R. v. D.W.1, 2016 ONCJ 772

REASONS FOR SENTENCE

Court File No.: 14 03579

Date: February 9, 2016

Ontario Court of Justice

Her Majesty the Queen v. D.W.1

Before: The Honourable Justice P.C. West

Heard: February 9, 2016 at Newmarket, Ontario

PUBLICATION BAN

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486.4, DATED MARCH 25, 2014 BY GRIFFITH, J.P. AND SECTION 517 DATED MAY 20, 2014 BY TETLEY, J.

APPEARANCES

P. Castiglione – Counsel for the Crown

S. Khehra – Counsel for D.W.1

INTRODUCTION

On February 24th, 2015, Mr. D.W.1 entered guilty pleas to six charges on information 14-03579, which is a replacement information:

• Count One: Voyeurism, pursuant to section 162(1)(c), in relation to D.S.;

• Count Three: Mischief, pursuant to section 430(4), which also relates to the victim D.S.;

• Count Seven: Voyeurism contrary to section 162(1)(c), in respect of the victim L.T.;

• Count Eight: Voyeurism as it relates to the victim J.T., also pursuant to section 162(1)(c) of the Criminal Code;

• Count Ten: Unlawfully in a dwelling house, which relates to M.W. and videos that were taken in that house; and

• Count Thirteen: Voyeurism contrary to section 162(1)(c) as it relates to the victim M.K.

The Crown elected to proceed by indictment in respect to each of these charges and an agreed statement of fact was entered on that date and a pre-sentence report was ordered. The matter was adjourned to May 13th, 2015 for sentence. On May 13th, 2015 the defence advised Mr. D.W.1 was going to be seen by a forensic psychiatrist, Dr. Woodside, at CAMH and a report would be forthcoming. Consequently the matter was adjourned. The matter was then adjourned on a number of other occasions because the psychiatric report was not prepared.

The report, dated January 10th, 2016, has finally been prepared and was released to the court and the Crown by Mr. Khehra on January 26th, 2016. On that date the matter was adjourned to February 1st, 2016 for submissions and sentence. The matter was further adjourned because we did not complete submissions by counsel until today's date, February 9th, 2016 and I am now giving my reasons for sentence.

THE AGREED STATEMENT OF FACTS

I will not go through the facts in great detail, but I think it is important to deal with some of these facts. As I will discuss later in my reasons, D.W.1 was convicted of voyeurism in the Ontario Court of Justice on July 15th, 2011 and he received a suspended sentence and two years probation. That probation ended in July of 2013.

On October 18th, 2013, York Regional Police were notified of a voyeurism complaint by Shayne Husain, who is a loss prevention officer at the Walmart store located at 25 Silver Linden Drive in Richmond Hill. Mr. Husain told police he observed security footage taken on August 16th, 2013 from a known male, Mr. D.W.1, walking around the cosmetic department. Mr. D.W.1 was observed walking behind a young unknown black female, wearing blue jeans and a pink sweater, crouched down looking at something on the shelf. As he walked by the female, Mr. D.W.1 appeared to be taking a photo, using his cell phone, of the female's buttocks area as her underwear was exposed as she crouched. Mr. D.W.1 was observed returning to the location of this female several times. It is unknown if Mr. D.W.1 in fact took photos of this female.

Mr. Husain was familiar with Mr. D.W.1 from the previous conviction where Mr. D.W.1 was arrested and charged for taking photographs up a skirt of a 16-year-old female at the same Walmart location.

The video footage that was taken on August 16th, 2013 was provided by Mr. Husain to police and it was reviewed by Detective Constable Terry Seow, and in comparing the close-up facial shots of Mr. D.W.1 in this video footage to a police mug shot photo of Mr. D.W.1 taken in 2011, the police were satisfied that the male in the video footage was in fact D.W.1. Police then subsequently sought a warrant to search Mr. D.W.1's residence located at W[…] Avenue in Oshawa. That warrant was granted on November 20th, 2013 by a justice of the peace and Mr. D.W.1's residence was searched for a cellular phone and/or cellular media storage device capable of storing data, computer and computer systems as defined by the Criminal Code, section 342.1, external media storage cards, billing records pertaining to the cellular phone number assigned to the cellular phone being used by the suspect, and any cellular device particulars permitting identification of the cellular phone used in this offence, and any other data storage devices and data as defined by the Criminal Code at section 342.1.

A search was conducted on November 21st, 2013 and during the execution of that search warrant Mr. D.W.1 returned home and he was arrested for voyeurism.

This, I think, is what is of importance because of submissions that were made to me with respect to Mr. D.W.1's previous charge and a forfeiture order that was made. I was provided the information relating to Mr. D.W.1's original guilty plea from July 15th, 2011 where there is a forfeiture order for the computer and a cell phone that had been seized from Mr. D.W.1 in respect of this charge of voyeurism.

It should be noted that Mr. D.W.1 was originally in court on July 13th, 2011. A bail hearing was not commenced and it was on July 15th that he actually entered his guilty plea in 202 court here in Newmarket, having been in custody at that point for what appears to be three days.

In any event, on the 21st of November, 2013, during the execution of the search warrant, the following items were seized:

• Computer hard drive, there were six of them seized, not just one, and they are all listed in the agreed statement of facts;

• Another computer hard drive, and there are two, and they are listed;

• A jump drive with a serial number, which is listed;

• Four DVDs, 4.7 gigabytes contained in a black sleeve;

• Two SD cards;

• Adapters, transcend micro adapter, a PNY micro adapter;

• A Samsung cell phone with a serial number;

• A BlackBerry with a serial number;

• A black Casio camera with a serial number;

• A Lexar platinum, which apparently is an SD card, has 16 gigabytes on it;

• A Duracell 8 gigabyte SD card; and

• Another BlackBerry seized.

So there were numerous items that were seized, and maybe these were things that were around when Mr. D.W.1 was arrested in 2011, but it would appear that only a computer and a cell phone were actually seized by the police at that time and were not returned because the information indicates they were forfeited to the police to be destroyed.

On December 9th, 2013, a further search warrant was granted to allow the search of the items seized during the search of Mr. D.W.1's residence on November 21st, 2013. It was during the search of the seized items that several videos were recovered of a male in an office environment masturbating and ejaculating onto a desk and into a coffee mug. That male person was later identified as D.W.1. There were a number of other videos discovered of females in an office environment who were videotaped.

On March 13th, 2014 police attended Mr. D.W.1's place of employment, which at that time was P[…], where Mr. D.W.1 was shown a still photograph taken from a video, that had been located during the search of the devices, showing a female in her office environment. Mr. D.W.1 identified the female as D.S., an ex-coworker. This person was ultimately identified by police as D.S., who is the victim on the first two charges to which Mr. D.W.1 pled guilty.

Ms. D.S. was a coworker and actually his superior, whom he worked with for seven years. Ms. D.S. attended the police station where she was shown two videos of Mr. D.W.1 masturbating in an office environment, ejaculating onto a desk and into a coffee mug. She identified that office to be hers. Based on the person's clothes, watch and wedding ring, she identified the male as Mr. D.W.1. Ms. D.S. had brought the coffee mug observed in the videos and it was seized by the police as evidence. Ms. D.S. further identified herself as one of the females in the office environment from some of the videos that were recovered.

There were approximately 20 short video clips located depicting Ms. D.S.'s buttocks area where her underwear is exposed, upper leg area where she is wearing a skirt, and breast area, in an office setting. There were also 25 short video clips depicted of Mr. D.W.1 masturbating and ejaculating into Ms. D.S.'s coffee mug and onto her desk. Some of the videos show Mr. D.W.1 rubbing his penis on Ms. D.S.'s office phone, where she would be speaking into the receiver.

As a result of the search of the devices further charges were laid against Mr. D.W.1. Mr. D.W.1 was arrested at his work place on March 14th, 2014 for a number of offences, which are set out in the agreed statement of facts. After speaking to counsel and being cautioned, Mr. D.W.1 was interviewed by Detective Constable Morton and during this interview Mr. D.W.1 admitted to having a pornography addiction. Mr. D.W.1 further stated there would be a substantial amount of pornography on the data storage devices seized, and further stated he did not know if there would be other victims, as he did not recall every detail of the videos that were downloaded or recorded. Mr. D.W.1 admitted during the interview that he started shooting the "up skirt videos" again a month after his probation ended. He also indicated he bore no animus towards his former boss, Ms. D.S.

Following further examination of the devices that were seized during the search of November 21st, 2013, additional videos and photos consisting of "up skirt" videos and photos of unknown females, as well as videos and photos of the buttocks area of unknown females whose underwear is exposed, primarily taken in public forums. These were located on the devices seized.

