WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2023 12 21 Court File No.: Central East Region: Oshawa Court #22-28102208
Between:
HIS MAJESTY THE KING
— AND —
STEVEN MEDARD
Before: Justice Peter C. West
Guilty plea entered on March 16, 2023. Sentencing Submissions were made on December 12, 2023 Reasons for Judgment released on December 21, 2023
Counsel: Mr. C. Sell and Ms. S. Gancman ................................... counsel for the Crown Mr. E. Ducharme…………………….Counsel for the defendant Steven Medard
Reasons for Judgment
1On March 16, 2023, Steven Medard pleaded guilty to a charge of voyeurism that occurred on March 10, 2022, and a pre-sentence report (PSR) was ordered with the sentencing being adjourned to May 16, 2023. The facts are quite simple, Mr. Medard was employed as a security officer at the Ajax / Pickering Hospital having previously completed the Police Foundations course of study at Durham College. A student nurse was using the staff washroom (a single person facility) at the hospital and while she was sitting on the toilet she observed a cell phone underneath the sink. This cell phone was positioned directly under the sink and propped up by a Styrofoam cup in the P-joint under the sink. The victim took the phone and was able to see a video of herself using the toilet. She reversed the clip and saw herself pulling down her pants, exposing her genital area and then sitting down on the toilet. She immediately deleted this video and then advised other hospital staff and her supervisor what had occurred before turning the cell phone over to security.
2The facts indicated Mr. Medard confiscated the phone after it was turned into the security office, never indicating it in fact was his cell phone. When he was later confronted by a hospital manager, he admitted the phone belonged to him and upon further investigation he was arrested at the hospital by police. He initially attempted to conceal his conduct by drafting a security report saying he had accidentally left his phone in the washroom and had attempted to retrieve it before anyone else went in. This report was seen by the investigating officer. On March 16, 2022, a search warrant was subsequently executed on his cell phone and the video observed by the victim, which she deleted, was ultimately recovered by a police expert from the cell phone. The only reasonable inference was that Mr. Medard had deliberately placed his cell phone on top of the Styrofoam cup under the sink on the P-joint of the sink’s pipes to videotape persons using the staff washroom. Police took a photo of the Styrofoam cup sitting on the P-joint under the sink.
3The PSR, was authored by Rhonda Robertson and dated May 12, 2023. It was marked as Exhibit 1. The matter had to be further adjourned on May 16 because Mr. Medard had denied and minimized the allegations presented in the facts by the Crown on his guilty plea. He told the PSR author that he had accidently left his cell phone in the washroom. Further, he told the PSR author his phone was not purposely placed to record anyone and that it had accidently started to record while the victim was using the washroom. When Mr. Medard appeared before me for sentencing on May 16, I raised this with Mr. Medard and his counsel, Mr. Ducharme, and indicated it was my view that Mr. Medard’s guilty plea should be struck and a trial date set, as the facts, which he had admitted were correct during his guilty plea, he was now saying to the probation officer, his cell phone videotaping the victim in the staff washroom was an accident, without any intention or planning on his part. Mr. Ducharme requested an opportunity to speak with his client to obtain further instructions. When counsel returned with Mr. Medard he advised his client did not want to have his guilty plea struck and wanted the sentencing to proceed. Mr. Medard then advised me that he had misled the probation officer, as he had in fact deliberately and intentionally positioned his cell phone under the sink to record anyone using the toilet in the staff washroom.
4During my discussion with counsel and Mr. Medard after Mr. Medard’s admission, I inquired whether Mr. Ducharme had ever investigated whether a psychological risk assessment could be obtained respecting his client. This apparently had not been done and Mr. Ducharme requested an adjournment to investigate this being done with his client and if it could be done he would then determine how long it would take for one to be prepared. The matter was adjourned from a date set in September 2023, as the Risk Assessment had not yet been completed. I have now received a very detailed psychological risk assessment authored by Dr. Smita Vir Tyagi, Ph. D., C. Psych, dated October 15, 2023, which Dr. Smita Vir Tyagi advised was a self-referral by Mr. Medard, as he had located and contacted the psychologist to arrange and pay for the risk assessment himself. This 36 page Risk Assessment Report was marked as Exhibit 2. I will deal with this report in greater detail later in my reasons.
