R. v. Thibodeau, 2022 BCPC 81

Citation: R. v. Thibodeau 2022 BCPC 81 Date: 20220422 File No: 89151-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEITH ALFRED JOSEPH THIBODEAU BAN ON PUBLICATION –

SECTION 486.4 (2.2) of the Criminal Code of Canada ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.H. SILVERMAN Counsel for the Crown: S. Thomson Counsel for the Defendant: C. Terepocki Place of Hearing: Abbotsford , B.C. Date of Hearing: December 9, 2021 Date of Judgment: April 22, 2022

INTRODUCTION [ 1 ] On April 20, 2021 I found Keith Thibodeau guilty following a trial of possession of child pornography between May 12, 2013 and October 20, 2018. Reasons for Judgment are indexed at 2021 BCPC 98 . Although he is now before the court for sentencing, it should be noted that that is so only because a warrant for his failing to attend for sentencing was issued on March 14, 2022. On December 9, 2021 when the sentencing hearing was originally scheduled, counsel for Mr. Thibodeau informed the court that his client relocated from British Columbia to Ontario.

Due to his client’s position on vaccinations, counsel advised that Mr. Thibodeau was unable to fly back for sentencing, and that because of winter driving conditions and particularly because roads in British Columbia had been badly damaged from flooding, Mr. Thibodeau was unable to attend. Sentencing was, therefore, adjourned to the March date with the expectation that it would proceed. On that date, counsel attended but could not provide the court with any reason why his client was not in attendance. It is only as a result of the execution of a Canada wide warrant that Mr.

Thibodeau is before me for sentencing today. [ 2 ] The facts of this matter in brief are that as a result of reports from child exploitation investigators, police executed a search warrant at an address in Abbotsford on October 30, 2018. There they found Mr. Thibodeau sleeping on a sofa. A search of the residence resulted in officers locating a number of electronic devices. A forensic search of the devices resulted in child pornography being found in two of them. In total, these devices contained 1676 child pornography images including 185 of a person who police were later able to identify.

In my Reasons for Judgment this person was identified with the letter X. The devices also contained four videos which met the Criminal Code definition of child pornography. [ 3 ] I was satisfied that Mr. Thibodeau controlled these devices and their contents; and because of the way in which the data were stored, I had no doubt that he knew precisely the devices’ contents. I will discuss some specific findings of fact more fully later in these reasons. [ 4 ] The Crown submits that the court’s primary considerations in imposing a sentence for an offence of this type are denunciation and deterrence.

Bearing in mind the amount of offending material, which the Crown submits is large, as well as its nature, counsel argues a sentence of 10 to 12 months jail followed by two years probation is appropriate. In addition, the Crown reminds the court that this is a DNA primary designated offence. Crown seeks SOIRA designation for 20 years as well as a lifetime order pursuant to s. 161 of the Criminal Code . [ 5 ] The defence submits that a custodial sentence within the range of six to eight months is appropriate bearing in mind Mr. Thibodeau’s antecedents, as well as his prospects for rehabilitation.

Counsel stresses the importance of restraint especially since Mr. Thibodeau has a dated unrelated record and is considered a low to moderate risk for re-offending. The defence made no submissions on the appropriateness of a probation order, nor the other ancillary orders sought by Crown Counsel. THE LAW [ 6 ] Looking broadly at the task of imposing a fit sentence for this offence, I note the fundamental purposes of sentencing are set out in s. 718 of the Criminal Code .

They are to denounce unlawful conduct, deter the offender and other persons from committing the offence, separate offenders from society where necessary, assist in rehabilitating offenders, provide reparations for harm done to the victims or the community, and promote a sense of responsibility in the offender and an acknowledgment of the harm done. [ 7 ] The fundamental principle of sentencing found in s. 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 8 ]

Section 718.01 to s. 718.2 set out a series of relevant purposes and principles including deterrence, denunciation, rehabilitation and restraint. In this matter, s. 718.01 requires me to elevate to a primary consideration denunciation and deterrence as this case involves the abuse of a child. [ 9 ]

Section 718.2 requires the sentence to be increased or reduced to account for aggravating or mitigating circumstances relating to the offence. Any sentence imposed should be similar to other sentences of a similar nature. [ 10 ] In R. v. Friesen , 2020 SCC 9 , the court spoke in forceful terms about the vital role that courts play in protecting children from sexual exploitation and abuse, which is the overarching objective of this part of the Code.

