R. v. S.J.H.

2024 BCCA 134 R. v. S.J.H.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. S.J.H., 2024 BCCA 134 Date: 20240411 Docket: CA48047 Between: Rex Respondent And S.J.H. Appellant Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4(1) and (2) of the Criminal Code restricting the publication, broadcasting, or transmission in any way of evidence that could identify the complainants, who are referred to in this judgment by the initials C.H. and T.H. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Chief Justice Marchand The Honourable Justice MacKenzie The Honourable Madam Justice Horsman On appeal from: An order of the Provincial Court of British Columbia, dated October 13, 2021 (R. v. S.J.H., Nanaimo File 86287-1). Counsel for the Appellant: V.L. de Jong Counsel for the Respondent: C.E. Tomusiak Place and Date of Hearing: Vancouver, British Columbia March 22, 2024 Place and Date of Judgment: Vancouver, British Columbia April 11, 2024 Written Reasons by: The Honourable Chief Justice Marchand Concurred in by: The Honourable Justice MacKenzie The Honourable Madam Justice Horsman Summary: The appellant, S.J.H., was convicted of two counts of sexual interference and one count of invitation to sexual touching contrary to ss. 151 and 152 of the Criminal Code, respectively. The judge ordered that Mr. H serve the global eight-year prison

sentence consecutively to a three-year sentence he was already serving in relation to other sexual offences involving children. The judge also imposed a number of ancillary orders, including a lifetime prohibition order under s. 161(1)(a) to (d) of the Code. Among other things, the s. 161 order prohibited Mr. H from using the Internet or other digital networks except in accordance with conditions set by the court. Mr. H appeals against his sentence, alleging that the judge erred in: (1) failing to consider the totality principle; (2) failing to articulate the basis on which she considered the scope and duration of the orders under s. 161(1)(a) to (d) of the Code to be reasonable; (3) imposing lifetime orders under s. 161(1)(a) to (d) of the Code; and (4) failing to tailor the s. 161 orders to the circumstances, in particular, failing to set out conditions under which Mr. H may use the Internet. Held: Appeal allowed in part. First, the judge did not err by failing to consider the totality principle. A review of the record makes clear the totality principle was subsumed in the positions taken by the parties. It was common ground that the sentence imposed by the judge would run consecutively to the sentence Mr. H was already serving. The defence did not object to the range of sentence proposed by the Crown. And, the judge imposed a sentence at the low end of the Crown's proposed

range. This ground of appeal is dismissed. Second, the judge erred in law by providing insufficient reasons to explain the duration and scope of the s. 161 order. The record and reasons are devoid of information identifying why the judge considered the prohibition order she imposed to be appropriate. Had the judge received helpful submissions and set her mind to the issues of duration and scope, she would not have made the order she did. The circumstances certainly called for a lengthy and restrictive order--but not a "maximum" one. This ground of appeal is allowed and new 15-year s. 161 prohibition orders are made in an effort to reasonably respond to the risk Mr. H poses to children. Reasons for Judgment of the Honourable Chief Justice Marchand: Introduction [1] On June 11, 2021, the appellant, S.J.H., was convicted of two counts of sexual interference and one count of invitation to sexual touching contrary to ss. 151 and 152 of the Criminal Code, R.S.C. 1985, c. C-46 ["Code"], respectively. The complainants were his children, C.H. and T.H. At the time of Mr. H's offences, C.H. and T.H. were somewhere between the ages of two and five. [2] On October 13, 2021, the trial judge sentenced Mr. H to consecutive four-year prison terms in relation to the sexual interference counts, and a concurrent three-year prison term in relation to the invitation to sexual touching count. The

judge ordered that Mr. H serve the global eight-year prison sentence consecutively to a three-year sentence he was already serving in relation to other sexual offences involving children. [3] The judge also imposed a number of ancillary orders, including a lifetime prohibition order under s. 161(1)(a) to (d) of the Code. Among other things, the s. 161 order prohibited Mr. H from using the Internet or other digital networks except in accordance with conditions set by the court. The judge set no such conditions. [4] Mr. H's appeal against his conviction was dismissed by this Court on November 2, 2023, with reasons indexed as 2023 BCCA 398. Mr. H now appeals against his sentence. He raises four grounds of appeal. Specifically, he submits the judge erred by: 1. failing to consider the totality principle; 2. failing to articulate the basis on which she considered the scope and duration of the orders under s. 161(1)(a) to (d) of the Code to be reasonable; 3. imposing lifetime orders under s. 161(1)(a) to (d) of the Code; and 4. failing to tailor the s. 161 orders to the circumstances, in particular, failing to set out conditions under which Mr. H may use the Internet. [5] Mr. H asks that the global sentence of eight years be set aside and a global sentence of six years be imposed. He acknowledges that the six-year sentence ought to run consecutively to his previous three-year

