in issue in thiscase.” AGGRAVATING AND MITIGATING FACTORS [75] There are both aggravating and mitigating factors in this case regarding the circumstances of the offences and the offender. [76] The mitigating factors include: • The accused has entered guilty pleas thereby accepting responsibility for committing the offences and saving the victims and theirfamily members from having to testify; • The guilty pleas indicate G.M. is remorseful; • The accused has no prior criminal record; • G.M. has lost his wife and children, his friends, his girlfriend and his employment but continues to have the support of his parentsand siblings; • G.M. has taken programming in custody and has attempted to obtain other programming and treatment that has not been available tohim in custody; • G.M. is motivated to obtain treatment and is likely to benefit from it; and • G.M. has done well in custody and was reasonably forthcoming with Dr.

Ellery during the assessment process.

[ 77 ] Mr. Brodsky asserts that Dr. Ellerby has assessed G.M. as a low risk to re-offend. If that were the case this would be a mitigating factor. However, I do not agree with this assertion. The Static-99R and the Risk Matrix 2000 do indeed place G.M. in the low risk category for sexual recidivism (see the Ellerby Report). However, the results of the risk assessment tools must, in my view, be taken in context. Dr.

Ellerby makes it clear that G.M.’s risk is linked to situational factors – as long as he is stress free, sober and is not in the company of children in the absence of a supervising adult, he is low risk. Otherwise his risk is moderate-high to high.

As such I do not find G.M.’s risk to be at all mitigating. [ 78 ] The aggravating factors in this case are numerous and include the following: • The size and nature of the collection of child pornography; • The victims of the offences include children; • The accused accessed his collection at work from devices provided by his employer; • The accused accessed teen girls on web chat sites and exposed his penis to them; • G.M. initially blamed his wife when the police spoke to him about the child pornography they saw on the screen captures provided by his employer; • The accused denied having an external hard drive which police later found; • G.M. had computer cleaning programs on his laptop to prevent his actions from being detected; • The accused took steps to conceal that he was recording S.P., J.P. and his daughters by covering the web camera indication light on his computer for instance; • G.M. continued to possess images of nude girls and access the internet while prohibited by Court orders; • The accused used family photographs of a friend’s daughter to make child pornography; • G.M. captured offensive images of his daughters while filming their friend J.P. for a sexual purpose thereby committing a serious breach of trust; • G.M. was responsible for J.P.’s care when he filmed her and sexually assaulted her; • G.M. breached the trust of his friends who had no concern about him being with their daughter, B.B., in the middle of the night when he sexually assaulted her; • Child pornography exploits children who are the most vulnerable members of our society; • G.M. denied knowledge that sexual acts he engaged in with S.P. were recorded; • G.M. was involved in an intimate relationship with S.P. and breached her trust when he committed the offences against her; • S.P. moved and changed her cell phone number in an unsuccessful attempt to try to avoid the accused; • G.M. persisted in his attempts to communicate with S.P. after being warned by police and then charged; • G.M. felt he had a right to pursue S.P.; • G.M. blamed S.P. for his actions, made threats of suicide and had a knife in his possession when he was outside her apartment; • G.M. tends to deflect blame for his behaviour; • The accused has demonstrated a disregard for authority and court orders; • G.M. is unable to control his own behaviour; • G.M. through his behaviour has demonstrated that he is concerned with his own needs and does not appreciate the impact on others or the harm he has caused; • G.M. was inconsistent when discussing his sexual interests and behaviours with Dr.

Ellerby at times denying inappropriate sexual interests which he had previously acknowledged; • G.M. does not recognize the harm he has caused his own daughters and sees himself as a good father; • G.M.’s attraction to children and use of child pornography is long standing and goes back to when he was 18 years old; • G.M. is opportunistic in his offending and took advantage of girls he had easy access to; • G.M. did not accept responsibility for committing a hands on offence to Dr.