Background of Steven Medard
5Steven Medard was born in Miami, Florida and lived with his family in the United States until 2009. His parents were born in Haiti and after living in the United States the family moved to Scarborough, Ontario, eventually all becoming Canadian citizens. He lived with his maternal grandmother from Grades 10 to 12 to help her out. He described this arrangement was so he could assist his grandmother getting groceries, getting to appointments, and because English was not her first language. His parents ultimately bought a house in Ajax in 2018 and everyone moved in together, including his grandmother.
6Mr. Medard attends church every Sunday in Scarborough for the last 9 years. He does the sound tech at his church, as well as at another church in Scarborough. He dated his last girlfriend for two years, although they had known each other for four years. They broke up primarily as a result of the charge before the court, which he advised took a toll on his girlfriend. Mr. Medard has a small circle of friends from school and church and spends most of his leisure time with his family and friends.
7He graduated high school from Sir Wilfrid Laurier Collegiate Institute in Scarborough. He attended Durham College and completed the Police Foundations program 3 or 4 years ago. He had wanted to pursue a career as a police officer and had volunteered for police services. He has received many certifications from both Toronto Police Service and Durham Regional Police Services for volunteer work he did while in high school. He had not applied to become a police officer as he had not decided whether he would pursue policing in the United States or Canada. He had been working in the security field to pay off his student loans. As a result of the charge he pleaded guilty to Mr. Medard recognizes his goal of becoming a police officer is no longer attainable as he will have a criminal conviction and record. Since December 2022 he has been employed full-time doing administrative work from his home for his parent’s trucking business that was first registered in September 2022. He provided proof of this employment to the probation officer.
8No concerns were expressed by Mr. Medard or his parents or friends to the probation officer respecting his using illicit substances, which Mr. Medard reported he did not use or ever experiment with. He admitted to being a social drinker of alcohol but denied having any problems with his consumption.
9In the PSR Mr. Medard expressed his remorse for what occurred and indicated he knew the victim would have been hurt by what occurred and wished he could express his remorse to her. He said he understood how the victim must have felt violated. He maintained he was not a person with a bad moral character, he made a mistake, felt badly about what happened and would take it back if he could. During his interview for the PSR the author described Mr. Medard breaking down, becoming emotional and crying at this point. In the PSR he indicated he did not think he would benefit from assessment and counselling for sexual offending but was open to pursuing this if the Court ordered. During the risk assessment Mr. Medard was also asked about how his conduct would have impacted the victim and he responded, “She would be devastated: she would be shocked,” adding “If someone did that to me it would affect me!” When he was pressed further he stated, “She would be suspicious; maybe she would not want to use the washroom in public; she would be traumatized.”
10The author of the PSR believed Mr. Medard was denying and minimizing his offence behaviour during his interview despite having pleaded guilty to the offence. She was of the opinion he would benefit from assessment, counselling, and rehabilitative programs for sexual offending behaviour to assist in a rehabilitation plan.
11As I indicated at the outset of these reasons, I came close to striking Mr. Medard’s guilty plea and setting a trial date respecting this charge; however, Mr. Medard when confronted with the inconsistency between his guilty plea and admission of the facts put forward by the Crown, I believe he sincerely and truthfully conceded and admitted that his actions in placing his cell phone in the hospital’s staff washroom to video-tape persons using the washroom were deliberate and pre-planned. This is completely born out by his openness and transparency during his interviews with Dr. Vir Tyagi during the risk assessment.
