R. v. J.K.D., 2020 BCPC 211 (CanLII)
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2020 BCPC 211 |
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Date: |
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File Nos: |
72702‑5‑C & 72959‑1 |
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Registry: |
Prince George |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
J.K.D.
PUBLICATION BAN Pursuant to s.486.4 (2) of the Criminal Code of Canada
REASONS FOR SENTENCE
OF THE
HONOURABLE JUDGE M.J. BRECKNELL
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A. McLellan and L. Sukkau |
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Counsel for the Defendant: |
K. Jones |
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Prince George, B.C. |
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Dates of Hearing: |
June 18 and September 28, 2020 |
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Date of Judgment: |
November 3, 2020 |
INTRODUCTION
[1] J.K.D. (“Ms. D.”) is to be sentenced today on a number of charges including that she:
Information 72702-5-C (By Indictment)
a) Count 1 … from the 1st day of June 2019 to the 28th day of June 2019, inclusive, at or near Prince George, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of her body or with an object, the body of A.J., a person under the age of 16 years, contrary to section 151 of the Criminal Code;
b) Count 4 … from the 1st day of June, 2019 to the 28th day of June 2019, inclusive, at or near Prince George, in the Province of British Columbia did make child pornography, contrary to section 163.1(2) of the Criminal Code;
c) Count 6… from the 1st day of June, 2019 to the 28th day of June 2019, inclusive, at or near Prince George, in the Province of British Columbia, did transmit, make available, distribute, sell, advertise, import or export child pornography, contrary to section 163.1(3) of the Criminal Code;
d) Count 8… from the 1st day of June, 2019 to the 28th day of June 2019, inclusive, at or near Prince George, in the Province of British Columbia, did by means of telecommunication, agree with a person or make an arrangement with a person, to commit an offence under section 151 or 152, subsection 160 (3) or 173 (2) or section 271, 272, 273 or 280 with respect to another person who is, or who she believed is under the age of 16 years, contrary to section 172.2 (1) (b) of the Criminal Code;
Information 72959 – 1 (By Indictment)
a) Count 1… on or about the 5th day of September, 2019, at or near Prince George, in the Province of British Columbia, escaped from lawful custody, contrary to Section 145 (1) (a) of the Criminal Code.
[2] After the entry of the pleas the Court ordered a Pre-sentence Report (“PSR”) and a Forensic Risk Assessment Report (“Assessment”) and sentencing submissions were adjourned to June 18, 2020. Subsequent to that date the decision in R. v. Humphreys, 2020 BCPC 136, was released and further submissions were made on September 28, 2020.
[3] On September 28, 2020 additional documents were entered as exhibits in the Sentencing including:
a) Affidavit of Cst. Victoria Rose filed at the Court’s request;
b) Ms. D.’s statement to the Court; and
c) A letter written by R.S. on behalf of her and her son, J.D. which the Court accepted as a Victim Impact Statement pursuant to Section 722 of the Criminal Code.
[4] The Crown seeks a number of consecutive and concurrent sentences for the Counts before the Court for a global sentence of between 11 ½ and 14 ½ years in a federal penitentiary. The Crown also seeks a number of ancillary orders associated with sentences for sexual offences.
[5] Defence counsel acknowledges that some of the sentences must be consecutive and initially submitted that a global sentence of between six and seven years would properly meet the principles and purposes of sentencing. In later submissions Defence counsel proposed a much lesser sentence. Defence counsel does not take issue with the ancillary orders sought by the Crown.
[6] The facts and circumstances described in this decision come from the Agreed Statement of Facts, the PSR, the Assessment and counsel’s submissions. The Crown and Defence consented to the Court’s paraphrasing from the Crown’s written submissions in this decision.
[7] Throughout this decision, there will be references to Mr. S.D. (or “Mr. D.”, or “S.”) who Ms. D. asserts instigated, encouraged and participated in her criminal behaviour. Mr. D.’s involvement has not yet been resolved by the Court. As such, any references to him here remain only allegations. Mr. D. is charged separately on Information 72736-1.
OFFENCE CIRCUMSTANCES
Information 72702-5-C
[8] Ms. D. was in a marriage-like relationship with Mr. D. for approximately four to five years. Mr. D. was a regional salesperson and frequently travelled away from Prince George for work purposes.
[9] They resided at [omitted for publication] in Prince George, British Columbia, (the “Residence”) along with Ms. D.’s son, Z.P. (or “Z.”) [age - omitted for publication], and Mr. D.’s son, J.D. (or “J.”) [age – omitted for publication].
Evidence of J.D.
[10] In the afternoon of July 5, 2019, J. was at the Residence with two friends both aged [omitted for publication]. Ms. D. was at work. They found Ms. D.’s electronic tablet (“Tablet”) and gained access to its contents. They opened a “photos” tab, which displayed photos of child pornography involving a female child.
[11] J. recognized the female child in the images as his [omitted for publication], A.J. He also recognized Ms. D. from her tattoos. Several images depicted A.J. laying naked on a bed beside Ms. D. Some images contained a male penis resting on a pillow beside A.J. J. recognized the pillow from Ms. D.’s bedroom. The Tablet also contained videos, but they were not viewed by the young men. J. immediately contacted the Royal Canadian Mounted Police (“RCMP”) and told them he had found child pornography on the Tablet.
Arrest of Ms. D.
[12] In response to J.’s report, RCMP members attended the Residence. Ms. D. arrived at the Residence soon after and was arrested. A pink flip phone and an Apple IPod were seized incidental to arrest. Photographs of Ms. D.’s tattoos were obtained later at the detachment.
Evidence of A.P.
[13] A.P. (or “Ms. P.”) is A.J.’s mother. She is a single-parent to A.J. and A.J.’s brother. A.J. was born on [omitted for publication], and was [omitted for publication] at the time of the offences.
[14] Ms. P.’s son was friends with Z., and Ms. P. got to know Ms. D. as the children played together. A.J. also went over to the Residence to play with her brother and Z. beginning in April or May 2019.
[15] Ms. P. described Ms. D. as “pushy.” Ms. D. was aware that Ms. P. suffered from fibromyalgia and told Ms. P. that she wanted to help her and the children.
[16] Ms. D. told Ms. P. that she wanted a girl like A.J. to do “girl things” with, like paint nails and braid hair. Ms. D. told Ms. P. that Mr. D. worked out of town so he would be gone for the weekends.
[17] A.J. had two sleepovers in June 2019. On each occasion, A.J. went over to the Residence around 4:30 p.m. and returned home the next day between 9:00 to 10:00 a.m.
[18] On [omitted for publication], Ms. D. and Mr. D. took A.J. out for dinner to celebrate her birthday. Ms. D. and Mr. D. picked up A.J. around 3:30 to 4:00 p.m. and returned her just before 7:00 p.m. Ms. D. purchased two nightgowns for A.J.
[19] Before the second sleepover, Ms. D. told Ms. P. that Mr. D. would be away, she had just found a lump on her breast, did not want to be alone, and wanted to have some “girl time”.
Evidence of A.J.
[20] A.J. gave two statements to the RCMP but appeared to have no recollection of the sexual interference. She recalled having sleepovers with Ms. D. at the Residence and that Ms. D. gave her new toys, such as, stuffed animals, Barbies and make-up.
[21] She said Ms. D. took her to the park, played dress-up with her in Ms. D.’s make-up room or closet, slept with her in the closet and they watched movies and YouTube together.
[22] A.J. also recalled jumping on the bed with Ms. D. and a person she believed was Ms. D.’s spouse, and that Ms. D. and that person took pictures of her in the bathtub using a camera on a tripod.
Statement of J.D.