At paragraph 5 the court confirmed the importance of sending: ...a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender... [ 11 ] The court went on to say: … Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [ 12 ] The court addressed many of the discrete ways that emerging and developing technologies can put children at risk while also dramatically extending the harm of sexual violence.

It recognized at paragraph 48 that: ... online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time.

[13] The court reiterated at paragraph 51 that sexual violence traumatizes children and violates their autonomy, dignity and equality,causing harm that might stay with them for their lifetime. [14] In R. v. Jenkins, 2021 ONSC 2963 at paragraph 31, the court connected the conduct of those who possess child pornography tothose who produce it and, by extension, to the underlying original sexual assaults themselves: What is clear from the law is that denunciation and deterrence are the paramount sentencing objectives to be considered when sentencingpersons who have possessed child pornography.

It is those persons who enable its production. This contributes to the ongoing abuse,exploitation and degradation of the children involved. The innocent children depicted in these images and videos are re-victimized eachtime the images and videos are viewed. [15] When sentencing in cases involving child pornography the court is able to consider both the volume of materials possessed aswell as the nature of the materials. In R. v. Missions, 2005 NSCA 82, five categories from the least to most serious depictions weredescribed and have become widely used by sentencing courts.

The categories are: (1) images depicting erotic posing with no sexual activity; (2) sexual activity between children, or solo masturbation by a child; (3) non-penetrative sexual activity between adults and children; (4) penetrative sexual activity between children and adults; and (5) sadism of bestiality. [16] In R. v. Hamlin, 2019 BCSC 2266, Winteringham J. adopted the framework discussed in R. v. Kwok, (ONSC), 2007 OJ No. 457 when assessing aggravating factors at sentencing for possession of child pornography:

a) whether the offender has a criminal record for similar or related offences;

b) whether there was also production or distribution of the pornography;

c) the size of the collection;

d) the nature of the collection, including the age of the children involved and the relative depravity and violence depicted;

e) the extent to which the offender is seen as a danger to children; and

f) whether the offender has purchased child pornography. [17] In R v. Alexander, 2019 BCCA 100 the BC Court of Appeal identified a range of 6 to 15 months jail for a first offender.MacKenzie J. in that case observed that sentencing courts in Canada have developed a better understanding over time of the harms ofchild pornography. As a result, courts have placed a greater emphasis on denunciation and deterrence when sentencing offenders for thiscrime.

Other than in exceptional cases, real jail will be expected to address the principles of denunciation and deterrence. [18] Illustrative of this range, counsel have brought a number of decisions to my attention. For the Crown they include: R. v. Inksetter,2018 ONCA 474, R. v. Swaby, 2018 BCCA 416, R. v. Chislette, 2018 ONCJ 218, R. v. Krock, 2020 BCSC 1858 and R. v. Capewell,2020 BCCA 82. Counsel for Mr. Thibodeau relies on the decision of my sister Judge Doulis in R. v. Neasloss, 2020 BCPC 161.

While Ifind some guidance in these decisions, it is important to keep in mind that the imposition of a sentence in all cases is a highlyindividualized process. ANALYSIS [19] In preparation for sentencing a pre-sentence report as well as a psychiatric assessment have been provided to the court. Beforediscussing their contents more fully, it is noteworthy that both reports reflect Mr. Thibodeau’s ongoing denial of the commission of theoffence for which he was found guilty. As I reflect on an appropriate sentence in this case, I remind myself that I cannot consider Mr.Thibodeau’s position as an aggravating factor.

However, as will become evident in these reasons, specific details of his position arecontradicted by a number of objective facts that I heard in this trial. This then will have an impact on how much stock I can place in suchthings as a risk assessment, which in turn will affect the length and type of sentence I consider appropriate to meet the principles andobjectives of sentencing. [20] In terms of antecedents Mr. Thibodeau is 60 years old and resides with his wife in Ontario. I understand the couple have threechildren all of whom are of adult age. Mr.

Thibodeau is currently not working and receives a modest pension from previous employmentwith Chrysler Canada. [21] Mr. Thibodeau had a traumatic childhood. He had no contact with his father while growing up, and his mother, who struggledwith substance abuse, was described as neglectful. As a consequence, Mr. Thibodeau became involved in Ministry care. Mostunfortunately, he was the victim of physical and sexual abuse as a child. [22] Mr. Thibodeau and his wife have separated a number of times but are now back together. During their most recent separation,Mr.