12Mr. Medard provided informed consent to commence the risk assessment (see page 3 of Exhibit 2). Mr. Medard provided his report cards for Grade 8 to Grade 12, which indicated positive reviews from his teachers. There is no indication that Mr. Medard’s behaviour in school was ever a cause for concern.
13Mr. Medard provided details of his relationships with women during school and after graduating, which I do not intend to reproduce in these reasons. It was my view from the report that he was candid and open with Dr. Vir Tyagi. The Risk Assessment Report highlights the various tests and checklists utilized to assess his risk of committing sexual offences in the future. As indicated by Dr Vir Tyagi at p. 26-27:
Risks are typically assessed in two domains (1) ‘Static’ or unchangeable, historical risk factors such as past criminal history, history of violence, childhood conduct disorder etc.) and (2) ‘Dynamic’ or changeable factors such as insight, current substance use, coping ability, improvement in social or intimacy deficits, stable ties to society etc. Additionally, a fulsome risk assessment uses both actuarial and structured professional judgment approaches in assessing these key domains.
14The Risk Assessment does not make reference to any “static” or unchangeable historical risk factors and deals with “dynamic” or changeable factors determined through Dr. Vir Tyagi’s interviews and clinical observations and the various tests she performed with Mr. Medard. I do not intend to go through each of the tests (The Psychopathy Checklist: Screening Version (PCL:SV); STATIC-99-R; STABLE-2007; and Inventory of Offender Risk, Needs and Strengths (IORNS)) performed in the Risk Assessment in detail. In my view it is sufficient to set out Dr. Vir Tyagi’s summary of her conclusions and opinion (pp. 34-36):
The assessor notes that Mr. Medard evidences a number of strengths or ‘protective’ factors. These factors ‘protect’ against offending by lowering risk to re-offend and are typically seen as open to change thus providing mitigation in risk for re-offending. Some of these have been noted on the IORNS measures (see above). The assessor noted other factors that are also considered protective in nature and, relevant to re-offending risk. Mr. Medard demonstrates intact cognitive capacity, social graces and prosocial goals with a positive future orientation. He has the capacity to envision a fulfilling life for himself. His goals appear realistic and achievable and, commensurate with his education, training and ambition. Mr. Medard evidences capacity for connection and continues to have significant support from family and community which is a protective factor against emotional and mental deterioration. He presents with a generally prosocial orientation and exhibits prosocial goals in various life domains (work, leisure, relationships). He appears to have some coping abilities in the face of adversity. There is little to indicate concerns that would create barriers to stability in the future such as mental disorder or personality disorder. He appears compliant with supervision (no violations of bail or evidence of rule breaking) and seems responsive to direction. All the above noted should be considered markers of resilience and augur well for future adjustment given their ‘protective’ nature in re-offending.
In assessing risk to re-offend a forensic assessor examines what is studied and known in the prediction of criminal behaviour and in this case, factors relevant to sexual offending in particular. In terms of classic risk factors, Mr. Medard does not have a history of chronic, violent or repeat offending. There is little to indicate chronic history of rule breaking such as stealing, aggression, vandalism, attending work while impaired, defaulting on debts, engaging in fraud or other criminal acts which point to a pattern of antisociality. He has, however, committed his index offence at his place of employment. Nonetheless, he does not evidence pervasive procriminal attitudes nor does his network feature social connections who endorse attitudes supportive of offending. He does not evidence psychopathic traits which are well-established factors in prediction of sexual as well as non-sexual recidivism. He exhibits several strengths such as stable ties to society, familial supports, prosocial attitudes, prosocial associates and life goals that are within the realm of possibility which are ‘protective’ factors against reoffending conduct.
