2015 MBPC 20, 2015 MBPC 20

Cite # 2015 MBPC 20 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Debbie Buors for the Crown ) - and – ) ) Cory Francis White ) Todd Bourcier for the Accused ) ) Judgment delivered: ) April 13, 2015 Restriction on publication: By court order under s. 486.4(1) of the Criminal Code , any information that could identify the complainant/witness shall not be published in any document or broadcast or transmitted in any way. STEWART, P.J. [ 1 ] This is a sentencing decision after Mr.

White has pled guilty to nine counts of voyeurism, one count of make child pornography, one count of possess child pornography and one count of possessing a weapon for dangerous purpose s. 88 of the Criminal Code . A pre-sentence report has been prepared in this matter which provides the background as it relates to this accused including a Manitoba Corrections assessment which ranks Mr. White as high risk to reoffend. [ 2 ] Counsel have submitted recommendations for sentence which are grossly at odds with each other. Crown counsel has asked for a sentence of eight years globally for all charges to which Mr.

White has pled guilty while defense counsel has indicated a fifteen month sentence is more appropriate. [ 3 ] Mr. White, up until 2012, had been employed by New Directions as a clinical foster parent, operating a rental home, housing foster children over a period of 16 years. In November 2012, one of the foster children found a pen camera which led to an investigation, which led to various search warrants locating multiple computers, hard drives, USB drives, pen cameras and other related technology all supporting the evidentiary basis of the charge of voyeurism against Mr. White.

On the computers there were also four videos which were acknowledged to be child pornography. Upon his arrest the accused was found with a spring loaded knife on his person. [ 4 ] The Crown attorney has proceeded with her case by dividing up the charges laid into categories based on the apparent age of the victims as it relates to the charge of voyeurism or production of child pornography. As a result, Mr.

White has pled guilty to nine charges of voyeurism as it relates to nine adult victims and one count of production of child pornography which dealt with twelve child victims. [ 5 ] Between the dates of November 1, 2010 and November 12, 2012, the accused set up a camera system that would take pictures and videos of his family, their friends or his clients and co-workers using the bathroom facilities including showers and toilets.

This recording system was used both at his principal residence and his lakefront cottage located in Gimli Manitoba, his place of work at the New Directions foster home and at the residence of a friend in northwestern Ontario. All such recordings were filmed without the knowledge or consent of any of the victims. It is apparent that upon the filming of these people going to the bathroom or having a shower, the video taken was reviewed by the accused and thereafter edited, labeled, sorted and filed into compilations and manages for his private collection.

For example, in one laptop seized there were 235 videos of bathroom and shower scenes which have been edited. In the properties that were owned by the accused, more than half a dozen computers and laptops were seized with an extensive number of storage devices found as well. [ 6 ] A major aggravating factor which runs through this particular case is the nature and age of the victims. To begin with, there were many pictures or videos of Mr. White's 14 year old daughter and her friends. It is apparent that many of his daughter’s girlfriends visited their cabin in Gimli Manitoba and have been caught on video.

In fact, any friends of the family who used the bathroom facilities either at the White residence or at the cottage were taped over a two year period. In addition, those at the accused’s workplace, being coworkers and youth clients, were also videoed.

Finally, even the Ontario friends who the accused visited from time to time had their privacy infringed as they used the washroom facilities in their own home. [ 7 ] Based on these most appalling facts, the determination of an appropriate sentence is the difficult task with which I am faced. [ 8 ] Upon a review of the pre-sentence report it becomes apparent that the accused was addicted to the process and planning stages

of this voyeurism as much as to the viewing of the final videos. His sexual arousal was for the entire process and as such, thepreoccupation with this perversion was all consuming for at least the full two years, between 2010 and 2012, and perhaps earlier basedon the time stamps of the videos. Throughout, there was no empathy for the victims of this crime and in fact, in his statement to thewriter of the PSR, he would still be doing it if he hadn’t been caught. [9] The aggravating factors of this case are clear. The nature of the victims is the most alarming point.

To start, the accusedtaped, continually over the two year period, his 14 year old daughter in various forms of undress as well as her many under age friendswho visited. Clearly he was in a position of trust to his daughter and to her friends and families who trusted that their daughters would besafe in his home or cottage. The accused, who is in a key position of trust as a foster parent, breached that trust by filming the privates ofhis foster children and other co-workers as they went to the bathroom or the shower at his place of work.

Finally, the invasion of privacyfor all of the victims, youth or adult, is sickening and the sheer number of captured videos reflect scores of unsuspecting victims, manywho are not even identified. [10] Secondly, the nature and extent of the voyeurism is alarming. The use of pen cameras and hidden cameras in a shaving bag andthroughout the bathrooms is simply the start of the planning by the accused for such a crime. After the capturing of the pictures/videos,extensive planning and work went into the completion of the criminal act.

The accused spent many hours daily in processing the film byediting, splicing, compiling, labeling and storing the finished product. The accused tells the pre-sentence writer that this entire processwas a sexual turn on. The sophistication of this process therefore, is another aggravating factor. [11] There are mitigating circumstances in this matter. The accused entered guilty pleas from the start and this was never set for anyhearing. This factor and the statement he has read into the record indicate some remorse. With the exception of a dated impaired drivingthe accused has no criminal record.

Understandably, the accused, upon these charges coming to light has lost his wife, his children, hisfriends, and his employment. Finally, the accused has taken some counselling from Klinic Community Health Care Center for the pastfifteen months with a domestic violence counsellor. [12] Both counsel have provided me with case books outlining the various factors affecting sentence. I begin by saying that thesecases on sentences for voyeurism are few in number and of little assistance to me based on the extreme circumstances of this case.

