2015 MBPC 66, 2015 MBPC 66

Cite # 2015 MBPC 66 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Sheila Seesahai for the Crown ) - and – ) ) C. C. E. ) Alan Libman for the Accused ) ) Judgment delivered: ) December 11, 2015 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). Brent Stewart, P.J. Introduction [ 1 ] To begin this decision, I want to make a comment as to the Victim Impact Statements which have been filed today. Due to the large number of victims, known and unknown, the effects of Mr. C. C. E.’s crimes are far ranging and severe.

I agree with the Crown's position that members of the general public who have followed this case would be concerned about attending many public facilities which may put their children and themselves at risk of being abused by someone like the accused or others in the community who are voyeurists. I have taken to heart the Victim Impact Statements of the parents of the Alberta child victim who feel an overwhelming guilt for not providing the basic protection for their son from a predator such as C. C. E.

I further note the consistent theme of the particular victims as to the long term effects the accused’s acts have had on them as to trust of those close to them, and their fear of going into public and private facilities other than their own washrooms. Finally, I recognize that several of the victims have lost their schooling opportunities as a result of the continuing effects that the abuse has had on them.

These are not matters in which those victims can easily move on from and it is not something that the Court takes lightly. [ 2 ] The Crown attorney’s position as to sentence is after an individualized assessment of each charge and a cumulative calculation with a rounding off for last look, a period of eight years less time in custody is appropriate. Mr.

Libman for the accused recommends a more lenient sentence of 66 months less time in custody. [ 3 ] An agreed statement of facts was filed with extensive details of the offences and their complicated interrelationships of the victims with the accused which occurred over a long period of time between 2005 and 2013 and included many victims, known and unknown, both in Manitoba and Alberta. [ 4 ] During these years the accused recorded naked children who would come into the family home and use the bathroom and shower facilities. None of the children knew of the recordings.

More disturbing was the nature of the victims’ relationship to the accused. The accused made videos of his own stepchildren, their cousins, and members of his Scout troop, his son’s friends and even his son’s girlfriend. These recordings would be of the various children using the bathroom and shower facilities in various stages of undress.

In addition, both in Manitoba and Alberta, the accused recorded naked pre-pubescent male children changing at local pools and change rooms. [ 5 ] In 2009-2010, at the family home, the accused recorded himself sexually assaulting his 13 year old stepson and has pled guilty to touching his son for a sexual purpose. He also has pled guilty to sexually assaulting T. S. a former Scout Troop member.

In both cases he fondled these boys’ penis upon which the boys rolled away and pretended to be asleep. [ 6 ] Finally, while living in Alberta the accused tricked an eight year old neighbour who suffered from autism into stripping for him which was recorded. During that time frame he did for a sexual purpose touch this child as well. [ 7 ] As a result of the investigation, the police found a large quantity of child pornography images and videos which he had stored in his residence.

BACKGROUND OF THE OFFENDER [ 8 ] A presentence report was compiled and filed which provided some background into the accused. The accused who is 33 years old, had no prior criminal record. He has an extensive work record as a radio D.J. for various radio stations in Winnipeg and Edmonton as well as a part time construction worker when not employed in radio. He had an uneventful childhood and completed grade 11 when he entered into the workforce.

He was in a long term domestic relationship during the years these offences happened which ceased upon discovery of the videos and pictures at the family home. [ 9 ] Manitoba Corrections has assessed him as a high risk to reoffend based on his criminogenic risk factors. In addition although remorseful he continues to downplay his choice to act in these assaults attributing them to simple curiosity. This risk is further aggravated by his significant problems with drugs and alcohol which have been used as a coping mechanism.

Finally, the report writer has concerns into the accused’s lack of insight into his offending behaviour. Despite all of these negatives, the probation worker does believe the accused is capable of addressing a number of risk factors and could greatly reduce his risk of reoffending. [ 10 ] It is apparent that the primary principle of sentencing which applies in cases involving the exploitation and sexual abuse of children is that of denunciation and deterrence (R . v. Keogh [2012] ABCA 14).

This has been codified in s. 718.01 of the Criminal Code . [ 11 ] S. 718 of the Criminal Code provides that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

It is statutorily aggravating as well that the offender was in a position of trust with most of his victims who were part of his Scout troop and of course his stepson and daughter. [ 12 ] Finally, the case law, particularly where it refers to voyeurism charges, provides that the Court should secondarily consider the rehabilitation of the offender where possible. [ 13 ] There are both aggravating and mitigating factors to be considered here.

In mitigation, as so often happens in cases such as this, the accused has no prior record and prior to discovery, appeared to be a productive member of society not only gainfully employed but a volunteer within his community. (However, it would appear that this volunteer aspect was part of the greater goal of allurement of young boys). The accused has admitted to his offences and pled guilty from the start thus saving the victims and their families from testifying.

Finally, the presentence report finds that he is determined to make changes in his life to reduce his risk and avoid relapse. [ 14 ] The aggravating factors however are overwhelming. To begin with are all of the statutorily aggravating factors mentioned above. The fact that all of his victims were children is key. The accused abused a large number of victims over a long period of time, some eight years. In that period he was in a position of trust with many of those victims. The most egregious offences occurred as it related to his stepson who was the most victimized.