In terms of sexual deviance factors Mr. Medard’s profile does not indicate prior sexual aggression towards either minors or adults nor escalation of sexually deviant conduct over time. His history does not evidence delusional thinking or pursuit of specific victim. He is aware of the age of consent for sexual activity and has been involved with consenting adult partners. These observations notwithstanding his history does feature intimacy deficits and difficulties in meeting his sexual and affiliative needs. Noted are the breakdown of his last two relationships and his unsuccessful attempts to engage female co-workers in a romantic manner which led to complaints at his workplace. Additionally noted are use of pornography as means of coping with relationship loss and viewing atypical content which he later attempted to capture in his own recording during index offence. Along with impulsive behavior and problems with consequential thinking these are considerations that merit attention. The assessor notes that these are all ‘dynamic’, changeable factors amenable to intervention. Also, Mr. Medard is amenable to direction and presents as compliant with supervision which bodes well for the future. Research has shown that desistance is in fact common, even among those who have a history of committing offences particularly reviled by society such as those committing sexual offences against children which Mr. Medard does not.
As noted in the risk assessment section above, his scores on risk measures such as Static-99R indicate that he is at a Level IVa or Above Average Risk for being charged with or convicted of another sexual offence. Individuals placing in this category are generally seen as having some treatment needs that are amenable to intervention. Individuals at this level can transition down to a Level III, Average Risk, within a year or two after a sufficient dosage of treatment or if they experience positive life changes. In Mr. Medard’s case there are already some factors that can be considered as positive, notably enrolment and attendance in a college diploma geared towards employment, ongoing family support and termination of a toxic intimate relationship. There is little to indicate that he will not continue to make positive changes that will improve his life. Additionally, if he is able to address some of the ‘dynamic’ risk factors identified in this assessment, any risks posed can be further mitigated. The assessor noted Mr. Medard’s brash youthfulness, which is commensurate with the age and stage of emerging adults. However, the assessor also noted his lack of maturity exhibited by Mr. Medard in terms of poor judgment, lack of consequential thinking and impulsiveness. He would benefit from addressing same. Mr. Medard has been assessed as having ‘Moderate’ range of treatment needs which include the following: Capacity for relationship stability, hostility /resentment towards women, impulsivity, problem solving, negative emotionality, sex drive and preoccupation and sexual preference. He would benefit from learning relational skills to manage conflict, assertiveness in expressing his needs in relationships and constructive problem solving particularly in relationships which would counter propensity for harbouring resentment, anger, and hostility.
Mr. Medard would benefit from a program (group or individual) provided by qualified treatment providers who work with individuals who have sex offences on their record. In some jurisdictions Probation and Parole officers are themselves running sex offender programs or have providers contracted to provide them. Mr. Medard may be able to avail of these programs. In the GTA, individuals on probation are often referred to the Sexual Behaviors Clinic (SBC) at the Centre for Addiction and Mental Health, Toronto which specializes in working with people who have committed sex offences. They offer individual and group treatment to individuals of a level that would meet Mr. Medard’s needs. The SBC is contracted by the Ministry of the Solicitor General to provide this service. In both of the above noted scenarios Mr. Medard will not have to pay out of pocket as costs are covered by the Ministry. This will help alleviate some of the financial pressures he would face in securing these services privately as the costs tend to be prohibitive and are also hard to find.
15It is significant to note that Mr. Medard does not have a history of chronic, violent or repeat offending, nor does he evidence procriminal attitudes or psychopathic traits which are well-established factors in prediction of sexual as well as non-sexual recidivism, which in Dr Vir Tyagi’s opinion means Mr. Medard’s risk becomes considerably lessened if he receives counselling and treatment. Further, there are many positive factors in his life, which there is every indication will continue. She noted his lack of maturity exhibited in poor judgment, lack of consequential thinking and impulsiveness would benefit from his addressing these issues, which he expressed a willingness to do. She highlighted how Mr. Medard would benefit from programs available at the Sexual Behaviours Clinic (SBC) at the Centre for Addiction and Mental Health, where both group and individual counselling and treatment is offered. She described how this could be facilitated through probation services. In fact, this was also what was recommended by the author of the PSR.
