COURT FILE NO.: CR-21-70000503 & CR-24-50000105-0000 DATE: 20240522

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DONALD WAYNE RIGGS

Counsel: Anna Spieser, for the Crown Mr. Riggs, on his own behalf Dan Paton, Amicus Curiae

HEARD: February 13 and May 3, 2024

R.F. GOLDSTEIN J.

[1] Wayne Riggs pleaded guilty to the following counts:

• Between November 1, 2018 and August 31, 2020, he surreptitiously made a visual recording of C.A. under circumstances in which she had a reasonable expectation of privacy, contrary to s. 162(1)(a) of the Criminal Code.
• Between June 1 and August 31, 2014 he made a visual recording of C.A. for a sexual purpose in circumstances in which she had a reasonable expectation of privacy, contrary to s. 162(1)(c) of the Criminal Code.
• Between June 1, 2019 and August 31, 2020, he surreptitiously made a visual recording of C.A. for a sexual purpose surreptitiously in circumstances in which she had a reasonable expectation of privacy, contrary to s. 162(1)(c) of the Criminal Code.
• Between December 1, 2020 and December 25, 2020 he made a visual recording of C.A. in circumstances in which she had a reasonable expectation of privacy, contrary to s. 162(1)(c) of the Criminal Code.

1. Background

[2] In 2014, Mr. Riggs began taking surreptitious photographs and videos of his 19- or 20-year-old neighbour, C.A. The 2014 activity mostly consisted of taking photographs of C.A. in her backyard, sunbathing in a bikini, alone or with friends. The more egregious actions took place between 2018 and 2020, when Mr. Riggs took far more intrusive photos and videos. The police extracted photographs and videos from Mr. Riggs’ Huawei phone. The police also extracted photographs and videos from SD cards they seized from Mr. Riggs’ residence.

[3] The images extracted from the Huawei phone included photos of C.A. sunbathing; photos of C.A. fully naked or with her bare breasts while wearing other clothing; photos of C.A. with bare breasts wearing a thong; photos of C.A. wearing a bra and underwear or sweatpants; screenshots of videos; and videos of C.A. naked or partially naked.

[4] The images extracted from the SD cards including photos of C.A. in the backyard, sometimes in a bikini, including close-ups of her breasts and buttocks; 106 photos of her in her bedroom; screenshots from videos; and 49 videos, 47 of which were from her bedroom. These bedroom videos included videos of C.A in various states of undress. Perhaps most egregiously, Mr. Riggs took several videos of C.A. having sex with her boyfriend, D.R. The phone extractions included Mr. Riggs having series of text conversations with his tenant about C.A.

[5] The surreptitious photos and videos came to the attention of the police by an accident. In August 2020 two people found Mr. Riggs’ phone at Sandbank Beach in Picton, Ontario. They turned the phone over to York Regional Police. They told the police that on the phone they saw videos of a woman in various states of undress through a window. The police obtained a search warrant for the phone. They also identified Mr. Riggs as the owner of the phone. The police arrested Mr. Riggs on September 4, 2020. He provided a lengthy statement to the police. In the statement he stated:

• He had recently lost his phone at Sandbank Beach and had owned this phone for a long time;
• He admitted to taking some pictures “in the moment” but promptly forgetting about them;
• He claimed that any man would have done the same if they happened to see a beautiful woman through a window;
• He talked about looking up the definition of voyeurism before turning himself in and noted that his recordings were not made for sexual gratification;
• He had not shared the materials;
• He made a mistake and did not mean to hurt the woman in the pictures;
• He was ready to face the consequences of his mistakes in court, but no victim should be involved;
• He refused to provide any details about the time frame during which the recordings were made or to estimate how many were made;
• He refused to identify the woman in the recording because he believed that she was not a victim until she was told, but that telling her would unleash great trauma upon her; and,
• He would kill the person if someone were to do the same thing to his daughter.

[6] Mr. Riggs was released on bail. Search warrants for the devices in his home were obtained after the arrest. The police visited C.A. as part of the investigation. They told her what had happened. C.A. and her family were devastated.

