COURT FILE NO.: CR-23-3/047 DATE: 20240419

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - R.K.T.

Counsel: Paul Kelly, for the Crown Marissa Etwaroo, for the accused

HEARD: March 14, 2024

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

K.L. Campbell J.:

Reasons for Sentence

A. Overview

[1] On March 24, 2023, the accused, R.K.T., was found guilty of: (1) surreptitiously making a visual recording of a person, in circumstances when that person was nude and had a reasonable expectation of privacy; (2) possession of child pornography; (3) making child pornography; and (4) distributing child pornography. The accused committed those offences in Toronto between January 1, 2015 and July 13, 2019.

[2] Essentially, the accused surreptitiously recorded his younger step-sister, C.M., while she was disrobed and at least partially naked in the bathroom of his own residence and/or while she was in the bathroom of his mother’s residence, and at a time when she was under 18 years of age. The accused had pled “not guilty” to all of these alleged offences, but at the conclusion of his trial, I found him guilty of each of these alleged offences. See: R. v. R.K.T., 2023 ONSC 1826.

[3] The Crown now seeks the imposition of a total sentence of seven years imprisonment. Defence counsel seeks the imposition of a global sentence of 30 months (or 2½ years) imprisonment. Today is the day scheduled for the imposition of sentence.

B. The Facts of the Offences

[4] There were a series of video recordings made of the complainant, C.M., when she was in the bathroom of the accused’s home and when she was in the bathroom at the residence of the accused’s mother. In these video recordings, the complainant is at least partially or fully naked, and is using the bathroom facilities to shower, or change her clothing, or is using the toilet facilities for one reason or another.

[5] The recordings were clearly made in those two specific locations because there are unique, identifying features that can be seen in both bathrooms.

[6] These video recordings were made by the accused, using some type of hidden camera, unbeknownst to the complainant. While he initially denied, by his original pleas of “not guilty,” being the person who made these video recordings, following my conclusion to the contrary, the accused has admitted that he was the person who made these recordings and he has expressed his remorse for so doing.

[7] Subsequently, these video recordings of the complainant were uploaded and/or posted to various pornographic websites that catered, at least in part, to “hidden camera” videos of naked or partially naked individuals. While the accused is apparently not the person directly responsible for the uploading and/or posting of the videos to the pornography websites, it is apparent that he provided these video recordings to others. While the accused candidly admitted that he had previously accessed these same pornographic websites, the investigating police officers were, admittedly, never able to identify who had, in fact, “published” these hidden camera video recordings of the complainant to these pornographic websites. However, there is no gainsaying the fact that these videos could not have been posted to these pornographic websites, unless they were released to at least one other person by the accused. Moreover, when the accused “learned” that these hidden camera videos of the complainant were posted to at least one pornographic website, he was not the least bit surprised, but rather passed this information on (with video clips and a link to the pornographic website) to at least one other person – someone who seemed to share his particular interest in such hidden video recordings of naked young people.

[8] The female complainant was born in May of 2000, and she, predictably, did not turn 18 years of age until May of 2018, and at least one of the surreptitious, hidden camera, video recordings of her was made by the accused, when the complainant was but 15-16 years of age, rendering at least that video recording “child pornography” pursuant to s. 163.1(1) of the Criminal Code. The accused clearly knew his step-sister’s birthday, and her corresponding age at the time he took the various hidden camera video recordings of her.

[9] The complainant first became aware of these video recordings in July of 2019, when she was told, by some anonymous individual, via text message, about their existence on the pornographic websites. Needless to say, she was mortified by this discovery. Since that time, she has worked, together with others, to have these video recordings removed from the internet. She realizes, however, that while these images were posted on the internet, they were available to anyone who had access to the websites where they were posted.

[10] Significantly, in early December of 2017, the accused sent a Facebook message to his male cousin, C.MF., a Facebook “friend,” who clearly also had an interest in such “hidden camera” videos, that contained an electronic link to one of the pornographic websites and, in particular, one of the video recordings of the naked complainant, as well as six screen shots or still images taken from the video recording of the naked complainant. This video recording (and the accompanying still images) is the video recording where the complainant is but 15-16 years of age. Significantly, in the accompanying still images, unique identifying artwork from the bathroom background was obstructed and not viewable. In other words, the unique identifying artwork in the background, that would otherwise identify the bathroom in which the video recording was taken, was somehow electronically manipulated so as to hide this distinctive artwork, and thus the actual physical location of the video recording. The accused indicated, in the accompanying text message, that these images showed that the complainant had a “sweet bod.” The accused also communicated with C.MF. in a way that showed that he had read some of the “comments” that had been posted on the pornographic website about the video recording of his step-sister.