16It should be noted that the defence provided a number of character letters to the court, which I provided today to the clerk and they, together with various certificates and programs he has volunteered for, have been marked as Exhibit 3 collectively. All of the letters demonstrate how Mr. Medard’s actions and conduct respecting the charge of voyeurism is completely contrary to the authors’ interactions with and knowledge of Mr. Medard. There can be no doubt that the behaviour engaged in by Mr. Medard is not something he would have shared with those he knew, as this behaviour is often hidden and kept secret. In fact, Mr. Medard described initially keeping his conduct from many of those he was close to because he knew how upset they would be with him, as they would not agree with his conduct and he recognized he had let a lot of people in his life down. Subsequently, after he was confronted in court about his comments to the probation officer denying and minimizing his conduct, Mr. Medard opened up, admitted in court his conduct was pre-planned and deliberate and not an accident, he has discovered that those close to him have been supportive of him. This is reflected in the Risk Assessment Report.
Position of the Parties
17Originally the Crown, Mr. Sell, who conducted the judicial pre-trial, was seeking an eight (8) month custodial sentence followed by 2 years probation with conditions. Ms. Vancman had assumed responsibility for this matter and as a result of the risk assessment’s conclusions she advised the Crown position was now a six (6) month custodial sentence. It was her submission that a conditional sentence would not adequately address the sentencing principles of deterrence and denunciation. It was further her position that the reduction in the Crown sentencing position took into account the sentencing principles of both restraint and rehabilitation. Ms. Vancman advised that attempts had been made by the Victim Witness office to obtain a Victim Impact Statement from the student nurse; however, the victim ultimately did not provide a VIS to be presented at the sentencing hearing of Mr. Medard. She submitted that the significant intrusiveness and loss of personal dignity and privacy to the victim caused by Mr. Medard’s actions are clear and obvious.
18The defence is seeking a conditional sentence of twelve months with house arrest coupled with GPS monitoring for at least half of the conditional sentence to be followed by probation. Mr. Ducharme submitted that Mr. Medard’s guilty plea and ultimately his complete acceptance of his responsibility for this offence, coupled with the fact he is a youthful first offender support the imposition of a conditional sentence, which is a jail sentence that is permitted to be served in the community. He pointed to the fact Mr. Medard lost his employment as a result of his conduct and further, as a result of his acceptance of responsibility through his guilty plea, he will no longer be able to pursue a career as a police officer, which led to his changing his program at Community College.
19Mr. Ducharme also submitted that specific deterrence is not a concern given the steps taken by Mr. Medard in searching out a psychologist, Dr Smita Vir Tyagi, and then following through with the completion of a risk assessment that involved his being interviewed over several days for a total of 10.75 hours and performing many psychological tests.
Applicable Principles of Sentencing
20The purpose of sentencing is set out in s. 718 of the Criminal Code. I am of the view it is important to indicate what this section sets out and the sections that follow because I believe this is where the applicable principles of sentencing are defined for criminal cases. Under s. 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 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. How much weight I place on any one objective will depend on the particular, unique facts of each individual case.
21Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, 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.
22All of these factors must be considered and balanced in order to achieve what is the "fundamental principle" of sentencing, pursuant to s. 718.1, which is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 42, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:
42For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.
23As Rosenberg J.A. held in R. v. Priest, [1996] O.J. No. 3369 (C.A.), at para. 26:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
24The principle of parity is an important and laudable objective, but it is important to note that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C. A.), [1996] 1 S.C.R. 500, at paragraph 92.
Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. (Emphasis added)
25Consequently, a proportionate sentence in each case, in large measure, is determined by the specific and unique facts and circumstances surrounding the offender and the commission of the offence. Although precedents involving similar cases can provide guidance in determining a proportionate sentence they should not dominate the sentencing process.