[7] In December 2020, after the arrest and the search warrants, C.A. told the police that Mr. Riggs had been taking pictures of her again. Her family had installed security cameras. The family provided videos of Mr. Riggs coming out of his front door, turning towards her window, and apparently taking a photograph. The police obtained another search warrant. The phone had hundreds of pictures of C.A., although only one showed a woman through the window.

[8] As I understand it, C.A. originally lived in a bedroom on an upstairs floor. When she was around 19 she moved into a room in the basement. At some point her boyfriend came to live with her. The window into her bedroom was at ground level. It was in the space between her house and Mr. Riggs’ house. Mr. Riggs, therefore, would have had to deliberately position himself so that he could take photographs and video through the window.

2. Circumstances of Mr. Riggs

[9] A pre-sentence report was prepared for Mr. Riggs. He also told the Court something about himself. He was born and raised in Toronto and is currently 60 years old. He had a good and loving household growing up, although his biological father was killed by a drunk driver before he was born. He was married and has a 24-year-old daughter. He is not in contact with her. He described a very dysfunctional relationship with his ex-wife.

[10] Mr. Riggs completed high school and began working. He worked in the baking industry as a driver and salesperson. Between 1994 and 2011 he worked for Canada Post. He told the probation officer who wrote the PSR that he left Canada Post due to mental health issues. He subsequently received an insurance settlement. He told the probation officer that he has various mental health issues, including anxiety, extreme depression, post-traumatic stress disorder (PTSD), and attention-deficit hyperactivity disorder (ADHD). He described some of the issues he had with his ex-wife. In 2019 his daughter left home. He developed suicidal tendencies.

[11] Mr. Riggs apparently has no issues with drugs or alcohol. His physician, Dr. Yuri Tatuch, provided a letter dated March 4, 2024, confirming that Mr. Riggs has been under his care since 2017 and suffers from PTSD, anxiety, depression, and ADHD. He takes medication to deal with his mental health issues. Additionally, Dr. Tatuch noted that at times of prolonged or intense stress Mr. Riggs “will have increased difficulty organizing his thoughts, emotional control, and want to flee any overwhelming situation.”

3. Impact on the Victim and Her Family

[12] C.A. provided a victim impact statement. So did her boyfriend, D.R., and her mother, father, and brother.

[13] C.A. and her family immigrated to Canada when she was ten. The children grew up in a home next door to Mr. Riggs. The family spoke of a happy childhood and family life in that home. C.A. spoke of the profound emotional impact the offence had on her. She is in therapy and has been left with feelings of anxiety, fear, and depression. She felt entirely insecure within her home. She lives with the fact that she cannot be sure that these images have not been uploaded or posted publicly. Her feelings of insecurity increased when the family installed security cameras and saw that Mr. Riggs was still taking, or trying to take, photographs of her. Ultimately, the family felt that they had to move away from the home where they had enjoyed happy family memories for many years. This took a financial and emotional toll on everyone. C.A.’s parents talked about the tremendous emotional and financial cost. The family was forced to move from a community with many friends and contacts to an unfamiliar place. C.A.’s mother had to change jobs and endure long commutes both to work and to see her children.

[14] D.R. is C.A.’s boyfriend. He and C.A. currently co-habit. Mr. Riggs filmed D.R. and C.A. having sex. D.R. is surely as much a victim as C.A. He noted the emotional and financial cost to both him and C.A. The family had to move, which meant that C.A. and D.R. had to find a place of their own, which was an unanticipated expense. They have had to delay getting married and having a family of their own as a result.

[15] Clearly this crime has undermined the sense of security of C.A.’s family, imposed significant financial costs, and taken an enormous toll emotionally on everyone. In other words, the impact on C.A. and her family has not only been emotional. It has been financial, practical, and highly disruptive to what was a close-knit family. Mr. Riggs’ actions did real damage.

[16] I want to assure C.A., D.R., and their family that out of respect for their privacy that I have not viewed any of the images or videos. Given the descriptions provided by the Crown and the facts agreed to, it is unnecessary for me to view them to decide on an appropriate sentence. The exhibit will remain sealed and will not be opened except by order of a superior court judge.

4. Legal Parameters

[17] The maximum punishment for an offence contrary to s. 162.1 of the Criminal Code is five years.