[23] On July 6, 2019, Ms. D. gave a warned statement to the RCMP. In that statement she admitted to the following:
a) her nickname in the relationship with Mr. D. was [omitted for publication];
b) she made child pornography images and videos of A.J. with Mr. D.;
c) A.J. was asleep during the creation of the child pornography, with the exception of times she was seated on Mr. D.’s lap. One day when A.J. was sitting on Mr. D.’s lap his penis became erect;
d) she electronically distributed child pornography images and videos of A.J. to Mr. D.;
e) she printed hard copies of child pornography images of A.J. for Mr. D., including the images located in an envelope addressed to “S.”;
f) she and Mr. D. had sexual intercourse while Mr. D. was watching A.J.; and
g) she described the videos and communications later located on electronic devices seized during the search of the Residence.
Search of the Residence
[24] A search warrant was executed at the Residence on July 6, 2019, and RCMP members located hard copy print images that meet the definition of child pornography in section 163.1(1) of the Criminal Code (the “Print Images”) which were located and described as:
a) in a black leather binder, a print which of A.J. spreading her legs and exposing her underwear;
b) in a white envelope addressed to “S.”, multiple photographs of A.J. described as A.J. spreading her legs exposing her underwear, a bodily fluid appearing to be semen on A.J.’s vagina, a penis by A.J.’s face while she slept, and A.J. sitting on Mr. D.’s lap;
c) in a hidden space on a bookshelf three photographs described as a young female standing, a male finger pulling a young female’s clothing to expose her nipple, a close up of the hip and underwear of a young female;
d) in a photo album, multiple snapshots depicting a young female’s vagina with a bodily fluid appearing to be semen;
e) in a second black leather binder a collection of several dozen images of child pornography, including copies of the images located in the first black leather binder and the three prints located hidden on the bookshelf; and
f) underneath a wooded dresser, scattered photographs the same as or similar to the photographs already located.
[25] In addition to the Print Images, the followed items were seized from the Residence:
a) digital devices, including cell phones, computers, a video-recording device, a tripod, and video recordings;
b) the Tablet; and
c) an Acer laptop computer (“Laptop”).
Digital Evidence Analysis
[26] The Tablet, the Laptop, and the IPod were digitally examined. All three devices contained images, or videos, which meet the definition of child pornography in section 163.1(1) of the Criminal Code.
[27] The Tablet contained 41 child pornography images of A.J.:
a) 14 of the images were solely of A.J. and consisted of close-up images of her genital area with and without underwear;
b) 27 of the images were of A.J. with an adult:
i. 17 of the images of A.J. were of either (1) A.J. sleeping and an adult finger moving her undergarments to one side to expose her vaginal area or (2) A.J. sleeping and an adult male standing over her, masturbating near her face;
ii. 10 of the images of A.J. showed an adult male masturbating to A.J.’s image and ejaculating onto the image itself. A.J. is seen along with the tip of the adult penis.
[28] The 41 child pornography images of A.J. on the Tablet appear to be electronic copies of the Print Images located during the search of the Residence.
[29] The Tablet contained other images of A.J. standing, wearing a black blindfold and a multi-coloured summer dress. The dress appears in some of the child pornography images of A.J. It also contained a video of A.J. playing in an indoor swimming pool in her bathing suit
[30] The Tablet contained five child pornography videos of A.J. Three of the videos are unique. Two of the videos appear to be clips from two of the unique videos:
a) video 1 is 2 minutes and 30 seconds long and consists of an adult male masturbating over A.J.’s head. A.J. appears to be sleeping. A.J. is lying on a Canada Flag pillow. An adult female hand reaches in and assists with the masturbation of the male. The background appears to be the master bedroom of the Residence;
b) video 2 is 30 seconds long and consists of A.J. sleeping. The focus of the video is A.J. genital area. An adult female hand reaches in and moves A.J. underwear to the side, exposing her vagina. The adult female hand touches and rubs the top of A.J.’s exposed vagina.
c) video 3 is 23 seconds long and consists of an adult male masturbating and ejaculating to an image of A.J. wearing underwear and a nighty. A.J.’s legs are spread. The adult male says “Ready, ready for daddy’s big hot load, here we go, ah fuck.”
[31] The Tablet contained conversations, including text, images and videos, between Ms. D. and Mr. D. over Facebook Private Messenger. Cst. Rose of the RCMP recorded these conversations and reduced them to a transcript including descriptions of the images and videos which was marked as an exhibit (“Facebook Communications”).
[32] The Facebook Communications contained numerous images and videos of A.J. sent from Ms. D. to Mr. D. including duplicates of Print Images found in the Residence or electronic images found on the Tablet, including images of an adult male penis beside A.J.’s head while she is sleeping. Ms. D. and Mr. D. exchange comments indicating they liked these images.
[33] The Facebook Communications contained additional videos and images not found during the digital evidence analysis of the seized electronic devices plus descriptions of the videos and images exchanged.
[34] The Facebook Communications contained sexually explicit conversations between Ms. D. and Mr. D. on June 7 to 8, 2019, detailing the sexual touching of and the making of child pornography involving A.J. A.J. slept over at the Residence on or about June 7, 2019, and again on or about June 28, 2019.
[35] The Laptop contained two child pornography images of unknown female victims:
a) image 1 consists of a 10-12 year old female victim performing fellatio on an adult male. She is very thin, with undeveloped breasts and of small stature compared to the adult male. The adult male holds the victim’s head while she performs fellatio;
b) image 2 consists of a 14-16 year old female victim by herself. She small in stature and is seated on a bed with her legs spread and one knee raised. She is wearing black lacy underwear, a blue t-shirt, and polka dotted socks. Her hair is in pigtails.
[36] The IPod contained 9 child pornography images:
a) one image of a close-up of a child’s genitalia;
b) four images of an adult male masturbating and ejaculating on an image of A.J.;
c) two images of Ms. D. seated beside A.J. with A.J.’s hand placed on Ms. D.’s exposed vagina. Ms. D.’s tattoos are in the image and her breasts are exposed;
d) one image of an exposed adult female vagina. The vaginal clitoris is pushed up against A.J.’s backside. A.J. is wearing underwear; and
e) one image of an adult female’s finger pulling A.J.’s underwear to the side, exposing A.J.’s vagina.
Presentation of the Child Pornography Evidence
[37] Ms. D. confirmed that the descriptions of the child pornography images and videos contained in the Facebook Communications truly and accurately described the victims, activities and style of the child pornography she made, possessed and distributed. She also confirmed that it was not necessary to tender directly into evidence a representative sample of the child pornography she made, possessed and distributed for the purposes of sentencing.
Information 72959 – 1
[38] On September 5, 2019, Corrections Officers transported Ms. D. to a medical appointment. She was handcuffed and shackled.
[39] Upon arrival at the appointment, Ms. D. was assisted out of the vehicle. She threw her handcuffs at one of the Corrections Officers and ran away. One Corrections Officer was injured in the pursuit and Ms. D. escaped.
[40] The escape was reported to the RCMP. A police service dog was called in and a track was established. The dog located Ms. D.’s discarded prison clothing and quickly located her under a porch of a residence.
[41] The police dog was sent under the porch to apprehend Ms. D. She received superficial dog bites, screamed and then was cooperative with verbal commands from RCMP members.
[42] Other than her escape on September 5, 2019, Ms. D. has remained in custody since her initial arrest on Information 72702-5-C on July 5, 2019.
MS. D.’S CIRCUMSTANCES
[43] Ms. D. was born on [omitted for publication], and was [omitted for publication] in June 2019. She and her sister were raised by their parents in what Ms. D. described as a turbulent relationship with her mother and with occasions of family violence perpetrated by her father against her mother. Her father is dead and she has a distant relationship with her mother and her sister.
[44] Her high school education was interrupted by truancy and a pregnancy. She left school in Grade 10 but in adulthood has worked on completing her high school courses.
[45] She has worked in a variety of service and hospitality industry positions, most recently as a hotel desk clerk at the time of her arrest.
[46] Ms. D. was seriously injured in a car accident as a teenager requiring many stitches to her face. Those scars and other body image issues made her self-conscious about her appearance. She was recently treated for breast cancer. She also has undiagnosed back and hip pain.