A further warrant was sought by the police on March 25th, 2015 to search further data storage devices that are listed in the agreed statement of facts. Upon review of the data storage devices indicated in the agreed statement of facts, numerous videos were recovered and the videos contained recordings of the following:

• Unidentified females in public places. These videos are taken at Walmart stores and various other locations;

• Mr. D.W.1 masturbating in Ms. D.S.'s office;

• Mr. D.W.1 in a bedroom rubbing female undergarments on his penis while masturbating;

• Mr. D.W.1 in another bedroom retrieving undergarments from a bag and rubbing them against his penis while masturbating;

• Mr. D.W.1 masturbating in his basement while reviewing a video of a female in the shower.

A video was located showing Mr. D.W.1 setting up the camera in the basement of his residence. The camera was pointed at the bathroom shower area in Mr. D.W.1's basement. The basement was roughed in, but not dry walled. He can be seen concealing the camera in this video, moving objects around so it has an unobstructed view of the bathroom shower area, which is in the basement. The video of an unidentified female showering was located and this video shows the unidentified female undressing and using the shower facilities and then coming out, drying herself off and also dressing.

On April 14th and April 15th, 2014 numerous more videos were discovered as a result of further search of the data storage devices.

On April 24th, 2014, police attended T[…] in Richmond Hill, where Mr. D.W.1 had worked, and spoke with L.T., an ex-coworker of Mr. D.W.1. She was shown two still photographs from a video located during the search of the devices. She identified herself as being the unknown woman in an office environment.

April 26th and April 28th, 2014, police conducted an open source search on social media in an attempt to identify several unidentified females shown in pictures and videos contained in separate file folders found in the storage devices that were titled using women's first names. By information gained through the social media website searches, M.K., the sister of M.W., Mr. D.W.1's brother's wife, was identified by the police as one of the unidentified females. She was interviewed on May 6th, 2014 by the police, she identified herself in three still photographs. They show the upper leg area of Ms. M.K. when she is wearing a dress and there were photos that were attempts at up skirt photos of Ms. M.K., whose underwear is not depicted.

Ms. M.K. also identified the unknown bedroom in one of the recordings as belonging to her sister, M.W. and D.W.2, Mr. D.W.1's brother. On May 7th, 2014 police attended the residence of D.W.2 and M.W. and M.W. confirmed, by looking at a still shot of the bedroom taken from a video recording found in one of the data storage devices seized at Mr. D.W.1's residence, that the bedroom was her bedroom.

As a result of these further videos and photos that were discovered in the data storage devices, Mr. D.W.1 was arrested a third time for further offences on May 15th, 2014. These included charges of voyeurism relating to L.T., mischief under relating to M.W., unlawfully in a dwelling, also related to Ms. M.W., and voyeurism with respect to the unknown female in Mr. D.W.1's basement.

May 16th, 2014 police conducted an open source search of the Facebook account of J.W., it's the wife of Mr. D.W.1, the accused, in an attempt to identify the unknown female recorded in the shower in Mr. W.D.1's basement. They identified the woman as J.T. There were three videos located of Ms. J.T. undressing, using the shower facilities located in Mr. D.W.1's basement. One of the videos also depicts Mr. D.W.1 watching and masturbating to one of the videos of Ms. J.T. while naked and entering in and exiting the shower. She was interviewed on June 18th, 2014 and was shown either the videos or photographs and identified herself as the unknown female.

Those are the facts of this case.

PRE-SENTENCE AND FORENSIC PSYCHIATRIC REPORT

The pre-sentence and the forensic psychiatric report by Dr. Woodside also include admissions by Mr. D.W.1 of his amassing 14,000 images of unknowing women from 2005 until his arrest in 2011 on a single charge of voyeurism involving a woman at Walmart bending over and Mr. D.W.1 taking pictures of her exposed buttocks. Mr. D.W.1 admitted to police he began "up skirt videos" about a month after his probation ended in July 2013 and did this two to three times a week, anywhere there was a large number of people, including malls, Walmart, Superstores, any place where there were women. He stated he would typically crouch down and then move his camera under the unsuspecting victim's skirt. He noted he used an application called "spy cam" as something similar that allowed the user to appear to be using the phone, example dialing, while it was actually taking video, or where it appeared to be locked or inactive, but was actually taking video.

Mr. D.W.1 originally estimated to Dr. Woodside that between July 2013 and his arrest in November 2013 he might have shot 1,000 videos. In his second interview Mr. D.W.1 adjusted this number and indicated he shot perhaps 1,000 videos in total from 2005, but only 50 between July and November 2013.

VICTIM IMPACT EVIDENCE

The offences had a significant emotional and traumatic impact upon the three victims who provided and read their victim impact statements during Mr. D.W.1's sentencing. I am just going to highlight some of the comments. They are a part of the record and Mr. Khehra indicated to me today that Mr. D.W.1, after hearing those victim impact statements read by the victims, three of three victims in this matter, that he apparently had greater insight into the impact that his behaviour had upon them.

In my view, I will say this now, that is something that is yet to be determined. I do not know that I accept that, given the reports that I have read, both the pre-sentence report and then the most recent psychiatric report, which was prepared January 10th, 2016.

Ms. D.S.'s Statement

Ms. D.S. says in her victim impact statement:

"The crimes committed by D.W.1 have greatly affected me. Just trying to put into words how the crimes have impacted me has caused a great deal of emotional distress."

When Ms. D.S. was told of the crime she said she went into a state of shock and disbelief. She was completely overwhelmed, started to tremble, she had a pain in her stomach, which felt like someone had punched her. When she was on her way back to her office after speaking with the police she had to stop her car at the side of the road as she started to dry heave at the realization that she had been exposed to Mr. D.W.1's ejaculate in her coffee cup. She described how Mr. D.W.1 would often bring her a coffee and it would often have a foul taste. This caused her great concern for her health. She immediately went to her doctor, was tested for HIV, but it took weeks for the results to come back, and that was overwhelming to her and filled her with anxiety. For weeks after learning about the crime she woke up feeling nauseous, felt as if she was going to vomit. She became very emotional, would often cry in the morning when she would get up, getting ready to drive to work. If she had to discuss the crime she would break down in tears. She started to experience severe anxiety; she felt a pressure in her chest, a horrible ache in her stomach. She suffered from tension headaches most of the time and had very little appetite. When she ate she would have an upset stomach. Her sleeping changed, she couldn't sleep at night, she was too anxious and fearful. Some nights she was awake all night. She avoided socializing, something that she used to do, but now she was overwhelmed by a feeling of sadness that resulted in her wanting to be by herself. She started getting hives all over arms, stomach and legs, which for the first time had to take Benadryl to control the itching and the burning. This was coming about, according to her doctor, from stress.

Ms. D.S. viewed her relationship with Mr. D.W.1, and I will refer to this later in my reasons, that he was a person who had a position of trust in their office. She could never have imagined him doing something so grotesque. His crimes towards her have affected the level of trust that she now has in other people. She now has to think twice about what she wears. She says in her victim impact statement that she struggles every day as a result of Mr. D.W.1's crimes.

Ms. D.S. sought out the assistance of a therapist and part of her victim impact statement are the receipts from those therapy sessions, which I understand there is a total that Ms. Castiglione will indicate at a later point.

J.T.'s Statement

J.T. wrote a victim impact statement on April 10th, 2015. She also describes how when she had to write down how Mr. D.W.1's actions had affected her life that it filled her with anxiety and stress. It took her a significant amount of time to even build up the courage and strength to be able to put her feelings down on paper. She had great conflict because of her close relationship with J.W., who had been like a sister to her for 25 years. She also refers to the fact that Mr. D.W.1 breached a trust that she and he had shared for many, many years, given her relationship with Mr. D.W.1's wife.

Ms. J.T. describes how Mr. D.W.1's conduct destroyed a long-term friendship that they shared. She viewed him like family and that she never thought that he would violate her in such a sick way. She said when she received the phone call from the police saying that they believed she was the victim of voyeurism her world was rocked, she felt an immediate sickness in the bottom of her stomach that is still with her today. She describes how the crimes of Mr. D.W.1 that were committed against her caused her pre-existing panic attacks to resurface. She had overcome those panics attacks and had not suffered from them in many years, but watching the videos that Mr. D.W.1 took of her, she had an immediate anxious feeling wash over her and since that time she has had multiple panic attacks. If she closes her eyes she can see the videos replaying in her mind. Sometimes she says the images of those disturbing videos will replay while her eyes are open as she is trying to function with every day tasks. It even affected her relationship with her fiancé because of the sexual nature of the crime committed against her.