sentence. Mr. H also asks that the s. 161 orders be particularized and reduced from lifetime to 15-year prohibitions. [6] For the reasons that follow, I would allow the appeal in part. I would dismiss Mr. H's appeal against his eight-year term of imprisonment but allow his appeal against the lifetime prohibition order under s. 161 of the Code and the scope of the s. 161 Internet restrictions. I would impose a 15-year prohibition order with terms tailored to the circumstances. Background [7] C.H. and T.H. are brothers. P.L. is their mother. Mr. H is their father. P.L. and Mr. H were married in 2010. C.H. was born in 2009. T.H. was born in 2012. [8] In June 2018, Mr. H was removed from the family home as a result of an investigation relating to his behaviour towards a nine-year-old female friend of C.H.'s. As a result of that investigation, Mr. H pled guilty to one count of sexual interference in relation to that child and one count of possession of child pornography.[1] On February 19, 2021, he was sentenced to two consecutive 18-month prison terms and various ancillary orders, including a ten-year prohibition order under s. 161 of the Code. [9] As noted, in June 2021, the trial judge found Mr. H guilty of two counts of sexual interference under s. 151 and one count of invitation to sexual touching under s. 152 of the Code. [10] In relation to C.H., the trial judge found that on

one occasion Mr. H touched, rubbed, squeezed and hit C.H.'s penis, laid on him when they were both naked and "humped" him. It hurt C.H. to have his father's weight on him. Mr. H threatened C.H. not to tell his mother or Mr. H would kill him. [11] In relation to T.H., the trial judge found that on one occasion Mr. H pulled T.H.'s pants down, touched T.H.'s penis, and tried to put his penis and small toys up T.H.'s "butt". Mr. H also asked T.H. to touch his (Mr. H's) "wiener" which T.H. described as "yucky", "gross", and "gross"-smelling. Mr. H threatened to "try and kill all of [them]" if T.H. told P.L. Sentencing Hearing [12] The sentencing hearing was held on October 4, 2021. At the outset, defence counsel (not counsel on appeal), reassured the judge that the hearing would take far less than the five hours that had been set aside. In doing so, he framed his expectations as follows: And so you'll hear from my friend what her range is and I'm going to ask Your Honour to go below the Crown range on the issues of totality and so forth. So you'll hear what kind of numbers my friend is talking about and I'll give you some alternative numbers. My submissions are going to be very brief. [Emphasis added.] [13] Crown counsel (not Crown counsel on appeal) entered five exhibits, namely Mr. H's criminal record, a pre-sentence report dated July 21, 2021, a psychological assessment report

dated July 20, 2021 and victim impact statements from P.L. and her mother, D.H. [14] The Crown began its submission by setting out the Crown's position on sentence. The Crown sought a "seven to 10 year global sentence", comprised of three to five years on count one (sexual interference against C.H.), four to five years consecutive on count two (sexual interference against T.H.), and three to five years concurrent on count three (invitation to sexual touching). The Crown noted that any sentence imposed on Mr. H "should be consecutive to the one that he's already serving". [15] The Crown also sought various ancillary orders. With respect to the prohibition order under s. 161 of the Code, the Crown did not make a substantive submission. Rather, after outlining that s. 161 orders begin when imprisonment ends and may be for life, the Crown said nothing about the terms the judge may wish to impose and left duration up to the judge's discretion: The Crown is also seeking a s. 161 order. [Section] 161(2) states that it: . . . may be for life or for any shorter duration that the court considers desirable . . . If not for life, then [it] begins when done imprisonment, and I can note, Your Honour, that he is already on a 10-year 161 order. Crown is seeking 161(a) through (d) and I leave it in Your Honour's hands as to the appropriate duration. [16] The Crown relied heavily on the decision