[47] Ms. D. has had mental health issues. She reports being sexually assaulted as a teenager and has struggled with her mental health since. She attempted suicide once as an adolescent and twice more as an adult. She was treated over the years with a number of prescription drugs without much success. She has experienced a number of varying symptoms but was not diagnosed with any specific illness for many years. She was eventually diagnosed with Bi-Polar disorder.
[48] She has been a substance abuser for many years ingesting a variety of legal and illegal substances. Substance abuse interfered with her spousal relationships and her employment. She was actively using illegal drugs during her offending activities.
[49] She has two adult children from a previous relationship. She is not in regular contact with them. She describes her spouse from that relationship as controlling and abusive and that alcohol abuse was involved.
[50] Her son, Z., was born when she was in another relationship she described in positive terms. Z. has lived with her former partner since her arrest and they are on good terms.
[51] Ms. D. was in a marriage-like relationship with Mr. D. for approximately four to five years. She describes Mr. D. as being physically and mentally abusive.
[52] Since her incarceration Ms. D. has taken numerous courses and programs available through BC Corrections. She has also sought pastoral assistance and has sought solace in her faith.
VICTIM IMPACT STATEMENTS
[53] A.P., A.J.’s mother, prepared a Victim Impact Statement in which she expressed her anxiety and anguish as a mother with regard to how crimes against A.J. will affect her both now and into the future.
[54] She stated that both she and A.J. have heightened anxiety and suffer from nightmares and that A.J. has a heightened sense of “stranger danger” resulting in an increased attachment to Ms. P.
[55] R.S., J.D.’s mother, prepared a letter in which expressed deep concern for her son’s on going mental health given his occupancy of the Residence at the time of Ms. D.’s criminal behaviour and his finding and viewing, along with his friends, images of child pornography on the Tablet.
[56] She also expressed how her trust has been shaken in light of J.’s exposure to extremely serious and unsettling criminality when she had entrusted his care to Mr. D. and Ms. D.
THE LAW
[57] The following sections of the Criminal Code are relevant in this case:
A. Escape and being at large without excuse
145 (1) Every person who escapes from lawful custody or who is, before the expiration of a term of imprisonment to which they were sentenced, at large in or outside Canada without lawful excuse, is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction.
B. Sexual interference
151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or…
C. Order of prohibition
161 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
(c) having any contact — including communicating 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; or
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
Offences
(1.1) The offences for the purpose of subsection (1) are
(a) an offence under section 151,… section 163.1, section 172.2,…;
Duration of prohibition
(2) The prohibition may be for life or for any shorter duration that the court considers desirable and, in the case of a prohibition that is not for life, the prohibition begins on the later of
(a) the date on which the order is made; and
(b) where the offender is sentenced to a term of imprisonment, the date on which the offender is released from imprisonment for the offence, including release on parole, mandatory supervision or statutory release.
Court may vary order
(3) A court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.
Offence
(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or
(b) an offence punishable on summary conviction.
D. Making child pornography
163.1 (2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
Distribution, etc. of child pornography
(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
E. Forfeiture after conviction
164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 162.1, 163.1, 172.1 or 172.2, in addition to any other punishment that it may impose, may order that anything — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing
(a) was used in the commission of the offence; and
(b) is the property of
(i) the convicted person or another person who was a party to the offence, or
(ii) a person who acquired the thing from a person referred to in subparagraph (i) under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture.
F. Disorderly Conduct
Agreement or arrangement — sexual offence against child
172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence
(a) under section 155, or 163.1,… with respect to another person who is, or who the accused believes is, under the age of 18 years;
(b) under section 151 …with respect to another person who is, or who the accused believes is, under the age of 16 years; or
Punishment
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
G. Forfeiture of Offence-related Property
Order of forfeiture of property on conviction
490.1 (1) Subject to sections 490.3 to 490.41, if a person is convicted, or discharged under section 730, of an indictable offence under this Act or the Corruption of Foreign Public Officials Act and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that offence-related property is related to the commission of the offence, the court shall
(a) if the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province to be disposed of or otherwise dealt with in accordance with the law by the Attorney General or Solicitor General of that province; and
H. Purpose and Principles of Sentencing
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 other persons 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 to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
I. Objectives — offences against children
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
J. Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
K. Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,…
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,…
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) 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.
L. Cumulative punishments — sexual offences against children
718.3 (7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct
(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1.
M. Non-communication order
743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.
Failure to comply with order
(2) Every person who fails, without lawful excuse, to comply with the order
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Case Law
[58] In light of the wide range of sentences available for the offences before the Court the Crown provided an extensive Book of Authorities on the issues to be decided in arriving at a just and appropriate sentence. Defence counsel provided no case law and did not dispute the applicability of the cases presented by the Crown. Those cases included:
a) R. v. Friesen, 2020 SCC 9;
b) R. v. M.(L.), 2008 SCC 31;
c) R. v. M.(C.A.), 1996 SCC 230;
d) R. v. J.S., 2018 ONCA 675;
e) R. v. Woodward, 2011 ONCA 610;
f) R. v. D.(D.), (2002) 2002 CanLII 44915 (ON CA), 163 C.C.C. (3d) 471 (ONCA);
g) R. v. J.N.P., 2020 BCSC 570;
h) R. v. Barry, (2020) 161 W.C.B. (2d) 93 (ONCJ);
i) R. v. N.M.G., 2020 ONCJ 146 (CanLII), 2020ONCJ 146;
j) R. v. B.M.W., 2020 BCPC 9;
k) R. v. S.L.C., 2019 BCPC 149;
l) R. v. Bell, 2018 BCPC 187;
m) R. v. Gardner, 2017 BCPC 85.
[59] The Crown also referred to other cases that the Court considered plus some additional cases including:
n) R. v. Beierle, 2017 ONSC 5377;
o) R. v. Nasogalauk , 2000 SCC 6
p) R. v. Fisher, 2007 Carswell NB 172
q) R. v. C.C., 2016 ONSC 6386;
r) R. v. Osl, 2015 BCPC 132;
s) R. v. M.(B.C.), 2008 BCCA 365;
t) R. Voong, 2015 BCCA 285;
u) R. v. Hammond, 2013 BCSC 439;
v) R. v. Allen, 2013 BCPC 69;
w) R. v. Lewis, 2013 ONCJ 579;
x) R. v. Hopps, 2010 BCSC 1875;
y) R. v. B.C.M., 2008 BCCA 365;
z) R. v. Pommer, 2008 BCSC 737;
aa) R. v. Kwok, 2007 CanLII 2942;
bb) R. v. W.A.E., (2009) 2009 CanLII 42861 (NL PC), 289 Nfld. & P.E.I.R. 214 (Nfld. Prov. Ct.).
[60] The Court brought to the attention of counsel and asked for further submissions on:
cc) R. v. Humpreys, 2020 BCPC 136.
SUBMISSIONS
Crown
[61] The Crown submissions were divided into a number of categories and presented in written and oral form. Those submissions are summarized below in some detail because the Court has adopted many of them in arriving at a just and appropriate sentence for Ms. D.
Impact on the Victim
[62] The inherent harms to child victims of sexual violence, their families and the broader community were recently summarized by the Supreme Court of Canada in Friesen and include:
a) physical, emotional and psychological harm to the child;
b) damage to the relationships between the child and caregivers;
c) financial, personal and emotional harm to the parents of the child;
d) related costs and social problems experienced by communities;
e) perpetuation of gender inequality due to the disproportionate impact on female children;
f) long-term harms experienced throughout childhood and into adulthood; and
g) direct evidence of harm is not required.