Thibodeau met D.M., the individual whose home he was staying at when investigators executed their search warrant in this case.According to the PSR, Mr. Thibodeau and D.M. were in a relationship between 2012 and 2018. [23] Drugs and alcohol do not appear to have played a role in Mr. Thibodeau’s offending in this instance.

[ 24 ] Mr. Thibodeau has a dated and unrelated record. I do not consider it relevant for my purposes in these proceedings. [ 25 ] As mentioned above, Mr. Thibodeau continues to maintain his innocence in this matter. I note the following under the PSR heading, Attitude and Understanding Regarding Offence: Keith explains he was not aware that his counsel was entering a plea on his behalf and reports he did not commit the offence. He states he was not allowed to say anything in court, so he was not able to explain his perspective in the matter.

He also notes that when covid-19 commenced, his lawyer was not available to him and often he only corresponded with an assistant or admin support. Keith recalls he was asked to stop calling his lawyer by admin support. He does not feel he was given a fair opportunity to represent himself. [ 26 ] I wish to make clear that I found counsel for Mr. Thibodeau conducted himself with the utmost professionalism throughout these proceedings. Mr. Thibodeau’s deflection, however, appears to fit a pattern. I note elsewhere in the PSR when Mr.

Thibodeau provided the writer with information regarding D.M. he stated: He realizes it was a mistake for him to be involved with D.M. and he suggests she may have set him up with the current offence. [ 27 ] The author of the psychiatric assessment in her clinical impressions of Mr. Thibodeau noted him telling her, I am not guilty of this…this is a bad situation and bad circumstances. I shouldn’t have been in that girl’s house… [ 28 ] This led the author to conclude that it was impossible to assess Mr. Thibodeau’s insight into his behaviour.

She found that he engaged in positive impression management and portrayed himself as the victim. She also observed that he was an unreliable historian: …given inconsistencies between his account in our interview and what was reported in collateral documentation (flatly denying the laptops were his despite digital evidence suggesting otherwise). [ 29 ] She went on to describe how: His account also contained inconsistencies and seemed uncredible (sic) at times.

For instance, asserting that the hundreds of naked pictures of him were taken by other women, or that the pornography belonged to D.M. (again despite digital evidence suggesting otherwise). He even denied engagement in regular sexual activities such as masturbation. Again, it is unclear if this is due to embarrassment, or wanting to present a sanitized version of his sexual history. He flatly denied the evidence against him, suggesting that multiple people (D.M., Y.F., K.B.’s mother and K.B.) were all lying in their accounts to police. [ 30 ] Mr.

Thibodeau’s perspective as reflected in these passages is especially concerning when I consider the evidence heard at trial demonstrated that he was the only known user of the two devices that contained child pornography. It must also be recalled that the file paths that were used to store the images and videos included lengthy and highly descriptive terms, including the name “Keith”. This I find clearly demonstrates more than a casual involvement with these images and videos. The same comment could be made regarding the many images that contained captions with Mr.

Thibodeau’s pseudonyms. [ 31 ] Bearing this in mind, I approach the question of Mr. Thibodeau’s risk to re-offend very guardedly. While I do accept the considered opinion of the psychologist that Mr. Thibodeau is assessed as being “low-moderate risk for future offending”, I note that the risk that does exist is precisely for the type of offence for which he is to be sentenced.

It is frustrating that courts must continue to state this, but I will, possessing child pornography is not a victimless crime. [ 32 ] Beyond the risk of possessing child pornography and contributing to the world-wide exploitation of children, I also find Mr. Thibodeau’s interest in such images especially concerning when I consider the images of K.B. Here, I am reminded of the photo of Mr. Thibodeau seated next to K.B. who was dressed only in a bra and panties. It did not go unnoticed that in the other images of K.B. that were classified as child pornography she wore at times the same or similar undergarments.

The need then, for this sentence to address specific deterrence is significant. [ 33 ] In arriving at a fit sentence in this matter, I note the following aggravating factors: the collection of child pornography Mr. Thibodeau possessed was large, though not as large as in some of the authorities; he possessed or accumulated the images and videos over the course of approximately at least a year and half, as opposed to a brief or fleeting interaction with them; and Mr.