Ms. J.T. describes how Mr. D.W.1 was actually mad when he found out that she was going to verify herself as a victim and watch the videotapes that he took of her. She describes how he made zero effort to make retribution for violating her, despite having numerous opportunities to do so. She talks about how he never sent her a written letter of apology. She views his lack of remorse as a concerning issue for her.

L.T.'s Statement

L.T. provided a victim impact statement which she read in court. She describes being in constant fear since she has learned of the crime, for her own safety as well as the publics. She knew Mr. D.W.1 for a number of years, they were colleagues, sometimes carpooled together, he knows where she lives, he has been in her home. She finds it unsettling that he lives in the same town as she does, not far from her home. She has a fear of running into him at local establishments, grocery stores, gas stations and so on. She is also fearful of being alone in her home, which she never felt prior to being told of these crimes.

Ms. L.T. describes the fact that Mr. D.W.1 betrayed her trust in him and she was in disbelief that he could commit such heinous crimes and she is sickened by what he did. She describes how Mr. D.W.1 would often use the women's washroom at their place of work and she was afraid for a great deal of time that there were videos taken of her in compromising positions in that washroom when she used it.

There is no doubt in my mind that all of the complainants, the ones who provided victim impact statements, as well as those who did not, were greatly impacted by the conduct of Mr. D.W.1.

THE PERSONAL CIRCUMSTANCES OF THE ACCUSED

Mr. D.W.1 is 41 years of age. He has been married for 12 years and has two children, a son aged 8 and a daughter aged 5. Mr. D.W.1's wife is currently his surety on these charges, but has expressed her intention to separate from Mr. D.W.1 upon his being sentenced on these charges. This matter unfortunately has been adjourned for almost a year. Mrs. J.W. has not been able to move on with her intention to separate from her husband, as she is his surety.

Mr. D.W.1 has a younger brother who is married and whose wife is the victim relating to the unlawfully in a dwelling house. The information available indicates Mr. D.W.1 is currently estranged from his brother as a result of the offence committed in respect of Mr. D.W.1's sister-in-law.

Mr. D.W.1 has completed his high school and then went on to obtain a three-year college diploma as an engineering technician. He worked for seven years at T[…], followed by a period of employment at P[…], working as a technical equipment specialist. Mr. D.W.1's employment at T[…] ended when he was not given a financial bonus due to his taking extended lunches, which he refused to rectify. Mr. D.W.1 admitted to the probation officer in the pre-sentence report and to Dr. Woodside in the forensic psychiatric report that he would often take extended lunches, lasting four hours, to engage in his voyeuristic activities. He worked with P[…] until 2014, when he was fired as a result of inappropriate use of his computer, involving pornography. After this employment he was operating his own company where he works as a house framer, however, he is currently unemployed as a result of his detention in November 2015, when he was arrested on another alleged breach of his recognizance.

Mr. D.W.1 was quite forthcoming when asked to discuss his sexual behaviours, both with the probation officer and with Dr. Woodside. He admitted to both the probation officer and to Dr. Woodside, first engaging in voyeuristic behaviour at age 15 when by chance he observed his neighbour undressing, and thereafter from age 15 to 25 engaging in "peeping tom" behaviours. This behaviour apparently ceased after he was married, as Mr. D.W.1 advised he was able to control his urges. However, in 2005 his voyeuristic tendencies were resurrected, which he blames on stress at his work.

It was during his employment at T[…] where Mr. D.W.1 met D.S., who was his supervisor, and as he describes, he became "infatuated" with her. Mr. D.W.1 initially began to videotape and photograph Ms. D.S.'s and Ms. L.T.'s cleavage and buttocks areas in the office setting. This led to his engaging in videotaping his activities of disrobing in Ms. D.S.'s office, partially and fully, masturbating and ejaculating into her coffee mug, onto her desk and the portion of the phone that she would speak into. Apparently there were 25 videos found by police of Mr. D.W.1 engaging in this behaviour. He had a key to Ms. D.S.'s office and he would enter it after hours using this key. Mr. D.W.1 admitted to being infatuated with Ms. D.S. for seven years.

Mr. D.W.1 advised the probation officer and Dr. Woodside he had accumulated some 14,000 images of unsuspecting women, which he then used to masturbate and which he viewed for his own personal sexual purposes. He admitted being helpless to this behaviour and stated his pornography addiction has cost him two jobs and now familial relationships. Yet despite this, according to the probation officer, he does not appear to appreciate the gravity of his behaviours because he told her, "I am fine now".

Mr. D.W.1 has a criminal record, which reflects Mr. D.W.1 has a prior criminal record. It starts in 1994, April 6 in Brighton, Ontario, a theft, for which he received a suspended sentence and probation for one year.

Then on January 18, 1995 in Brighton, Ontario, there are nine counts of break and enter and theft, two counts of attempted break and enter and theft, possession of a narcotic, two charges of fail to comply with probation, and two charges of fraud under $1,000. On the first three sets of charges he received a month on each charge consecutive, which would have been for a total of about 11 months, and then on count four, which is the breach of probation, he received two months on each of those charges, concurrent, and on the fraud charges he received a month on each charge, concurrent, and then a year of probation.

Mr. D.W.1 was paroled on May 19th, 1995.

There is then a gap until July 15th, 2011 in Newmarket, Ontario, where he was convicted of voyeurism, given a suspended sentence, probation for two years and four days of pre-trial custody, indicated on the information.

August 4th, 2015, Mr. D.W.1 was convicted of three charges of fail to comply recognizance, it was the recognizance relating to the charges that are before the court and those three breaches occurred after Mr. D.W.1 had entered pleas of guilty of six charges that I have already described. He received a 36-day intermittent sentence with nine days of pre-trial custody noted on the information and six months probation. This occurred in Oshawa.

As indicated, Mr. D.W.1 has a prior record for voyeurism from July 15th, 2011 and a suspended sentence with probation for two years. As part of his probation he was referred to the Centre for Addiction and Mental Health, Sexual Behaviours Clinic. He was assessed with a diagnosis that apparently, according to Dr. Woodside, is unclear, although voyeurism was not ruled out. He attended a ten-week group therapy, which met once weekly.

Mr. D.W.1 was arrested on November 21st, 2013 respecting the charge of voyeurism as a result of his being observed by the same security officer in the same Walmart store from his 2011 conviction, apparently photographing a woman bending over in the cosmetics department. As a result of this information, police, as I have indicated, obtained a number of search warrants to search his residence and then searched the devices seized. Further charges were laid in March 2014 and again in May 2014 as a result of images and videos discovered by the police.

At some point Mr. D.W.1 was referred to Dr. Hunchak at Lakeridge Health, who diagnosed Mr. D.W.1 as suffering from voyeurism, with ADHD and Bipolar disorder. He was subsequently medicated with Paxil and Abilify to control his moods and sex drive and he was seen by Dr. Hunchak for four sessions, although there were no follow up appointments after July 2015, according to Dr. Woodside's report.

Mr. D.W.1 also attended counseling with Paul Lavergne for sex therapy at Turning Point Centre in Peterborough, from April until August 2014. Mr. Lavergne advised Mr. D.W.1 stopped counseling, as reflected in the pre-sentence report. Mr. Lavergne provided correspondence to the probation officer in which he indicated Mr. D.W.1's attendances were sporadic and after August 1st, 2014 he lost contact with Mr. D.W.1.

The probation officer spoke to Mr. D.W.1's wife, who advised she did not believe her husband is taking ownership for the offences, that he minimizes the impact his conduct had on the victims and his family and he has little remorse for his behaviour. She advised she did not believe her husband was committed to therapy and had stopped prematurely.

Mr. D.W.1 admits to a chronic daily use of marijuana. At the time of both the pre-sentence report as well as the psychiatric forensic report he admits to two marijuana cigarettes a day, or seven grams a week. This was confirmed by his wife. Mr. D.W.1 did not view his use of cannabis as particularly dysfunctional, although he noted he was spending $100 a week. He indicated only his mother did not approve of his use, but denied anyone else expressed to him any concerns. He did not believe his marijuana use was related to his legal problems.