Reports
Assessment
[63] The Assessment dated November 25, 2019, was prepared by Psychologist, Dr. David J. Wiebe. Ms. D. did not provide further information about the offences and psychological testing was not completed due to staff unavailability. The Assessment included the following noteworthy statements:
a) Ms. D.’s insight into her offending appears to be limited. She denied having sexual fantasies about children;
b) Ms. D.’s expression of remorse was suspect;
“her statements regarding remorse were vague and rather superficial, there was little evidence of genuine victim empathy, she did not display much understanding of the impact on the victim, and she tended to defect blame onto her co-accused. In addition, many of her statements and discussions were about herself and/or eventually shifted over to the impact on herself. In the end, it was not clear whether Ms. D.’s tears and distress were at all about the impact of her actions on the victim, or were mostly about the consequences of the offences on herself.”
c) the report addressed a number of factors that may impact on Ms. D.’s past and future behaviour including a possible diagnosis of Borderline Personality Disorder (BPD), antisocial personality traits and suicide attempts and self harm; all of which could contribute to an impairment of her functioning. However, the author noted no evidence that would meet the criteria for a major mental disorder;
d) a risk rating was not provided. The author noted that there were a number of specific issues that make the assessment of risk or treatment needs of female sex offenders difficult to ascertain;
e) concern was expressed regarding Ms. D.’s risk to reoffend in a variety of circumstances. These included increased risk if she was engaged in a dysfunctional intimate relationship or if her personality disorders and other mental health circumstances were not addressed. “Engagement in any of these in the future may result in increased risk for sexual offending.” Risk management and therapeutic treatment recommendations were provided.
Presentence Report
[64] A Pre-Sentence Report dated November 25, 2019, was prepared by Probation Officer, Tracy Harvey. Again, Ms. D.’s insight into her behaviour and ability to express remorse towards A.J. was questioned.
[65] Ms. D. minimized her responsibility and blamed her drug use and relationship with Mr. D. She focused on the consequences she suffered as a result of the discovery of her offending as well as, her own health. Ms. Harvey indicates that Ms. D. “stated she has no sexual arousal to children.”
[66] Ms. D. later provided a letter to Ms. Harvey in which she expressed more directly her remorse for her criminal behaviour and advised that she had found a better life path through faith.
Sentencing Regime
[67] Parliament’s understanding of the wrongfulness and serious harms caused by sexual violence against children is reflected in the increasing maximum sentences available for sexual offences. In Friesen, the Supreme Court of Canada affirmed the inflationary effect on the range of appropriate sentence caused by the increased maximum sentences, the enactment of section 718.01, and increased societal understanding of the harms caused by sexual violence against children. Less recent case precedents must be approached cautiously to ensure that the guidance provided in Friesen is followed.
Sentencing Principles
[68] Section 718 sets out the purpose and objectives of sentencing. Section 718.01 directs the Court to give primacy to denunciation and deterrence where the offence involves the abuse of children and child pornography (see Hammond and B.C.M). Statutory aggravating factors in Section 718.2 include that the offender abused a person under the age of 18 years ((a)(ii.1)) and that the offender abused a position of trust or authority ((a)(iii)).
[69] A sentence of imprisonment for an offence under Section 163.1 must be served consecutively to a sentence of imprisonment for another sexual offence committed against a child (718.3(7) (a)).
[70] Principles of restraint and rehabilitation, while still operative, are given secondary status in offences involving young victims ( see B.C.M., Hammond and Hopps) The wide range of variables can make it difficult to isolate a sentencing range for child pornography from the jurisprudence (see B.C.M., and Allen).
[71] In determining the appropriate sentence, Friesen mandates that the sentencing court takes into account;
a) the wrongfulness and harmfulness of sexual offences committed against children;
b) the gravity of the offence including, the physical interference and psychological violence of sexual abuse;
c) the inherent exploitative nature of sexual offences committed against children;
d) the potential and actual harm to the victim; and
e) the degree of responsibility of the offender.
[72] Friesen also sets out guiding principles, including that:
a) an upward departure from prior sentencing ranges may be required;
b) a higher sentence should be imposed where the victim is a child rather than an adult; and
c) sentences for sexual interference should be similar to sentences for sexual assault.
[73] The recognition of the harms caused by child pornography, and subsequent increase in sentences imposed, are also reflected in recent British Columbia case law.
[74] Sentence length has been emphasized as a primary mechanism for achieving general deterrence (see Fisher and W.A.E.). Where an offender is also making available and distributing the child pornography, denunciation and deterrence receive even greater emphasis (see Lewis).
[75] Denunciation and deterrence are recognized in the case law as the primary sentencing principles to be applied to the sentencing of offences involving child pornography (see J.S., and S.L.G.).
[76] The principles of restraint and rehabilitation, while still operative, are given secondary status in offences involving young victims (see M.(B.C)).
FACTORS FOR THE COURT TO CONSIDER
Sexual Inference
[77] B.M.W. sets out a comprehensive list of aggravating, mitigating and a neutral factors to consider for sexual interference and sexual assault. Factors relevant to this sentencing, and in addition to the Friesen factors include:
a) the Courts have unequivocally condemned the act of sexually assaulting a child or a sleeping or unconscious complainant and, have sent a strong message that sexually assaulting someone in a vulnerable position is an aggravating factor on sentencing;
b) the abuse occurred in the victim's home, which ought to be a place of safety and security;
c) a guilty plea which is a highly mitigating factor if the offender accepts responsibility for their actions;
d) an expression of remorse;
e) a criminal record; and
f) family and community support.
Child Pornography
[78] Bell summarized the factors to be considered in determining the appropriate sentence for child pornography offences with reference to Pommer.
[79] The nature of the offender’s collection is a relevant factor to consider on sentencing. Relying on Pommer, the courts have noted categories of child pornography, ranging from least serious to the most serious:
a) images depicting erotic posing with no sexual activity;
b) sexual activity between children, or solo masturbation by a child;
c) non-penetrative sexual activity between adults and children;
d) penetrative sexual activity between children and adults; and
e) sadism or bestiality.
AGGRAVATING AND MITIGATING FACTORS
[80] Pommer summarized the aggravating and mitigating factors in sentencing for possession and distribution of child pornography as follows:
Aggravating factors:
a) a criminal record for similar or related offences;
b) whether there is also production or distribution;
c) size of the collection;
d) nature of the collection (including the age of the children involved and the relative depravity and violence depicted);
e) extent to which the offender is seen as a danger to children (including whether they are a diagnosed pedophile who has acted on impulses by assaulting children in the past); and
f) whether the offender has purchased child pornography and contributed to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.
Mitigating factors:
a) youthful age of the offender;
b) otherwise good character;
c) extent to which the offender has shown insight into their problem;
d) whether they have demonstrated genuine remorse;
e) whether they are willing to submit to or has taken treatment or counselling;
f) a guilty plea; and
g) the extent to which the offender has already suffered for their crime (through family, career or community).
Ms. D.’s Aggravating and Mitigating Factors
[81] The Crown submits the following are aggravating factors:
a) Likelihood to reoffend: Ms. D. lacks insight into her offending behaviour. Risk factors were identified in the Assessment;
b) Abuse of a position of trust: Ms. D. was entrusted by A.J.’s mother to be the caretaker of A.J. when the offences were committed;
c) Duration and Frequency: A.J. slept over at the Residence on two occasions in June, 2019; and spent time with Ms. D. on additional occasions;
d) Young age: A.J. was [omitted for publication];
e) The degree of physical interference: The sexual assaults were highly intrusive and demeaning to A.J;
f) Multiple Offenders Acting in Concert: Ms. D. and Mr. D. acted together to sexually assault and exploit A.J.;
g) Asleep or Unconscious Victim: A.J. appears to be sleeping in the child pornography images;
h) Occurred in a home: While not in her home, A.J. was a guest in Ms. D.’s home placed there by her mother and was entitled to feel safe and secure in the Residence;
i) Planning: Ms. D. targeted and exploited a vulnerable single mother in order to execute a plan to sexually abuse A.J. In the Facebook Communications, Ms. D. discusses with Mr. D. how to proceed;
j) Grooming: A.J. told the RCMP that Ms. D. bought her things like Barbies and stuffed animals;
k) Production and Distribution: the child pornography images were found in the Residence in hard-copy and as electronic images stored on devices. Some images were sent to Mr. D. Every time exploitative images are shared it is harmful to the victim;
l) Accessible to other children: Ms. D. resided with her son, Mr. D., and Mr. D.’s son. Mr. D.’s son discovered the child pornography on the Tablet leading to the RCMP investigation. His two friends were present in the home at the time and also viewed the child pornography;
m) Size of the Collection: The collection was held in various mediums, Facebook Communications, electronic devices, and hard copy images;
n) Nature of the Collection: A.J. is the victim of most of the child pornography. She is depicted as asleep or unconscious while being sexually assaulted. Some images and videos depict A.J. alone, and/or alone with sex toys. Some images and videos depict A.J. with adults. Some images are of unknown victims;
o) Motivation: Ms. D. was motivated by her and Mr. D.’s sexual pleasure.