Ellerby notwithstanding the evidence; • G.M. struggled to recognize the seriousness of the offence of Voyeurism regarding S.P. with Dr. Ellerby who noted he tended to minimize and justify his behaviour; and

• According to Dr. Ellerby, the accused has limited insight into his sexual paraphillias, his offending behaviour and relationshipdynamics; • G.M.’s risk to reoffend is moderate-high to high. ANALYSIS [79] The question to be determined is what should this offender receive for these offences under the circumstances in which theywere committed? In determining the appropriate sentence, the Court must ensure the sentence is proportionate to the gravity of theoffence and the offender’s responsibility having regard to the aggravating and mitigating facts.

Concurrent or Consecutive Sentences [80] Because the accused is facing a number of charges I intend to engage in the 4-step process outlined by the Manitoba Court ofAppeal in R. v. Draper 2010 MBCA 35.

I will determine whether the sentence for each offence should be concurrent or consecutive;determine an appropriate sentence for each offence; apply the principle of totality to the cumulative sentence to determine whether thesentence is excessive; and if the total sentence is excessive, adjust the sentence to an appropriate length. [81] In determining an appropriate sentence for each offence I will consider the circumstances of the offender, and in particularG.M.’s guilty plea, lack of prior record and family support, but do not intend to reiterate the totality of these circumstances. [82] The Sexual Interference on B.B. occurred in 2005, is a distinct offence from the other offences and warrants a consecutivesentence. [83] The offence of Making Child Pornography involves the victimization of J.P. by

an act of sexual abuse, the victimization of B.B.by taking her image and creating pornographic photographs and the victimization of G.M.’s daughters who are captured naked on videowith J.P. The offence involves the creation of images and videos some of which the accused accessed and viewed at work in October2012. The video that depicts

an act of Sexual Interference on J.P. is not an extension of the sexual touching and, in the words of theBritish Columbia Court of Appeal, “represents an elevated level of abuse and exploitation” (see M.(B.C.), supra.) [84] The offence is, for the most part, a distinct offence. There are aspects of it that are interrelated to other offences. The imagesand videos made by G.M. are part of his collection of child pornography and so this offence is related to the offence of Possession ofChild Pornography. The video made by G.M. of the act of sexual abuse on J.P. is related to the offence of Sexual Interference.

However when sentencing G.M. for this offence I am sentencing him primarily for the pornography he made that does not involve theSexual Interference on J.P. although those videos and images do form part of the offence. I have considered the additional elements ofthese acts that involved planning and deliberation to the extent that he had a recording device with him and was able to access therecordings at a later time thereby continuing the abuse of J.P. The offence involves three other child victims whereas the offence ofPossession of Child Pornography involves multiple other victims.

For these reasons I find this offence is sufficiently distinct to warrant aconsecutive sentence. [85] The Sexual Interference on J.P. involves the accused touching J.P.’s foot with his penis while she slept at his residence as seenon videos and in images he recorded.

This offence is sufficiently separate and distinct from the other offences including the offence ofMaking Child Pornography having regard to the findings I have made regarding that offence as it relates to J.P. [86] The offence of Possession of Child Pornography involves 139 videos and 16,896 images of pre-pubescent girls posing andperforming sexual acts including fellatio and vaginal and anal intercourse in addition to a video that teaches young girls how to performfellatio on men.

The offence is separate and distinct from the other offences having regard to the findings I have made regarding theoffences of Making Child Pornography and Sexual Interference of J.P. [87] The Voyeurism offence involves G.M. recording intimate sexual acts between himself and S.P. without her knowledge orconsent. This offence is distinct from the other offences and warrants a consecutive sentence. [88] The Criminal Harassment offence began after S.P. found out that G.M. had recorded her while having sex with him.

This is adistinct offence and warrants a consecutive sentence. [89] The offences of Failing to Comply with an Undertaking are interrelated and will receive sentences that are concurrent. However these two breaches are separate and distinct from the other offences with which the sentence will be consecutive. [90] The offences of Failing to Comply with a Recognizance are also sufficiently related and will receive concurrent sentences butthey are distinct from the other offences to which the sentence will be consecutive.

I note that the efforts G.M. made to communicatewith S.P. is a continuation of the conduct that lead to the charge of Criminal Harassment but the offence occurs one month after G.M.’sarrest for Criminal Harassment. Sentences [91] The offence of Sexual Interference involving B.B. from 2005 is punishable by a maximum sentence of 10 years. While therewas no minimum sentence for this offence at the time it currently attracts a minimum sentence of one year.