[11] As I noted in my Reasons for Judgment at the conclusion of the trial, the only sensible inference to be drawn from this evidence is that: (1) the accused had access to this surreptitiously recorded video recording of the naked, young complainant; (2) the accused knew that this video recording had been posted on a pornographic website; and (3) the accused had access to still images of this video recording of the naked, young complainant, that had been somehow manipulated so as to conceal unique, identifying features of the bathroom where the video recording had been surreptitiously taken.

[12] In October of 2019, the investigating police officers executed a search warrant at the home of the accused, and seized, amongst other things, a hard drive “Simple Tech” back up, and a computer hard drive from the desktop computer. The police also arrested the accused that day. Expert analysis of these two electronic devices revealed two images on these devices, contained in a file that was called the “backup” of the accused’s android phone. These images showed the naked body of the complainant from one of the video recordings, but with her head cropped out of the images. According to the expert evidence that explained this finding, these images were located on the accused’s android cell phone before May 16, 2017.

[13] In short, the electronic information, and the accompanying expert evidence surrounding these images, show that the accused was in possession of these images of the naked young complainant, taken from one of the surreptitious video recordings, before May 16, 2017.

[14] At one point, earlier in the police investigation, the police suspected that the accused’s cousin, C.MF., had committed these alleged offences. Indeed, at one point he was arrested in connection with these offences. He was someone who was clearly interested in these types of “hidden camera” video recordings. Indeed, he agreed that he had committed similar offences in relation to two other women. However, the police investigation of C.MF did not support his involvement in these alleged offences concerning the complainant. Rather, the police investigation showed that C.MF. could not have committed these offences. The police investigation pointed instead to the accused. C.MF. testified in this matter and effectively denied having committed any of the alleged offences concerning the complainant. I accepted his evidence in this regard.

[15] I should note, as well, that the largely exculpatory pre-trial statements made to the police by the accused did not cause me to have any reasonable doubt as to the guilt of the accused with respect to any of the alleged offences.

C. The Victim Impact Evidence

[16] The complainant did not provide any “victim impact” evidence. However, her mother provided a Victim Impact Statement. In that document, she indicated as follows:

• The offences by the accused “shattered the world” of the complainant.
• The offences were committed by a “trusted” member of their family at a “critical point in [the complainant’s] teenage developing years.”
• The complainant has become “introverted and anxious” and maintains only a “very restricted” and small circle of close friends. She is wary of “trusting the wrong person again.”
• The complainant has changed the way she dresses and presents herself, going out of her way to wear baggy clothing to ensure that her body is not exposed in any way.
• While her family has had some success in having the recorded images of the complainant removed from the pornographic websites, the recordings continue to be “shared and re-uploaded,” which “re-victimizes” the complainant “all over again.” The complainant has also been contacted over social media, as her “full name and city of residence” was tagged in the recordings, and this has permitted persons who have seen the videos to contact her. This raises her level of fear and anxiety about possible “danger” from “strangers.”
• The continued availability of these images of the complainant also cause continual worry about potential employers and friends, in the future, finding these images of her and making assumptions about whether she was a “willing participant” in the creation of these recordings.
• The complainant has worked “extremely hard” to complete high school and college with this “hanging over her head,” but these offences “robbed” her of some of the “normal experiences” a young person has at this time of their life.

D. The Circumstances of the Offender

1. General Background Information

[17] The accused is now 39 years old. He is married, but is now separated from his wife. They have one daughter together. She is approximately 10 years of age, and in grade five.

[18] The accused has one slightly younger sister. During his early years as a child, the accused had a close, stable and happy family growing up in Toronto. However, he left home when he was 16 years of age, when his family separated.

[19] It seems that his father was an alcoholic and he would sometimes “disappear” for days on end. This created a negative home environment and, when the frequency of these occurrences escalated, he was asked by his wife to leave the family home for good. The accused recalled frequent verbal arguments during this time period, but he denied ever being the victim of any type of abuse. Now, the accused has little contact with his father. However, he maintains a close and positive relationship with his mother, who provided the court with a letter of support for her son.