[82] The Crown submits the following are mitigating factors:
a) Guilty Plea: Ms. D. pled guilty at an early opportunity;
b) Cooperation with the RCMP: Ms. D. provided a warned statement admitting to her involvement in the offences and implicating Mr. D. The statement was corroborated by materials found in the Residence;
c) Criminal Record: Ms. D. has no criminal record.
APPROPRIATE RANGE OF SENTENCE
Friesen
[83] In Friesen, the Supreme Court of Canada provided guidance rather than a concrete sentencing range for sexual offences against children. The Court expressed concern about sentencing the ranges endorsed by appellate courts, and said at paragraph 114 they must increase:
[114]...mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” Instead, a maximum sentence should be imposed whenever the circumstances warrant it.
[84] In Friesen, the Supreme Court of Canada restored the six year jail sentence imposed by the sentencing Judge for the offence of sexual interference of a four-year-old girl involving coerced oral sex and attempted penetration. He was a relatively youthful first-time offender. The offence involved the victim’s mother. The Court cited, with qualified approval, M.(C.A.), M.(L.), D.(D.), J.S. and Woodward.
[85] In M.(C.A.), the Supreme Court of Canada restored the 25-year jail sentence imposed by the sentencing Judge on a 55-year-old father who pled guilty to numerous counts of sexual and physical violence against his children occurring over a number of years. The offender had no prior criminal record.
[86] In M.(L.), the Supreme Court of Canada restored the 15-year jail sentence imposed by the sentencing Judge on a father convicted of sexually assaulting his daughter and making, possessing and distributing child pornography. The offender’s daughter and a four year old acquaintance were the subject matter of the child pornography. The offender had a dated but related criminal record.
[87] In D.(D.), the Ontario Court of Appeal upheld eight-year concurrent jail sentences imposed on an offender who committed sexual offences against four boys while in a position of trust. The offender used both grooming methods and physical violence to coerce his victims.
[88] In J.S., the Ontario Court of Appeal upheld an 18-year jail sentence imposed on an offender who pled guilty to sexual interference, making, possessing and distributing child pornography, and sexual assault with a weapon. The victims were the offender’s very young nieces. The child pornography collection also included images and videos of other very young children. He had no prior convictions.
[89] In Woodward, the Ontario Court Appeal upheld a six-and-one-half year jail sentence. The offender was convicted of luring, sexual assault and sexual interference of a 12-year-old girl.
Other Applicable Cases
[90] In Bell, the British Columbia Provincial Court imposed a three-year sentence on an offender who pled guilty to luring, making and distributing child pornography. The offender was a low-moderate risk to re-offend. The collection was small, however spanned all categories of child pornography. The offender actively shared his material, which included his own written child pornography. He had no criminal record.
[91] In N.M.G., the Ontario Court of Justice imposed a sentence of four and a half years on an offender who pled guilty to possessing child pornography, voyeurism, making sexual explicit material available and luring. The offences were committed against multiple children, including the offender’s cousin. The offender was youthful and had no criminal record. He did not share his collection with anyone He was described as immature and as having cognitive and intellectual challenges. The Court indicated the sentence proposed was fit due to the unique mitigating circumstances of the particular offender.
[92] In Barry, the Ontario Court of Justice imposed a 12-year sentence on an offender who pled guilty to numerous sexual offences including recording his sexually abuse of a 9-year-old girl and a 14-year-old girl who were sleeping and in his care. He did not share the material with anyone else. He had an unrelated criminal record.
[93] In S.L.G., the British Columbia Provincial Court imposed a 14-month jail sentence and probation on a female offender who pled guilty to making and accessing child pornography. She engaged in sexually explicit conversations over a chat platform that included images of child pornography. She was a first-time offender.
[94] In Gardner, the British Columbia Provincial Court imposed consecutive 18 month sentences on an offender who pled guilty to making child pornography and luring by making an agreement with another person. His communications were with a police officer posing as the mother of a child. He had a dated but related conviction.
SENTENCE AND ORDERS SOUGHT
[95] The Crown sought the following sentences and ancillary orders:
Information 72702-5-C
a) Count 1 (sexual interference, s. 151) - 7 to 10 years imprisonment;
b) Count 4 (making child pornography, s. 163.1(2)) - 3 years, consecutive to Count 1;
c) Count 6 (distributing child pornography, s. 163.1(3)) - 3 years, concurrent to Count 4;
d) Count 8 (making arrangements, s. 172.2(1)(b)) - 18 months, concurrent to the other Counts.
Information 72959-1
Count 1 (escape, s. 145(1) (a)) - 6 months, consecutive to the sentences imposed on Information 72702-5-C.
Ancillary Orders
a) a Sex Offender Information Registry Act (“SOIRA”) lifetime order;
b) a DNA Order as many of the Counts on Information 72702-5-C are primary designated offenses;
c) Section 164.2 and s. 490.1 forfeiture orders for seized items and child pornography files;
d) Section 161 Prohibition Order;
e) Section 743.2 Order that relevant reports and information be provided to the Correctional Service of Canada; and
f) Section 743.21 Non-Communication Order with A.P., A.J. and S.D.
Defence
[96] Defence counsel took no issue with regard to the Crown’s rendition of the facts, the summary of the PSR and Assessment or the applicable law with regard to the counts to which Ms. D. has pled guilty.
[97] Defence counsel acknowledged the aggravating and mitigating factors described by the Crown and submitted that the following were also mitigating factors in Ms. D.’s favour:
a) her substance abuse at the time of the offences;
b) the dysfunctional nature of her relationship with Mr. D.;
c) her desperation to preserve her relationship with Mr. D.;
d) she may have been suffering from sex addiction; and
e) her extreme remorse.
[98] Defence Counsel submitted that these additional mitigating factors suggest a much lesser sentence than what the Crown seeks but would also allow Ms. D. to get the professional help she requires to address the concerns raised in the Assessment.
[99] Defence counsel further submitted that:
a) Ms. D.’s actions were the result of an addiction and like many other addictions, a person is quite often unable to control their actions and require community assistance to overcome their addictive behaviours;
b) Ms. D. is well aware that her actions have hurt many people, primarily A.J. and her family but also the youths who found the images and her son Z. who still is unaware why she is in jail;
c) while she has been in custody awaiting sentencing she has taken many courses and programs and has received some faith based counselling;
d) she recognizes that she has to be imprisoned but she hopes to be sent to an institution where she can receive psychiatric and psychological assistance; and
e) she was dealing with a life threatening illness when she ran away from the Correctional Officers in a momentary and ill-conceived attempt. She did not get far before being apprehended. The spur of the moment nature of those actions should garner a sentence much less than the Crown proposes.
R. v. Humphreys Submissions
[100] The decision in Humphreys was released on July 21, 2020 after counsel had made their submissions on this matter. Given the similarity of some of the facts between this case and Humphreys and the sentence given to Mr. Humphreys, the Court thought it prudent to give counsel the opportunity for further submissions.
[101] In Humphreys, the accused, who was deployed at sea with the Royal Canadian Navy, and his spouse exchanged explicit communications planning to sexually exploit her five-year-old son when Mr. Humphreys returned home.
[102] They discussed and exchanged ideas about the type of sexual acts they would engage in with the child. They also discussed how they might stupefy the child to carry out their criminal intentions.
