Making child sexual abuse material, Voyeurism, Breach of an undertaking
R. v. K.M.
A publication ban applies. The offender is not named.
Sentence and the Crown's position
What the law allows
The offender pleaded guilty to making child pornography, voyeurism and failing to comply with an undertaking, after secretly recording a teenage complainant in a bathroom. The Crown sought 30 months' imprisonment, while the defence asked the court to strike down the one-year mandatory minimum and impose a community-based sentence. Justice Donegan declared the s. 163.1(2) mandatory minimum of no force and effect on reasonable hypotheticals, but imposed 30 months' imprisonment, finding the offences subjectively and objectively grave and denunciation and deterrence the primary objectives.
In the judge's words
1K.M.'s offences are subjectively and objectively grave. He repeatedly victimized a vulnerable child in her home over a long period of time.
The record
- Convicted of
- Making child sexual abuse material (CC 163.1(2))
- Voyeurism (CC 162(1))
- Breach of an undertaking (CC 145(4))
- Prior convictions
- 10 prior convictions, 1 violent1
- At the time of the offence
- Not stated1
- Mandatory minimum
- Found unconstitutional or not applied under a binding ruling1
- Appeal
- Not yet checked
- Counsel
- Crown: R. Carot, T.A. Livingston
Defence: D.J. McNamee
Sources
- https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc360/2022bcsc360.html Court decision
[123] The Crown submits that a just and proportionate sentence in this case is 30 months imprisonment.
[217] The Crown has chosen not to demonstrate that the provision is demonstrably justified under s. 1 of the Charter. I declare the mandatory minimum provision in s. 163.1(2) of no force and effect pursuant to s. 52(1) of the Charter.
[80] K.M. has a criminal history. In 2007, he was fined and prohibited from driving in relation to a conviction of driving with more than 80 mgs of alcohol in his blood. In 2013, he was fined for failing to comply with an undertaking, possession of a controlled substance and failing to appear. In 2017, he was convicted of two groups of offences for which he was sentenced on the same day. For the first set of convictions - dangerous operation of a motor vehicle, failure to comply with recognizance and obstructing a peace officer - K.M. was sentenced to one day in jail, concurrent on each charge (having been given credit for the equivalent of 46 days in pre-sentence custody), followed by a period of probation for one year in respect of the driving offence. For the second set of convictions - flight while pursued by a peace office, assaulting a peace officer with a weapon, and failing to comply with a recognizance - K.M. was sentenced to 141 days imprisonment, followed by one-year probation, concurrent on each charge.
[184] K.M.'s offences are subjectively and objectively grave. He repeatedly victimized a vulnerable child in her home over a long period of time.
[227] Therefore, I impose a sentence of six months imprisonment on Count 1. I impose a sentence of 30 months imprisonment on Count 2. I impose a sentence of six months imprisonment on Count 4. All sentences are to be served concurrently to one another.
- R. v. K.M., 2022 BCSC 360 Court decision, Courts of British Columbia