[20] The accused has a high-school education, where he graduated without incident. He appears to have had no particular challenges academically, and did especially well in the “maths and sciences.” He also enjoyed history. Thereafter, he attended college for a short time, before “dropping out,” as he was undecided on a career path. Subsequently, he completed a college program in “video game design,” but he realized that this career path was “not conducive to his family life.”

[21] As a young person, the accused had some mental health problems. According to his mother, the accused was diagnosed, at the age of seven or eight, as suffering from depression, anxiety and panic attacks, and these continued throughout his teen years. But he seemed to be able to control these problems when he became an adult.

[22] After the accused’s father left the family home, the accused’s mother began a relationship with a man who became the accused’s step-father. His daughter, the complainant, became the accused’s step-sister.

[23] The accused met his wife when he was 19 years old and, eventually, they began to live together. They married in 2010, and lived together in a condominium, and then in a home they subsequently purchased. As I have indicated, they have one daughter together. The accused had a positive relationship with both of his in-laws.

[24] The accused started working at 16 years of age, when he became employed with a fast-food chain, where he worked for some six years. Subsequently, he worked in the fields of “security and maintenance.” The accused also worked with “public transit” as a “station collector.” Later, the accused returned to work in “security,” where he was ultimately promoted to “mobile supervisor” on the night shift.

[25] When he sought to renew his security license in 2020, his application was rejected due to the charges before the courts. Thereafter, the accused was unemployed, but this allowed him to spend more time with his daughter, and he was financially supported, during the pandemic years, by CERB payments.

[26] More recently, the accused returned to the fast-food chain, where he has become one of the assistant managers of the restaurant, which is a job that he “loves.”

2. The Past

[27] In the Pre-Sentence Report, prepared in June of 2023, the accused described his relationship with his wife as “great,” although some anxiety was acknowledged surrounding his pending sentence. At the time, the accused’s wife was employed, full-time, as a supervisor at a day-care centre for children. She explained that the accused is “very helpful” around the house and “shares a positive relationship with their daughter.”

[28] According to the accused, he has no dependency on alcohol or any other substance. He only ever drinks socially. He is fearful to ever engage in over-consumption due to his father’s alcoholism.

[29] The accused has no medical concerns, although he is prescribed medication for high blood pressure, and to help stop migraines. He denies having any mental health issues, although he admitted experiencing some anxiety and depression as a teenager, which he “grew out of.” There has been no earlier “psychological intervention” in his life.

[30] The accused explained to the author of the Pre-Sentence Report, that he is a good father and husband, and admitted having no traits that he would like to change. At that point in time, the accused maintained that he was innocent of all of these offences. He blamed his cousin as being “responsible for all [of the] videos.” His family and friends firmly supported him in his assertion of his innocence, not believing that he was capable of committing these offences.

3. The Present

[31] The accused admitted to the author of the Pre-Sentence Report that, unbeknownst to his wife, he viewed pornography “very regularly.” He did not want her to become “mad or upset” with him about his viewing of pornography, and it never interfered with his life. Further, the accused denied ever viewing pornography that was not “age appropriate.”

[32] The sentencing hearing in this case was delayed significantly, to permit defence counsel to retain an expert to provide a report about the accused. Ultimately, the accused saw Dr. Stephanie Bouskill, an experienced forensic psychiatrist and, in February of 2024, she prepared a lengthy report concerning the accused. In this extensive report, Dr. Bouskill provided the court with all of the following information:

• The accused is currently detained in custody at the Toronto South Detention Centre on a number of outstanding voyeurism-related charges.
• The accused and his wife are estranged from each other, and they are in the process of formally separating. Arrangements are currently underway in this regard through the use of a mediator.
• The accused is now charged with voyeurism offences against five other women arising from events that took place in Southern Ontario from 2016 to 2023. More particularly, the accused allegedly recorded these five women, in various states of undress, in their bedrooms and washrooms, and then published this voyeuristic material on a cyber-exploitation website. These additional offences came to light in July of 2022 (and thereafter) when two of the women reported the matter to the police and their investigation began. One of these five women is the wife of the accused, who was allegedly surreptitiously recorded by the accused, in various states of undress, in their own washroom and bedroom. Another alleged victim is his mother-in-law. The police investigation of these additional voyeurism offences concluded around the time of the conclusion of the trial in relation to the present charges.
• On June 30, 2020, the accused entered into a release order in which he had agreed not to volunteer or seek employment with any organization where children were likely to be. On May 17, 2023, the accused was arrested at his place of work, the fast-food restaurant chain, where children were likely to frequent.
• The accused self-identified as being heterosexual and interested only in monogamous relationships. He denied having any sexual attraction to any other group, “including trans persons and children.” The accused indicated that he was most attracted to “older” and “larger” women between 20 and 40 years of age.
• The accused admitted to having a long-standing “porn addiction,” and he suspected that his “sex drive was higher than others.” He explained that he became addicted to pornography when he started viewing it at 17 years of age. He explained that he would view it two or three times a day – “anytime he could” – and he would “masturbate to completion each time.” At one point in time, the accused shared pornography with his father-in-law. This “porn addiction” has continued until the present time. The accused admitted that he even watched pornography at work.
• The accused said that he purchased a “cell phone sized” camera in 2018 and then began secretly recording his wife, thinking that it would help him remain faithful to his wife, while at the same time satisfying his increased sex drive.
• The accused maintained that he only recorded the complainant “by mistake.” He denied any knowledge or involvement in taking the video of the complainant when she was under 18 years of age. However, the accused did admit that he found his discovery of these videos “thrilling” and he saved them to “the cloud” and he subsequently viewed them on a number of occasions, as he found the complainant’s body “attractive.”
• The accused indicated that he also made other video recordings by accident, trying to capture images of his wife, but accidentally capturing the images of others. While he realized that it was a “mistake,” the accused also saved these additional videos to “the cloud.”
• The accused denied posting the video recordings of the complainant on the pornographic websites, claiming that someone had “hacked” his “cloud storage account,” and had gained access to the videos in that way.
• The accused advised Dr. Bouskill that he has been seeing his family doctor regarding his “mental health” since his childhood, when he began suffering from “panic and anxiety.”
• The accused now claims that he suffered sexual abuse, beginning around the age of eight, at the hands of an older, male cousin, and lasting episodically for a period of some three years. The accused did not disclose this abuse at the time, and does not recall why it stopped. The accused now also recalls an earlier incident, when he was younger than eight years of age, when he was playing a video game, and a boyfriend of his aunt entered the room, put his hand down the accused’s pants, and engaged in sexual touching.
• The accused denied experiencing any symptoms of Post-Traumatic Stress Disorder (PTSD), including flashbacks or nightmares.
• The accused indicated that he had engaged in “property destruction” in his “twenties” but recognized, early in his marriage, that such behaviour was not appropriate. He addressed his “anger issues” on his own. He now just removes himself from any frustrating situation.
• The accused has completed all of the programs available at the Toronto South Detention Centre and is currently on a lengthy “waitlist” for “schooling.” [The accused provided the court with copies of Certificates showing that he has successfully completed Correctional Courses/Programs in Maintaining Employment and Life Skills Education, Anger Management, Thoughts to Action, Substance Use, It’s a Gamble, Goal Setting, Use of Leisure Time, Managing Stress, Supportive Relationships, Setting Up a Budget, Understanding Feelings. Planning for Discharge, Changing Habits, Looking for Work, Maintaining Employment, Recognizing Healthy Relationships, Being an Effective Father, Anger Management, Problem Solving, and Money Talks].