[103] His spouse sent him over 800 images of child pornography, which were stored on a tablet. Mr. Humphreys’ spouse’s former partner, the father of the child, found the images several months later. Charges followed soon after and Mr. Humphreys pleaded guilty to one count of possession of child pornography.
[104] There was no evidence that Mr. Humphreys touched the child and the electronic discussions ended long before they were discovered.
[105] At the time of sentencing, Mr. Humphreys was 60-years-old and recently retired from the Canadian Armed Forces after a long and exemplary service record. He was also suffering from several debilitating medical issues including PTSD. He had no criminal record.
[106] In the extraordinary circumstances found by the Court, he was given a lengthy Conditional Sentence Order.
[107] In this case the Crown’s additional submissions can be summarized as:
a) unlike Humphreys, Ms. D. has pleaded guilty to many more serious offences;
b) many of the offences Ms. D. has pleaded guilty to involve minimums (some of which have been struck down) or maximums that will not allow for a Conditional Sentence Order;
c) although Ms. D. had some health issues they are not as serious and chronic as those described in Humphreys.
[108] Defence counsel’s additional submissions can be summarized as:
a) Ms. D.’s offences are more serious than in Humphreys;
b) both Mr. Humphreys and Ms. D. have taken steps to address their criminal behaviour and to turn their life around;
c) Ms. D. has been in custody for the equivalent of two years. Based on the totality principle it is open to the Court to sentence her to time served on some of the offences and impose probation on the offences requiring a consecutive sentence.
[109] In the end the Court finds Humphreys to be of limited assistance in deciding a just and appropriate sentence in this case.
Ms. D.’s Statement
[110] In the meetings held with the PSR and Assessment authors Ms. D. was noted to be so overcome with emotion that at times she was unable to responsively participate. In order to give her a fair opportunity to provide her views on the sentencing process the Court permitted her to prepare a written statement.
[111] In that statement her thoughts can be summarized as:
a) after a year of reflection with a clean and sober mind she realizes the gravity of her offences which has caused irreversible harm and pain to many people;
b) the worst is that she has put a precious little girl and her family through a hell they will carry for the rest of their lives;
c) she is filled with guilt, shame and deep remorse and wishes that she could take back her unforgivable actions. Those actions will weigh heavily on her conscience for the rest of her life;
d) she was heavily using drugs which distorted her reality and caused her to make bad decisions;
e) she was desperate to keep her family relationship with Mr. D. going and tried to please him which caused her to make horrible decisions;
f) during her time in custody she has been working on changing herself for the better including taking self-help and Bible courses as well as counselling. She has found God through this process and knows that she will be guided back. She repents for the horrible things she has done; and
g) ultimately she accepts her responsibility for her actions and is fully prepared to accept the punishment required.
DISCUSSION
Viewing the Evidence
[112] Early on in their submissions the Crown and Defence counsel both agreed that it was not necessary for the Court to view the evidence of Ms. D.’s sexual crimes against A.J. The Court initially expressed the concern that it may be difficult to ascertain the gravity of Ms. D.’s behaviour without observing the evidence.
[113] Counsel referred the Court to the recent case of N.M.G. in which Justice Green did review a sample of images showing the victimization of the youthful victims. After doing so she said the following in paragraphs 56 through 61:
[56] As I was reviewing this evidence, I realized that viewing this evidence was completely unnecessary for me to make an informed decision. It had no probative value to the issues that I have to decide in this matter. I understand that, in certain cases, the depictions, images or recordings may capture evidence or conduct that words cannot adequately convey or describe because of the contents. These recordings are evidence of crimes in progress. Please see for example: R. v. J.S., 2018 ONCA 675 (CanLII), [2018] O.J. No. 4095 (Ont.C.A.). However, this was not one of those cases.
[57] Mr. N.M.G. committed “child pornography” and child luring offences. I did not need to see these recordings to comprehend the seriousness of these crimes. There was no issue about the identity of the victims or their ages. The facts that were read in described the aggravating facts and the circumstances surrounding the commission of these offences. Any additional details of these offences could have been vividly captured in words. I had a full appreciation of the nature and gravity of Mr. N.M.G.’s misconduct and the extent of his legal and moral culpability without watching these crimes in progress.
[58] The Supreme Court of Canada’s decision in R. v. Barton, 2019 SCC 33 (CanLII), [2019] S.C.J. No. 33 at para. 1, was a much-needed wake-up call for the participants in the criminal justice system to be more vigilant and aware of the message that we send to the public, victims and offenders by the language we use in our decisions and how we conduct ourselves in court. As Justice Moldaver stated, “put simply, we can - and must - do better”. That very same consciousness should be applied to how we approach, perceive and communicate the impact of viewing child exploitation evidence.
[59] Part of the problem with how these crimes are portrayed or perceived by the public is the nature of the wording of the offence itself. The word “pornography” in common parlance refers to representations intended for the sexual pleasure and entertainment of the viewer. “Child pornography” is a misnomer. These depictions and recordings are child exploitation crimes in progress. There is nothing entertaining, benign or harmless about the memorialization of a child being victimized and exploited. The wording of this offence minimizes the callousness of the offenders and the depravity of these offences. Words have power and how the participants in the criminal justice system conduct themselves in court has consequences.
[60] The conduct of crown attorneys is guided by the public interest. Before seeking to tender this evidence, crowns should consider its probative value and the prejudicial effect. If the only purpose of tendering this evidence is to inflame the conscious of the court, it has very little probative value. In contrast, each and every time one of these images or recordings is viewed or watched, there is a substantial prejudicial impact. It is harmful to the child victim and harmful to the viewer. There is a strong public interest in ensuring that this evidence is not gratuitously tendered as an exhibit or unnecessarily viewed by the court.
[61] A child’s suffering is exacerbated each time someone watches their victimization. I was one more person who viewed the sexualization, degradation and humiliation of these children and teens. They have already struggled with feelings of shame, embarrassment and the seemingly never-ending trauma of believing that these images may be out there somewhere on the Internet haunting them. Child victims are entitled to be treated with dignity in a courtroom and their privacy should be respected as much as possible. At the very least, courts should not contribute to the perpetuation of a child’s trauma by viewing these materials unless the probative value substantially outweighs the prejudicial impact.
[114] The Court accepted Justice Green’s wise counsel and the submissions of the Crown and Defence and declined to view the images. However, the probative value of the Facebook Communications required further review.
Facebook Communications
[115] The Facebook Communications between Ms. D. and Mr. D. were transcribed and, in the case of photographs or videos, described by Cst. Rose. They consisted of over 200 pages of material.
[116] They extended between June1 and July 5, 2019 with multiple contacts and exchanges every day. These exchanges included:
a) mundane topics such as their respective jobs, their schedules and their children;
b) loving comments and various humourous photos, videos and emojis;
c) hostile, disrespectful, toxic and explicit comments about the state of the relationship and the attractiveness of each to the other;
d) Ms. D. expressing emotional conflict about the nature of the relationship and whether or not Mr. D. wanted to continue it;
e) Mr. D. accusing Ms. D. of illicit drug taking;
f) many images and videos of child pornography involving A.J. and others with more instances of images passing from Ms. D. to Mr. D.;
g) several exchanges concerning A.J. and the criminal enterprises they were contemplating against her including a reference to administering a stupefying substance to her;
h) Ms. D. expressing willingness to plan and carry out the criminal offences against A.J. to the point where she often persisted in communicating with Mr. D. when he either did not respond or asked her desist.
Victim Impact Statements
[117] It is clear from the Victim Impact Statements that the mothers of A.J. and J. clearly understand the potential for profound effects and ongoing trauma those young people will face for many years as a result of Ms. D.’s crimes.
Range of Sentence
[118] The Crown proceeded by way of Indictment. The maximum sentence for all the Counts on Information 72702-5-C is 14 years. The maximum sentence for Count 1 on Information 72959-1 is two years.