Mr. D.W.1 admitted to Dr. Woodside he was still looking at voyeuristic pornography on his computer, looking primarily at "hidden camera" materials two to three times a week, spending one to two hours each time. Dr. Woodside obtained reports from Lakeridge Health Corporation relating to Mr. D.W.1 attending the emergency room on May 7th, 2014 complaining of suicidal thoughts consisting of cutting himself in the hot tub. He apparently saw a Dr. Arshad Majeed. As indicated above, he then began seeing Dr. Hunchak, who prescribed medication and saw him for psychotherapy. The last note from Dr. Hunchak, dated July 16th, 2015, indicated Mr. D.W.1's sentencing hearing was approaching and his wife was planning to separate, terminate the marriage, and then he reflects the following note, which is quoted by Dr. Woodside in his report:

"The remarkable thing to me about him is that none of this seems to really bother him. He continues to smoke dope and cigarettes, which I think he estimated cost him perhaps $10,000 annually. He does not seem to be nervous about his upcoming sentencing and he does not seem upset about the separation. He just seems to be going along and nothing bothers him. I suspect this might be the effect of the dope that he uses."

Mr. D.W.1 told Dr. Woodside the following respecting his treatment at CAMH:

"Treatment at CAMH was helpful in terms of understanding his triggers, but noted he did not use the techniques, 'they didn't come to me at the right time, I didn't practice them as much as I should'."

He noted that his cravings for voyeurism were quite low for most of his probation, but resurfaced about six months prior to the end of probation.

He stated he simply tried to ignore the cravings initially, however, he acknowledged having continued to look at voyeuristic materials online throughout his probation period and while in treatment. He noted he looked primarily for, "up the skirt" materials and spy cam videos. He did not disclose his use during treatment. He stated, "I wasn't asked, but I didn't disclose". He reported rationalizing his use by telling himself that, "it was not illegal" and "it was not as bad as doing it myself."

Dr. Woodside diagnosed Mr. D.W.1 as suffering from a voyeuristic disorder, a paraphilic disorder. He also conducted an assessment of the risk Mr. D.W.1 poses for future re-offending. He found Mr. D.W.1:

"Embodies a number of clinical variables know to be related to sexual recidivism, including more significantly, the presence of a sexual paraphilia, voyeuristic disorder, and a possible substance use disorder. These variables should likely be considered static variables, which will not be specifically responsive to intervention."

Dr. Woodside continues:

"The absence of other clinical variables such as the presence of significant anti-sociality/psychopathy, a history of hands-on offending and a history of non-sexually violent offending suggests a lower risk in this individual.

Consideration of dynamic factors which relate to fluctuating or situational factors, such as response to treatment and supervision, treatment of alcohol and substance abuse difficulties, etcetera, does not suggest a lower overall risk in this individual, although it does highlight areas that one might hope to intervene and better manage Mr. D.W.1's risk."

And then:

"Overall, I would view Mr. D.W.1 as being at a moderate risk for sexual recidivism from a purely clinical perspective, as well as from an actuarial perspective."

Mr. Lavergne makes a number of recommendations to the probation officer respecting Mr. D.W.1's future treatment. In his note to the probation officer he says:

"Recommendations:

Intensive therapy with a sexual addiction counselor, 12 step attendance at an SLAA group, and ideally an intensive in-patient treatment program for 60 to 90 days, like Bellwood, to deal with his sexual addiction."

He continues and says:

"D.W.1's addiction has escalated to what we call, 'Level 3', addiction as it involves criminal activity and the victimization of others. If he is not integrated into a treatment program specifically for sexual addicts and offenders he will not be helped."

Dr. Woodside also makes a number of treatment recommendations for Mr. D.W.1 to follow through with at the conclusions of his report:

"Treatment Recommendations:

Mr. D.W.1 should receive further evaluation and treatment for a possible substance use disorder, cannabis, including both involvement in a structured program, along with a possible use of community support groups such as Alcoholics Anonymous. The goal for him should be at a minimum a significant reduction in use of cannabis or total abstinence. His ongoing substance use may act to disinhibit him, such that he is more likely to act out on his paraphilia when intoxicated. Although he has denied that his substance use directly influenced his offending behaviour. He appeared ambivalent in this regard, not seeing his use of cannabis as particularly problematic and is unrelated to his offending.

Mr. D.W.1 would benefit from further treatment for sexual offending, primarily using a cognitive behavioural and relapse prevention model. This treatment can be provided either in an incarceral setting or in a community setting, such as at CAMH or elsewhere. He has already received some treatment previously through CAMH and from other treatment providers since his most recent arrest. It is unclear to what extent he benefited from the same, given his rapid return to offending behaviour upon completing his probation and his limited use of treatment since his most recent arrest.

I would also recommend that he consider further treatment with sex-drive reducing medication to further reduce his risk for re-offence. He reported some limited impact from the treatment received to date, but could possibly benefit from a trial of stronger medication, for example, Provera, Androcur or Lupron. He defines that further psychological treatment and treatment with antidepressant medications are insufficient to reduce his fantasies or behaviours. Mr. D.W.1 should be encouraged to maintain ongoing employment as this may help to assist in his rehabilitation and to reduce his risk of re-offence."

Dr. Woodside indicates that he would be happy to facilitate further referral to the sexual behaviours clinic at CAMH if Mr. D.W.1 so desires. He also says he would be happy to facilitate a consultation in the future regarding use of sex-drive reducing medication for this individual.

Mr. Khehra advises me today that Mr. D.W.1 apparently is prepared to follow through with Dr. Woodside's recommendations, but to date has not done so.

THE POSITION OF THE PARTIES

Position of the Crown

Crown counsel, Ms. Castiglione, seeks the imposition of a reformatory sentence between 12 and 18 months, although she stresses the appropriate custodial sentence should be at the upper end of this range. In addition she submits Mr. D.W.1 should be subject to a three-year probationary term with strict conditions, including restitution for Ms. D.S. Ms. Castiglione argued a conditional sentence is not legally available for the offence of unlawfully in a dwelling house, which is punishable by a potential maximum sentence of ten years imprisonment and is an inappropriate sentence in respect of the charges of voyeurism and mischief, having regard to Mr. D.W.1's record, respecting breach of recognizance and prior offence of voyeurism.

It is the Crown's position the court could not be satisfied a custodial sentence served in the community would not endanger the safety of the community or would be consistent with the purpose and principles of sentencing set out in sections 718 to 718.2.

The Crown also seeks ancillary orders involving DNA and a weapons prohibition for ten years. The SOIRA provisions under section 490.011 of the Criminal Code do not apply to the offences to which Mr. D.W.1 entered guilty pleas. The Crown advised Mr. D.W.1 will be automatically subject to Christopher's Law in the Province of Ontario as section 162 is a designated offence.

The Crown relies on the following aggravating circumstances present in this case in advancing their position:

1. Previous conviction for voyeurism: The Crown points to Mr. D.W.1's previous conviction in July 2011 for voyeurism.

2. Continued engagement in voyeuristic behaviour despite treatment: Mr. D.W.1 continues to engage in his voyeuristic behaviour despite treatment. Mr. D.W.1 admitted he began engaging in similar voyeuristic behaviour, making 50 to 1,000 videos of unsuspecting women's cleavage, up skirt or buttocks showing their underwear, a month after his probation ended in August 2013, despite receiving treatment at CAMH. Mr. D.W.1's conduct was observed in August 2013 by the same security officer, in the same Walmart as his previous conviction, engaging in the same behaviour.

3. Number of offences before the court: Although the majority of the offences to which Mr. D.W.1 pled guilty occurred before or immediately around the time of his previous conviction, the allegations are far more serious. One of the offences of voyeurism is after he was originally sentenced in 2011. That is count 10, unlawfully in a dwelling house.

4. Many of the offences involve a serious breach of trust: Mr. D.W.1 videotaped his wife's best friend and his close friend, J.T., coming out of the shower in the basement of his home by means of a hidden camera. Further, Mr. D.W.1 entered his superior's office, set up a camera on a tripod, disrobed, both fully and partially, and then videotaped himself masturbating and ejaculating into her coffee cup, on her desk, and onto the mouthpiece of her telephone. He also took photographs of his superior's and another coworker's cleavage and buttocks areas and used these for his personal sexual arousal. Finally, Mr. D.W.1 entered his brother's bedroom and videotaped himself masturbating and ejaculating on his sister-in-law's lingerie.

5. Mr. D.W.1 abruptly stopped the counseling he started after being charged with these offences: Although Mr. D.W.1 started counseling with a sex therapist, he stopped his sessions without explanation. He was prescribed medication to assist in controlling his sexual urges, yet he adjusted the doses without disclosing this to his psychiatrist. He also stopped his psychotherapy sessions with his psychiatrist. Mr. D.W.1 maintains he is fine, yet admits he is continuing to view up skirt videos, spy cam videos and pornography on the Internet on a daily basis. When asked by Dr. Woodside about his treatment at CAMH while on probation, Mr. D.W.1 advised he did not practice the techniques, he learned as much as he should have. He rationalized the video taking after his probation ended by telling himself he would not get caught. He admitted he was engaging in voyeuristic behaviour for a few hours every day, five to seven days week. When asked by Dr. Woodside why he thought his treatment had not been effective he indicated he believed he, "could beat it with just willpower, that I was stronger than it", referring to his voyeuristic disorder.

