IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         On November 18, 2020, Michael Leighton pled guilty to all three counts of the Indictment. Counts 1 and 2 state that on August 23, 2019 he did unlawfully and surreptitiously observe or record a number of individuals in a place in which those individuals reasonably expected to be nude, contrary to s. 162(1)(a) of the Criminal Code (the “Code”). Count 3 states that on August 23, 2019 he did wilfully attempt to obstruct, pervert or defeat the course of justice by trying to conceal evidence, contrary to s. 139(2) of the Code.

[2]         On August 23, 2019 at shortly after 6:00 PM, an employee of [omitted for publication] discovered a hidden camera located in the baseboard heater of the employee’s staff change room/washroom. This washroom was gender neutral in that both male and female staff had access to it. Upon discovery of the camera, the employee notified his supervisor, Ms. Y., of what he had found. Ms. Y. retrieved the camera and observed that it contained an SD card to record images within it. She then secured the camera with the SD card in a plastic bag and placed it under a bar at the winery. After notifying her immediate superiors of what had been discovered, she then told two other employees one of whom was Mr. Leighton.

[3]         When senior staff of the winery and Ms. Y. went to retrieve the camera and SD card from under the bar they discovered that the plastic bag in which they were placed had been ripped opened and that the camera no longer contained the SD card. Surveillance footage at the winery was reviewed and it showed Mr. Leighton attending the rear of the bar, retrieving the plastic bag and its contents, concealing it and then stepping out of view. He then reappears and is seen placing the plastic bag and its contents back under the bar.

[4]         The RCMP were notified, attended the winery, and arrested Mr. Leighton. He was searched but no SD card was located. After some prompting by the investigating officers, Mr. Leighton admitted to taking the SD card. He then retrieved two SD cards from within his shoe and turned them over. He admitted to the officers that he had been recording individuals using the washroom for the previous two months.

[5]         It is subsequently learned that Mr. Leighton had placed two separate cameras in the staff washroom that were able to record video images simultaneously from two separate angles as individuals entered and used the washroom. The cameras were located near the toilet facing upward so that they could record images of individuals genitals. When the police examine the SD cards they learned that the first card had 60 separately named video files, 6 of which contained footage, and 54 of which had been deleted. The second card had 25 video files all of which contained footage. On both cards there were video files that showed Mr. Leighton either placing or retrieving the camera from the washroom. In total 31 playable videos were located from both SD cards. It is clear that all of the individuals depicted in them appeared to be completely unaware they were being filmed. The video files contained naked images of individuals’ penises, vaginas and buttocks. Some of the deleted files had individuals’ names beside them and had been titled “Vag” being slang for vagina. Thirteen different people were identified as being the subjects of the 31 recovered videos. Eleven were employees of the winery, two of whom were under the age of eighteen. Two others were customers of the winery who had attended the day of Mr. Leighton’s arrest for a wedding, one of whom was the bride.

[6]         The court was provided with three victim impact statements. Within them the authors all state that their privacy was violated. Two victims describe how they now have trust issues regarding using public and work washrooms. One sought out counselling to address her underlying emotional issues arising from learning that she had been photographed while using the washroom. The bride described how she feels “angry, violated, sad, and generally upset thinking about how something like this could’ve happened on my wedding day of all days”. Some of the victims fear that Mr. Leighton has copies of the video files and that they may be published on the Internet.

[7]         Mr. Leighton is 44 years old. He is married with three children. He and his family reside in the north Okanagan. Prior to the offences for which he has pled guilty to, he had no prior involvement with the criminal justice system. I was provided with both a Pre-Sentence Report and a Psychologist’s Report. Neither report suggests that Mr. Leighton had anything other than an unremarkable upbringing.

[8]         He was raised by his mother and stepfather in Prince George. His biological father died when he was an infant. His stepfather formally adopted him in 1980. He successfully attained his grade 12 education and then embarked on a career in the food services industry.

[9]         In his early adult years he resided in a number of communities throughout the province until 10 years ago when he committed to living in Kelowna. He has developed a pattern of only staying with an employer for a few years before leaving and seeking new employment. Prior to his employment at [omitted for publication] he worked for Mission Hill Family Estate Winery. Upon being arrested for these offences his employment with [omitted for publication] was terminated. He remains unemployed. He says largely due to the media attention arising from the events that bring him before the Court.

