Crown: P. Santora, Office of the Crown Attorney, Toronto
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
¶ 1 REASONS FOR JUDGMENT: These are my reasons for judgment on sentence in the matter of B.
¶ 2 Mr. S.B. entered a guilty plea before me to one count of voyeurism contrary to section 162(1) of the Criminal Code. An agreed statement of facts was read in and filed as an exhibit on the sentencing hearing. Counsel also filed a Charter application which set out additional facts which were not contested by the Crown. The central facts can be summarized as follows:
¶ 3 The complainant, was a friend of Mr. S.B.'s who worked at Mr. S.B.'s business in Toronto, on a part-time basis. On May 4th, 2017, while in the only washroom in the business, [the complainant] noticed that one of the doors on a vanity directly in front of the toilet, was broken off. On closer inspection, she saw something shiny in the hole under the vanity where the water pipes entered the wall. [She] went into the basement of the business to where the water pipes would exit and discovered a hidden cell phone which was attached to an extension cord and wiring which had been connected to a keyboard. The cell phone was pointed through the hole in the vanity. [She] took the cell phone and left the business.
¶ 4 Shortly thereafter she received a text message from Mr. B. stating: "Yeah, I have a problem, a big problem. I don't want to hurt anybody, but I think I will look for help. I'm sorry, sorry in breaking our trust. I love you very, very much and want to see the best for you and your family, but I do have this problem. I'm not a pedophile, just really you. But if you want to get paid and finalize our friendship we can do that whenever you want to. So sorry, S.B."
¶ 5 On May 11th, 2017, [The complainant] reported the matter to the police and provided a statement. Officers at 11 Division also seized the cell phone. [She] advised police that her 16-year old niece also worked at Mr. B.'s business and that, approximately twice a week, her niece would change her clothing in the bathroom of the business after school. She further advised that she held a birthday party for her niece at the business. Ten girls between the ages of 11 and 16 years old attended the party. If any person needed to use the washroom at the party, they would have to use the only one at the business, which had the hidden camera.
¶ 6 Officers of 11 Division contacted the Child Exploitation Unit about concerns that the phone might contain child pornography. It was agreed that the phone would be forensically examined and extracted to determine if it contained any child pornography. The examination, which was conducted on June 21st, 2017, resulted in no child pornography being located on the phone. However, Mr. B. could be seen in two video clips looking into the camera and adjusting the angle.
¶ 7 On March 27th, 2018, police executed search warrants at Mr. B.'s home and his business. A large number of electronic devices were seized. A laptop was previewed by a forensic tech officer on scene and a quantity of child pornography was located. Mr. B. was arrested at his business on March 27th, 2018.
¶ 8 No victim impact statements were provided on the sentencing hearing although the Crown did endeavour to obtain them.
¶ 9 Position of the parties: On behalf of Mr. B., Mr. Penney argues that in the circumstances of this case and this offender, a conditional discharge would be in Mr. B.'s best interest and not contrary to the public interest. He argues that, since his arrest, Mr. B. has taken full responsibility for his conduct and has taken significant steps to address his offending behaviour, including eight meetings with a therapist specializing in sexual behaviour, and undergoing a comprehensive meeting with Dr. Julian Gojer, who prepared a psychiatric report.
¶ 10 He further argues that the police committed a number of breaches of Mr. B.'s rights under section 8 of the Charter, and argues that the breaches should be treated as a significant mitigating factor, pursuant to R. v. Nasogaluak,  1 SCR 206.
¶ 11 Ms. Santora asks that I impose a sentence of 90-days in jail to be followed by a two-year period of probation. She argues that Mr. B.'s conduct represents a serious breach of trust and involved a degree of planning, making a jail sentence the appropriate disposition. She argues that the sentence also takes into consideration Mr. S.B.'s substantial efforts at rehabilitation.
¶ 12 While she acknowledges that Mr. B.'s rights under section 8 of the Charter were breached, those breaches related only to the search of Mr. B.'s phone and had no impact on the charge of voyeurism, to which he has pled guilty. The Crown is not opposed to the sentence being served intermittently.
¶ 13 The agreed statement of facts included an admission that a quantity of material that would constitute child pornography was located on an electronic device or devices seized from Mr. B.'s home or business. The parties, however, agreed that Mr. B. has not admitted to being in possession of child pornography and that this fact should not be treated as an aggravating feature on sentence, but rather, is a relevant consideration in determining appropriate probation terms.