6. Conduct was sophisticated, deliberate and planned: Mr. D.W.1 targeted his victims. There were 25 videos of his masturbating and ejaculating in his superior's office. He set up a hidden camera, videotaped himself standing outside the shower in the basement to make sure the camera was in the correct position. He had apps on his phone to be able to record activity without appearing to be recording.

7. Mr. D.W.1 minimizes the impact his voyeuristic behaviour has on his victims and shows little remorse: Mr. D.W.1's wife expressed this opinion. Dr. Hunchak, a psychiatrist Mr. D.W.1 was seeing, noted Mr. D.W.1 did not seem to be bothered by the sentencing, which was pending, or the fact his wife planned to separate and terminate their marriage once he was sentenced.

8. Mr. D.W.1 is a daily chronic user of marijuana: Mr. D.W.1 smokes two marijuana cigarettes each day, about seven grams a week. He has no intention of stopping and continued to use marijuana even after his arrest.

9. Dr. Woodside assessed Mr. D.W.1's risk of recidivism: Dr. Woodside assessed Mr. D.W.1's risk of recidivism and found Mr. D.W.1 as being at moderate risk for sexual recidivism from a purely clinical perspective, as well as from an actuarial perspective.

10. Mr. D.W.1 breached his recognizance of bail prior to his sentencing: Mr. D.W.1 pled guilty to three counts of fail to comply with his recognizance in August 2015. I was advised that those breaches related to his being outside of his residence when he was required to be subject to a house arrest and curfew and he received the equivalent of a 45-day sentence, which he was permitted to serve intermittently. The Crown argues this further demonstrates Mr. D.W.1's risk of reoffending and why a conditional sentence is not appropriate.

Ms. Castiglione stressed the fact that the imposition of a custodial sentence was necessary to effectively denounce the voyeuristic behaviour engaged in by Mr. D.W.1. Further, any sentence imposed needed to address the sentencing principles of general and specific deterrence. It was clear Mr. D.W.1, according to Ms. Castiglione, had learned very little from his first sentence for voyeurism.

Position of the Defence

Defence counsel, Mr. Khehra, submitted I should impose a blended sentence of both a period of imprisonment and a conditional sentence. He submits, in addition to the credit for pre-trial custody served by Mr. D.W.1, he should be sentenced to a 60 to 90 day intermittent jail sentence in respect of the unlawfully in a dwelling house and a nine months conditional sentence respecting the remaining charges of voyeurism and mischief. Mr. Khehra submits that these sentences should be in addition or on top of the credit I allow for pre-trial custody and strict bail conditions. Mr. Khehra takes no issue with the length of probation sought by the Crown or any of the terms of probation. He also takes no issue with any of the ancillary orders sought by the Crown.

The defence relies upon the following mitigating circumstances present in this case for arguing this position:

1. Mr. D.W.1 has sought treatment and counseling with respect to his sexual paraphilia, voyeurism disorder: Mr. D.W.1 sought treatment and counseling for his sexual paraphilia prior to his plea of guilty. He underwent an extensive assessment by Dr. Woodside, head of the Sexual Behaviours Clinic at the Centre for Addiction and Mental Health.

2. Mr. D.W.1 has expressed his remorse and acceptance of responsibility through his guilty plea, as well as his section 726 statement to the court: Mr. D.W.1, according to Mr. Khehra, always intended to plead guilty to the charges before the court. He expressed to Dr. Woodside he now finds his actions disgusting and has a hard time believing he had done the things he did respecting his superior.

3. Mr. D.W.1's guilty pleas have spared the victims from having to testify and have saved court expense: The victims of Mr. D.W.1's crimes did not have to testify at a preliminary inquiry or trial as a result of Mr. D.W.1's guilty pleas. Further, had these matters proceeded to trial they would have required significant court resources and expenses, which is obviated by Mr. D.W.1's acceptance of responsibility.

4. Mr. D.W.1 has served 18 days of pre-trial custody, which will receive credit of 27 days on a one point five to one basis, and further he served two and a half months from November 8th, 2015 to January 21st, 2016 on a charge of breach of recognizance, of which he was acquitted on January 21st, 2016. Mr. Khehra relies upon two decisions of the Ontario Court of Appeal, which deal with similar circumstances where an accused is facing other charges at the same time they are facing charges for which they have been granted bail and they are in custody and either the Crown withdraws that second set of charges, or as in Mr. D.W.1's case, the accused is acquitted of those charges. The Court of Appeal has instructed sentencing judges that the time spent in pre-trial custody should be taken into account in assessing the appropriate sentence to be imposed. Those two cases are R. v. Tsai, [2005] O.J. No. 2574, as well as R. v. Reid, [2005] O.J. No. 1790. Ms. Castiglione agrees with Mr. Khehra's interpretation of those cases.

There is some issue, which I will address later, respecting whether Mr. D.W.1 should receive any credit for his restrictive bail conditions, which have included house arrest pursuant to R. v. Downes and R. v. Ijam, both from the Ontario Court of Appeal.

5. The defence argues the majority of the charges to which Mr. D.W.1 pled guilty relate to conduct that predated his previous conviction for voyeurism: The Crown is unable to prove when the various videos and photographic image were taken by Mr. D.W.1. Mr. D.W.1 advised Dr. Woodside and the probation officer the majority of the charges relate to conduct he engaged in prior to his conviction on July 15, 2011. Consequently, Mr. D.W.1 should be considered a first offender with no criminal record for at least five of the six charges he pled guilty to.

The defence concedes the paramount sentencing principles in the circumstances of this case are denunciation and deterrence. Mr. Khehra also agrees the most significant aggravating features relate to Mr. D.W.1's record, his voyeuristic behaviour, which continued a month after his probation ended, and the breach of trust aspects involving many of Mr. D.W.1's victims. Mr. Khehra also concedes that the aggravating circumstances respecting Mr. D.W.1's conduct towards Ms. J.T., Ms. M.W. and Ms. D.S. should be treated as a breach of a trust relationship, which under the Criminal Code is an aggravating circumstance and a factor to be taken into account on sentence.

THE APPLICABLE SENTENCING PRINCIPLES AND THE APPROPRIATE SENTENCE TO BE IMPOSED

Under section 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for the harm done to "victims", or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

According to section 718.1 of the Criminal Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.

Section 718.2(a)(iii) provides the statutorily aggravating circumstance of the offender breaching a position of trust in committing the offence, which the Crown and the defence agree is present in this case. Generally the section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances and that the combined duration of consecutive sentences not be unduly long, and that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

I was provided a number of cases by the Crown and the defence, which set out some basic considerations in determining the appropriate sentence in a voyeurism case. Voyeurism offences violate the essential human dignity of the people shown and are a serious invasion of their privacy and personal space. In this case, as I have already set out, the impact on the victims was particularly significant. The disclosure by the police to the victims of their being videotaped surreptitiously by Mr. D.W.1 was shocking and emotionally overwhelming, causing significant fear and anxiety in the victims. Sentences across Canada vary depending on the nature of the offences, the accused's background, the impact on the victims and they range from suspended sentences with probation to conditional sentences followed by probation, to jail sentences followed by probation. Often voyeurism offences are involved with other more serious offences, such as sexual assault or possession of child pornography.

What follows is a sampling of the cases provided by counsel. I have not set them all out, but I have set a sample:

In R. v. Grice, 2008 ONCJ 476, the accused photographed his former wife undressing to take a shower in the matrimonial home after they had separated. The accused had no prior record, none of the images were shared, and he spent five days in pre-trial custody. On a guilty plea a suspended sentence with 18 months probation was imposed.

In R. v. Rocha, 2012 ABPC 24, the accused was employed as a fueller at an airport. He approached the victim at a luggage carousel, crouched behind her and took an up-skirt photo of her with his cell phone. The accused had no record, sought counseling and expressed remorse. The Crown sought a conditional sentence and the defence argued a suspended sentence was the appropriate sentence. A suspended sentence and 15 months probation was imposed.