[10]      In 2016, during an argument with his wife, he learned for the first time that his mother and stepfather had misled him regarding the death of his biological father. He had been told that his father died in a car accident when in fact he had committed suicide. This disclosure and the fact that it had been concealed from him had a profound impact on him emotionally. He addressed it by drinking to excess. His mother said he “went off the deep end”. He became a functioning alcoholic consuming almost daily a minimum of a 26-ounce bottle of bourbon, two litres of wine and on occasion, several ounces of vodka and gin.

[11]      He denies that he has any voyeuristic fetishes. He says that it was not his intent to obtain naked images of random individuals but rather his desire was to obtain naked images of one specific individual with whom he worked with. He had become infatuated with this individual approximately two years ago and he fantasized about becoming romantically involved with her after he had finished raising his children. He says his desire to see her naked was why he decided to place the cameras in the staff washroom. He says he committed the offences as a result of a combination of his heavy drinking and situational relationship stressors. Dr. Kreklewetz, the author of the Psychological Report, has opined that Mr. Leighton’s risk for reoffending is in the low to moderate range.

[12]      Post arrest Mr. Leighton has taken a number of positive steps to facilitate his rehabilitation. He has stopped drinking and has been sober for over a year. He has attended a number of counselling sessions both one on one and group to address both his relationship issues and the impact of learning how his father actually died. He has become involved in a men’s support group remotely via Zoom.

[13]      Mr. Leighton expressed remorse to the authors of both the Pre-Sentence and Psychological Reports. To Dr. Kreklewetz he stated “I feel so sorry for the people I’ve hurt…I guess [the victims would feel] disgust and distrust at me…I invaded their privacy. It was despicable and horrific. I am floored that I did it”. He stated in the Pre-Sentence Report that his actions had betrayed a trust between he and his co-workers at [omitted for publication] and that his actions may have caused long-term harm to his colleagues and the wedding guests. He apologized in Court stating he was truly sorry for what he had done.

[14]      A number of letters of reference from Mr. Leighton’s family and friends were filed with the court. Not surprisingly, they all speak positively of Mr. Leighton. Many comment that his offending behaviour was uncharacteristic. They all express support for him going forward.

[15]      The Crown says I must impose jail sentences of between 9 to 12 months for the voyeurism offences and 12 months for the obstruction offence served consecutively and that a conditional sentence is not appropriate. Following the completion of the jail sentence, they also seek a period of two years’ probation.

[16]      The defence urges me to suspend the passing of sentence or alternatively if a jail sentence is imposed that it be served by way of a conditional sentence in the community.

[17]      None of the offences for which Mr. Leighton has pled guilty to prescribe minimum terms of imprisonment. The voyeurism offences carry a maximum term of five years and the obstruction offence 10 years. The discharge provisions of the Code are available as is the conditional sentencing provisions in the event all the prerequisites are meet.

[18]      Between the Crown and the defence I have been provided with eight case authorities regarding sentences that have been imposed for offenders who have been found guilty or pled guilty to similar offences for which Mr. Leighton is being sentenced. I have read and considered all of them in formulating my decision. They are summarized below.

[19]      In R. v. Jarvis 2019 ONSC 4938 Justice Goodman sentenced the accused to six months jail having found him guilty after a trial of surreptitiously recording numerous students through the use of a pen camera without their knowledge. The videos captured female students between the ages of 14 and 18 years old. None of the students were naked; however, many of the videos focused entirely on the female students cleavages often close up. Mr. Jarvis had no criminal record. He was a teacher and therefore in a position of trust with respect to the student victims. The defence sought a conditional sentence which was rejected by the court. The sentencing judge was not satisfied due to the significant number of aggravating factors and the accused’s late attempts to address his offending behaviour that serving a sentence in the community would address the principles of general deterrence and denunciation. The Court determined that it would be unfit and contrary to the public interest to impose a conditional sentence.

[20]      In addressing the issue of the suitability of a conditional sentence the Court said:

[21]      The British Columbia Court of Appeal in R. v. Russell 2019 BCCA 51 upheld an 18 month jail sentence for the offence of voyeurism. Mr. Russell had entered a guilty plea to the offence which involved him surreptitiously recording videos up the skirts of approximately 85 young women or girls. He had obtained the video recordings by secreting his digital camera in an open backpack which he would then place under the skirt of females as they either walked by him or stood in line at various locations in the Metrotown Mall. At the time of sentencing Mr. Russell was 71 years old and subject to a Long Term Supervision Order. He had prior convictions including convictions for sexual assault and possession of child pornography. A Psychological Assessment Report prepared in advance of sentencing had indicated that Mr. Russell represented a high risk to commit future sexual offences.

