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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, 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: 2022 10 20 Brampton
BETWEEN:
HIS MAJESTY THE KING
— AND —
P.R.
Before Justice Paul F. Monahan
Reasons for Sentence released on October 20, 2022
Counsel: J. Vlacic, counsel for the Crown S. Hebscher, counsel for the defendant
MONAHAN J.:
Introduction
[1] The defendant P.R. plead guilty before me on May 17, 2022 to one count of voyeurism contrary to section 162(1) of the Criminal Code. The case then went over at the defence’s request so that the defendant could continue with counselling and be assessed by a psychiatrist.
Facts and Evidence
[2] The case came back on before me on October 13, 2022 when I received into evidence a letter from Ms. Stephanie Swain, an MSW and RSW, who has been involved in 8 counselling sessions with the defendant. I also received into evidence the report of Dr. Mark Pearce, a general and forensic psychiatrist who met with the defendant and formed certain medical opinions about him. He also assessed the defendant’s likelihood to re-offend.
[3] The defendant is married with two adult children, both males aged 21 and 25. He is gainfully employed and has been for many years.
[4] By way of background, the materials of Ms. Swain and Dr. Pearce disclose that a few years ago the defendant’s spouse found numerous images and videos of boys on the defendant’s computer. The images were from the Internet. The defendant’s wife reported what she had found to the police. The police ultimately concluded that none of the materials constituted child pornography or involved any other offence and no charges were laid at that time.
[5] In 2021, the victim in this case, the defendant’s second son, discovered the video which forms the subject matter of the plea in this case on the defendant’s computer. It was a video from approximately 2011 when the victim would have been 9 or 10 years old and the defendant would have been 53 years old.
[6] It is an agreed fact that the defendant’s intention in making the video was to surreptitiously capture his son in a state of undress. The defendant told Dr. Pearce when asked about the video “I guess I wanted to see him, the way he’s maturing”. He said he viewed the video “probably once. Never after that”.
[7] The agreed statement of facts describes the video. The video camera was set up within the victim’s bedroom facing the interior door. The room is in darkness. The defendant sets up the camera and walks away from it. After a minute the defendant is seen in the shadows walking by the camera and he looks in towards the camera through the doorway. He walks by the camera several more times. The victim then walks by in a robe and turns the light on. He gets dressed. As he does so he keeps his robe on and puts his pants on by putting them on under his robe. His genital area is not exposed given the manner of dress. He then disrobes and is now shirtless. The victim then says to his father who was outside of his room in the hallway “I’m almost ready to go”. The victim puts on a shirt as he walks out into the hallway. He asks his father if his shirt is on inside out. The accused says something to him and then walks into his son’s bedroom and picks up clothing from the floor. The victim walks back into the room adjusting his shirt and then leaves the bedroom. At about 5 minutes and 45 seconds into the recording, the lights to the bedroom turn off again. The accused walks towards the concealed camera and stops the recording. The video is 5 minutes and 57 seconds long.
Counselling and Medical Evidence
[8] As mentioned above, the defendant has undertaken counselling and been assessed by a psychiatrist.
[9] The counselling evidence indicates that he met with a counsellor for eight one-hour sessions. She indicates that they extensively discussed the harm that his behaviour has caused his son and his family. They also discussed “when he can properly apologize and take responsibility for his actions”. They’ve also discussed relapse prevention. In her opinion, he engages well and can derive benefit from counselling.
[10] As concerns Dr. Pearce, under his supervision phallometric testing was done which was ultimately inconclusive. Dr. Pearce is of the view that the defendant does not suffer from a major mental illness. Dr. Pearce is of the opinion that the defendant has pedohebephelic disorder, a term Dr. Pearce does not define in his report. Defence counsel apparently clarified with him in a separate conversation that it is some combination of pedophilia and hebephilia. Hebephilia denotes an erotic preference for sexual activity with pubescent aged children. The defendant is likely paraphilic which describes a sexual preference for an inappropriate sexual object or activity.
[11] Regardless of the precise diagnosis, I can easily and do conclude that for a 64 year old man to collect pictures of children/boys in various stages of undress is not appropriate behaviour even though it is not necessarily a crime depending up the content.
[12] Dr. Pearce is of the view that the defendant is at a very low risk to reoffend.
Position of the Parties
[13] The Crown seeks a 4 to 6 month conditional sentence to be followed by 12 months probation. The Crown seeks no contact with the victim except with his written revocable consent. The Crown seeks an order that the defendant not have any unsupervised contact with any person under the age of 16.