R. v. Weinheimer, 2007 ABPC 349, the accused surreptitiously took photographs of 15 men using the urinal at his place of employment. He stored these photographs together with the names, birthdates, addresses, insurance account numbers and notes regarding the genitals of the victims on his computer. The court found that the primary sentencing objective was rehabilitation, deterrence and denunciation being secondary objectives, and sentenced the accused to a two year suspended sentence with supervised probation.

In R. v. Dekker, 2014 ABPC 61, the accused surreptitiously videotaped, at least 80 persons, using public washrooms on four occasions, as well as one occasion videotaping individuals using the washroom in his own home. A nine-month conditional sentence followed by two years probation was imposed. He was 56, a first offender, remorseful for his conduct and was assessed by a psychologist as a low risk to re-offend. See also R. v. Muggeridge, [2015] N.J. No. 80; R. v. Bosomworth, 2015 BCPC 7 and R. v. J.H.N., 2010 BCPC 155 where suspended sentences and probation were imposed for first offenders who were receiving counseling, remorseful and low risk of re-offending.

In R. v. Brandt, [2013] M.J. No. 2014, the accused became obsessed with a coworker, had sexual fantasies about her. He surreptitiously watched her as she showered and videotaped her twice with his cell phone while she showered. He masturbated and ejaculated in her underwear. He was a first offender, had enrolled in sex addiction counseling and was a low risk to re-offend. On a guilty plea he received an 18-month conditional sentence.

In R. v. Ennis, Ontario Court of Justice, January 12th, 2016, Gorewich J. This was not provided to me by counsel; I obtained this. The accused pled guilty to two counts of voyeurism. The accused was seeing a psychiatrist for counseling, 64 hours at the time of sentencing, and was assessed as a low risk to re-offend. He had no criminal record. The offences took place over a prolonged period of time, two and a half years. There were approximately 500 victims. Justice Gorewich imposed a 20-month conditional sentence and probation for one year with conditions.

In R. v. Morton, [2012] O.J. No. 4604, the accused surreptitiously videotaped a tenant undressing and dressing by means of a hidden camera. On June 21, 2012, an unreported decision, the sentence obtained from a certified copy of the information, Justice Wright sentenced Mr. Morton to three months in jail with two years probation with terms.

In R. v. M.S.A., [2013] A.J. No. 489, the accused, on two occasions, surreptitiously videotaped his 15-year-old stepdaughter while she was getting dressed in her bedroom. At sentencing the accused was separated from his wife, but was providing half of his income to support his ex-wife and the victim. He was obsessed with pornography and he had sought counseling. There was a joint submission of a three to six month sentence, followed by probation. Defence was seeking that the sentence be conditional. The judge sentenced the accused to five months imprisonment and two years probation.

In R. v. DaSilva, [2011] O.J. No. 1298, also a decision that I found, the accused made a sexually explicit video of himself and his girlfriend without her knowledge. After the relationship went sour he posted the video to his Facebook page and sent 13 friends and family an email inviting them to view it. There was a trial, which took ten days. Justice Robertson found the voyeurism offence under section 162(4) to be the most serious offence. The accused had a criminal record from 1999 for assault causing bodily harm, for which he was sentenced to a short period of jail. Justice Robertson found the Crown had not proven the aggravating circumstance that the video was widely distributed on the Internet and as a result he imposed a sentence of five months incarceration on the section 162(4) voyeurism offence and two months consecutive respecting the creation of the video some two months prior, before it was sent. In addition he imposed a concurrent sentence for the criminal harassment offence. The accused was also placed on two years probation with terms.

In R. v. Berry, B.C.J. No. 306, the accused surreptitiously videotaped himself sexually touching and digitally penetrating his common-law wife's vagina and anus, without her consent, while she was sleeping or unconscious. There were four video recordings made by Mr. Berry. In addition, he videotaped another victim using the bathroom in his sister's house, which video shows the victim's genital area. The accused had a dated, unrelated criminal record. He was sentenced to two years less fifty-nine days pre-trial custody on the sexual assault and nine months imprisonment consecutive on the voyeurism charge connected to the sexual assault. With respect to the second voyeurism charge the sentence was two months concurrent to the nine-month sentence.

In R. v. Aguas, 2015 ONSC 5732, the accused, a male nurse in an emergency ward, took photographs of a patient who had been thrown from a vehicle by her ex-boyfriend. The accused had her disrobe and then took photos with his personal cell phone of her naked breasts and genitals and he touched her. The victim believed he was documenting the photos to further a police investigation. The accused also took a photo of another patient's bare breasts as she slept. He was sentenced to 14 months, less 5 months credit for pre-trial custody and stringent bail conditions and placed on three years probation after his jail sentence. The sentencing judge found a breach of trust and took into account the accused was losing his ability to continue his profession as a nurse because of his conviction.

As can be seen from the cases I have summarized, the sentences imposed for offences involving voyeurism are determined by the peculiar facts disclosed in each case. None of the cases provided by counsel address the fact situation of an accused who had been previously convicted of a similar offence, or who had been assessed by a psychiatrist as being a moderate risk to re-offend. In fact, in all of the cases the psychiatric evidence was that the accused were either at no risk to re-offend, or a low risk to re-offend.

Clearly the paramount sentencing principles are deterrence and denunciation. Rehabilitation is also applicable, but to a lesser extent.

Based on the assessment of the probation officer who prepared the pre-sentence report and Dr. Woodside, who conducted the forensic psychiatric evaluation and assessment of risk, they found that Mr. D.W.1 did not demonstrate great insight into the impact his behaviour had on his victims, and further that he showed very little remorse. In addition, Mr. D.W.1 commenced videotaping unsuspecting women in department stores, malls and other public places within a month after his probation ended from his first conviction in August of 2013. He told Dr. Woodside he had taken 1,000 videos from August to November of 2013, but later revised that figure to 50 at a second interview. It is difficult to reconcile these two estimates.

Mr. D.W.1 told the probation officer and Dr. Woodside he had approximately 14,000 images on his computer. I am of the view his description of how many images he had collected was an act of bragging and that he was proud of this accomplishment. Mr. D.W.1 used these surreptitious videos for sexual purposes, as he would view them repeatedly for his own personal sexual arousal. On some occasions he videotaped himself masturbating and ejaculating while watching these videos or looking at these pictures.

Mr. D.W.1 took pictures with a video camera and with his cell phone. He had a number of cell phones that were seized from his residence. His actions were deliberate and premeditated. In some instances he utilized apps on his cell phone to make it appear he was talking on the cell phone, but in reality he was videotaping. He advised he was taking four-hour lunches, seven days a week, in order to engage in videotaping or taking pictures of the cleavage of women's breasts or women's buttocks and their exposed panties. These were expeditions where he deliberately looked for women to videotape and photograph. When he was asked by Dr. Woodside where he went, he indicated he went wherever women were.

Mr. D.W.1 set up a hidden camera in his basement to take videos of his wife's best friend dressing and undressing and taking a shower, which in my view demonstrates a level of planning and sophistication that separates his conduct from many, if not all, of the cases counsel have provided. He took a video of himself masturbating while watching the video he took of his wife's best friend. He videotaped himself masturbating and ejaculating in his superior's office into her coffee cup, onto the receiver of her phone and on her desk. He gained access to her office after hours by using a key. He videotaped his superior and another coworker in his office showing their cleavage and their buttocks. Finally, Mr. D.W.1's brother provided a house key to allow Mr. D.W.1 to check on his brother's house when the brother was away. Mr. D.W.1 used that key to gain access to his brother's house, go to the master bedroom and then videotaped himself going through his sister-in-law's lingerie drawer and masturbating and ejaculating onto the sister-in-law's undergarments.

The defence agrees the above conduct has the added aggravating circumstance of Mr. D.W.1 breaching the trust given by his brother in providing a key to check on his house, Ms. D.S. either providing a key to her office to Mr. D.W.1, or Mr. D.W.1 obtaining a key to her office, and Ms. J.T. believing that she could take a shower in privacy, by herself, without being videotaped or observed.

What is particularly concerning about Mr. D.W.1, in my view, is his lack of insight into his psychiatric disorder, or the impact it has had on his victims. Mr. D.W.1 continued to view videos on the Internet involving "spy cams", women being videotaped without their consent or awareness, even after his first conviction, throughout his probation and after he was finished his probation, and even after he pled guilty to the six charges before me.

Mr. Khehra says his client is now prepared to agree to chemical castration after reading Dr. Woodside's report. I find this to be a little too coincidental with the fact Mr. D.W.1 is about to be sentenced today. It lacks sincerity, given his failure to properly and diligently address his voyeurism disorder. When one adds Dr. Woodside's assessment that Mr. D.W.1 is a moderate risk for sexual recidivism there is, in my view, a very real concern for the safety of the community as it relates to Mr. D.W.1.