[22]      At paragraph 39 of the decision the court, after having reviewed a number of cases, stated as follows:

[23]      R. v. Downes 2020 BCSC 177 involved a 62-year-old first-time offender who received a suspended sentenced and was placed on probation for six months for the offence of voyeurism. He had surreptitiously photographed two teenage boys under the age of 18 in a sports arena dressing room. None of the photographs showed the boys nude and none of them were pornographic. It was an aggravating factor that the accused was in a position of trust (he was their coach) towards the victims and their age. The accused had lost future opportunities to referee adult hockey and adult slow pitch umpiring and had been subject to considerable publicity, was remorseful, and had taken full responsibility for his conduct.

[24]      In R. v. Weinhammer 2007 ABPC 349 (CanLII), [2007] A.J. No. 1459 the accused was given a suspended sentence and placed on probation for two years. He had pled guilty to two charges of voyeurism arising from his surreptitiously photographing several men using the urinal at his workplace. He was 30 years old had no prior record and had difficulties in coming to terms with his homosexuality while residing in a small community. The Court determined that the primary objective of sentencing was rehabilitation of the offender with denunciation and deterrence being the secondary objectives.

[25]      In R. v. Bosomworth 2015 BCPC 7 Judge Dhillon was faced with determining whether to suspend the passing of sentence or grant the accused a conditional discharge arising from his guilty plea to a single count of voyeurism. The accused was a co-owner of a restaurant in the Gastown area of Vancouver. In December of 2012 he set up a small camera in the paper towel dispenser in the washroom of the restaurant. The washroom was used by both patrons and staff. His business partner discovered the recording device and reported it to the police. The accused was observed adjusting the camera on one of the videos recovered from the device. Over a period of five days six persons, four women and two men, had been video recorded using the washroom facility in some fashion. The Crown argued for a suspended sentence while the accused sought a conditional discharge. The Court was not persuaded that a conditional discharge would be appropriate as it would be contrary to the public interest. She acceded to the Crown’s sentencing position and suspended the passing of sentence and placed the accused on probation for a period of 12 months.

[26]      R. v. Gill 2019 BCSC 461 involved the accused pleading guilty to two counts of obstruction of justice arising out of his filing a false affidavit and fabricating video evidence in the course of appealing convictions before the Supreme Court and Court of Appeal arising out of a prosecution for Motor Vehicle Act offences. The accused had no criminal record and received a six-month jail sentence. His actions were deliberate and calculated and were undertaken over a period of months.

[27]      In R. v. Nordman 2004 BCSC 1295, the 25-year-old first time offender was sentenced to an 18-month jail sentence to be served in the community pursuant to a conditional sentence order. The circumstances of the offence were that he, at the behest of a friend, who had just stabbed another man, was asked to dispose of the knife used in the stabbing. He did so. The victim of the stabbing subsequently died and the accused’s friend was charged with manslaughter. It was noted that when the accused later learned of the victim’s death he made no effort to cooperate with the police when they sought to contact him to discuss the stabbing incident.

[28]      Our Court of Appeal in R. v.Sneve 2001 BCCA 366 granted the accused’s appeal and reduced his sentence from one of 18 months to 12 months arising out of his guilty plea to a single count of obstruction. The accused had lied to the police at his arrest for a break and enter by providing his brother’s name as opposed to his own name. He perpetuated the obstruction by continuing to use his brother’s name through and including sentencing when under his brother’s name he received a lighter sentence than he would have received had he used his own name due to his extensive criminal history. The Court of Appeal determined that a fit sentence taking into account the extent of the obstruction and the accused lengthy criminal record consisting of over 50 offences committed over a period of 20 years was 12 months as opposed to the 18 months he had received by the trial judge.

[29]      The Alberta provincial court in R. v. Gardner 2015 ABPC 8 sentenced the accused to 90 days jail for obstruction arising from his intentionally lying to the Court in order to secure an adjournment of an impending traffic offence trial. The accused was a court agent who made appearances with clients who were disputing traffic violations. He lied to the presiding Judge, the investigating officer, and the Crown prosecutor in his efforts to secure the adjournment. The Court found his actions calculated and flagrantly dishonest. 