[14] The defence takes the position that a conditional discharge or, alternatively, a suspended sentence would be appropriate together with 18 months probation. The defence suggests community service as part of the probation order. The defence agrees that there should be no contact with the victim except with his written revocable consent. The defence agrees that the defendant should not have unsupervised contact with anyone under the age of 16.
Law
[15] The fundamental principle of sentencing is set out in section 718.1 of the Code provides a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[16] Justice Paciocco in R v Casselman, [2014] ONCJ 198 at para. 3 summarizes the sentencing process as follows:
The fundamental principle of sentencing requires that to be fit any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1). This is achieved by examining the aggravating and mitigating circumstances that pertain both to the offence and the offender, bearing in mind established principles of sentencing, including those enumerated in the Criminal Code of Canada (s.718.2). The sentencing objectives suggested by this inquiry, selected from the sentencing goals listed in section 718 , are then identified. Based on the selected objectives and always mindful of the principles of restraint contained in sections 718.2(c) – (e) of the Criminal Code of Canada the trial judge then selects a fit sentence that will best achieve those objectives and is similar to sentences imposed in similar cases.
[17] Importantly, the court must always consider the impact of the offence on the victim or victims.
[18] As Justice Paciocco mentions above, when a court imposes a sentence, it should seek to impose a sentence which is similar to sentences imposed in other similar cases recognizing that no two cases are exactly the same. Counsel for both the Crown and the defence have provided me with numerous authorities which have been helpful in determining the sentences imposed in other section 162 voyeurism cases.
[19] I agree with the point that Justice Goodman makes in R. v. Jarvis, 2019 ONSC 4938 that the range of sentence for voyeurism is a conditional discharge or a suspended sentence at the low-end with institutional jail at the upper end. I would add that conditional sentences fall somewhere in the middle of that range and have been imposed in a number of voyeurism cases which Justice Goodman refers to in Jarvis: see for example, R. v. B.H., [2017] O.J. 3021, R. v. F.G.; and R. v. Dekker, 2014 ABPC 61.
[20] Prior to Jarvis, institutional jail had usually only been imposed in voyeurism cases where there was some other offence such as sexual assault (see R. v. Aguas, 2015 ONSC 5732) or extortion (see R. v. McFarlane, 2018 MBCA 48) committed at the same time as the voyeurism offence.
[21] In Jarvis, the defendant teacher surreptitiously video recorded numerous female students ages 14 to 18. There were 27 victims. The videos focused on the breast area of the victims when they were clothed at school. Justice Goodman imposed a sentence of six months jail.
[22] In R. v. Cairns, [2021] O.J. No. 4748 (O.C.J.), a post Jarvis case, a sentence of six months jail was also imposed. The case involved a person making over 250 images or videos of persons using a bathroom. Full nudity was visible. There were 31 victims.
[23] On my view of the law, cases of voyeurism involving children or minors have generally attracted sentences that are heavier than a conditional discharge or suspended sentence. Jarvis is certainly one of those cases. Another example is R. v. F.G. cited above. In that case, the court imposed a three month conditional sentence. The case involved a stepfather surreptitiously videotaping his stepdaughter in her bedroom. The stepdaughter was a minor. The video depicted full frontal nudity.
[24] To be clear, voyeurism involving a child victim has not always attracted a heavier sentence than a conditional discharge or a suspended sentence. For example, in R. v. R.H.C., 2010 BCPC 475, a conditional discharge was granted for a grandfather who surreptitiously videotaped his 13-year-old granddaughter while she was naked and getting out of the shower.
The Appropriate Sentence in This Case
[25] In this case we have a 64-year-old first offender who has pled guilty to one count of voyeurism. He was approximately 53 years old at the time of the offence. The aggravating factors in this case include the following:
(i) the victim here was a child. He would have been approximately 9 or 10 years old at the time of the offending video;
(ii) the perpetrator of the crime in this case was the father of the victim;
(iii) the filming took place where the victim should have felt especially safe-he was in his own bedroom in his own home.
(iv) While it is true that the victim remained clothed for the most part (he was shirtless for part of it) the purpose of the video from the defendant’s perspective was to try to capture the victim “in a state of undress”. So while it is true that there is no genital nudity in the video, that is only good luck. His father’s objective was otherwise. He wanted the video to capture his son naked.
(v) while I have no victim impact statement, I do have the information the victim provided to Dr. Pearce. I infer that this offence has had a significant impact on him; and
(vi) it follows from the points I have already made that this case involved a very significant breach of trust.