of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9. Friesen is regarded as the leading case on sentencing in relation to sexual offences against children. The Crown highlighted many passages from the decision, including passages emphasizing: · the vulnerability of children; · the need to protect children from wrongful exploitation and harm; · the wrongfulness and harmfulness of sexual offences against children; · the aggravated nature of sexual violence involving the abuse of a position of trust; · the obligation of sentencing judges to give primary consideration to the sentencing objectives of denunciation and deterrence; · where the offender presents an increased risk of reoffending, the need to prevent further harm by emphasizing the sentencing objective of separating the offender from society; and · the need for sentences for sexual offences against children to increase to match their gravity, the degree of responsibility of offenders, and the consequential harm to children, their families, their caregivers and the community. [17] The Crown noted the presence of statutory aggravating factors under s. 718.2(ii), (ii.1), (iii) and (iii.1) as well as the absence of mitigating factors. The Crown indicated that its "concern is the risk to reoffend." The Crown submitted that Mr. H was at a heightened risk to reoffend because he continued to deny his offending against his

children and pointed to the psychological assessment report which indicated that Mr. H was "at moderate or elevated risk to reoffend". [18] The Crown relied on three cases in support of its range of sentence, namely R. v. R.G.S., 2021 BCSC 1333, R. v. F.M., 2020 BCSC 1884 and R. v. B.D.M., 2021 BCSC 1738. As noted by the Crown at the sentencing hearing, each of these cases involved multiple counts involving sexual offences against children and consecutive sentences that were reduced following an application of the totality principle. [19] D.H. and P.L. then read their victim impact statements. They shared that C.H. was suffering from migraines, high anxiety and low self-esteem. He was expressing how much he hated his father and needed to see his father properly punished. T.H. was experiencing uncontrollable anger, and expressing that he hated himself and wanted to die. He had threatened to kill his mother and "everyone in his family." He had been diagnosed with PTSD and had to be "heavily medicated to keep him calm enough to lead a somewhat normal life and childhood." P.L. had also been diagnosed with PTSD, was overwhelmed with grief and guilt, and was unable to work. [20] Defence counsel's submissions, as promised, were relatively brief. He began by noting that, due to the timing of Mr. H's offences, the sexual interference count against C.H. was subject to a maximum jail term

of ten years while the sexual interference and invitation to sexual touching counts against T.H. were subject to a maximum of 14 years each. He submitted that C.H. was entitled to the "benefit of a lesser punishment" but also acknowledged that "Friesen is speaking retroactively". Defence counsel then made the following submission regarding the appropriate range of sentence: Friesen says we're not setting a range but we are saying that in the mid-single digits, meaning somewhere in the three to six, thereabouts, without putting an actual number on it. [21] Defence counsel recognized that the Crown's range on count one was "fair". He then urged the judge to take account of the three-year sentence Mr. H was already serving, apply the totality principle, and consider a sentence in the range of three years on count one, three years consecutive on count two and three years concurrent on count three, for a global sentence of six years. Defence counsel noted that he was asking for a "slightly lesser" sentence than the bottom of the Crown range. [22] Defence counsel referenced the risk assessment completed by the psychologist who authored the psychological assessment report. He acknowledged Mr. H was considered to be at "moderate or elevated" risk to reoffend, but emphasized that was not a prediction and that Mr. H was continuing in sex offender treatment. Defence counsel distinguished

R.G.S. on the basis there was no risk assessment available in that case, nor any evidence the offender was willing to engage in treatment (see R.G.S. at para. 151). [23] Defence counsel agreed all of the statutory aggravating factors identified by the Crown applied. In terms of mitigating factors, he pointed out Mr. H was forthcoming about his previous offending and was engaged in treatment. [24] Defence counsel took no issue with the ancillary orders sought by the Crown. With respect to the prohibition order under s. 161 of the Code, defence counsel either misunderstood or misstated the Crown position. He stated the Crown was suggesting a lifetime order when, in fact, the Crown had left duration in the judge's discretion. Like the Crown, defence counsel made no substantive submission on the s. 161 prohibition order. Specifically, he submitted: The s. 161 order -- His Honour Judge Lamperson imposed a 10-year order. Mr. [H] is 47. Your Honour could impose a 10-year. The Crown is suggesting a lifetime order. I'll -- it's in Your Honour's discretion to make it lifetime. The offending before Your Honour did not happen in public places, it happened in the home, which in itself we know is aggravating and it's involving his nuclear family, not strangers. It may be that Your Honour will wish to impose the lifetime 161. [25] At the conclusion of defence counsel's submission, the judge