The offence involves a childvictim to whom G.M. was in a position of trust in the sense that he was a family friend and had access to B.B. at night when she was inbed. The incident did not come to the attention of the authorities until seven or eight years after the incident. There is no evidence ofpenetration but the offence involved the accused touching B.B.’s breasts, buttocks and vagina and making her touch his penis. Theincident has had a serious and long lasting impact on B.B.

The sentence for this offence is 12 months. [92] The offence of Making Child Pornography is punishable by a minimum sentence of one year and a maximum sentence of 10years. The relevant factors in sentencing for child pornography offences from R. v. Kwok, (ON SC), [2007] O.J. No.

457 are found at paragraph 79 of R. v. Mack 2014 ONCJ 29 , [2014] O.J. No. 372: “Not surprisingly, each case turns on its own particular facts. However, an analysis of the case law does reveal an emerging consensus on the relevant factors to be taken into account: see, in particular, R. v. Parise , [2002] O.J. No. 2513 (Ont.C.J.) ; R. v. Mallett , [2005] O.J. No. 3868 (S.C.J.) . Generally speaking, any of the following are considered to be aggravating factors: (

i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (

v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (

i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (

v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).” [ 93 ] Applying those factors to this case: • G.M. does not have a criminal record for similar or related offences; • The offence involves the production of pornography; • The images and videos made by G.M. are a small portion of his collection of child pornography and, while they are devastating they do not depict violence or a significant level of depravity; • G.M. is a moderate-high to high risk to children; • G.M. is not a youthful offender; • G.M. is, apart from the offences, otherwise generally of good character; • G.M. has “little insight into the origins and maintenance of his child pornography use” (see the Ellerby Report page 11); • G.M. has demonstrated remorse; • G.M. is willing to take treatment; • G.M. entered a guilty plea; and • G.M. has already suffered for his crime through the loss of family friends and employment. [ 94 ] The sentence for this offence is three years. [ 95 ] The offence of Sexual Interference involving J.P. from October 2011 to April 2012 is punishable by a minimum sentence of 45 days and a maximum sentence of 10 years.

The minimum sentence has now been increased to one year. G.M. was in a position of trust when he committed this offence and it is aggravating that the victim is a child and was particularly vulnerable as the offence was committed while she was sleeping. G.M. presents as a moderate-high to high risk to reoffend. The assault is on the lower end of the spectrum and was not repeated although the fact of G.M.’s foot fetish (see the Ellerby Report) provides a somewhat more serious context for the offence.

The sentence for this offence is 15 months. [ 96 ] The offence of Possession of Child Pornography from October 2012 is punishable by a minimum sentence of 45 days and a

maximum sentence of 5 years. The minimum has now been increased to six months. I do not consider it an aggravating factor of this offence that G.M. produced some of the videos and images in his collection because those acts comprise the separate offence of Making Child Pornography. The size of the accused’s collection is significant even when I consider the number of duplicate videos and images. The collection does not involve violence but is otherwise relatively depraved having regard to the nature of the acts committed and the age of the girls involved. G.M. is a moderate-high to high risk to children.

I have outlined the mitigating factors regarding the offence of Making Child Pornography and they apply equally to this offence. While not part of the offence it is concerning that G.M. had images and videos of child nudity and child other, that he had a video of himself masturbating with and ejaculating on what appear to be J.P.’s bikini bottoms and that he masturbated in the presence of teen girls on a web chat site using a web camera. There is no evidence of distribution, commercial purpose or violence.

While my view is that the appropriate sentence for this offence is two years, I am mindful of the principle of parity and the sentences that have been imposed in similar cases. The sentence for this offence is 18 months. [ 97 ] The maximum sentence for Voyeurism is five years. While G.M. and S.P. were not married or living together, it is in my view aggravating that he and S.P. were involved in a dating relationship and indeed courts have held that

section 718.2(a)(ii) applies in such a case (see R. v. Dasilva 2011 ONCJ 133 ). This offence involved a serious breach of her trust given the nature of their relationship and the level of intimacy they shared. The recordings represent a profound violation of S.P.’s privacy (see R. v. Mahabir 2010 ONCJ 347 ). I have considered the principle of rehabilitation, which is an important one. However, G.M. has struggled to recognize the seriousness and impact of his behaviour, which he tended to minimize and justify with Dr. Ellerby.