[119] Although courts regularly rely on “ranges” with regard to sentencing, each case must be determined on its own set of circumstances as they pertain to the events and the offender. In M.(C.A.) the Supreme Court of Canada said at paragraph 81:
[81] …The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic core values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sergeant, “society, through the courts, must show its abhorrence of particular types of crime and the only way in which the courts can show this is by the sentences they pass”. The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code…
[120] And at paragraph 92:
[92] …Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. For those reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial Judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.
[121] The Supreme Court of Canada revisited the role of the sentencing judge in Nasogaluak, saying at paragraph 43:
[43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the Judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. (Citations deleted). No one sentencing objective trumps the others and it falls to the sentencing Judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The Judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles of the Code and the case law…
[122] That concept was further addressed by the British Columbia Court of Appeal in Voong at paragraphs 6 and 7, where the Court said:
[6] Imposing a sentence for criminal conduct is the purview of judges in the trial courts. It is an individualized process, in that a sentence must be fashioned to take into account the circumstances of the offence, the circumstances of the offender, the moral blameworthiness of the offender, the principles of sentencing, and proportionality to the offence and the offender.
[7] Much has been written about the philosophical principles that underlie our present-day sentencing ideology. For centuries, philosophers debated, and continue to debate, the role of punishment and the underlying ideology behind punishment. As a result, the law has developed a number of sentencing principles, some conflicting, some ameliorating others, such as retribution and rehabilitation, and all that must be considered by the Judge who has to determine a “fit” sentence for the offender before him or her. It is not an easy task, and not a task that should come under microscopic scrutiny of the appellate court…
[123] In Beierle, the Court highlighted the sentencing principles paramount in child pornography cases in paragraphs 32 through 37:
[32] The offences of possession and accessing child pornography are disturbing crimes of considerable magnitude. The gravity of the offences exists on several levels.
[33] First, the creation of child pornography images, whether in still photographs or video recordings, almost invariably involves the use of real children. The very existence of such images typically proves that some sexual offence has been committed against the children involved in their manufacture. These children are further victimized by the creation of a permanent, graphic record of the crime, which may haunt them forever, given the ease with which such images may be indefinitely disseminated world-wide on the internet. As LeBel J. observed in R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31, at para. 28, "[o]nce a photograph has been posted on the Web, it can be accessed indefinitely, from anywhere in the world", and the victim of the sexual abuse will "never know whether a pornographic photograph or video in which [he or] she appears might not resurface someday."
[34] Second, once child pornography images are created, they are often used by those who possess them: (1) to reinforce the cognitive distortions of pedophiles that pedophilia is a normal and acceptable sexual preference; (2) to fuel the sexual fantasies of pedophiles and encourage them to act upon those fantasies; and (3) to groom and seduce other potential child victims by demonstrating to them that sexual activities between children and adults is acceptable and normal behaviour. See R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 28, 34, 86-89, 91-94, 103.
[35] Third, viewing images of child pornography sometimes causes pedophiles to actually commit horrific crimes of sexual violence against children. See R. v. Briere, [2004] O.J. No. 5611 (S.C.J.), at paras. 232, 247-255, 320-321, 347.
[36] As Fish J. stated in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 353, at para. 8, "offences involving child pornography are particularly insidious" in that they "breed a demand for images that exploit vulnerable children, both economically and morally."
[37] Accordingly, such child pornography offences require the imposition of a sentence that reflects the sheer gravity of the offences, which denounces the morally reprehensible nature of the crimes, and which deters others from the commission of such offences. It is only through the imposition of such sentences that the "market" or "demand" for such images will be reduced. (Citations deleted)
[52] Vast strides have been made by dedicated law enforcement officials worldwide to curb this ever-increasing Internet plague. However, catching the perpetrators and abusers after they have violated children and spread their pictures all over the Internet is not enough. Ways must be found to deter would-be pornographers. One way of doing so is by deterring those who are interested in acquiring the pornography. It is unlikely that anyone ever starts with creation of pornography, or distribution of pornography. The overwhelming majority will have started by simply looking at pornography created by someone else, then by swapping pornography with like-minded people, and only then moving on to actually creating the pornographic images for others by torturing and raping children in front of a camera. People who set about to access and collect pornography victimizing children must be made aware that the courts do not see this a minor, or victimless crime. It is a reprehensible crime and must be dealt with severely for the protection of society as a whole and of its most vulnerable members, our children. It is crucial to deter people at the entry level from ever possessing child pornography. Perhaps by killing, or at least diminishing, the market for child pornography, the production side can also be curbed. [Emphasis in original].
[125] The Court agrees with the Crown submission that the length of sentence is a primary mechanism for achieving general deterrence (see Fisher, W.A.E. and D.L.W.). Where an offender is also making available and distributing the child pornography, denunciation and deterrence receive even greater emphasis (see Lewis).The maximum sentence available and the Supreme Court of Canada’s directions in Friesen indicate the seriousness with which Parliament views the offences of sexual interference and pornography involving children.
[126] Possession and distribution of child pornography are not victimless crimes. In W.A.E. the Court said:
[1] The possession of child pornography is not a victimless crime. It is an inherently serious, harmful and insidious offence, regardless of whether it involves any distribution. Those who possess child pornography encourage the production of such material by providing a market for it even without the exchange of monies. Thus, they directly contribute to the harm caused to children in its production. The Internet has exponentially facilitated access to child pornography to a degree which is frightening. …
[127] And in Hopps, the Court further emphasized at para. 148:
[148]... The possessor of child pornography images is in equal evil partnership with their producers. Accessing and possessing child pornography has a direct impact on the sexual exploitation and the heartrending physical abuse and violence that is sometimes involved.
[128] While in Allen, the Court observed at paragraph 35:
[35]... The harm done to the children exploited and tortured to serve the pleasure of people who would collect and possess child pornography is life-shattering. These children are abused again and again, each time someone downloads and views images and videos of their suffering. Once loaded onto the internet, it is there forever. There is no end to their abuse and suffering. Clearly denunciation and general deterrence are the primary sentencing principles that must be addressed in this type of offence.
[129] In Osl, the Court observed at paragraph 38:
[38] It is abundantly clear to me that extraordinary harm is caused to children by sexual offences committed against them. Parliament has now acknowledged the harm that is done to children through the creation and distribution of child pornography. Because any image uploaded to the Internet remains forever in the ether, no child who has ever been depicted in those images will be free from the reminder of their degradation. In some cases, that fact has led to the harassment and eventual suicide of young people depicted therein. There can be no doubt about the ongoing harm inflicted upon children by the creation and promulgation of child pornography nor by the appetite that is encouraged by accessing it.
[130] The active distribution and sharing of child pornography images creates an increased demand for same, and also an increased risk for hands-on offending (see C.C.).
[131] Ms. D. denied any sexual interest in children. She maintained that her graphic conversations with Mr. D. about sexually abusing A.J. were only conducted in an effort please him and solidify their relationship. This contrasts with the Facebook Communications transcript that show her initiating, and in some cases persisting, in such conversations.
Aggravating and Mitigating Factors
[132] In applying the case law concerning child pornography and child sexual offences the Court agrees with the Crown’s submissions and also finds the following are aggravating factors;
a) Ms. D.’s child pornography collection:
i. was not small and was contained on various media;
ii. included the victimization of A.J. and other young children;
iii. spanned the first three categories described in Pommer;
b) she did not stop her criminal activities of her own accord. They continued until she was discovered.
[133] The Court agrees with the Crown’s submissions and also finds the following are mitigating factors:
a) her guilty pleas at a very early opportunity saved several days of trial and trauma to A.J., her family and other witnesses;
b) she is willing to submit to treatment;
c) her substance abuse at the time of the offences;
d) the dysfunctional nature of her relationship with Mr. D.; and
e) her genuine expression of remorse and acceptance of the profound impact her crimes have had on others.
[134] Sentences for these offences must reflect recent appellate decisions and give Ms. D. the opportunity to take structured sex offender programming. It must appropriately denounce her conduct, and send a significant deterrent message to her and to others that this type of conduct is taken seriously, and will not be tolerated.