• According to Dr. Bouskill, there is “no evidence” to suggest that the accused suffers from any “formal thought disorder” or “delusional” thinking. The accused denied ever experiencing any auditory or visual hallucinations. Further, he exhibited “limited insight” into the connection between his personal history and his mental health challenges. The accused showed “some insight” into his “current life circumstances and relationships.” However, he tended to “externalize responsibility, minimize the impact of his own behaviour, and engage in positive impression management.”
• The accused scored low on the Psychopathy Checklist (PCL:SV), suggesting that he exhibits “few psychopathy traits” and reflects “relatively stable personality traits and functioning across the lifespan.”
• The accused scored “average risk – moderate low” on the test for the risk of sexual recidivism (Static-99R) – being charged or convicted of another sexual offence.
• The accused scored “moderate” on the similar test for risk of sexual recidivism (STABLE-2007).
• The accused scored “low” on the Child Pornography Offender Risk Tool (CPORT), designed to predict sexual recidivism for men convicted of child pornography offences. The accused denied any sexual interest in children and any involvement in the collection and/or distribution of pornographic materials involving anyone under the age of 18 years.
• Dr. Bouskill stated that the accused does not suffer from any primary psychiatric illness. More particularly, his mental health can be considered “largely non-contributory” in relation to his “risk assessment for sexual recidivism.”
• In the expert psychiatric opinion of Dr. Bouskill, the “primary mental health difficulty” of the accused is his severe “Voyeuristic Disorder,” which is defined as including “sexual arousal,” by a person over 18 years of age, “from observing an unsuspecting person who is naked, engaged in disrobing, or engaged in sexual activity, as manifested by fantasies, urges or behaviours lasting over a period of at least six months,” and having “acted on these sexual urges with a nonconsenting person” or the “sexual urges cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.” According to Dr. Bouskill, the accused meets all of the necessary criteria for this disorder.
• Dr. Bouskill concluded that the accused posed a “moderate low” risk of sexual violence in the future, given his current risk factors, which are “driven predominantly by his untreated (voyeuristic) paraphilic disorder, the impact of its symptoms on his thinking and behaviour, the absence of insight into its nature, impact on risk, and the need for treatment.” Further. Dr. Bouskill suggested that, if the accused was to reoffend in the future, it would “likely be sexual in nature, characterized by opportunistic targeting through voyeurism of an unsuspecting female (adolescent or adult), or otherwise non-contact offence as he has in the past.”
• Dr. Bouskill indicated that, unfortunately, going forward, there is “little evidence” that the accused will “independently address these risk factors, or behave differently, with respect to how he responds to and manages the stress he encounters in his life and as a result of the untreated illness.”
• Dr. Bouskill indicated that his subsequent charges of voyeurism and breach of his bail conditions suggest that the accused has not responded to the “limited behavioural interventions” and “restrictions” that have been imposed by the court. Accordingly, the “frequency of occurrences and potential severity of harm both present moderate risks.” Historical indicators of risk would include a history of increased libido, voyeurism, and possession, creation, and distribution of child pornography.” Dr. Bouskill expressly stated that “[p]edophilic sexual interests cannot be ruled out.”
• In this regard, Dr. Bouskill noted that the accused was a “difficult historian” in that his “ongoing discrepancies in reporting” posed a real challenge in performing a “comprehensive clinical assessment.” With respect to “child pornography,” Dr. Bouskill observed that it was hard to estimate the degree to which the behaviour of the accused was “escalating,” due to his limited criminal and psychiatric history and his resistance to disclose or discuss possible pedophilic sexual interests. Dr. Bouskill indicated that an “additional diagnosis of pedophilic disorder cannot be made on the basis of the convictions” of the accused in relation to his conduct in connection with the complainant in the present case “alone.” However, Dr. Bouskill also indicated that, on a balance of probabilities, the accused also likely meets the criteria for “Pedophilic Disorder, non-exclusive type, with sexual attraction to female pubescent children.” This conclusion, however, is based on all of the information available – not just the evidence of the present offences against the complainant. Dr. Bouskill suggested that further testing would aid in clarifying this issue.
• Finally, Dr. Bouskill opined that the accused was a “good candidate for conventional psychotherapy” and that he will require “consistent behavioural and environmental management with community supervision in order to mitigate his risk to the public.” Dr. Bouskill also indicated that the accused would “likely benefit from additional trauma-based therapeutic interventions.”