Further aggravating is G.M.’s behaviour towards S.P. when he taunted her in an email message, “every police computer geek can view everything frame by frame and the pervs can make copies before going home.” (see the Ellerby Report page 14). The accused was deliberate in his commission of this offence as evidenced by the fact that the web camera indication light had been covered on the computer he used to make recordings in his office and the offence was repeated and committed in two different locations. There was however no distribution by G.M. of the recordings.

This offence goes beyond the behaviour described by Mr. Brodsky as “up-skirting” which attracted a conditional discharge imposed in a case heard in this Court on September 3, 2014. Deterrence and denunciation outweigh in importance the principle of rehabilitation for this offender in the circumstances of this case and require a sentence of nine months incarceration. [ 98 ] The maximum sentence for Criminal Harassment is 10 years. After S.P. ended her relationship with G.M., he continued to pursue her. He was warned by police on two occasions to stop his efforts to communicate with her.

S.P. moved to a different residence and changed her phone number but G.M. continued to follow her, leave notes for her, send email messages to her and confront her. G.M. was arrested on November 21, 2012 outside the door of her home in possession of a knife. G.M. minimized his behaviour towards S.P. and projected responsibility onto others when discussing these events with Dr. Ellerby. He caused S.P. significant fear and stopped only after he was arrested. Given the nature of his relationship with S.P. this offence represents a breach of trust.

Deterrence and denunciation need to be given priority considering the circumstances of this offence. The sentence is 15 months incarceration. [ 99 ] The maximum sentence for Failing to Comply with an Undertaking or recognizance is two years. [ 100 ] When the accused was arrested outside S.P.’s home on November 21, 2012 he was in possession of an iPad computer that contained four or five photographs of nude or partially nude young girls.

The Crown did not provide a factual basis for the dates alleged in the Information but based on G.M.’s guilty plea to a breach charge for accessing child pornography entered on May 12, 2014 and the information regarding the images found on his computer on November 21, 2012, I will direct that the charge of Failing to Comply with an Undertaking be amended pursuant to

section 601 of the Criminal Code to read on or about the 21 st day of November in the year 2012 and I will sentence G.M. on the basis that he was in possession of nude images of children on that date. [ 101 ] G.M. was arrested for the offences of Making Child Pornography and Sexual Interference on July 31, 2013. He was released on conditions, which included not to possess a computer and not to possess any nude images of adults or children in any form.

These conditions were intended to ensure the protection or safety of the public including children by restricting G.M.’s access to the devices he used to exploit children and to exploitive images. The accused disregarded the conditions of the Undertaking and accordingly I find a sentence of two months is appropriate for these offences. [ 102 ] G.M. was arrested for breaching his Undertaking and for Criminal Harassment on November 21, 2012.

On November 29, 2012 G.M. was granted judicial interim release on conditions which included no contact with S.P. in person, by telephone, mail, email or in any other way or have another person communicate with her for you and not access the Internet. G.M. accessed the Internet to send three email messages to S.P., had a friend contact her and called her workplace 25 times. One of the email messages was particularly aggravating in that he expressed an intention to end his life and blamed S.P.

At the time the accused committed these offences he was aware of the potential consequences of breaching bail conditions having been previously arrested for breaches. These offences in the circumstances demonstrate a complete lack of regard for Court orders and, while I have already found the no contact breach to be an offence distinct from the charge of Criminal Harassment, these actions demonstrate an ongoing lack of respect for S.P., a lack of empathy or understanding of the impact of his behaviour and an ongoing effort to harass her.

The sentence for these offences is four months. [ 103 ] The total sentence imposed for consecutive sentences is 111 months or nine years and three months. The Principle of Totality [ 104 ] The principle of totality requires a look at the cumulative sentence to determine whether the total sentence is excessive.