¶ 14 Further, it was also agreed, prior to the plea, that Mr. B. would meet with Dr. Gojer and provide fulsome background that could involve him making certain admissions beyond the facts that were agreed to as part of the guilty plea.
¶ 15 It was agreed by the Crown and defence that the facts or admissions contained within Dr. Gojer's report that extend beyond those that formed part of the agreed statement of facts, and that might otherwise be relevant to assessing Mr. B.'s culpability, not to be treated as aggravating factors. I accepted this joint proposal of how we would proceed with the plea and sentence.
¶ 16 Circumstances of Mr. B.: Mr. S.B. is a 60-year old first time offender. He was previously in a long-term common law relationship and they have a 25-year old daughter. He was subsequently in a long-term common law relationship with another woman, which ended in 2013.
¶ 17 His father, two brothers, and step-mother are part of his life. Letters of support from Mr. B.'s two brothers, a cousin, his ex-wife, and her husband, were filed on sentencing. Mr. B. enjoys a good relationship with his family. His brother noted that he has spoken to Mr. B. on several occasions about what occurred. [His ex-wife] expressed that Mr. B. has been very reflective on his actions, and genuinely remorseful for his conduct. [His ex-wife's husband and his brother] commented on his helpful and supportive nature. All commented on his willingness to start therapy voluntarily.
¶ 18 Although Mr. B. struggled in school and was diagnosed with dyslexia in grade seven, he completed high school and started studying at Ryerson after graduating from high school. He did not finish his program. He began working and eventually started his own sign company which lasted five years. He then worked with numerous fiberglass moulding companies.
¶ 19 During this time, he was exposed to strong solvents which caused some changes in his personality, speech, and his ability to concentrate. He continued working for companies for several years until he started his own company, which dissolved and was forced into bankruptcy following these charges.
¶ 20 According to the letters filed by family members, Mr. B. worked extremely hard to make his businesses a success. Although he had to wind-up this business, he has found work with a business that utilized his mould design and his skills since his company was dissolved.
¶ 21 Since his arrest, Mr. B. has been undergoing therapy with Mr. Robert Peach, a therapist specializing in sexual behaviour. Mr. Peach's reporting letter, which was filed on sentencing, confirms that Mr. B. completed eight 50-minute individualized counselling sessions since January 29th, 2019 and was consistently engaged, motivated, and responsive to treatment. Mr. Peach did not feel additional sex offence-specific treatment was required for Mr. B.
¶ 22 Dr. Julian Gojer met with Mr. B. He concluded that Mr. B. has a problem with voyeurism and has sexual interest in prepubescent females. Otherwise, Mr. B. does not suffer from any other sexual deviations, antisocial personality disorders, substance abuse disorders, and no features of psychopathy. He further noted that Mr. B. has been engaged in counselling and is remorseful and has demonstrated insight into the boundaries he violated in his conduct. Dr. Gojer concluded that Mr. B. is at low risk of re-offending, but further noted that there is, "No actuarial risk assessment instruments for hands-off sexual offending."
¶ 23 I will begin with the most fundamental principles of sentencing set out in section 718 of the Criminal Code. Denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice, and the promotion of a sense of responsibility in offenders. The overriding purpose of sentencing is to encourage respect for the law and maintenance of a just, peaceful and safe society.
¶ 24 Section 718.1 provides that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
¶ 25 The gravity of the offence refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament, and any specific features of the commission of the crime, which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.
¶ 26 The degree of responsibility of the offender refers to the offender's culpability, as reflected in the essential substantive elements of the offence, especially the fault component, and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.
¶ 27 Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating factors related to the offence or the offender. Further, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
¶ 28 I would further note that the Supreme Court of Canada noted in R. v. Gladue, that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation, and that sentencing judges must also consider the restorative goals of repairing the harm suffered by individual victims and by the community as a whole, promoting a sense of responsibility and acknowledgment of the harm caused on the part of the offender in attempting to rehabilitate or heal the offender.
¶ 29 In this case, general and specific deterrence and denunciation are the predominant sentencing principles in play, but I must not lose sight of the other important principle in play in this case, which is rehabilitation. I must consider the aggravating and mitigating factors when determining the appropriate sentence. In this case, the aggravating circumstances are in the facts surrounding the offence. This is a serious offence. I was not presented with any evidence as to whether the complainant was captured on the hidden camera and she did not provide a victim impact statement. That being said, Mr. B. committed a breach of trust in that he abused the trust he had over the complainant who worked in his business and others she brought into the business thinking it was a safe, secure place.