5. Positions of the Crown and Mr. Riggs

[18] Crown counsel, Ms. Spieser, argues that Mr. Riggs should serve 18 months in custody with two years’ probation. In support of her position, she relies on several cases. Ms. Spieser candidly admitted that no case is quite on point and noted that there are few cases where the accused has concentrated on only one victim. Although Ms. Spieser filed several cases, I need only refer to a few.

[19] In R. v. Jarvis, 2019 ONSC 4938, the offender was a teacher. He recorded 27 female students who were between the ages of 14 and 18 – although he also recorded one teacher. The students were fully clothed. The offender filmed in the school. The students were clothed, but the teacher focused on their breasts. The trial proceeded largely on agreed facts. The offender was a first offender. He underwent counselling sessions, and a sex offender treatment report was prepared. The Crown sought a sentence of 18 months incarceration; the defence sought a conditional sentence. Goodman J. of this court sentenced the offender to six months incarceration and 12 months’ probation. He was not persuaded that the principles of denunciation and deterrence could be satisfied with a conditional sentence. The sentencing proceedings occurred after an original acquittal and appeals to the Ontario Court of Appeal and the Supreme Court of Canada. I will say more about Jarvis later.

[20] In R. v. Leighton, 2021 BCPC 27, the offender surreptitiously recorded people in a bathroom at his place of employment. He used two different cameras. The police recovered 31 videos. In total 13 people were recorded, including 2 employees under the age of 18. Leighton was a first offender. He had a drinking problem and began to address it. He pleaded guilty at an early opportunity and showed remorse and insight. At para. 45 Burnett P.C.J. agreed with the reasoning of Goodman J. in Jarvis that a conditional sentence was not appropriate. He imposed a sentence of 6 months and 2 years of probation.

[21] In R. v. C.W.G., 2024 ABCJ 52, the offender pleaded guilty to two counts of voyeurism. Over the course of 3 ½ years the offender surreptitiously photographed his stepdaughter. There were photos of her breasts, buttocks, and labia regions while she was wearing tight clothing. There were also photographs taken while the victim was naked. The offender used his cell phone and hidden mini-cameras. The offender underwent treatment from Sexaholics Anonymous and from Adult Addiction Services while in Calgary. He was diagnosed with voyeuristic disorder and PTSD (although the two were unrelated). The Crown sought a sentence of incarceration; the defence sought a conditional sentence order. The sentencing judge engaged in a very discussion of the appropriateness of a conditional sentence. After considering the key principles of denunciation and deterrence, as well as the gravity of the offence and the high degree of moral blameworthiness of the offender, the sentencing judge, Associate Chief Justice Lester, determined that a conditional sentence would not be appropriate. She imposed a sentence of 18 months and two years of probation.

[22] In R. v. Wong, 2022 ONCJ 546, the offender was a high school teacher. He also had a photography business. He had a change room in his apartment, which he used as a photography studio. He used a surreptitious camera in the change room to film women changing. One of the victims discovered the camera and went to the police. The police executed a search warrant and seized his devices. The police found 9000 different files. His method was to contact women over social media, offering to take photographs. He used hidden cameras in hotel rooms or his residence. He took these photographs for 20 years, from 2001 to 2021 when he was finally caught. Several women came forward and identified themselves after a press release. Between 2018 and 2021 the offender recorded 174 women. The offender had several health problems. He also underwent counselling with a psychotherapist after his arrest, and a psychological evaluation. He was diagnosed with persistent depressive disorder and voyeuristic disorder. He lacked social supports and was unsuccessful in his romantic endeavours, and at age 52 was unmarried. He had no criminal record and was 52 years old at the time of arrest. The sentencing judge, Justice Bliss, engaged in a lengthy review of the cases and ultimately determined that a conditional sentence would not appropriately denounce these voyeuristic acts. He imposed a sentence of 18 months imprisonment and an 18 month probation order.