However, it is clear that the Crown’s suggestion of three years incarceration for the voyeurism charges alone is not appropriate. This isnot supported by even the casebook upon which she relies. The range for voyeurism established by all of the cases provided by Crownand defence is from a starting point of suspended sentence with probation to incarceration of a conditional sentence (prior to the CSOamendments), to nine months real time (as reflected in the recent cases of R.v. Keough, 2011 ABQB 312; and R. v.

G.M. 2014 MBPC57). [13] This sentencing proceeded upon the accused pleading guilty to nine charges of voyeurism and one charge under s. 163 (1)(2) ofthe Criminal Code of making child pornography and one count of possess child pornography. In actual fact, the making of thispornography was an extension of the voyeurism offences as the only difference was that this charge related to one youth who wascaptured in the same manner as the other victims, which then generated a count under this

section of the code. Due to falling under thissection, this one charge is capable of a maximum sentence of ten years having been proceeded by indictment, whereas the voyeurismcounts carry a maximum sentence of five years. When one looks at the nature of the two offences the rationale for such disparity isclear. However, in this case, the facts are the same for all charges.

The making of child pornography arises from the same fetish of theaccused, that being his voyeuristic addiction. [14] Nonetheless the range of sentence opens widely once the charges of making child pornography and possess child pornographyare combined with the voyeurism counts. The Crown’s casebook does not assist as to offering a range for sentences relating toproduction of such pornography. However, it is clear from the cases filed, especially R. v. S.B. and R. v. A.R. (both filed by the defence),that a two to three year range is appropriate where there are a combination of s.163 type charges.

It must be pointed out that the chargeof possess child pornography relates to the finding of four videos of child pornography amongst thousands of adult pornographic imageswhich are legal to possess. Therefore, without downplaying the seriousness of the offence, in comparison to many of the cases providedwhich reflect thousands of child pornographic images possessed, this is at the lower end of the spectrum of such a charge. [15] The principles of sentencing are set out in s. 718 of the Criminal Code to which I am guided.

The sentence imposed must beproportionate to the gravity of the offence and the degree of responsibility of the offender. For crimes such as these, the main principlesare denunciation and deterrence, particularly where the offence involves the abuse of a person under the age of eighteen (s. 718.01)which in itself is an aggravating factor. Likewise, it is further statutorily aggravating that the offender was in a position of trust as itrelated to many of the young victims (s. 718.2(a)).

Finally, the case law provided does reflect that the Court should secondarily considerthe rehabilitation of the offender where possible. [16] Considering these stated principles, I find that the Crown has taken too extreme of a position on sentencing based on similarcases and sentences.

Her position of three years for the voyeurism charges and four years for the making of child pornography with oneyear for the possess child pornography, all consecutive, is unsupported by precedent and outside a reasonable range for sentencing. [17] However, as a result of the evolving development of technology from the internet and most importantly the need to protectunsuspecting victims, especially children, a substantial period of incarceration is necessary.

A message must go out to the internet trollswho frequent these perverse sites that society as a whole will not allow victimization of our children or others. Privacy is an integralfeature of society’s fabric and it is up to the courts to protect that right more than ever. [18] The next question which I must deal with is the issue of concurrent/consecutive sentencing. Usually consecutive sentences aregiven where they arise from separate transactions. It has been held that in general, where different offences constitute one continuousact, they should garner concurrent sentences. R. v.

Nichols (1978) 1978 ALTASCAD 136 , 9 A.R. 203 (Alberta C. A.) indicatesthe Court should ask whether the two crimes were essentially different in character and involved different subject matter. In this case thevarious offences were over a two year period at least but formed, in my opinion, one ongoing transaction of long term voyeurism. I amthus treating these charges concurrently.

[ 19 ] As a result I sentence you, Mr. White, to two years on each count of s. 162(1) of the Criminal Code based on the sophistication, duration and nature of the offences to be served concurrently to each other. I recognize that this is at the highest range for offences of this nature based on precedent but this is appropriate simply due to the large number and age of the victims over a long period of time as well as the degree of culpability and blameworthiness of yourself.

As to the count of the making of child pornography, as earlier mentioned, this was an offshoot of the voyeurism charges and thus a further two years is your sentence to be served concurrently to the voyeurism charges. As the videos of child pornography are a separate matter, one year consecutive to the other charges is called for considering the small amount of material found and the non violent or abusive nature of it. As to the possess weapon charge there will be a concurrent three months sentence to all charges. [ 20 ] Finally, I must look at the issue of the totality principle.

Is the sentence of three years unduly harsh or long? Clearly the sentence on each of the charges does not exceed or even come close to the maximums allowed by the Criminal Code .

Secondly, as a result of Parliaments instituting more severe minimum and maximum sentences to deter these types of crimes, the combination of the concurrent and consecutive sentences here provide a balance to the principles of sentencing in this case with the significant concerns of the community and its legislators, this sentence is appropriate in its duration. [ 21 ] Finally, it is agreed that the ancillary orders of DNA, s.109 lifetime weapons prohibition, and a twenty year SOIRA registration is ordered. Finally, there will be an order of forfeiture of all items seized.

Due to the nature of the voyeurism charges I am making a prohibition order under s. 161 (a), (

b) and (

d) of the Criminal Code for twenty years. Costs are waived in these matters. “Original Signed By” STEWART, P.J.