clarified the positions being taken by the parties. Ultimately, the Crown repeated that it was seeking a global sentence of between seven and ten years and that Mr. H was seeking a global sentence of six years. Reasons for Sentence [26] The judge began her reasons for sentence by reviewing the circumstances of the offences, the circumstances of Mr. H, the principles of sentencing under s. 718 of the Code, and the principles set out in Friesen. She briefly reviewed the authorities referred to by the Crown in its submissions and then summarized the Crown and defence positions on sentence. [27] The judge agreed with the Crown that Mr. H's offending was aggravated by four factors under s. 718.2(a) of the Code, namely: (1) Mr. H abused members of his family; (2) Mr. H abused persons under the age of 18; (3) Mr. H abused a position of trust or authority in relation to the victims; and (4) Mr. H's offences had a significant impact on the victims. The judge found there were no mitigating factors. [28] Next, the judge reviewed the pre-sentence and psychological assessment reports. The judge noted the psychological assessment report suggested Mr. H was in the "moderate or elevated" (as distinguished from "low or routine" and "high or urgent") range of risk. She also noted his "risk factors include pedophilic sexual interests, significant difficulties developing/maintaining positive

age-appropriate intimate relationships, low self-esteem, and it is recommended that he participate in a sex offender treatment program." The judge found that certain portions of the report were of significant value: [33] The importance of the report is the risk assessment and diagnosis of his ability or lack thereof to deal with risk factors which are described in the report, namely, extreme minimization or denial of sexual violence against his sons, his attitude that children can enjoy sexual contact with adults and be willing participants, his lack of self-awareness and limited understanding of his risk factors, his poor appreciation of the impact of his sexual offending on the victims, his poor stress and coping skills, and his use of sex/pornography to cope with his emotions. The author of the report concludes that he has a moderate or elevated risk of sexually offending and he is diagnosed with pedophilic disorder which requires intervention and treatment. [29] The judge referenced the victim impact statements made by P.L. and D.H. The judge found the statements to be "poignant and moving". They described "a family in anguish" that was struggling to move past the abuse. [30] Finally, the judge found "[t]he appropriate sentence on Counts 1 and 2 is four years on both consecutive and three years on Count 3 concurrent with Counts 1 and 2 for a total of eight years". The judge

made a number of ancillary orders. Relevant to the appeal, she made the following order under s. 161 of the Code: [36] an order for life pursuant to s. 161(1)(a), (b), and (c) and (d) pursuant to s. 161, namely an order of prohibition in relation to attending at public places where there is any person under the age of 16 years, and the offender is directed to be subject to the conditions that are set out in paragraphs (a), (a.1), (b), (c), and (d). Paragraph (a) attending public parks and public swimming areas where persons under the age of 16 years are present or expected to be present, including daycare centres, school grounds, playgrounds, community centres; (a.1) being within two kilometers or any other distance specified in the order of a dwelling house where the victim identified in the order ordinarily resides or any other place specified in the order; (b) seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming a member or volunteer in a capacity that involves being in a position of trust or authority towards a person 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. Those are the conditions of the 161 order. [31] The judge and counsel then clarified a number of issues. During their discussion, the Crown asked the judge to note that the eight-year sentence "would be also consecutive to the sentence he is already serving." When asked by the judge if he had anything to add, defence counsel responded that he did not. The judge concluded her reasons by saying: "Yes, that is an important issue. This sentence is consecutive to any sentence [Mr. H] is serving." Standard of Review [32] Sentence appeals are subject to a deferential standard of appellate review. As explained in Friesen: [25] Appellate courts must generally defer to sentencing judges' decisions. The sentencing judge sees and hears all the evidence and the submissions in person (Lacasse, at para. 48; R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46). The sentencing judge has regular front-line experience and usually has experience with the particular circumstances and needs of the community where the crime was committed (Lacasse, at para. 48; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91). Finally, to avoid delay and the misuse of judicial resources, an appellate court should only substitute its own decision for a sentencing judge's for good reason (Lacasse, at para. 48; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at