Thibodeau’s child pornography collection contained all but the most extreme depictions as the authorities have categorized them. [ 34 ] I also take into account Mr. Thibodeau’s failure to attend for the scheduled sentencing in this matter. [ 35 ] While I stress, I do not view Mr. Thibodeau’s attitude of non-acceptance of my verdict as an aggravating factor, I find his conduct goes beyond disagreement and has entered into defiance.

Refusing to attend court then when required to do so, raises significant concerns in terms of his risk to re-offend. [ 36 ] Unfortunately, I find there is little in mitigation in this case. The best that can be said, perhaps, is that Mr.

Thibodeau does not have a history for this type of offending. [ 37 ] The PSR author notes that the Forensic Sex Offender Program at Ford Mountain Correctional Centre, assuming the offender is accepted to the program, requires sentences be 12 to 18 months in length in order to allow sufficient time to complete it. [ 38 ] Accordingly, bearing in mind the principles and objectives of sentencing, with particular emphasis on deterrence and denunciation, and exercising as much restraint as I feel I am able in the circumstances of this offence and this offender, I find that a sentence of 13 months jail is appropriate.

Had Mr. Thibodeau attended for sentencing as scheduled I would have imposed a sentence of 12 months which is the minimum sentence I find to be appropriate that allows for him to complete the sex offender program. I will credit him with the time he has spent awaiting sentencing at 30 days.

[ 39 ] This will be followed by two years of probation, the conditions of which will be the following: 1. You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or the 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. 2. You must have no contact or communication, directly or indirectly, with K.B. 3.

You must not go to or be within 200 metres of any place where K.B. lives, works, attends school, worships, or happens to be. If you see them, you must leave their presence immediately without any words or gestures. 4. You must report in person to a probation officer at Suite 1400 - 32375 Veterans Way, Abbotsford, BC within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your officer. 5.

You must live at an address approved in advance by your probation officer and provide them with your phone number. You must not change your address or phone number without prior written permission from your officer. 6. You will participate in and successfully complete any assessment, counselling, program or residential treatment program as directed by the probation officer. Such programs may include for sexual offending and you will comply with all the rules and regulations of such assessment, counselling, treatment or program. 7.

You must not engage in activities, volunteer work or employment that could bring you in contact with persons under the age of 16 years. 8. If at any time prior to the expiration of this order you are arrested, detained or serve a sentence for another offence you must report to the probation officer within two business days of your release from custody. 9. You shall not engage in any activity that involves contact or communication with persons under the age of 16 years using a computer system within the meaning of

section of 342.1 of the Criminal Code . 10. You are not to possess or utilize any electronic device capable of assessing the internet including, but not limited to, cellular phones with internet access, computers and computer gaming consoles. The exceptions are as follows: with the written permission of your probation officer. 11. You shall not access or utilize any social networking, online dating websites, including but not limited to Facebook, Twitter, Snapchat, Google Plus, Instagram or Skout. The exceptions are as follows: with the written permission of your probation officer. 12.

You shall not attend any public park, school ground, daycare center, swimming pool, playground, skating rink community center, recreational center where persons under the age of 16 years are present or might reasonably be expected to be present unless you are in the company of an adult approved of in writing by your probation officer. 13. You shall not contact or communicate directly or indirectly, with any person who is known to be involved in the sexual exploitation of children or in trading or possessing child sexual exploitation materials. 14.

You shall not possess any pornography. [ 40 ] Pursuant to s. 161 you are prohibited for 10 years from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or daycare, school ground or community center; (

b) being within two kilometers of any residence school or workplace of K.B.; (

c) seeking or obtaining any employment or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves a position of trust or authority towards person under the age of sixteen years; (

d) having contact or communication with a person who is under the age of 16 years. [ 41 ] Pursuant to s. 490.011 you are required to comply with the provisions of the SOIRA legislations for a period of 20 years. [ 42 ] Pursuant to s. 487.04 you are required to provide a sample of your DNA for entry into the National DNA databank. That sample will be taken from you while you are in custody. [ 43 ] In the circumstances, I am waiving the Victim Fine Surcharge. [ 44 ] Pursuant to s. 743.21 you shall have no contact with K.B. while you are serving your jail sentence. _______________________________ The Honourable Judge D.H. Silverman

Provincial Court of British Columbia