[26] On the other hand, there are numerous mitigating factors in this case as follows:
(i) the defendant has pled guilty at an early stage of these proceedings. No trial date has been set. He has spared his son and other family members from testifying. A plea of guilt is always seen as a sign of remorse.
(ii) the defendant has no record. He has lived all of his life to this point as a law-abiding person.
(iii) the defendant has sought out professional assistance from a counsellor and a psychiatrist. He has subjected himself to phallometric testing and detailed highly personal questioning from his counsellor and psychiatrist. His psychiatrist has concluded that he is of a “very low risk” to reoffend.
[27] It is a circumstance of the offence that the offending video only happened once. Having said that, there is a context in which this occurred. Dr. Pearce is of the view that the defendant suffers from pedohebephillic disorder which apparently involves attraction to pubescent age children. Having said that, the defendant is also attracted to adults.
[28] The further background here is that the defendant has been for many years collecting hundreds of images of young boys in various stages of undress although none of these constitute child pornography or constitute another criminal offence. There is also evidence in Dr. Pearce’s report that the defendant had previously videotaped the victim in his underwear and focused on his genital area. This apparently did not constitute a voyeurism offence.
[29] The defendant’s actions concerning these non-criminal activities together with the voyeurism offence in this case have contributed to a enormous strain on the relationship between the defendant and his wife and children, including the victim. But let me be clear that the defendant in this case is not to be sentenced for his other non-criminal activities regardless of how inappropriate they are. These other activities are taken into account by Dr. Pearce and by me in considering the defendant’s risk to re-offend. He is to be sentenced for the one video he made which constituted a s. 162 voyeurism offence.
[30] The defence submits that the court should use the defendant’s medical diagnosis to reduce the sentence in this case and relies on R. v. Batisse, 2009 ONCA 114. The crown disagrees and refers to R. v. Stuckless, [1998] O.J. 3177 (C.A.) where the Court of Appeal stated at para 54 that “pedophilia is an explanation not a defence”.
[31] In my view, the defendant’s medical diagnosis does not play a significant role in the sentence to be arrived at in this case. I note, among other things, that Dr. Pearce is of the view that the defendant does not suffer from a “major mental illness”. The defendant does get credit in my view for seeking out medical attention and professional help to try to address his disorder. I am nevertheless of the view that deterrence, both general and specific, as well as denunciation are important here where we are dealing with a breach of trust involving a child. Rehabilitation is also important.
[32] The offence here, at its core, is a breach of trust. In my view, a conditional discharge or suspended sentence would not be an appropriate sentence. Neither sentence would adequately denounce the breach of trust that occurred here. As concerns a conditional discharge, such a disposition would be in the defendant’s best interests but in my view it would be contrary to the public interest because of the abuse of trust here and a consideration of all of the circumstances.
[33] Society must protect children. The primary responsibility of any parent is to protect their children. Sadly, that did not happen here. The defendant failed to do one of the most important things a parent can do-he failed to protect his own child. Worse still, he perpetrated a crime on the child.
[34] I would add that notwithstanding what I have said above about his plea of guilt being a sign of remorse, the defendant does not appear to have expressed any remorse for his actions to his counsellor or the psychiatrist. When given the opportunity to say something to the court, he said nothing. I do appreciate that he is on a no contact with the victim. To state the obvious, when he is legally able to do so I would hope that he would apologize to his family for his actions.
[35] In my view, a fair sentence in this case taking into account all of the circumstances and the law is a 60 day conditional sentence. A conditional sentence is needed to address the significant breach of trust that occurred here. The first half of the conditional sentence shall provide for house arrest with exceptions for work. There will also be the usual exception for four hours on Saturday (or another day) and a reasonable religious exemption, if requested, as well. Medical emergencies will constitute another exception.
[36] During the second half of the conditional sentence he shall be subject to a curfew which I will determine after hearing from the parties.
[37] The defendant should report to his conditional sentence supervisor today by telephone at 905 457 6887.
[38] Following the conditional sentence he shall be on probation for a period of 12 months. The statutory terms will apply. In addition, he shall continue with counselling as directed. He shall report to probation by telephone at 905 457 6887 within two working days of the completion of his conditional sentence and thereafter as required.
[39] During the period of the conditional sentence and the probation, he is to have no contact with the victim in this case unless the victim files in advance written revocable consent with the conditional sentence supervisor or the probation officer as the case may be.
[40] During the conditional sentence and the probationary period, he shall have no contact with any person under the age of 16 unless they are in the presence of someone 25 years of age or over.
[41] Those are my reasons.
Released: October 20, 2022 Signed: Justice Paul F. Monahan