26Mr. Ducharme provided me with a decision of Justice Gee in the Ontario Court of Justice, R. v. B.H., [2017] O.J. No. 3021 (OCJ), which I had found during my own research into the offence of voyeurism. It is my view the facts in B.H. are very similar to the facts in Mr. Medard’s case. In that case B.H., who was an elementary school teacher, installed a camera in the ceiling of the male staff washroom of the public school where he worked. B.H. had three cameras that he would frequently switch out, take home, recharge the batteries and download the videos and still images, which he had captured. B.H. did this over a period of 14 months. He never made any of these videos available on the internet or ever shared them with anyone else. They were solely for his own use. The facts in the B.H. judgment do not indicate the number of videos and still photographs found by police but it must have been numerous given the period of time the cameras were in operation. In Mr. Medard’s case, the police searched his cell phone and home computer and only the video recorded by his cell phone on the day the victim discovered it and deleted it (March 10, 2022), was recovered from Mr. Medard’s cell phone by the police.
27In B.H., Justice Gee set out a number of sentencing decisions dealing with voyeurism. He discovered that in many cases the voyeurism charge was not a stand-alone charge and often was connected to more serious charges of child pornography or sexual interference or sexual exploitation charges. I do not intend to set out the cases reflected in B.H., at paras. 13 to 19, but the range of sentence imposed for voyeurism was from a suspended sentence to 9 months jail. I found a number of other decisions: R. v. Jarvis, [2019] O.J. No. 4371 (SCJ, A.J. Goodman), which sets out many more sentencing judgments (at paras. 26 to 50): 6 month reformatory jail sentence imposed (high school teacher videotaping with pen camera 27 female students’ cleavages; R. v. P.R., [2022] O.J. No. 4742 (OCJ, Monahan): 60 day conditional sentence; R. v. Wong, [2022] O.J. No. 5200 (OCJ, Bliss): 21 months imprisonment for a photographer who surreptitiously recorded 174 unidentified persons over 20 years with 9,000 files recovered from his devices; and R. v. D.R.W., [2016] O.J. No. 7247 (OCJ, West), one of my sentencing judgments where I imposed an 18 month period of imprisonment for 4 counts of voyeurism involving serious breaches of trust and a number of different victims. What becomes clear from the various cases dealing with voyeurism offences is that the range of sentence is quite broad and the particular circumstances of each case must be carefully considered.
Aggravating and Mitigating Circumstances
28There can be no doubt that the impact on the victim in this matter must have been a significant invasion of her privacy in a place that she should have been able to believe afforded her privacy and a place where she was safe and secure. Even without a VIS I find this impact occurred, which is statutorily an aggravating circumstance under s. 718.2(a)(iii.1). Further, the knowledge this incident occurred in a staff washroom at the hospital would have created fear and insecurity amongst all of the hospital staff. As reflected by Justice Gee in B.H.: “The invasion of privacy and loss of personal dignity to the victim (and in my view even those staff who were not directly impacted) are hallmarks of this offence and will generally attract a harsh rebuke from the court.”
29Mr. Medard’s conduct was a serious breach of trust having regard to his position as a security guard at the hospital, which is a serious aggravating circumstance under s. 718.2 (a)(iii). His attempt at covering up his conduct through the filing of a false security report is also aggravating.
30However, there are mitigating circumstances present in this case as well. Firstly, Mr. Medard to did not maintain his attempt to mislead, as he admitted his conduct to the hospital manager, which led to his being arrested and charged by the police who came to investigate. He pleaded guilty to the offence, which demonstrates his remorse for his conduct. He entered a plea of guilty knowing that the Crown was seeking a term of imprisonment, initially an 8 month reformatory sentence.