para. 70). [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor ... Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge's reasons that the error had an impact on the sentence (Lacasse, at para. 44) [27] If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on the sentence, an appellate court must perform its own sentencing analysis to determine a fit sentence (Lacasse, at para. 43). It will apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range. Thus, where an appellate court has found that an error in principle had an impact on the sentence, that is a sufficient basis for it to intervene and determine a fit sentence. It is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or falls outside the range of sentences imposed in the past. [28] However, in sentencing

afresh, the appellate court will defer to the sentencing judge's findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle. [33] To this I would add two points. [34] First, s. 161 prohibition orders form part of the offender's sentence. They are discretionary orders, subject to the same standard of review as other sentence appeals and entitled to deference: R. v. R.J.H., 2021 BCCA 54 at para. 13, leave to appeal to SCC ref'd, [2021] S.C.C.A. No. 109, citing R. v. L.S.N., 2020 BCCA 109 at para. 88; R. v. S.C.W., 2020 BCCA 377 at para. 27. [35] Second, insufficient reasons may amount to an error of law. The critical question is: "Do the trial judge's reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review?" If an appellate court cannot discern the foundation of the judge's ruling from the record as a whole, the appellate court is entitled to conclude that the deficient reasons constitute an error of law: R. v. R.E.M., 2008 SCC 51 at para. 57; see also R.J.H. at para.

14. Analysis Did the judge err by failing to consider the totality principle? [36] Mr. H contends the judge erred by failing to consider the totality principle. He notes the sentencing judge made no reference to totality in her reasons and asserts this is an error in principle that had a material impact on his sentence. [37] The totality principle is codified in s. 718.2(c) of the Code. That subsection provides: "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh". A proper application of the principle ensures that a cumulative sentence imposed for multiple offences "does not exceed the overall culpability of the offender": R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42, 1996 CanLII 230. [38] The proper approach to applying the totality principle is well-established. It was described in R. v. Li, 2009 BCCA 85 as follows: [28] Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences

should be adjusted in order to arrive at an appropriate global sentence. See R. v. P.P.H., 2003 BCCA 591. [39] In support of his argument that the judge failed to consider the totality principle, Mr. H relies on R. v. G.F., 2018 BCCA 339 and R. v. Reimer, 2020 BCCA 102. [40] In G.F., the Indigenous offender/appellant was sentenced to a total of 12 years less time served for sexual interference (count one), sexual exploitation (count two), distribution of child pornography (count four) and sexual assault causing bodily harm (count eight): at paras. 1-2. The complainants were his great-nephew and his great-nephew's friend: G.F. at para.

6. The abuse took place frequently from the time the great-nephew was between six and nine until he was 15 and when the great-nephew's friend was 14: G.F. at para. 6. [41] At the sentencing hearing, the Crown submitted that G.F. should be sentenced to seven years on count one, two years concurrent on count two, two years consecutive on count four, and five years consecutive on count eight: at para.

23. The Crown submitted its proposed cumulative 14-year sentence ought to be reduced to 12 years on account of the totality principle and then further by the time G.F. had already served: G.F. at para.

23. The defence sought a global sentence of between four and six years: G.F. at para. 24. [42] The judge reached the end-point sought by the Crown and imposed a 12-year sentence: G.F. at para.

30. However, she did not do so in the manner suggested by the Crown. She sentenced G.F. to five years on count one, two years concurrent on count two, two years consecutive on count four, and five years consecutive on count eight, all less time served: G.F. at para.

29. In imposing sentence, the judge stated she was taking account of all relevant factors, including the principles set out in R. v. Gladue, [1999] 1 S.C.R. 688, 1999 CanLII 679 and R. v. Ipeelee, 2012 SCC 13: G.F. at para.

29. She apparently did not mention totality: see G.F. at para. 38. [43] This Court set aside the 12-year sentence on the basis the judge erred in principle by failing to apply the totality principle, and in her consideration of aggravating and mitigating circumstances: G.F. at para.

46. With respect to the judge's failure to take account of the totality principle, the Court held: [38] In this case, the judge's reasons failed to demonstrate that the totality principle was taken into account. While Crown counsel had suggested that his proposed individual sentences should be reduced to take into account the totality principle, the judge, having determined the appropriate individual sentence for each offence and that three of the sentences should be served consecutively, failed to consider whether the sentences in the aggregate offended the totality principle. Her failure was an error in principle. [44] With respect to mitigating factors, the judge erred in principle by failing "to consider the mitigating impact of the appellant's experience of cultural dislocation and abuse in her assessment of his moral culpability": G.F. at para.