This “last look” requires an examination of the gravity of the offence, the offender’s degree of guilt or moral blameworthiness with respect to the crimes committed and the harm done to the victims. (see Draper , supra. ) [ 105 ] The total sentence must fit the circumstances of the offences and the offender. Despite the seriousness of the offences, G.M. has no criminal record, has family support, has taken some programming in custody and is willing to obtain treatment and he has entered

guilty pleas having indicated an intention to do so early on. [106] The offences are serious and disturbing. The degree of moral blameworthiness is very high.

The offences generally involverepeated and, at times, persistent behaviour even after G.M. was alerted to issues with his conduct such as during an email exchange withB.B.’s father in which he apologized for his behaviour with B.B., when police cautioned him about leaving S.P. alone or when he wasplaced on conditions that prohibited possession of a computer or nude images of children. [107] The victims were chosen because they were vulnerable, accessible and trusting. G.M.’s conduct was exploitive and depraved. The victims were violated and demeaned.

Children are the future of society and the words of B.B. in her victim impact statementprovide a glimpse of the impact of sexual abuse on children. [108] It is clear that the public needs to be protected from G.M.; he is unable to exercise control over his impulses and behaviour. Thetotal sentence is not higher than the maximum sentence available for the offences of Sexual Interference, Making Child Pornography andCriminal Harassment. The total sentence does not significantly exceed the overall culpability of the offender. (see R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 42) [109] However the circumstances of the offender and the prospects for rehabilitation with intensive treatment, however remote at thispoint, persuade me that a small reduction in the total sentence is called for. I will reduce the sentence by converting the sentences for thebreaches from consecutive to concurrent thereby reducing the total sentence by six months to eight years and nine months. Credit for Time in Custody [110] The accused has been in custody since December 21, 2012 and was also in custody from November 21 to November 29, 2012.

His bail was revoked by consent pursuant to section 524(8) on December 27, 2012. He is entitled to credit for this time. Mr. Brodskyargued that his client is entitled to enhanced credit pursuant to section 719(3.1) and filed case law in support of his position. There areconflicting decisions from the Provincial Court of Manitoba as to whether a revocation of bail without a detention order pursuant tosection 515 disentitles the accused from receiving enhanced credit. [111] The Court of Appeal of Yukon recently considered this issue in R. v.

Chambers, [2014] YKCA 13 and found that the accused wasdetained under section 524(8) for the purposes of section 719(3) and (3.1) and was therefore not entitled to enhanced credit for the timehe had spent in custody. [112] I agree with the reasoning in Chambers. [113] The accused will be given enhanced credit of 1.5 to 1 for the time spent in custody between November 21 and 29, 2012 (eightdays) and December 21 and 27, 2012 (six days). He will be given credit for the remaining time in custody between December 27, 2012and November 6, 2014 at a rate of 1 to 1 (679 days).

The total credit for presentence custody is 700 days or one year and 11 months. The sentence remaining to be served is six years and 10 months. [114] I have not commented on the issue raised by the defence regarding whether a provincial sentence would better protect the publicbased on the programming available when compared with the programming offered by the Correctional Service of Canada. I do not feelthis is necessary given the sentence imposed and the reasons given for the imposition of sentence.

Ancillary Orders [115] The offences of Sexual Interference and Making and Possession of Child Pornography are primary designated offences and I willorder that G.M. provide a sample for forensic DNA analysis. There will be an order that G.M. comply with the Sex OffenderInformation Registration Act and report as required for a period of 20 years on the offences of Sexual Interference and Making ChildPornography. There will be a mandatory firearms prohibition on the charges of Criminal Harassment and Sexual Interference. Therewill be an order of prohibition pursuant to

section 161(

b) and (

d) on the charges involving sexual interference and child pornography for20 years. The Court will report the convictions to the Director of Child and Family Services in order that the accused’s name will beplaced on the Child Abuse Registry. I will order forfeiture of all items seized by the police and destruction of all exhibits filed in courtafter the appeal period has expired. Having regard to the total sentence and the accused’s financial circumstances, which include theneed to support his daughters, the victim surcharge and court costs are waived. “Original signed by” JANICE L. LEMAISTRE, P.J.