[30]      In considering what is a fit sentence I must consider all mitigating and aggravating factors. As Judge Koturbash stated in R. v. Roberts 2015 BCPC 266 at paragraph 41: Aggravating and mitigating factors may tend to increase or decrease the gravity of the offence and/or the moral blameworthiness of the offender.

[31]      I am mindful; however, of the observations of Judge Koturbash in R. v. Roberts (supra) where he states, “giving too much credit for public embarrassment is counterintuitive to the sentencing process when the circumstances of the offence, such as this one, elevate the objectives of denunciation and deterrence to paramountcy.”

[32]      Section 718 to 718.2 of the Code set out the purpose and principles of sentencing.

[33]      Section 718 sets out the statutory objectives I must consider when imposing a sentence. They are:

[34]      Section 718.1 requires that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[35]      Section 718.2 requires I consider all mitigating and aggravating factors and that when consecutive sentences are imposed the combined sentence should not be unduly long or harsh.

[36]      Sentencing is an individualized process. I must consider not only the circumstances of the offences themselves but also the particular circumstances of the offender. Then, after applying the applicable principles of sentencing and considering the mitigating and aggravating factors, an appropriate sentence can be determined.

[37]      The offences for which Mr. Leighton has pled guilty to are very serious. Almost all of the cases provided to me by both counsel for the Crown and the defence say that the primary principles of sentencing that are applicable are denunciation and deterrence. This being the case, the objective of rehabilitation of Mr. Leighton must be given less weight in my sentencing decision.

[38]      Mr. Leighton’s decision to place cameras in the washroom at [omitted for publication] required careful thought, planning, and deliberation. The cameras were in place for two months and no doubt would have remained but for the fortuitous discovery of them by another employee of the winery. He chose to video record individuals in a location where there is the highest expectation of privacy. Multiple victims were the subject of his offending behaviour. Most were his co-workers. Two were under the age of 18. Many of his victims feel violated and are now fearful of using public washrooms. His stated goal was to obtain naked images of a particular co-worker. His actions were appalling, loathsome, and abhorrent. His moral blameworthiness is extremely high.

[39]      As Judge Dhillon said in Bosomworth (supra):

[40]      I am mindful of the fact that Mr. Leighton has taken numerous steps to address his behaviour and the underlying conditions that resulted in him committing the offences before the Court. He appears to be well on the path towards rehabilitation. He has the support of his family and friends. I accept that he is genuinely remorseful for the offences he committed.

[41]      The Crown asks me to impose a lengthy period of jail to denounce and deter others from committing similar acts. Mr. Leighton’s counsel says that can be achieved without sentencing him to jail but by way of either suspending the passing of sentence or allowing him to serve a jail sentence in the community.

[42]      I am not persuaded that denunciation and deterrence can be properly addressed by suspending the passing of sentence for either the voyeurism or the obstruction offences.

[43]      I do not find the Weinheimer (supra) decision helpful as it is dated having been pronounced in 2007 and in my opinion, fails to recognize that in offences for voyeurism the primary objective must be denunciation and deterrence as opposed to rehabilitation. In Bosomworth (supra) while involving facts similar to the facts before me, the Crown only sought a suspended sentence. In other words the court was not asked to consider a jail sentence. The Court was only asked to decide between a conditional discharge versus a suspended sentence. In that respect it is distinguishable. Lastly, Downes (supra) is distinguishable as it did not involve any naked images or videos being obtained and the number of victims were significantly fewer.

[44]      These offences warrant a jail sentence. The issue then becomes whether a conditional sentence is available and is appropriate. Imposing a conditional sentence is not precluded by the provisions of the Code for either of the offences before Court. Section 742.1 of the Code list four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving a sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in subsections 718 to 718.2.

[45]      Neither the offence of voyeurism or obstruction have minimum terms of imprisonment. The Crown is not seeking a sentence that would exceed two years. The safety of the community would not be endangered by Mr. Leighton serving a sentence in the community. However, with respect to the voyeurism offences I find a conditional sentence would not be appropriate. I agree with the reasoning of the court in Jarvis (supra) regarding the suitability of a conditional sentence for the offence of voyeurism. Imposing a conditional sentence in light of the facts presented before me regarding Mr. Leighton’s actions would not properly address the primary sentencing principles of denunciation and deterrence. It would be unfit and contrary to the public interest to do so.