Mr. D.W.1, through Mr. Khehra, wants me to impose an intermittent sentence of 60 to 90 days so he can work; yet he is currently unemployed. He has been out of custody since January 21st, 2016, when he was acquitted of the breach of recognizance charge, but he has taken no steps to attempt to even secure any kind of employment to come to court today with a letter indicating he is in fact working. In my view, an intermittent sentence is inappropriate, having regard to this, as well given the seriousness of the conduct he has engaged in. In my opinion an intermittent sentence would not adequately address deterrence, both specific and general, as well as denunciation of Mr. D.W.1's conduct.

I have been asked to impose a conditional sentence. Mr. Khehra provided to me, and I am well familiar with the decision of R. v. Proulx 2000 SCC 5. There have been many changes to the conditional sentence regime under section 742.1 of the Criminal Code since it first came into being. In fact there have been so many changes under the previous government that it is difficult to know where a particular case might fall or whether it is applicable or not applicable, just having regard to the different criteria that has now been set out.

As to the appropriateness of a conditional sentence I accept that a period of incarceration in this case is warranted. I think even Mr. Khehra accepts that and that what is warranted is less than two years, which is one of the first criteria set out in section 742.1. There are no minimum sentences for any of the offences that Mr. D.W.1 has pled guilty to and that I have found him guilty and convicted him in respect of.

I also agree that no other statutory prohibitions exist precluding consideration of a conditional sentence, but as a condition precedent to determining if an offender should be permitted to serve their sentence in the community, I must be satisfied that the safety of the community would not be in danger by the offender serving his sentence in the community. In considering risk I am directed to look at both the risk of re-offending and the gravity of the damage that would ensue from the further offence.

Mr. D.W.1 is not a low risk to re-offend. There was an extensive assessment done by Dr. Woodside and the conclusion of that assessment was that Mr. D.W.1 is a moderate risk to re-offend, particularly as it relates to his voyeuristic disorder. I have already expressed my concerns surrounding Mr. D.W.1's conduct, both during his probation order from July 15th, 2011 until July 15th, 2013, while he was still looking at the type of videos that he, himself, had been taking, his admission to Dr. Woodside that his feelings and his urges six months before the end of his probation overpowered him and became more intense, to the point where only a month after his probation ended he was out and about, as he had been during his employment at T[…] and P[…]. Even after he received counseling and treatment at CAMH during his probation and sex addiction counseling from Mr. Lavergne from April till August of 2014, he continued to look at up skirt videos and spy cam videos. He did not stop. He thought this was okay because he was not taking the videos. It is the very thing that he has been diagnosed with.

Mr. Lavergne indicates in his correspondence with the probation officer that Mr. D.W.1 needs intensive therapy and treatment. Dr. Woodside indicates the same thing. Even after he pled guilty before me in February of 2015 he admitted to Dr. Woodside that he was still viewing up skirt videos and spy cam videos and pornography on the Internet. While these things may not be against the law, for someone with Mr. D.W.1's paraphilia disorder, namely voyeuristic disorder, and someone who maintains that smoking marijuana has no impact on his commission of the offences before the court, Dr. Woodside dispelled any misunderstanding with respect to that attitude and that belief, as did Dr. Hunchak, who believed the reason Mr. D.W.1 was not concerned about his imminent divorce or the sentencing that was about to take place, this would have been back in May of 2015, is because of his use of cannabis on a regular basis. That is one of the reasons why Dr. Woodside's assessment is that Mr. D.W.1 is a moderate risk of sexual recidivism. In my view those risks speak very strongly against a conditional sentence being an appropriate sentence.

I think the final consideration for me is the fact that while Mr. D.W.1 was on bail, after his pleas of guilty, pending his sentence, and after being told by me on the day that he pled guilty, that the period of time between when his sentence occurred and while he was out on the bail, and the steps that he was taking, would all be extremely important in determining the nature of the sentence that would be imposed. He breached his bail. He breached it at least three times, because that is what he pled guilty to and received an intermittent sentence.

Part of a conditional sentence is being on house arrest. In my view, if Mr. D.W.1 was unable to abide by house arrest while he was on bail, I do not see how I can justify releasing him on a conditional sentence. I recognize that a conditional sentence does in many instances, and can in may instances, address the principles of deterrence and denunciation, even in serious criminal charges, but Mr. D.W.1's conduct, the assessment of his risk, all point to putting the community at risk and that the safety of the community, in my view, is not protected.

Further, as I have already indicated, the paramount principles of sentencing in this case are deterrence, both specific and general, as well as denunciation; there are few mitigating circumstances that I can point to. Many of the mitigating circumstances pointed to by Mr. Khehra are refuted by the Crown, in her submission they are aggravating. There is very little remorse shown, there is very little insight into the impact that the actions and behaviour of Mr. D.W.1 had on the victims in these matters. Those are normally mitigating circumstances because an accused shows their remorse through their guilty plea, but in my view, much of Mr. D.W.1's continued viewing of this type of material, knowing that he has a serious psychiatric disorder, because that certainly would have been conveyed to him during the period of time that he was seeing Mr. Lavergne, as well as Dr. Hunchak, I find it difficult to accept that those are mitigating circumstances in this case.

There are numerous aggravating factors. Perhaps the only thing that can be said that stands in Mr. D.W.1's favour is that he did not publish any of the videos that he took, because I can tell you, based on the facts of this case and the circumstances of this case, if that had existed, and I know the police were looking for it, they didn't find it, if it had existed Mr. D.W.1 potentially would have been looking at a penitentiary sentence. I want him to hear that. That is how serious I view these charges.

As I have indicated, Mr. D.W.1 does not appear to have gained a whole lot of insight into his offending behaviour and in my view a conditional sentence would fall far short of what Mr. D.W.1 requires. There needs to be a sentence that promotes a sense of responsibility in Mr. D.W.1 and other offenders who engage in similar conduct. That is what is both referred to as the specific and general deterrence. There needs to be an acknowledgement of the harm done to the victims and to the community and in my view these are sentencing principles that are not achievable in the case of Mr. D.W.1 in the context of a conditional sentence. In my view he needs a sentence, particularly as it relates to specific deterrence, that is going to get his attention.

As I have indicated as well, there is an importance with respect to general deterrence, because in my view this plays an enhanced role in the facts of this case. Everyone has a cell phone today. Everyone has a smart phone. Everyone has a phone that can take pictures. I can recall a number of years ago, not so long ago, when I got a new phone and I asked if I could have a phone that did not take pictures because I did not need that feature. I thought it might be cheaper. Apparently they do not make phones that do not take pictures. Therefore, given the nature of smart phones today, this increases the need for sending a message to the general public that taking pictures of individuals in compromising positions, for example, women who might be wearing a top that is loose and if they bend over, shows cleavage. It is inappropriate to take photographs of that. It is inappropriate to take pictures of a man or a woman bending over and exposing their buttocks because the pants they are wearing are too tight or too low in the hip. That is what Mr. D.W.1 did and apparently that is what a lot of other people do, because it appears the Internet is filled with this type of pornography. Therefore, in my view, this is one of those cases where I think general deterrence may actually play an enhanced and meaningful role in sentencing.

I believe that satisfying the principle of general deterrence when it plays an enhanced role is difficult within the context of a conditional sentence. The significant denunciatory effect of jail, in my view, is needed in expressing that message. So it is my conclusion that a conditional sentence is not an appropriate disposition in Mr. D.W.1's case, it would fail to strike the right balance in emphasizing the paramount principles and it would fail to place the right weight on denunciation and specific deterrence to Mr. D.W.1, and very importantly in this case, it fails to address adequately general deterrence. And so, in my view, a sentence of a period of incarceration to be served in a jail is the appropriate sentence.

There are many words which come to mind to describe Mr. D.W.1's conduct, despicable, demeaning, vile, appalling, horrendous, horrific, inexcusable, unforgiveable. I know that there are many others. A conditional sentence does not express the denunciation necessary in this case, having regard to those descriptions; only real jail can do that.

As I have indicated, in my view, a conditional sentence will not ensure the safety of the community and I think what is most telling, despite knowing that the Crown was seeking a significant upper reformatory jail sentence, Mr. D.W.1 discontinued his treatment, continued throughout to view the kind of offending videos he is charged with creating and breached his recognizance as it related to a condition of his house arrest.