31As I have indicated above, at his guilty plea Mr. Medard admitted the facts presented by the Crown, namely that his conduct was pre-planned and deliberate, which at that time reflected his acceptance of responsibility for his conduct. His comments to the probation officer that he had left his cell phone in the washroom by accident was the same story he initially tried to present in his security report, yet he had admitted to a supervisor that this was untrue, which resulted in his arrest and his cell phone being seized. The Risk Assessment Report that Mr. Medard underwent provides some insight into why he returned to a story he had already admitted was untrue, first to the hospital manager, then to the police and finally in court when he agreed the facts read by the Crown were correct. At pages 16 to 17 of the Report Mr. Medard told Dr. Vir Tyagi that he had not been honest about his conduct with his family and friends and had held back the information he had in fact placed the phone in the washroom to make a recording versus leaving the phone there by accident. He told the doctor, “I’ve let a lot of people down; I was being selfish; I was thinking of myself; I thought they would judge me – I didn’t want that.” He told the doctor he was deeply ashamed for himself and his family at the notoriety he had received from being in the news when the charges came out. In my view this provides an explanation for why Mr. Medard made the comments he did to the probation officer. Those comments were doomed to failure and have led to Mr. Medard’s recognition that there were underlying causes behind his decision to place his cell phone to videotape and record staff using the washroom. When the doctor asked him what he believed he could do to prevent a recurrence in the future, Mr. Medard said, “I have to lead a clean life; I have to reduce my habits to watch porn; I have to focus on my purpose.”
32His continued attempt to portray to the probation officer his conduct as being accidental in my view resulted in his involvement in a risk assessment with a psychologist, which brought him face to face with certain conduct he had been engaging in, as a result of the break up with his girlfriend and his increasing involvement in viewing pornography. It is my view his involvement with Dr. Vir Tyagi has assisted him in gaining insight into the steps he needs to take to prevent something similar happening again in the future. This is a mitigating circumstance when assessing his potential for rehabilitation and whether his being charged with voyeurism and his involvement with the administration of justice has had any impact in specifically deterring him.
33It is clear from the PSR and the Risk Assessment that Mr. Medard has strong support of his family and friends respecting prosocial interactions and activities. Mr. Medard demonstrates through his previous actions concern, caring and involvement with others, as evidenced by his living with his grandmother to assist her and supporting his Aunt through her cancer care.
34As a result of being charged with this offence Mr. Medard lost his employment as a security guard at Ajax/Pickering Hospital. This in my view is a collateral consequence of his criminal conduct. He completed his program in Police Foundations; however, his involvement in this charge means that he will not be able to pursue a career as a police officer given any sentence imposed will result in a criminal conviction.
35Mr. Medard has been employed in various jobs since his graduation from high school and has already obtained one College degree and he has returned to Centennial College in September 2023, commencing a degree in Office Administration. He is also currently gainfully employed through his parents transportation company while he is attending college. All of these things are mitigating showing potential for rehabilitation.
36Finally, Mr. Medard is a youthful first offender and has no prior involvement with the police or court. Consequently, rehabilitation and restraint, particularly where an accused is a youthful first offender, must not be discounted or ignored and general deterrence and denunciation should not be over-emphasized. In R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, the Ontario Court of Appeal held:
…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.
…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:
[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.
In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.
Determining a Proportionate Sentence
37As a result of the Crown electing to proceed by summary conviction, if I determine a period of incarceration is appropriate, any sentence I impose will be below two years less a day. Indeed, the Crown is only seeking a 6 month custodial sentence. Consequently, I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code.
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 [general sentencing provisions];
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence under any of the following provisions:
(i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),
(ii) section 269.1 (torture), or
(iii) section 318 (advocating genocide); and
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;
1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1; 2012, c. 1, s. 34; 2022, c. 15.