[23] Mr. Riggs argued that he should serve a conditional sentence of imprisonment. Mr. Paton, in keeping with his role as amicus, did not take a position but did provide the court with assistance. He referred to two cases:

[24] In R. v. Germain, 2022 ABCA 257, the offender pleaded guilty to one count of voyeurism. The sentencing judge imposed a 15-month conditional sentence. The Crown appealed, having asked the sentencing judge to impose a jail sentence. The complainant had used the toilet in a provincial government office. She discovered the offender hiding in a utility closet in the toilet. He had been there to repair an air conditioner. The police arrested him and searched his cell phone. The police found 111 surreptitious videos capturing 117 victims as they used the toilet or changed clothing. He had installed hidden cameras in multiple places – he had access because of his work as an HVAC and gas company. The offender had no criminal record. The Court declined to find that denunciation and deterrence were the primary sentencing considerations for voyeurism offences. The Court stated that no single sentencing objective trumps other objectives unless Parliament has specifically enacted a particular sentencing objective as primary: R. v. Parranto, 2021 SCC 46 at para. 45. The Court found that there was no error in principle by the sentencing judge, and the sentence was not demonstrably unfit.

[25] In R. v. J.H.N., 2010 BCPC 155, the offender pleaded guilty to one count of voyeurism. The victims were sisters aged 15 and 18. The offender randomly spotted one of the victims while driving. He went to the home of the victims with the specific intention of viewing the two sisters while they were undressed in their home. The sentencing judge described his behaviour and how he was caught at paras. 4-5 of the decision:

J.H.N. returned frequently to the residence of A and B in order to view them. He trespassed onto their property. His obsession with viewing A and B increased to the point where he climbed onto the roof of the home of A and B in order to look into the upstairs bedroom windows.

The parents of A and B became aware of someone trespassing on their property. The neighbours were alerted and began to observe what was occurring on their street. In due course the vehicle which was operated by J.H.N. became noticed. The police were contacted.

[26] The offender had no criminal record, had a partner, a child, and a good job. Crown counsel argued that a suspended sentence should be imposed; the offender submitted that a conditional discharge was appropriate. The sentencing judge ultimately imposed a suspended sentence.

[27] After reviewing the cases, and in the absence of any clear statement from our Court of Appeal, I find the appropriate range for serious voyeurism offences starts with a conditional sentence and depending on the number of victims and the interference with privacy and sexual integrity, can even include a penitentiary sentence. With the greatest of respect, I cannot agree that a suspended sentence in a serious case is appropriate absent highly exceptional circumstances. I note that J.H.N. was decided in 2010, fourteen years ago, and that the law has considerably evolved since then.

6. Mitigating and Aggravating Factors

[28] The chief mitigating factor in this case is that Mr. Riggs pleaded guilty. By pleading guilty he spared C.A. the ordeal of cross-examination. He also saved the state the expense of holding a trial, although it must be said that the guilty plea came after an unsuccessful Charter application, and after two days of trial. That aspect of the plea is limited. This was also, quite frankly, an overwhelming case. I agree with Crown counsel that this guilty plea was a bow to the inevitable: R. v. Carreira, 2015 ONCA 639 at para. 15.

[29] It is mitigating that Mr. Riggs is a first offender. He finds himself before the courts at age 60 with no criminal record and a consistent history of employment. I accept, based on the pre-sentence report, that Mr. Riggs’ mental health issues contributed significantly to his difficulties with his long-time employer, Canada Post. I also accept it as mitigating that Mr. Riggs continues to suffer from mental health challenges. He outlined several of these challenges in his submissions to the court.

[30] There are multiple aggravating factors. The behaviour occurred in 2014, and then continued with many photographs and videos from 2018 to 2020. The duration and nature of the invasion of C.A.’s privacy is aggravating. It was intrusive, and it was a significant violation of C.A.’s sexual integrity. It is also aggravating that Mr. Riggs, after being caught and exposed, continued to take, or attempt to take, photographs of C.A. Admittedly, he could see very little when these latter photographs were taken, but that is hardly the point. The point is that encounters with law enforcement failed to change his behaviour. I draw the inference that if he had not lost his phone and it was not turned into the police, he would likely still be surreptitiously taking intimate photographs of C.A.

[31] It is also highly aggravating that the invasion of privacy included videos of C.A. and D.R. having sex. That was a shocking invasion of privacy. It was a violation of the sexual integrity of both C.A. and D.R.

[32] It is also aggravating that Mr. Riggs’ behaviour contains a very significant element of stalking.