41. With respect to aggravating factors, the judge erred in principle by placing more weight than deserved on very dated sexual offences committed by G.F. against adults before he turned his life around and while he was abusing drugs and alcohol: G.F. at paras. 43-45. [45] The Court held the judge's errors in principle had a material effect on the sentence she imposed: G.F. at para.

46. The Court found G.F.'s offences were "indelibly linked to the abuse he suffered as a child, which [shed] light on his level of moral blameworthiness." The Court applied the totality principle and reduced G.F.'s global sentence to eight years less time served: G.F. at para. 77. [46] In Reimer, the appellant pled guilty to ten charges: uttering threats, nuisance, being unlawfully in a dwelling house, and several breaches of recognizances (see paras. 1, 5-15). All of the offences took place in a relatively short time frame "during a period of upheaval in which Mr. Reimer was in a downward spiral": Reimer at para. 73. [47] The Crown sought a global sentence of 17.5 months to be reduced by two and a half months to 15 months to take account of the totality principle, less time already served, plus three years' probation: Reimer at paras. 27, 64. Mr. Reimer sought a time served sentence, plus two to three years' probation: Reimer at para.

32. The judge imposed an effective sentence of 16 months, reduced to nine months after credit for time served, plus two years' probation: Reimer at paras. 1, 67. In the result, the custodial portion of the sentence imposed by the judge was slightly longer than sought by the Crown. [48] The judge mentioned totality but did not follow the usual two-stage process for considering and applying the principle: Reimer at paras. 69-70. On appeal, this Court described the trial judge's approach as follows: [72] ... After stating that a global sentence of 16 months was appropriate, and not overly harsh, she said, simply, "[h]owever, taking the totality principle into account, an aggregate sentence of 16 months is a fit and just sentence, in my opinion". [49] This Court concluded the judge "appear[ed] to have begun with a global sentence in mind, then divided up the sentence among the various counts": Reimer at para.

70. The Court further held it was "not at all clear in what sense [the judge's approach] involved 'taking the totality principle into account'": Reimer at para.

72. This Court allowed Mr. Reimer's appeal on the basis that the judgment "[did] not reveal any genuine consideration" of the totality principle: Reimer at para.

74. After concluding the global sentence was "harsher than the sum of its parts", the Court reduced the global sentence imposed by the judge by one month: Reimer at para. 75. [50] Although there are some parallels, in my respectful view, G.F. and Reimer are distinguishable from Mr. H's case. In both G.F. and Reimer, this Court's totality analysis was made in the context of factors not present in Mr. H's case. In G.F., the Court reached its conclusion on totality in the context of a sentence that did not take account of significantly mitigating circumstances arising from G.F.'s experiences as an Indigenous person in Canada. In Reimer, the Court reached its conclusion on totality in the context of a sentence that exceeded the sentence sought by the Crown. [51] I consider the circumstances in R. v. Kardan, 2024 BCCA 56 to be more directly on point. In that case, the appellant pled guilty to possession of drugs (including fentanyl) for the purpose of trafficking, resisting arrest and assaulting a police officer: at paras. 1, 3. He received a global 34-month sentence that was to run consecutively to a two-year sentence imposed on him the previous month: Kardan at paras. 1, 3, 31. He raised three grounds of appeal. Of relevance to Mr. H's appeal, one of those grounds was that the sentencing judge failed to apply the totality principle in relation to the previously imposed two-year

sentence: Kardan at para. 31. [52] This Court dismissed Mr. Kardan's appeal. The Court addressed the totality ground of appeal as follows: [32] In my view, there is no merit to [the totality] ground of appeal. On a fair reading of the reasons, considered in the context of the record, the judge understood the need to consider the totality principle and did so. [33] Sentencing submissions on both sets of offences were heard at the same time, before the same judge. He was familiar with the entirety of the circumstances, the interrelatedness of the two sets of offences, and the parties' positions in respect of both files. The parties made submissions on the principle of totality with explicit reference to both sets of offences. [34] When the Crown stated its position on the second set of offences, it raised the principle of totality with explicit reference to the first set [35] The submissions of counsel for Mr. Kardan did the same [36] In addition, everyone understood that the global sentence for the second set of offences would be served consecutively. This was common ground. It is plain from the October 2022 submissions and the November 2022 reasons that the judge's assessment of a fit sentence was expected to take the prior sentence into account. Indeed, in his reasons, the judge calculated the effect of the combined sentences, recognizing that it amounted to a combined four

