R. v. S.B. et al. Date:, 2014 BCPC 279

Citation: R. v. S.B. et al. Date: 20141202 2014 BCPC 0279 File No: 8701 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act REGINA v. S.B., D.L., and C.P. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.C. DICKEY Counsel for the Crown: Ms. Sarah Firestone Counsel for the Accused, S.B.: Mr. William Sundhu Counsel for the Accused, D.L.: Mr. Kevin Church Counsel for the Accused, C.P.: Mr. Donald Campbell Place of Hearing: Kamloops , B.C.

Date of Hearing: October 28, 2014 Date of Judgment: December 2, 2014 [ 1 ] The three young offenders have pled guilty to single counts of criminal harassment. The unusual aspect of this case is it involves “sexting” which I am advised involves persons taking intimate pictures of themselves and then distributing them to others. In this case the pictures were taken by young persons and distributed to young persons. [ 2 ] The Crown at the commencement of the sentencing hearing took the position that a period of probation was appropriate.

Defence counsel for all three youths argued that a conditional discharge was the appropriate sentence. In Crown’s reply to the submissions of Defence it was acknowledged that the elements of a conditional discharge were satisfied in that such a disposition was in the interest of the youths and not contrary to the public interest. I agree with Crown and Defence that the elements required for a conditional discharge have been satisfied in these circumstances. [ 3 ] There remains the outstanding issue of what are the appropriate terms of such a discharge.

I will review the circumstances of the offence before I assess the appropriate term and conditions of the conditional discharge. CIRCUMSTANCES [ 4 ] The circumstances described by the Crown are somewhat similar for all three youths. Phones were seized from all three and inappropriate images, as described below, were observed. The three youths were students attending different schools in the Kamloops district. All of the offenders were aged 14 at the time of the offence and are presently aged 15. Counsel submitted and I accept that all three of these young persons were closer in maturity to children than adults.

The ages of the female youths involved were between the ages of 13 and 15. [ 5 ] The school authorities, and/or police, also observed communication or chats between these youths and the teenaged females. At times the males were persistent and persuasive in their attempts to elicit photos from the females. At other times the females appear to provide the images more readily. The “chats” by the males to the females were at times immature and demeaning.

It is these “chats” which have resulted in the charges presently before the court. [ 6 ] The youths traded these photos with others; Crown counsel described this practice to be similar to the trading of hockey cards. I also was advised that one of the young offenders took pictures of himself and distributed them to others. [ 7 ] This practice of providing naked photos of oneself to others has apparently become a common practice amongst young persons.

I refer to the letter of [omitted for posting], the Principal of [omitted for posting]. [omitted for posting] was one of the principals who participated in the investigation of the solicitation and exchange of these images which eventually led to the charges before the court. He says in a character letter he provided for C.P. that a “large number of students were involved in the sharing and distribution of inappropriate images”. Counsel estimated from a review of the disclosure package that there were 32 girls and 25 males involved in this process.

One young girl sent over 50 photos to 6 different individuals. [ 8 ] None of the counsel, including Crown, has received copies of the photos at issue. I am left with the understanding that the photos depict young girls naked from the waist up and in most circumstances included their faces or other identifiable traits. [ 9 ] The allegations came to light in January of 2014 when a complaint was made to school authorities who investigated and forwarded the matter to police. The youths were originally charged with distributing child pornography.

The nature of the original charge resulted in this matter receiving widespread media attention in Kamloops, provincially, and possibly nationally. Due to the nature of the initial charges there was also widespread attention within the schools at which the offenders attended; I am advised that within their schools the three youths were known to be the accused charged with distributing child pornography and part of a “child pornography ring”. [ 10 ] The original charge and subsequent coverage has had a detrimental and significant effect on the youths involved.

The youths were suspended, and upon their return to school harassed and ostracized for the activities in which they were suspected to be involved. [ 11 ] S.B., as a result of these charges, moved to Kelowna. He has been ostracized and harassed. He has become quite depressed. A lengthy psychological assessment was prepared on S.B. by Dr. Williams. S.B. was found to be at an extremely low risk to engage in “future acts of a sexually or a generally offensive nature”. S.B. provided an apology letter within two to three days of the investigation commencing. [ 12 ] D.L. is First Nations.