[33] With respect, I disagree with Crown counsel that there is an element of breach of trust involved. Although Mr. Riggs had known C.A. since she was 14, the police did not find any photographs of her younger than age 19 or 20. The elements of a trust relationship (admittedly in the context of sexual interference) were set out by Laskin J.A. in R. v. Aird, 2013 ONCA 447 at paras. 28-29:

• The age difference between the accused and the young person;
• The evolution of their relationship;
• The status of the accused in relation to the young person;
• The degree of control, influence or persuasiveness exercised by the accused over the young person; and,
• The expectations of the parties affected, including the accused, the young person and the young person's parents.

[34] None of these factors apply here. I decline to find a trust relationship.

7. Sentence Imposed and Ancillary Orders

(a) What Is The Proper Sentence?

[35] Mr. Riggs pleaded guilty to one count of voyeurism contrary to s. 162(1)(a) of the Criminal Code and three counts of voyeurism contrary to s. 162(1)(c) of the Criminal Code. Those sections state:

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; or…

(c) the observation or recording is done for a sexual purpose.

[36] These sections constitute two separate criminal offences. The first, voyeurism contrary to s. 162(1)(a), has the following essential elements:

• That the offender makes a recording or observation of a person;
• That the recording or observation is by mechanical or electronic means;
• That the recording or observation is made in circumstances that give rise to a reasonable expectation of privacy; and,
• That the person is in a place where they can reasonably be expected to be nude or have the sexual organs exposed.

[37] The second, voyeurism contrary to s. 162(1)(c), has the following essential elements:

• That the offender makes a recording or observation of a person;
• That the recording or observation is by mechanical or electronic means;
• That the recording or observation is made in circumstances that give rise to a reasonable expectation of privacy; and,
• That the recording or observation is made for a sexual purpose.

[38] The two offences are obviously very similar. It is only the fourth element that is different. The two offences can be committed simultaneously.

[39] In my respectful view, the sentencing cases, along with the judicial history of the Jarvis case, provide important guidance for a sentencing judge in a voyeurism case. In R. v. Jarvis, 2015 ONSC 6813, the original trial judgment, the accused was charged with one count of voyeurism contrary to s. 162(1)(c) of the Criminal Code.

[40] The trial judge, Goodman J. found that the students had a reasonable expectation of privacy in the school. He was not, however, satisfied beyond a reasonable doubt that the recording was done for a sexual purpose. He acquitted the accused. The Crown appealed. The majority of the Ontario Court of Appeal (R. v. Jarvis, 2017 ONCA 778, Feldman J.A., with Watt J.A. concurring) found that the trial judge erred in finding that the recordings were not made for a sexual purpose. The trial judge also erred in finding that the students had a reasonable expectation of privacy. Since there was no expectation of privacy, whether the recordings were made for a sexual purpose was irrelevant. Accordingly, the majority dismissed the Crown’s appeal. In dissent, Huscroft J.A. found that the students did enjoy a reasonable expectation of privacy on school grounds. He would have allowed the Crown’s appeal. On appeal to the Supreme Court of Canada (R. v. Jarvis, 2019 SCC 10) that court allowed the Crown’s further appeal.

[41] Wagner C.J.C., for the majority of the Supreme Court, found at para. 48 of Jarvis that the main purpose of enacting s. 162(1) was “to protect individuals privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies.” The Court noted that “a person alone at home, or in a washroom with the door closed, would typically expect near absolute privacy — and certainly would expect not to be observed or recorded without her knowledge”: Jarvis, at para. 37. Privacy, as the court observed at para. 41, is not an “all or nothing” concept. By the time the Jarvis case reached the Supreme Court, there was no question that the offender made the recordings for a sexual purpose.

[42] It is obviously the case that C.A. (and D.R.) enjoyed a near absolute expectation of privacy in their home.

[43] Although Mr. Riggs claimed that he did not take these photos and videos for his sexual gratification, as he stated in the pre-sentence report, I do not believe him. He pleaded guilty to an offence contrary to s. 162(1)(c) and the facts that he agreed to show that he did. He told the probation officer that C.A. was an object of beauty and not lust, and that he never masturbated to any of the images.