[46]      I have reached a similar conclusion with respect to the obstruction offence. The Court of Appeal in R. v. Hall 2001 BCCA 74 (CanLII), 2001 BCCA 0074 had this to say at paragraph 12 regarding the offence of obstruction:

[47]      In order to properly denounce and deter others from this type of conduct a jail sentence to be served in an institution must be pronounced.

[48]      The circumstances of Mr. Leighton’s actions regarding the voyeurism’s offences including the aggravating factors involving the length of time he committed the offences, the number of victims involved, the fact that some were under the age of 18, and the victims extreme personal privacy being violated require a lengthy period of jail. The facts before me are more egregious than the Court was faced with in Jarvis (supra). Mr. Jarvis received a six-month jail sentence. Had Mr. Leighton not taken immediate steps upon his arrest towards rehabilitating himself and if I did not accept that his remorse was genuine I would have had no difficulty in sentencing him to a period of jail within the range sought by the Crown. However, after considering the circumstances of Mr. Leighton, the circumstances of the offences, and applying the principles of sentencing I find that the appropriate sentence on Counts 1 and 2 of the Information is six months jail to be served concurrently to each other.

[49]      Mr. Leighton’s decision to attempt to take and conceal the SD cards was an impulsive act that ultimately did not impede the investigation. Unlike many of the cases placed before me by the Crown, his actions were not of a prolonged nature involving misleading numerous justice participants such as police officers, court officers, and judges nor did his actions involve intimidation or threats of any witnesses. His obstruction lasted only a few hours. He provided the SD cards to the investigating officers shortly after his arrest and cooperated further with their investigation. His conduct was at the low end of the range for this type of offence. I find a brief period of jail would satisfy all of the sentencing principles therefore on Count 3 of the Information I impose a sentence of one month jail.

[50]      The Crown says that the obstruction offence was a distinct and separate offence from the voyeurism offences and as a result the sentence I impose for it must be served consecutively to the sentence I impose for the voyeurism offences. The defence made no submissions on this issue.

[51]      The test to apply when determining whether sentences for offences should be consecutive or concurrent is set out in R. v. Li 2009 BCCA 85 and stated as follows: “whether the acts constituting the offence were part of a linked series of acts within a single endeavour”.

[52]      I am satisfied that the obstruction offence was not “linked” in any way to the voyeurism offences. It was a completely separate act undertaken to conceal the evidence of the voyeurism offences. It was a brief attempt to defeat the investigation of the voyeurism offences not undertaken in furtherance of the voyeurism offences. The result being that the sentence for the obstruction offence must be served consecutively to the sentence I have imposed for the voyeurism offences.

[53]      On Counts 1 and 2 of the Information the sentences are six months jail to be served concurrently to each other and on Count 3 of the Information the sentence is one month jail to be served consecutively to the sentences on Counts 1 and 2.

[54]      The Crown has asked that I impose a period of probation for 2 years following the completion of the jail sentences. I am persuaded that such an order is warranted and I order that Mr. Leighton, upon completion of his jail sentence be placed on probation for a period of 2 years. The terms and conditions of the probation order are as follows:

[55]      The Crown also seeks ancillary orders requiring Mr. Leighton to provide a sample of his DNA for inclusion in the National DNA Databank and a firearms prohibition.

[56]      None of the offences for which Mr. Leighton has been sentenced are primary designated offences resulting in a mandatory order that he provide a sample of his DNA. As they are secondary designated offences I have discretion as to whether such an order should be made. I have considered the factors set out in s. 487.051(3) of the Code and I am satisfied that it is in the best interests of the administration of justice to make such an order. His providing a sample of his DNA will be minimally intrusive and will not overly impact his privacy. Given the serious nature of the offences and the circumstances regarding the commission of them coupled with the fact, that at least for the voyeurism offences, a possible investigative tool is searching for DNA on recording devices a DNA order shall be pronounced.

[57]      The samples shall be taken from Mr. Leighton while he is custody and he must submit to the taking of the samples.

[58]      None of the offences attract a mandatory s. 109 firearms prohibition or a discretionary s. 110 firearms prohibition therefore I am without jurisdiction to make such an order.

[59]      Lastly, the Crown asks that I order, pursuant to section 738 of the Code, that Mr. Leighton pay restitution to the victim EA for the cost of counselling services. EA attended four counselling sessions to address the emotional impact of her learning she had been recorded by Mr. Leighton. The cost of the counselling was $540.00. I agree with the Crown and order that Mr. Leighton pay restitution in the amount of $540.00 to the Clerk of the Court for the benefit of EA by December 31, 2022.