¶ 30 Second, there was a degree of planning to Mr. B.'s actions, setting up the hidden camera and monitoring it, as evidenced by the fact that he was captured on two clips adjusting the angle.
¶ 31 On the other hand, there are mitigating factors as well. Mr. B. has pled guilty. I accept his plea of guilt as a genuine expression of his remorse and an acceptance of responsibility for his conduct. He has made it unnecessary for the complainant to relive the events in a courtroom and he has saved the court the time of proceeding with a trial. He is entitled to significant credit for this.
¶ 32 Secondly, since his arrest, Mr. B. has taken a very proactive and restorative approach to his offending conduct. From the time the offending conduct was discovered, he immediately acknowledged and apologized to the complainant. Thereafter he undertook extensive counselling and cooperated fully with the assessment done by Dr. Gojer. The letters from his family underscore Mr. B.'s acceptance of responsibility and his proactive approach to addressing his conduct.
¶ 33 There have also been significant collateral consequences for Mr. B. He lost his business and is about to declare bankruptcy as a result of these charges. He has also caused significant strain in his relationship between he and his daughter.
¶ 34 Turning to the appropriate sentence, section 730(1) of the Criminal Code covers the conditional discharge and provides that, where an accused pleads guilty or is found guilty of an offence other than offence which has a minimum punishment as prescribed by law or an offence punishable by imprisonment for 14-years or for life, the court before which accused appears may, if it considers it to be in the best interest of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under section 731(2).
¶ 35 With this offence, there is no minimum sentence. The offence is not punishable by imprisonment for 14-years or life, so it is available to me to grant Mr. B. a conditional discharge if I consider it to be in his best interest and not contrary to the public interest.
¶ 36 I would also note the following comments by Justice Hill which he reiterated in two cases: R. v. Hayes, 1999 O.J No. 938, as well as R. v. Barilko, 2014 ONSC 1145, where he made the following observations about discharges: One, discharges are not restricted to trivial matters; two, where an offender has acted entirely out of character perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction; three, where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration; four, a suspended sentence is not necessarily a greater deterrent to others than a conditional discharge.
¶ 37 Clearly, every case must be determined on its own facts, having regard to the particular features of the offence and the offender. I would note, however, that conditional discharges have been given in cases of voyeurism, even where there has been a breach of trust, for example, in the case of R. v. Eastwood, 2018 ONCJ 469; and R. v. Bosomworth, 2015 BCJ No. 546, British Columbia Provincial Court.
¶ 38 In the circumstances of this case, having regard to the aggravating and mitigating factors and the overall circumstances of the offence, I am satisfied that a conditional discharge would be in Mr. B.'s best interest. He is gainfully employed and engaging in his rehabilitative efforts with an impressive degree of success and he is currently without a criminal record.
¶ 39 In assessing whether it will be contrary to the public interest for Mr. B. to be granted a conditional discharge, I am mindful of the fact that this is a situation of a breach of trust, however, with the rehabilitative efforts that Mr. B. has undertaken, and his otherwise good reputation within his community, and the review and comments from Dr. Gojer that reflect a low risk of any re-offending, I am satisfied that it would not be contrary to the public interest for Mr. B. to receive a conditional discharge.
¶ 40 I reach this conclusion on the basis of the circumstances of the offence and the circumstances of Mr. B., and for this reason, I find it unnecessary to address the degree to which there should be any mitigating value to the alleged breaches committed by the police in searching and seizing items from Mr. B.
¶ 41 If you could stand. Mr. B., on the offence of voyeurism, you will be sentenced to a conditional discharge. You will be placed on probation for a period of two years. Counsel have worked out joint terms of probation which were provided to the court, at least I have a copy of the proposed terms I don't know whether the clerk has been provided with these terms?
¶ 42 MS. SANTORA: No, because we had made amendments.
¶ 43 THE COURT: Yes, I have one that does have handwritten notations on it.
¶ 44 MR. PENNEY: That's, that's the one, Your Honour.
¶ 45 THE COURT: The terms of your probation will be as follows:
¶ 46 That you will within 72-hours, report to probation and thereafter as directed.