[135] In Friesen, the Supreme Court of Canada provided strong and specific directions to sentencing courts to properly consider the inflationary effect of:
a) the increase in maximum sentences mandated by Parliament;
b) the passing of section 718.01 of the Criminal Code;
c) society’s greater understanding and acceptance of the harms caused by sexual violence against children.
in crafting appropriate sentences for sexual offenders.
[136] The Supreme Court also cautioned sentencing courts about relying too heavily on the precedential usefulness of older cases.
[137] Although the sentencing principles of denunciation and deterrence are primary considerations in child pornography cases, the Court must also consider the circumstances of the offences as well as the circumstances of both Ms. D. and the victim.
[138] Because Ms. D. has no criminal record, the principles of rehabilitation and making reparations cannot be forgotten. Rehabilitation must also include counselling, treatment, programs and therapy to assist Ms. D. in developing tools and skills to ameliorate the possibility of future offending.
Escape Lawful Custody
[139] Ms. D.’s escape from the Corrections Officers while going to a medical appointment was both ill-conceived and short lived. However, in doing so the Corrections Officers were injured in trying to pursue her and RCMP resources had to be deployed to apprehend her.
[140] That behaviour requires consideration of a sentence separate from the sexual offending but given Ms. D.’s lack of a criminal record the Crown’s position is excessive.
Remorse
[141] Initially, Ms. D. demonstrated limited insight and only guarded acceptance regarding the seriousness of her offending and the future adverse consequences it may have on A.J. and other victimized children in the pornography she possessed, made available to Mr. D. and which J. and his friends observed.
[142] However, given her later written statement to the Court Ms. D. clearly recognized and accepted the harm her criminal behaviour had visited on others and expressed full responsibility for her actions.
[143] Having had time to reflect upon her actions, Ms. D.’s written comments to the Court are received as a clear and forthright confirmation of her remorse for her criminal behaviour. That will be considered in arriving at a just and appropriate sentence.
[144] In light of Ms. D.’s statement to the Court, Taylor JA's comments in R. v. Anderson, 1992 CanLII 6002 (BC CA), 1992 Carswell BC 441 (B.C.C.A.), are relevant:
The factor of "remorse" is often important. Insofar as it might be suggested that the court should regard those who come before it in a submissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whatever fortitude they are able to summon, there would be little in this factor which could assist the sentencing judge. But to the extent that an accused person is able to demonstrate that he or she has, since the commission of the crime, come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending, the existence of remorse in this sense obviously has much importance.
[Emphasis in original]
Just and Appropriate Sentence
[145] Having reviewed and analysed all of the circumstances of Ms. D. and her offences as well as the applicable purposes and principles of sentencing, the case law and submissions of counsel, the Court does not accept either of Defence counsel’s positions on sentence. They are simply unsustainable in the face of the seriousness and multifaceted nature of Ms. D.’s criminal offending.
[146] The nature of the child pornography produced by Ms. D., the length of time she participated in the possession and distribution of those materials, the consecutive sentences required by the Criminal Code and the graphic nature of the regular communications she had with Mr. D. require a substantial sentence. In addition, the fact that the pornographic materials included a number of the Pommer categories and the recent directions from the Supreme Court of Canada in Friesen indicate that a lengthy penitentiary sentence would be just and appropriate.
[147] However, the Crown’s sentencing position unduly emphasizes the many serious aggravating factors in the case without adequately considering the important mitigating factors, particularly Ms. D.’s lack of a criminal record, her guilty plea early in the process, her full cooperation with the RCMP in their investigation and her remorse.
[148] In addition, the Crown’s position would amount to an excessive sentence after taking into account the totality principle described in Section 718.2 of the Criminal Code.
[149] Ms. D. has been in custody on these matters since July 5, 2019, a total of 487 days for which she will receive 731 days or 24 months credit.
DECISION
Ancillary Orders
[150] In light of the Offences that Ms. D. has pleaded guilty to, the Court will impose orders pursuant to Section 161 of the Criminal Code.
[151] For a period of ten (10) years, Ms. D., you will be prohibited from:
a) Attending a public park or public swimming area where persons under the age of 16 are present and can reasonably be expected to be present or daycare centre, school ground, playground or community centre unless you are in the direct company of your son, Z.P.;
b) Being within one (1) kilometer of any dwelling house of A.P. and A.J.
c) Seeking, obtaining, or continuing in the employment whether or not the employment is remunerative, or becoming or being a volunteer in a capacity that involves being in position of trust or authority towards persons under the age of 16 years;
d) Using the Internet or other digital network to:
I. access any content that violates the law;
II. access any pornography;
III. communicating or attempting to communicate with any person you know to be or who reasonably appears or represents himself or herself to be under the age of 16 years, through a social networking website, including but not limited to Facebook, Twitter, Instagram or Tinder, instant messaging service or chat room except for immediate family members;
IV. subscribe to, possess, access or maintain any peer to peer or similar file sharing programs; and
V. possess, access, utilize or maintain any encryption capable software.
e) You may use the Internet or other digital network only in the following circumstances:
I. in the immediate presence of a person approved of by the Court. You must carry a copy of the written permission with you;
II. during lawful employment, for someone other than yourself, with the circumstances of employment approved in advance in writing by the Court. You must carry a copy of the written permission with you;
III. for the sole purpose of paying bills, banking, searching for or applying for employment, searching for books at a public library, or communicating with a government agency
IV. as approved in advance in writing by the Court. You must carry a copy of the written permission with you.
f) You must sign any release of information forms as will enable any peace officer to monitor your compliance with this term;
g) You must provide the device and any password used to lock any device you use or possess to any peace officer, upon his or her request, in order for him or her to monitor your compliance with this order.
h) You will be at liberty to apply to vary these prohibitions or seek exemptions from them six (6) years from when the prohibition begins.
[152] Pursuant to Section 490.013(2) (a) of the Criminal Code there will be a SOIRA Order in Form 52 requiring Ms. D. to comply with the Sex Offender Information Registry Act for life and to forthwith sign any necessary documentation required by that Act.
[153] Counts 1, 4, 6, and 8 on Information 72702-5-C are primary designated DNA offences. Pursuant to Section 487.051(1) of the Criminal Code, there will be an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from Ms. D. no later than December 31, 2020.
[154] Pursuant to Sections 164.2(1) and 490.1(1) of the Criminal Code there will be an order for forfeiture and destruction of all electronic devices and any images of child pornography in any printed or electronic media seized from Ms. D. or during the search of the Residence and now in the possession of the RCMP.
[155] Pursuant to Section 743.21 of the Criminal Code there will be an order that Ms. D. is prohibited from communicating directly or indirectly with A.P., A.J., J.D. and S.D. while she is in custody on these matters.
[156] Pursuant to Section 743.2 of the Criminal Code there will be an order that this Judgement, the recommendations relating to the sentence, and copies of Exhibits 2 and 3 in this proceeding be forwarded to the Correctional Service of Canada to assist in Ms. D.’s case management while incarcerated.
Sentence
[157] Ms. D., after granting you credit for the time already spent in custody, you will be imprisoned to a global sentence of a further ninety three (93) months in a federal penitentiary with regard to the Counts to which you have pleaded guilty on Informations 72702-5-C and 72959 -1 as follows:
Information 72702-5-C
a. Count 1 – eight four (84) months less twenty four (24) months credit equals sixty (60) months new time;
b. Count 4 – thirty (30) months new time consecutive to Count 1, and concurrent to Counts 6 and 8;
c. Count 6 thirty (30) months new time consecutive to Count 1 and concurrent to Counts 4 and 8;
d. Count 8 - eighteen (18) months new time consecutive to Count 1 and concurrent to Counts 4 and 6.
Information 72959-1
a. Count 1 – three (3) months new time consecutive to the sentences on Information 72702-5-C.
[158] The Court recommends that the Correctional Service of Canada incarcerate Ms. D. at a facility where resources are available to address her sexual offending and her substance abuse.
______________________________
The Honourable Judge M.J. Brecknell
Provincial Court of British Columbia