I should address just briefly stringent bail conditions and the decision in R. v. Downes, as well as R. v. Ijam, 2007 ONCA 597, which also deals with stringent bail conditions. Mr. D.W.1 was on bail for a long period of time and did comply, apparently, with those conditions, but in August of 2015 he was charged with at least three counts, I don't have the information from that proceeding to which he pled guilty, but at least three counts of breach of recognizance that related to his being outside his residence in contravention of the house arrest. That was probably the most important condition of his bail.

I am prepared to give credit with respect to the two and a half months that he spent in custody when he was charged with a second breach of recognizance and again, I don't know if it was one offence or more than one offence for which he was acquitted after a trial on January 21st, 2016. In my view there is no formula, and that is made very, very clear in respect of both R. v. Downes, as well as R. v. Ijam, but taking into account the pre-trial custody that he has served, the stringent bails that he was on, I am prepared to give a total credit of six months. I am taking into account that he, for the most part, appeared to comply with those stringent bail conditions and it did affect his liberty. I know the things that Justice Rosenberg indicates in the Downes decision that should be taken into account in assessing whether or not to assess any credit.

Therefore, in effect, I am going to be giving him a little more than a month of pre-trial credit in respect of that. So the total pre-trial credit that I am giving for both the pre-trial custody, as well as stringent bail conditions, is six months and in my view the appropriate sentence in this case, having regard to all of the circumstances, considering both mitigating and aggravating factors, the appropriate sentence prior to giving credit for pre-trial custody and stringent bail conditions is a sentence of imprisonment for 18 months. That means there will be 12 months remaining.

In addition, Mr. D.W.1 will be subject to a section 110 order for 10 years.

After Mr. D.W.1's release from custody he will be placed on probation for three years. Statutory conditions will apply, namely:

• You will keep the peace and be of good behaviour;

• Appear before the court when required to do so;

• Notify the court or probation officer in advance of any change of name or address;

• Promptly notify the court or probation officer of any change in employment or occupation.

In addition, you will:

• Report to a probation officer in person within five working days of your release from custody and thereafter at all times and places as directed by the probation officer, or any person authorized by the probation officer to assist in your supervision;

• Cooperate with your probation officer;

• Sign any releases necessary to permit the probation officer to monitor your compliance; and

• You must provide proof of compliance with any condition of this order to your probation officer on request;

• You will live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance;

• You are not to contact or communicate in any way, directly or indirectly by any physical, electronic or other means with the following named persons: D.S., L.T., J.T., M.W. and M.K. There are no exceptions;

• You are not to be within 100 metres of any place where you know any of these persons named live, work, go to school, frequent, or any place you know those persons to be. Again, no exceptions.

I am not going to make a weapons prohibition under the probation order, I do not see the need.

I am going to make a term that you are not to possess or consume any unlawful drugs or substances, refer to the Controlled Drugs and Substances Act, except with a valid prescription in your name or those over the counter.

It is my view, Mr. D.W.1 that the comments by Dr. Hunchak, as well as Dr. Woodside clearly indicate that your use of marijuana had a disinhibiting impact on you with respect to the behaviours that you have engaged in:

• You are to attend and actively participate in all assessment counseling or rehabilitative programs as directed by the probation officer, complete them to the satisfaction of the probation officer, for substance abuse, psychiatric/psychological issues, sexual offences, or any other reason as recommended by your probation officer;

• You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counseling or rehabilitative programs as directed; and

• You shall provide proof of your attendance and completions of any assessments, counseling or rehabilitative programs as directed;

• You are not to possess or use any device, electronic or otherwise, that is designed for or capable of making or capturing visual recordings, including a photograph, film or video recording, included, but not limited to cameras, camcorders, video recorders, or camera equipped cellular telephones or BlackBerrys; and

• You shall not possess or use any computer or any other device that has Internet access, except with the advance written permission of your probation officer, as required for purposes of your work. Those are the only two exceptions.

ANCILLARY ORDERS

The Court: Did you want a DNA order?

Ms. Castiglione: Yes, Your Honour.

The Court: I think these are secondary, aren't they, offences?

Ms. Castiglione: Secondary?

The Court: Secondary, yes.

I will exercise my discretion and order that a DNA sample be taken, to be included in the DNA database.

Mr. D.W.1, I want you to understand if you engage in this kind of behaviour again in the future and are found out by police and are charged, and you are found guilty of any of these types of offences, the sentences that you will be facing will very likely be penitentiary sentences.

I also want to indicate to you, sir, if it did not already occur to you, it was certainly something that occurred to me, is that your behaviour had the beginnings of a very famous criminal in southeastern Ontario, and you shake your head at me, sir, but the kind of breaking into houses, using the key to get into your brother's home, going into your sister-in-law's pantie drawer and lingerie drawer and doing what you did and videotaping is exactly what that individual did, and that's where it started. That should say something to you, you need to curb these urges, you need to get them under control.

Mr. Khehra, I would like the psychiatric report of Dr. Woodside to go to the probation officer, is that on consent?

Mr. Khehra: That's on consent, Your Honour.

The Court: All right, thank you. So, Madam Clerk, I have it in several places, so I think you have an original as an exhibit, you can photocopy that, perhaps, and attach it with the probation order, thank you. Anything further on Mr. D.W.1's matter?

Ms. Castiglione: Just one thing, Your Honour, two things actually, just in terms of the probation terms, they are the standard of reside at an address approved by the probation officer.

The Court: I put that in.

Ms. Castiglione: Yes, thank you. Your Honour, as well, has Your Honour considered the restitution order?

The Court: Oh, I apologize. It will be a stand-alone restitution that was agreed to by Mr. Khehra. What is the total amount, please?

Ms. Castiglione: Six thousand one hundred and forty dollars, Your Honour.

The Court: And it is made payable in favour of D.S....

Ms. Castiglione: D.S., yes.

The Court: ...D.S. All right. What I will indicate to my understanding to Ms. D.S., and she can get further advice from a lawyer, but my order, once it is signed and once you get a certified copy, it can be filed in civil court to get a judgment against Mr. D.W.1 for repayment of those monies. There are ways that a civil lawyer can assist you in obtaining that restitution.

My hope for all of the victims in this matter is that either through counseling or through friends and family, that they can overcome the impact that they have felt and continue to feel as a result of Mr. D.W.1's conduct.

Ms. Castiglione: There is also the forfeiture order the Crown has requested. The forfeiture order, Your Honour. Forfeiture order.

The Court: Yes, absolutely. Every hard drive, every SIM card, everything seized by the police, I understand Mr. Khehra indicated previously to me that he had no difficulty in having a forfeiture order made in respect of all of those items.

Mr. Khehra: Yes, I take no issue and my friend has put an appendix, which coincides with what I recall seeing on the....

The Court: I am sure it coincides with what is in the agreed statement of facts.

Mr. Khehra: Correct.

Ms. Castiglione: And there is, yes, there is some that have been printed and added on, so I've shown to my friend, that being items that were seized during the search warrant.

The Court: I have no difficulty signing that.

Mr. Khehra: Madam Clerk, can you confirm the remaining counts, whether they were withdrawn on the last occasion?

Clerk of the Court: Nothing has been withdrawn.

Mr. Khehra: Okay, so....

The Court: No, I think all the other charges are outstanding, and so all remaining charges against Mr. D.W.1, Ms. Castiglione, are withdrawn...

Ms. Castiglione: Yes, Your Honour.

The Court: ...at the request of the Crown. Thank you.

Clerk of the Court: And the victim fine surcharge?

The Court: This is - there are six charges, it will be a $200 victim surcharge in respect of each charge. Mr. D.W.1, I know you are going to be in custody for a while, so I am going to give you 18 months to pay those victim surcharges, sir.

Mr. D.W.1: Is that after I am released?

The Court: I'm sorry?

Mr. D.W.1: Is that after I am released?

The Court: No, it is 18 months from today. That is why I am giving you 18 months.

Mr. D.W.1: Yeah.

The Court: So it will be – you can apply for an extension of time to pay those, but what I say to everybody, I do not believe anybody should go to jail for the non-payment of fines, but if you show me good faith, that you are making some payments, you have a good explanation for why you cannot pay the full amount in the time that I am giving you, I guarantee you will get an extension. If you thumb your nose at those fines you probably will not get an extension, okay? You may have a good reason though, you may not have found work, you may not have – you may not be able to pay them, so in those circumstances you will explain to me why, but I do view that very seriously. I do not believe people should go to jail for the non-payment of fines, but if people do not show any sense of wanting to take responsibility for what they owe, that says something, right? Just demonstrate some good faith and if you do that then you will get the same back from me.

Released: February 9, 2016

Justice P.C. West