E. The General Sentencing Principles

[33] According to 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 “just sanctions” that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[34] According to s. 718.1 of the 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.”

[35] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles, including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• When consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[36] In the circumstances of the present case, in my view the main sentencing principles must be deterrence and denunciation. The criminal offences committed by the accused were exceptionally serious. The accused was a member of the complainant’s family – he was her step-brother. But, rather than try to protect her and look out for her well-being, the accused used a hidden camera to capture video recordings of her naked and partially naked body while she used ostensibly private washroom facilities in homes where she was entitled to feel safe and protected. The accused planned and surreptitiously made these hidden camera recordings of his step-sister (at least once when she was still a child, being under 18 years of age) for his own sexual pleasure as a voyeur, and for the sexual pleasure of at least one other male, to whom he later distributed this “child pornography” he had secretly manufactured. This criminal conduct clearly, and grossly, violated the complainant’s personal autonomy, dignity, privacy and sexual integrity. The accused treated her not like his step-sister, but like a sex object – and he blatantly exploited her over a period of time. Further, the steps subsequently taken by the accused to pass along these “hidden camera” video recordings of the naked complainant, predictably permitted their world-wide distribution on the internet, and effectively revictimized the complainant on countless occasions, and in virtual perpetuity. These were cruel sexual crimes. See: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, especially at paras. 42-48, 50-52, 54-55, 60-68, 74-76, 82, 84-85, 90, 94, 98-100, 122-130, 142-143; R. v. R.B., 2014 ONCA 840, [2014] O.J. No. 5625; R. v. Kidd, 2015 ONSC 2391, [2015] O.J. No. 1815, at paras. 1, 10-20, 23, 52-53, 61-62, 72, 79, 85-86; varied: 2016 ONCA 575, [2016] O.J. No. 5254.

[37] I reject entirely the suggestion that the accused appears to have made to Dr. Bouskill, that he made these video recordings of the complainant “by accident” in attempting to video record his wife. I simply do not believe that suggestion. Moreover, the accused did not give that conveniently self-serving version of events at trial, and I do not now accept his late-breaking, exculpatory hearsay statements to Dr. Bouskill.

[38] The sheer gravity of these crimes by the accused is not ameliorated by the mere fact that he did not personally engage in any direct sexual violence against the young complainant. True, the accused did not personally sexually assault her. However, his surreptitious video recordings of her naked body, by means of a hidden camera, were similarly traumatic, humiliating and dehumanizing. Of course, when the complainant became aware of what had been done, she was understandably and predictably traumatized. She must have realized the harsh reality that she may never know when the images of her naked body, surreptitiously recorded by the accused’s hidden camera, may be viewed by some anonymous stranger, anywhere in the world, at any time.

[39] The sentence imposed upon the accused must proportionally reflect the very substantial gravity of these terrible offences.

[40] At the same time, it must not be forgotten that the accused is a mature, first offender, with no prior criminal record. These are his first criminal convictions. Further, the accused has a solid education, and a positive employment history. While he appears to suffer from a severe voyeuristic disorder, the accused can certainly seek and obtain treatment for this paraphilic condition and eventually overcome it. Hopefully, he will soon gain the insight necessary to appreciate the need for such ongoing treatment. See generally: R. v. LT., 2021 ONSC 6479.

[41] Accordingly, the total sentence ultimately imposed upon the accused must seek to delicately balance all of these various factors and considerations.

[42] Moreover, it must also be kept foremost in mind that the accused can only be sentenced now for his crimes against the complainant, for which he has already been tried and convicted. He cannot be sentenced for his alleged guilt in relation to any of the alleged subsequent similar offences against other females – the accused is constitutionally presumed innocent of all of those outstanding offences.

F. Analysis

1. The Length of the Term of Imprisonment

[43] In my view, the accused should be sentenced to a global penitentiary term of 5½ years imprisonment. This sentence accurately reflects the sheer gravity of the crimes committed against the complainant by the accused, while permitting the accused to pursue his own successful rehabilitation and ultimately his eventual re-integration into civilized society. This sentence, in my opinion, also provides adequate protection to the public, against an offender with a paraphilic disorder disposing him, in the absence of successful medical treatment, to the commission of similar offences in the future.

[44] In order to accomplish this sentencing goal, the accused is sentenced, more particularly, as follows. First, for the voyeurism offence of surreptitiously making a visual recording of the complainant when she was nude and had a reasonable expectation of privacy, the accused is sentenced to 3½ years imprisonment. Second, for the offence of possession of child pornography, for his possession of images of his naked step-sister when she was under 18 years of age, the accused is sentenced to 3½ years imprisonment, which sentence will be served concurrently. Third, for the offence of making child pornography, by surreptitiously making a video recording of the naked complainant when she was under 18 years of age, the accused is sentenced to an additional one-year term of imprisonment, which sentence will be served consecutively. A consecutive sentence is necessary in the circumstances, in order to recognize the reality that the accused intentionally took at least one of these voyeuristic video recordings, when he knew that the naked, young complainant was under 18 years of age. Finally, for the offence of distributing child pornography, by providing the images of the naked complainant, when she was under 18 years of age, to his cousin, C.MF., the accused is sentenced to an additional one-year term of imprisonment, which sentence will also be served consecutively. This final sentence must also be consecutive to all of the other sentences, as the conduct of the accused, in the commission of this “distribution of child pornography” offence, took place after all of the other offences, and magnified the impact of the earlier crimes against the complainant, and permitted (if it did not encourage) the continued violation of her sexual integrity, and contributed to allowing her predictable trauma to be perpetuated indefinitely.