He has been raised by a single mother. These charges resulted in him becoming isolated and withdrawn, and suffering a decline in school marks. At school he was placed on probation, and stigmatized. Other youths called him a “sex offender”. [ 13 ] With respect to C.P., the effect of the charges has had a profound effect on both himself and his family. I have heard that this young man has worked very hard to have a career in hockey and he worried that due to the original charge it could have been for naught. He also is employed at a local restaurant and as a hockey referee.

He has provided many character reference letters. They are extremely positive describing a young man that can only make one optimistic for the youth of today. [ 14 ] I accept that all three youths are remorseful for their actions and have shown increased maturity and insight into the potential harm of their actions. [ 15 ] All three youths have no criminal record.

[ 16 ] The youths were arrested and released on bail and I have reviewed their bail terms. It is accepted that all three youths have complied with the terms of their release. Two of the three youths were placed on strict terms including conditions that were in place for a lengthy period of time completely banning the possession of cell phones or other mobile devices that could access the internet, and restricting their use of the internet except for purposes related to their education.

I accept that these restrictions were a strict curtailment of the normal freedom of youths in today’s world; as stated by one counsel it is by these devices that youths today communicate. [ 17 ] Victim impact statements were not filed with the court. I was given little direct information on the impact of these disclosures on the young woman involved. The Crown argues that the harm of these disclosures is unknown at this time as they remain in the public forum and could be disclosed to a wider audience in the future.

I accept that the young women were harmed by the disclosure of these photos as they were private in nature and generally not intended for distribution beyond the original recipient. I also accept that the possibility of further disclosure of these photos is at present emotionally harmful to these young woman. I cannot determine the appropriate sentence, however, based on an assumption or speculation that further harm may come to these young females. [ 18 ] Defence counsel argues, and I accept, that the exploration of sexuality is very common during puberty amongst youths.

The distinguishing aspect between mere exploration and the circumstances before me is the youths’ persistent and persuasive communication with the females in an attempt to obtain disclosure of the photos and their distribution without their consent. [ 19 ] The Defence made it clear that if this matter had proceeded to trial, it could have taken as long as six weeks. I was advised that they would have applied to have the

section involving child pornography struck down for overbreadth, arguing that such a charge was never meant to capture the circumstances before the court. It is not for this court to make an assessment of this argument other than to say on first blush that there certainly is some merit to this argument. I do find that it is mitigating that the three youths pled guilty and saved this court and witnesses a substantial period of trial time. [ 20 ] It is unfortunate that the offenders were originally charged with distribution of child pornography or in any way referred to as being part of a child pornography ring.

The stigmatization that comes with the use of such terms is totally disproportionate to the circumstances before me. The evidence does, however, support the charge of criminal harassment. LAW [ 21 ] In determining the appropriate sentence in this matter I have reviewed the principles set out in ss. 3 and 38 of the Youth Criminal Justice Act . [ 22 ] It must be kept utmost in the mind of the court that these offenders have pled guilty simply to criminal harassment. I am not sentencing the offenders for the distribution of the subject photos, except for how it relates to the criminal harassment.

I am sentencing these youths, therefore, only for the persuasive and persistent nature of their requests. [ 23 ] A fundamental principle in the sentencing of adults is that a sentence “must be proportionate to the gravity of the offence and degree of responsibility of the offender” (s.718.1). This principle is tempered under the Youth Criminal Justice Act (“YCJA”) . In the YCJA it states that for youths there is a principle of diminished moral blameworthiness or culpability.

Further, there must be an emphasis in determining fair and proportionate accountability because of a youth’s reduced level of maturity (see s. 3(1)(b)(ii) of the Act ). [ 24 ] It is also important in sentencing these youths that it is educative to these young persons and that any sentence is rehabilitative in its purpose. The educative aspect goes to the principle of sentencing found in s. 38(2)(e)(iii) which requires the promotion of a sense of responsibility and an acknowledgement of the harm done to victims and the community by the young person.

APPROPRIATE LENGTH AND CONDITIONS OF DISCHARGE [ 25 ] The Crown has requested a 12 month probationary period with terms including restrictions on the use of certain technology, no contact with certain persons, counselling and 50 hours of community work service. [ 26 ] Counsel for the offenders have argued that a shorter term is appropriate. They stress that the youths have already been on strict bail terms for what is now approximately 10 months.

They also argue that the number of community work service hours should be less for the offence committed. [ 27 ] Counsel for S.B. argued that a probationary period of six to nine months was appropriate due to the strict bail terms that S.B. has been on since his arrest. He also argues that the number of work service hours should be less and that a donation could be made by him. [ 28 ] Counsel for D.L. argues that the terms of a conditional discharge should end by the start of the next school year.