¶ 47 You will not have any contact, directly or indirectly, with [the complainant] or her immediate family. You will not attend their home, work, school or any place you know [she] or an immediate member of her family to be.
¶ 48 You will not access, upload, download or search online for any images or movies of persons under 18 modelling or in the nude.
¶ 49 You will not use or download the following programs: Aries, Shareaza, Gigatribe or similar peer-to-peer file sharing programs.
¶ 50 You will not use a VPN or other service to mask or hide your IP address.
¶ 51 You will not use the private browsing feature to access the internet. You will not erase your browsing history and not change the default settings on your browser history.
¶ 52 You will provide your probation officer forthwith on demand, a list of your mobile phones, computers and other digital storage devices. You will provide your computers, mobile telephones, storage devices, and passwords forthwith on demand to your probation officer to ensure compliance with your terms of probation.
¶ 53 You will not communicate or associate with any person under the age of 18, except in the presence of an adult over 25 years of age who does not have a finding of guilt or outstanding charge for a sexual or child exploitative offence, or except for the purpose of a retail or service transaction at a commercial establishment.
¶ 54 You will not audio or video record any person inside your residence or your business for any purpose, except you may record persons 18 or older with their express consent.
¶ 55 You will continue assessments, treatments and counselling as directed by your probation officer and sign releases necessary for your probation officer to monitor your progress and for your mental health professionals to keep each other informed.
¶ 56 And, you will not seek, obtain or continue any employment, whether or not that employment is remunerated, or be a volunteer in a capacity that involves being in a positon of trust or authority toward persons under the age of 18 years.
¶ 57 Those are the terms of your probation. They are being proposed on consent of both parties and the scope of the probation terms address what I alluded to earlier, which is that the information that was collected through Dr. Gojer's report, and the fact that there was some indication of a quantity of child pornography on some device that was seized, justify these extensive and rather strict conditions related to your accessing and use of electronic devices and/or programs. I do, in the circumstances, consider them to be appropriate. Ms. Santora, were there any other ancillary orders or other terms within the probation that I haven't touched on?
¶ 58 CROWN: No other terms in the probation and I think in the circumstances there were no other ancillary orders that would apply.
¶ 59 THE COURT: Okay. All right.
¶ 60 CROWN: I think that's it. The other charges I don't know that we've marked withdrawn yet.
¶ 61 THE COURT: No, I don't think we have yet.
¶ 62 CROWN: So if those could be marked withdrawn.
¶ 63 THE COURT: Any further comments on the sentence?
¶ 64 MR. PENNEY: None, Your Honour, thank you very much for your thoroughness...
¶ 65 THE COURT: Thank you.
¶ 66 MR. PENNEY: ...and for hearing his – I'll direct him to probation.
¶ 66 THE COURT: All right. Yes, then the remaining charges against Mr. B. will be marked withdrawn at the request of the Crown. And, in terms of preparing that probation order, I've provided the document as amended, of the terms, to the clerks I don't know if it's possible to simply attach what counsel prepared or whether it all has to be typed in, but...
¶67 CLERK: It's up to Your Honour. You can either just make a copy and attach that [indiscernible].
¶ 68 THE COURT: I'm...
¶ 69 CLERK: Or [indiscernible] just write it.
¶ 70 THE COURT: I'm fine with either, either way. I know it's...
¶ 71 MR. PENNEY: I...
¶ 72 THE COURT: ...just it's very particular and a lot of time was taken to prepare it in that document, so if everyone is content it can simply be attached as an appendix.
¶ 73 MR. PENNEY: Yeah, and that's what I've seen before, Your Honour, we just mark it as, as, as, as indicating Appendix A and he attaches it to his probation, Mr. Clerk as Appendix A and that way there's saves you the time writing it up and there's no issues as to whether or not, you know, there's any typos or anything like that.
¶ 74 THE COURT: Yeah. Okay?
¶ 75 CROWN: That's fine.
¶ 76 THE COURT: All right, so that's what we'll do then. All the terms that I've read out, Mr. S.B., are going to be attached to the probation order for your probation officer to review and for you to have access to as well.
¶ 77 S.B.: Thank you.
¶ 78 MR. PENNEY: Thank you, Your Honour.
¶ 79 CROWN: Thank you.
¶ 80 THE COURT: I wish you good luck.
¶ 81 S.B.: Thank you....
WHEREUPON THESE PROCEEDINGS WERE CONCLUDED