2008 BCCA 365

In 2008 BCCA 365, Mr. M, a 41-year-old man, pleaded guilty to sexual touching, and possessing and making of child pornography of his two step-daughters, who were six and eight years old at the time the abuse started. The abuse occurred over two years.

Mr. M’s relationship with the girls’ mother was highly sexualized and he encouraged the girls to be comfortable with their nude bodies. This included Mr. M bathing with the girls, showing them pornography, swimming in the nude, and taking photos of them nude. He began sexually abusing the two middle children, took photos of him sexually abusing one of the girls, and told the girls to keep the abuse a secret. The mother discovered a sexualized photo of one of the girls and confronted the girls and Mr. M, who admitted to abusing one of the girls, but the incident was not reported to the police, despite one of the other daughters wanting to take the matter to the police. The abuse continued and on a later occasion Mr. M took the girls swim-ming and took close-up photos of their genitalia.

After the relationship between Mr. M and the mother broke down, the mother told the girl’s father about the abuse and they reported the abuse to the police. Mr. M allowed the police to search his computer which resulted in the discovery of the images of the girls being abused as well as several hundred photos and videos of child pornography. Mr. M tried to minimize the abuse, saying the girls were willing participants. The girls’ victim impact statements stated that Mr. M’s offences had a devastating impact on their home life and emotional well-being.

He was sentenced to six years’ imprisonment. Additional orders included a forfeiture of the evidence, a 10-year registration as a sex offender, a 10-year weapons ban, a 10-year prohibition on being near young people or communicating with them via the computer, and a DNA order.

He sought leave to appeal his sentence, arguing the trial judge had made a mistake assessing the facts and determining his sentence. The appeal judge found that the trial judge was correct in finding that Mr. M had intended to groom the girls and that the judge did not make a mis-take in her sentencing decision. The court also noted:

The sentencing judge in this case considered the gravamen of making the porno-graphic videotape and photographs of the victims, and whether they were simply an extension of the ongoing offences of sexual touching. She decided they were not. At para. 41 of her reasons, she found that they represented an elevated level of abuse and exploitation, and that the videotape further degraded and dehumanized the second daughter by using her as a prop or toy and in creating permanent pornographic images. Immediately before she imposed sentence she made these comments at paras. 83 and 84 of her reasons:

The offence of making child pornography involves distinct elements, separate and apart from those in the sexual exploitation offences. At some point the accused determined to obtain a video camera and a tripod. He considered the view he wished to portray, the lighting required, and the best angle to capture the victim while disguising his own identity. He planned the actions the victim would under-take and that he would undertake in order to satisfy his idea of the kind of sexually-arousing interaction he wished to capture on film. He then prepared the victim to comply with his plan and direction. She was clearly not surprised by the presence of a camera when she entered the room. He then sexually abused her and intentionally made a permanent record of same. All of this was done for the sole purpose of providing him with a perverse form of entertainment to which he could repeatedly resort. The victim would have been aware and doubtless is aware that her abuse was to be repeatedly viewed by the accused for his sexual satisfaction.[1]

The appeal was dismissed.

Also see: 2007 BCPC 438 (Sentencing), 2007 BCPC 443 (SOIRA).

[1] 2008 BCCA 365 at para 58.

Criminal Offence(s): Child Pornography Offences, Sexual Interference