Secondly, he also offended against his stepdaughter. Finally, in the nature of the sexual predator that he is, he used his position as Scout Leader to gain the trust of his troop and filmed them over the years. Because he was trusted and held down a job as a local rock disc jockey (a really cool job in the eyes of the youth) he induced these children to hang out with his stepson and him which allowed him to take advantage of these children.

Finally, in 2013 he went beyond the making of the child pornography videos and sexually assaulted one of his former Scouts. [ 15 ] Another aggravating factor was the age of the victims. Most of these children were early teenagers who were impressionable to the influence of the accused especially as a local disc jockey and a Scout Leader. [ 16 ] Perhaps the most serious factor reflecting the nature of his victimization was his sexual touching of the eight year old victim from Alberta who was an autistic child unable to fend in any way for himself.

Clearly this was a vulnerable victim who needed protection from the accused. [ 17 ] In my sentence, I consider the length of the offending behaviour which spanned some eight years in both Manitoba and Alberta as a key factor. [ 18 ] In addition and as this behaviour evolved, it was clear that the planning and sophistication of his criminal conduct escalated and a real pattern of luring of his victims is clear.

The preplanning and premeditation is most apparent in his most vulnerable victim, the child from Alberta as reflected in the video marked as our Exhibit 13. [ 19 ] Before going any further, I want to say to our audience and the general public as a whole that the calculating that you have seen from both counsel today might seem distasteful and callous. Let me assure you that it is not meant in that way. Sentencing is a very difficult process in law to find that fair and just determination of a fit and proper sentence.

The Court is guided by previous Court decisions and directions of appellate Court decisions and simply can’t give a global sentence without some consideration of all factors and that is the process which we have gone through today. [ 20 ] The question thus comes down to what the accused should receive in a sentence that can reflect society’s denunciation of his conduct as well as protecting children and others from his type of pedophilia and voyeuristic nature. [ 21 ] To begin, the Court must ensure that the sentence is proportionate to the gravity of the offences and the offender’s moral blameworthiness. [ 22 ] In order to deal with a series of criminal offences spread over a long period of time, the issue clearly is whether the sentences should be concurrent or consecutive.

I will follow the four step process set out in R. v. Draper 2010 MBCA 35 (C.A.). I will determine whether the sentence in each offence should be concurrent or consecutive, what the appropriate sentence on each should be, apply the principle of totality to the cumulative sentence and finally adjust any sentence if the overall sentence is crushing.

[ 23 ] As to the most serious of the charges the accused has pled guilty to two counts of sexual touching and one count of sexual assault upon his stepson, the eight year old boy from Alberta and on T. S. respectfully. These three charges are aggravating due to the nature of the victims and their relationship to the accused who was in a trust relationship with each. Each of these events are separate in time (several years) and distinct from each other and warrants a consecutive sentence.

On each of these charges, considering the aggravating circumstances but recognizing they were of a less serious nature than many sexual assaults this Court deals with, I sentence Mr. C. C. E. to 12 months in jail on each count consecutively. [ 24 ] The accused has pled guilty to four counts of making child pornography between the years 2005 and 2013. For all intents and purposes, these charges reflect the accused’s voyeuristic fetish as it relates to children, but due to the nature of the victims’ ages, and considering the large number of victims, the issue of deterrence must be reflective by this sentence.

Each of these charges relate to videos compiled over an extensive period of time, years in fact, which reflect a pattern of offending which was uninterrupted until 2013 and extensive as it relates to the number of identified and unidentified victims. It is clear however that none of these videos produced were for any other person other than himself. To each of these offences I sentence him to one year each consecutive. [ 25 ] As to the offense of possession of child pornography the accused had 109 child pornography images as well as 479 pictures of child pornography of poor visual quality.

More importantly in his possession were 39 child pornography videos the vast majority of which he produced as well as five which were downloaded from the internet. Due to the fact that the substantial base of this “collection” is videos made from the accused of his voyeuristic ventures to which he is being sentenced on the other charges he faces, I sentence him to six (6) months in jail consecutive to all other charges. [ 26 ] In total then the combined sentence of seven (7) and one half (1/2) years is appropriate. The Manitoba Court of Appeal in R. v.

G.J.M. directs a sentencing court to deal with the principle of totality by relying upon the test in R. v. Hutchings 2012 NLCA 2 . A last look view must be made as a result of this sentence for a first time offender who pled guilty. Is this sentence a crushing one which needs to be adjusted keeping in mind his overall culpability? In light of the comments of the probation report regarding the accused’s chances of rehabilitation, I believe a meaningful adjustment would be treating the sentence for possession of child pornography concurrent as opposed to consecutive.

This would reduce the sentence to seven (7) years a significant message of denunciation to the accused and others like him. The Court must take a stand against this perversion as it becomes more available due to modern technology and send the clear message that attacks against the innocent will mean the loss of freedom for years to come for those perverts who come before us in the future. [ 27 ] Clearly, this sentence is reduced by time served which I understand to be one (1) year eight (8) months.

The ancillary relief requested is approved including a DNA order, a weapons prohibition of ten (10) years, a SOIRA order, a s.161 order not to attend public places for three years upon release, a s.743-2(1) order of no contact as to the victims named by the Crown and a forfeiture of all items seized. I would direct that a copy of the PSR be sent to Corrections upon completion of any appeal period. Costs are as set with no set time to pay or work off. “ORIGINAL SIGNED BY:” Brent Stewart, P.J.