He also argues that the youth’s restriction to use internet should allow the use of IPads as an exception. [ 29 ] I am sure that this matter has already had a strong educative and deterrent effect on all these youths. In sentencing these youths, therefore, my primary focus is on rehabilitation and reintegration into society. DECISION [ 30 ] I have considered the circumstances of the offence and the offenders set out above and the sentencing principles that I must apply.

I find that these circumstances satisfy the requirements for a conditional discharge; such a sentence is in the best interests of the offenders and is not contrary to the public interest. On the issue of moral culpability I am mindful of the principles for the sentencing of youths referred to above and that these were youths closer to being children than adults. I also accept that the distribution of such photos is a common practice amongst youth today in their attempts to learn of and struggle with their own sexuality.

This court does not condone, however, the persistent and persuasive efforts, including the use of demeaning language, of these youths to obtain such photos. It is for these reasons that I accept the plea of criminal harassment by these youths.

[ 31 ] I find that the length of the conditions of such discharge for each of the offenders shall be six months. I am persuaded of this length because of the terms of bail that these offenders have been placed on for the past 10 months. I also make this finding based on the circumstances of the offence and the offenders. [ 32 ] The terms of the discharge will be as follows:

a) You shall keep the peace and be of good behaviour. You shall appear before the Youth Justice Court when required to do so by the Court.

b) You shall immediately report in person to the Youth Worker at the Youth Probation Office located at 125-1165 Battle Street, Kamloops, British Columbia, and after that you shall report as and when directed by the Youth Worker.

c) When first reporting to the Youth Worker, you shall inform him/her of your present residential address and telephone number, and you shall not change your address or telephone number at any time without first obtaining the written consent of the Youth Worker.

d) You shall obey the rules and regulations of your residence.

e) With respect to S.B., you shall have no communication, directly or indirectly, with J.L., K.N. or J.S., unless such communication is initiated by that person. Such communication shall end immediately upon the request of that other person. With respect to D.L., you shall have no communication, directly or indirectly, with J.L., L.B. or K.N., unless such communication is initiated by that person. Such communication shall end immediately upon the request of that other person.

With respect to C.P., you shall have no communication, directly or indirectly, with J.L., K.N., or M.B., unless such communication is initiated by that person. Such communication shall end immediately upon the request of that other person.

f) You shall not possess a cell phone, IPhone, smart phone or other electronic device capable of accessing the internet, except that you may possess a cellular phone capable of accessing the internet so long as the picture messaging, video messaging and data transmission functions are disabled. You must provide such phone to any peace officer, youth worker or responsible adult designated by a youth worker upon request for inspection.

g) You shall:

i) attend school regularly and not be absent except in accordance with either a medical certificate or the advance written consent of the Youth Worker; or ii) make reasonable efforts to seek and maintain employment approved by the Youth Worker. If on any occasion that you report to the Youth Worker you are not actually employed you shall provide the Youth Worker with a report describing the efforts you have made to find employment since your last report. Such report may be verbal or written in the discretion of the Youth Worker.

h) You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the Youth Worker. Without limiting the general nature of this condition, such assessment, counselling or program may relate to personal counselling or one-to-one counselling, and you shall comply with all rules and regulations of any such assessment, counselling or program.

i) With respect to S.B., you shall apologize to J.L., K.N. and J.S. in the manner directed by the Youth Worker (which might include a Restorative Justice conference) to the satisfaction of the Youth Worker by no later than May 31, 2015. With respect to D.L., you shall apologize to J.L., L.B. and K.N. in the manner directed by the Youth Worker (which might include a Restorative Justice conference) to the satisfaction of the Youth Worker by no later than May 31, 2015.

With respect to C.P., you shall apologize to J.L., K.N. and M.B. in the manner directed by the Youth Worker (which might include a Restorative Justice conference) to the satisfaction of the Youth Worker by no later than May 31, 2015.

j) Under the direction and supervision of the Youth Worker, you shall successfully complete 20 hours of community work, which shall be completed no later than May 31, 2015. The crown also seeks a prohibition order under s. 51 of the YCJA for a period of two years. I have reviewed this

section and find that such an order is mandatory. I would not have made this order except for mandatory nature of the legislation as I find no correlation between this term and the circumstances before me. This prohibition will read as follows: Pursuant to s. 51(1) of the YCJA , you are prohibited for a period of two years from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. __________________________ R.C. Dickey Provincial Court Judge