38In R. v. Proulx, 2000 SCC 5, at para. 22, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation." In para. 127, #8, the Court held:
A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. [Emphasis added]
39A conditional sentence is in principle, although not always in practice, available for all offences where the prerequisites are met, no specific or category of offence is presumptively excluded from the conditional sentence option: R. v. Proulx, 2000 SCC 5, at paras. 79-81 (see also R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583 (C.A.), at para. 69). Therefore, a conditional sentence, depending on the severity of the conditions, may nonetheless be consistent with the fundamental purpose and principles of sentencing, even where deterrence and denunciation are the predominant sentencing principles (see Jacko, supra, at para 71).
40Lamer C.J., in Proulx, supra, at para. 100, explained that a conditional sentence can achieve both punitive and restorative sentencing objectives:
To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstance.
41The principle of restraint set out in s. 718(2)(d) and (e) has taken on a new prominence as a result of the introduction of conditional sentences pursuant to s. 742.1. In R. v. Gladue, [1999] S.C.J. No. 19, at para. 40, Cory J. said:
... The availability of a conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only when no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(e) must be construed and applied in this light.
42In my view it is important to note that the most recent iteration of s. 742.1 has returned to the form and content of the original provision created by Parliament in 1996, when conditional sentences were first introduced. A conditional sentence is a custodial sentence where the accused is permitted to serve his jail sentence in the community with restrictive provisions such as house arrest with only certain exceptions, dependent on the individual and unique circumstances of the offender being sentenced. It is open to a sentencing Judge, where the pre-requisites are met, to impose a conditional sentence in respect of the vast majority of offences.
43Mr. Medard has been on release since his arrest in March 2022, he has not had any further involvement with the police and has complied with the conditions of his release. He has found employment and registered and started a new community college program in Office Administration. In my view this supports the imposition of a conditional sentence and demonstrates that Mr. Medard will comply with any and all conditions of such a conditional sentence order. Balancing the sentencing principles applicable in this case a conditional sentence will exercise restraint in respect of a sentence to be imposed on a youthful first offender yet will also properly express the community’s denunciation for the gravity of this offence. A conditional sentence will also properly take into account Mr. Medard’s moral blameworthiness, recognizing that on the facts led by the Crown this was the first occasion Mr. Medard had placed his cell phone in the staff washroom to videotape someone using the toilet. Only one video was found on his cell phone by the police. Further, there was no evidence presented to show Mr. Medard had uploaded this video onto the internet or shared this video with anyone else. This fact is an important distinction in those cases where a custodial sentence in a reformatory is imposed, such as R. v. Wong, where Justice Bliss imposed a 21 month sentence where Mr. Wong had videotaped 174 individuals over 20 years and the police found over 9000 videos.
44It is my view to impose the sentence submitted by the Crown would offend the fundamental principle of proportionality by over-emphasizing denunciation, deterrence and retribution. A custodial sentence in the circumstances of this case would fail to properly balance the mitigating circumstances present in this case. A conditional sentence is a jail sentence that is permitted to be served in the community. In my view a twelve (12) month conditional sentence, with appropriate punitive and restrictive conditions can meet the principles of denunciation and deterrence as indicated in Proulx, but at the same time exercise restraint and recognize the importance of encouraging Mr. Medard’s rehabilitation and the fact he is a youthful first offender.
45Further, as I have indicated above there have already been consequences for Mr. Medard’s criminal behaviour in terms of his loss of his employment as a security guard and the fact my sentence will prevent him from pursuing and achieving his goal to become a police officer.
46My sentence therefore is that Mr. Medard is sentenced to a period of 12 months custody, to be served in the community. The first six months of this conditional sentence will be subject to a house arrest provision, where he will be required to wear a GPS monitoring bracelet. I will discuss with counsel the various exceptions to be permitted to this house arrest condition. The remaining six months of the conditional sentence will be subject to a curfew, 7 days a week, between 8 pm and 6 am, subject to exceptions I will discuss with counsel. The curfew will not be subject to GPS monitoring.
47A two (2) year probation order will follow the conditional sentence. I will discuss with counsel the conditions of this probation order.
Released: December 21, 2023 Signed: Justice Peter C. West