[45] By my calculation, this results in the imposition of a global 5½ year total term of penitentiary imprisonment upon the accused. It is that total sentence that I consider to be fit and appropriate in all of the circumstances of this case.

[46] Following his arrest for his outstanding alleged offences, the accused has been in custody at the Toronto South Detention Centre. He may also have then agreed to forgo his bail in relation to the present offences. In any event, defence counsel expressly asked me to give the accused no credit for any time that he may have spent in custody on his present offences. Defence counsel explained that she wanted all of his pre-sentence custody to count in relation to his outstanding criminal charges. Accordingly, acceding to this submission, I will not reduce the sentence I now impose upon the accused in order to credit him for any potential pre-sentence custody he may have served coincidentally following his arrest and detention on his outstanding voyeurism charges.

[47] This sentence is significantly less than the seven-year term of imprisonment sought by the Crown. In my view, however, such a sentence is simply too harsh, and may have been proposed, at least in part, as result of at least some of the outstanding similar crimes allegedly committed by the accused. Moreover, such a sentence does not properly take into account the previous antecedents of the accused, including the absence of any prior criminal record, as well as his positive education, his work experience and his chances for a successful rehabilitation. Further, in my opinion, this proposal does not properly consider the principle of totality. In any event, I decline to impose this longer suggested sentence.

[48] This sentence is also significantly longer than the 2½ year term of imprisonment suggested by defence counsel. In my view, such a lesser sentence simply does not adequately and proportionally reflect the gravity of the crimes committed by the accused and their predictable devastating impact upon the young complainant. Further, this proposal does not appropriately address the danger presently posed by the accused, given his severe voyeuristic disorder, and his clear need for appropriate medical treatment, once he gains some additional insight into his unacceptable behaviour. The proper protection of the public, from the potential criminal actions of the accused, must be one of the sentencing goals in this case. In any event, I also decline to impose this shorter suggested sentence.

[49] I note in passing that the accused does not have the mitigating circumstance of a “guilty plea” in his favour. Of course, the accused is perfectly entitled to plead not guilty and have a trial, as he did in this case, and this feature of the case cannot properly be used as any kind of aggravating circumstance on the issue of sentence. It may properly be viewed only as the absence of a potential mitigating factor on the issue of sentence. That is how I view it. See: R. v. Friesen, at para. 164.

2. The Ancillary Sentencing Orders

[50] The Crown seeks the imposition of a number of ancillary sentencing orders. I understand that defence counsel for the accused is not opposed to the making of any of these orders. I will make all of them.

[51] First, the Crown seeks the imposition of an order, pursuant to s. 487.051(1) of the Criminal Code, requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The “child pornography” offences committed by the accused are “primary designated offences” as defined in s. 487.04 (a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances. I hereby make the requested DNA databank order.

[52] Second, the Crown seeks the imposition of an order, pursuant to ss. 161 (a)(b) and (c) of the Criminal Code, prohibiting the accused from: (a) attending any public park or public swimming area, where persons under 16 years of age are present, or can reasonably be expected to be present, or a daycare centre, schoolground, playground, or community centre; (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and (c) having any contact, including communication by any means, with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate – for life. I also make this ancillary sentencing order.

[53] Third, as the accused has been convicted of a number of “designated offences,” pursuant to the combination of ss. 490.012(1) and 490.013(2.1) of the Criminal Code I should also make an order requiring the accused to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for the next 20 years. I also make this ancillary sentencing order.

G. Conclusion

[54] In summary, the accused is now sentenced to a total global penitentiary term of 5½ years imprisonment, in accordance with the specific directions I have already provided. Further, the accused is now also subject to all three of the ancillary sentencing orders that I have made this day.

Kenneth L. Campbell J.

Released: April 19, 2024