[44] I pause to note here that the language “for a sexual purpose” does not mean that the Crown was required to prove that Mr. Riggs masturbated to the images as an element of the offence. That would be virtually impossible to prove. Moreover, “for a sexual purpose” is not, as I interpret it, the same thing as “for personal sexual gratification.” The sexual purpose is inherent in the surreptitious filming of a complainant’s breasts or buttocks or groin – and it is certainly inherent in the surreptitious filming of the complainant having sex. In Jarvis, Feldman J.A. (whose majority judgment is the controlling decision on this point) noted at para. 53 that “this was an overwhelming case of videos focused on young women’s breasts and cleavage.” Feldman J.A. further stated at para. 44:

… while nudity may certainly be relevant to an analysis of the sexual purpose of the video, the fact that the person is clothed cannot be a factor that negatives that purpose. If the person were nude, the charge could be laid under paragraph (1)(b). Because observing or visually recording for a sexual purpose is a separate offence, it is clear that it can be committed where the victims are not naked, but where the focus of the observation or videos is on sexual organs or where there are other indicia that the intent of the accused is for a sexual purpose.

[45] If Mr. Riggs simply thought C.A. was a lovely person and pleasant neighbour, and he wanted innocent pictures or videos of her, why not simply do it out in the open and ask her? The answer why he did not is obvious: he knew it would likely make her uncomfortable. His real intention, as revealed by the pictures he did take, was to take highly intimate recordings. This inference is also confirmed by the nature of the text conversations that Mr. Riggs had with his tenant. Those conversations make it clear that his interest was sexual. One might reasonably ask what other purpose there could be to take pictures of a woman when she is naked and having sex? Mr. Riggs did recount another purpose to the probation officer. The PSR states:

Regarding the offence before the courts, the subject described his actions as a saving grace regarding his mental health and suicidal thoughts at the time. He maintained that he was desperate for any source of happiness in his life and the victim became the source of happiness.

[46] With respect, that is not a justification, it is an indication that Mr. Riggs did not consider C.A. to be a person entitled to privacy and sexual autonomy, but rather as an object for his personal benefit. That shows a very significant lack of insight into his behaviour. It also does not accord with the nature of the recordings. It also does not accord with discussions Mr. Riggs had with his tenant.

[47] I also have serious concerns about Mr. Riggs’ expressions of remorse. First of all, in his statement to the probation officer he blamed C.A. He stated:

Lastly, the subject stated that he noticed that the victim had breast implants and after obtaining said breast implants her blinds remained open. Whereas before said breast implants the blinds were always closed.

[48] I have no way of knowing if any of that statement is true, either about the implants, the blinds, or the timing. I make no finding in that regard. In any event, it is irrelevant whether any of that is true. What I do know is that Mr. Riggs’ blaming of the victim – implying that she asked for it because she kept her blinds open – is outrageous. It speaks to the myths and stereotypes that society has striven to stamp out. It certainly does not speak to genuine remorse.

[49] Mr. Riggs also told the PSR writer that “he never told a soul or showed the images to anyone”. That, of course, was untrue as Mr. Riggs had discussed C.A. with his tenant.

[50] The PSR writer also stated the following:

The concerning factors are that the subject continues to downplay the severity of the negative affect his actions had on the victim.

The subject’s view of the offence is inconsistent with his own personal believes. He justifies his behaviour as it was a preventive measure to manage his mental health issues. But also articulated that he would harm someone if they committed the same act against his daughter, showing a disconnect when comparing his actions to others.

[51] These comments make it impossible to accept that Mr. Riggs’ remorse is sincere. I particularly note that it came after Mr. Riggs vigorously contested the Crown’s application for s. 486 counsel (he wanted to cross-examine C.A. himself), vigorously sought a Charter remedy, and then only decided to plead guilty after two days of trial. Of course, it was his right to do all these things, and I am certainly not suggesting that bringing a Charter motion or opposing the appointment of s. 486 counsel is aggravating in any way. I am saying that when combined with everything else I have learned about Mr. Riggs, I find it very hard to accept that his remorse is sincere. A remorseful person would not have insisted on cross-examining his victim personally.

[52] The fact that Mr. Riggs is not remorseful is not aggravating, but it has an impact on issues of specific deterrence and rehabilitation: R. v. Shah, 2017 ONCA 872 at para. 8. This is relevant because Mr. Riggs, who is plainly an intelligent and articulate man, has not sought counselling or help for what is an obvious problem until very recently. This distinguishes him from the offenders in Jarvis, Wong, and C.W.G.

[53] When I balance the aggravating and mitigating factors, the principles of sentencing, as well as the range of sentence set out in the cases, I find that an appropriate sentence in this case is 16 months. I also think it is appropriate to place Mr. Riggs on probation. Probation will prohibit him from contacting C.A. I will also mandate that he obtain counselling as a term of his probation.

(b) Is A Conditional Sentence Appropriate In The Circumstances Of This Case?

[54] Pursuant to s. 742.1 of the Criminal Code, a conditional sentence of imprisonment is available in this case. A court may impose a conditional sentence if, first, service of the sentence in the community would not endanger the safety of the community; and second, that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to s. 718.2 of the Criminal Code: R. v. Proulx, 2000 SCC 5.

[55] I am satisfied that it would not endanger the public if Mr. Riggs were to serve his sentence in the community. Mr. Riggs is clearly only obsessed with one woman, and, hopefully, he has no idea where to find her. The real question is whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing.

[56] The fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful, and safe society. The fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other important principles include general deterrence, specific deterrence, and rehabilitation. No single sentencing objective trumps any other; it is the sentencing judge’s duty to determine which objectives merit the greatest weight on the particular facts of the case: Parranto, para. 43.

[57] The judges in Leighton, C.W.G., Wong, and Jarvis all considered and rejected conditional sentences as incompatible with the purposes and principles of sentencing, notwithstanding that those cases involved offenders who pleaded guilty and sought counselling. The facts in each of those cases is different from the facts in this case (and from each other). They all involved very serious voyeurism offences.

[58] I reject a conditional sentence in this case as well: it would not sufficiently denounce this crime where the invasion of privacy was significant. Mr. Riggs’ moral blameworthiness is very high. His remorse is very low. His insight is virtually non-existent.

[59] I agree with Goodman J.’s point in Jarvis at para. 81 that the pervasiveness of smart phones and other electronic devices make it incredibly easy to commit the offence of voyeurism. As an economist might say, the barriers to entry for a stalker or a voyeur are so low as to be virtually non-existent. In this case, the offences appear to have been committed with a phone and an iPad. General deterrence requires that those who would invade the privacy of others understand that the offence is not cost-free and may well result in a jail sentence.

(c) Sentence Imposed

[60] Mr. Riggs is therefore sentenced to 16 months incarceration, concurrent on each count. He will be subject to a non-communication order with C.A. and her family while he is in custody pursuant to s. 743.21(1) of the Criminal Code. He will also be required to submit a sample of his DNA. Voyeurism is a secondary designated offence: Criminal Code, s. 487.04. Mr. Riggs has told me that he has surgery scheduled on June 11. I don’t know the nature and extent of that surgery, but it is up to the prison authorities to deal with.

[61] I will leave it to Crown counsel and amicus to work out arrangements regarding Mr. Riggs’ devices. Counsel may contact me to arrange a hearing if they are unable to work out an arrangement.

[62] Mr. Riggs will also be on probation for three years. The terms of his probation will be as follows, in addition to the statutory terms:

• Mr. Riggs is to have no contact, directly or indirectly, with C.A., D.R., G.A. (C.A.’s father), or M.A. (C.A.’s mother) or M.A. (C.A.’s brother).
• Mr. Riggs is not to be within 200 meters of any place he knows C.A. to live, work, go to school, or happen to be.
• Mr. Riggs is to report to a probation officer within 3 business days of his release.
• Mr. Riggs is to take such counselling as is required by his probation officer. He is to sign any releases necessary to allow his probation officer to monitor his progress.

[63] I wish to express my thanks to Mr. Paton, who acted as amicus throughout these sentencing proceedings.

R.F. Goldstein J.

Released: May 22, 2024

COURT FILE NO.: CR-21-70000503 & CR-24-50000105-0000 DATE: 20240522

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DONALD WAYNE RIGGS

REASONS FOR SENTENCE R.F. Goldstein J.