years and 10 months' imprisonment, less the credit assigned for pre-sentence custody. [37] Given this context, I agree with the respondent Crown that the record does not support the contention that the judge failed to consider the totality principle in the context of both sets of offences. Judges are not obliged in their reasons to identify everything they considered, explain each of their findings, or detail each aspect of their reasoning process: R. v. R.E.M., 2008 SCC 51 at paras. 15-20. The fact that there is no discussion of totality in the reasons with explicit reference to the two prosecution files, does not mean the judge failed to analyse the principle correctly: R. v. Nelson, 2021 BCCA 192 at para.

46. It was subsumed in the positions put before him for both sets of offences and ultimately, he imposed a sentence less than that sought by the Crown. [Emphasis added.] [53] Here, as in Kardan, the judge did not mention totality in her reasons for sentence. However, as noted in Kardan, she was not obliged to detail every aspect of her reasoning process and her failure to expressly mention the "totality principle" does not indicate she failed to consider it: see Kardan at para. 37, citing R. v. Nelson, 2021 BCCA 192 at para. 46; R.E.M. at paras. 15-20. [54] Although neither counsel at Mr. H's sentencing hearing assisted the judge by reminding her of the usual two-stage process for applying the totality principle, on a review of the record as a whole, it is evident the judge was alive to and took account of totality. [55] The Crown did not use the word "totality" in relation to its proposed sentence but it proposed a global sentence to run consecutively to the sentence Mr. H was already serving--an obvious reference to the total sentence the Crown considered to be appropriate in relation to both the previous and current convictions. Further, the Crown relied on cases where totality was applied in support of its proposed range of sentence. In other words, totality was embedded in the Crown's position. [56] For his part, defence counsel expressly framed his position through a

totality lens. On one reading of his submissions, he acknowledged that the range advanced by the Crown was fair. At a minimum, he did not object to the range proposed by the Crown, or submit it was too high, inappropriate or excessive. He simply sought a slightly lower global sentence than sought by the Crown to take account of totality in relation to Mr. H's previous sentence. [57] In her reasons for sentence, the judge referenced and took guidance from the authorities relied on by the Crown, all of which applied the totality principle. At the end of her reasons for sentence, when she was asked by the Crown to express that Mr. H's sentence was to be served consecutively to his previously imposed sentence, she canvassed the topic with defence counsel who made no submission. The judge agreed the Crown had raised an "important issue" and ordered the sentence she imposed to be served consecutively to the sentence Mr. H was serving. [58] This review of the record makes clear that, like Kardan, the totality principle was subsumed in the positions taken by the parties: see Kardan at para.

37. It was common ground that the sentence imposed by the judge would run consecutively to the sentence Mr. H was already serving. The defence did not object to the range of sentence proposed by the Crown. And, the judge imposed a sentence at the low end of the Crown's proposed range, which also happened to be at the mid-point between the top of that range and the sentence sought by Mr. H. [59] I would not accede to this ground of appeal. Did the sentencing judge err by imposing lifetime and untailored prohibition orders under s. 161 of the Code? [60] Mr. H challenges the prohibition orders imposed by the judge under s. 161 of the Code. More specifically, he contends the judge erred by: (1) failing to articulate the basis on which she considered the scope and duration of the orders; (2) imposing lifetime orders; and (3) failing to tailor the orders to the particular circumstances of his case. Legislative framework [61] When offenders are convicted of certain sexual offences against a person under the age of 16 years (including sexual interference and invitation to sexual touching), s. 161(1) of the Code requires sentencing judges to consider prohibiting them from engaging in a variety of everyday conduct upon their release into the community, subject to any conditions or exemptions the judge considers appropriate: Code, s. 161(1), (1.1); R. v. K.R.J., 2016 SCC 31 at para.

3. [62] The scope of the orders is potentially wide. Under s. 161(1), an offender may be prohibited 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. [63] Under s. 161(2), the prohibition orders "may be for life or for any shorter duration that the court considers desirable". For prohibitions that are not for life, s. 161(2) of the Code states that 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. [64] Under s. 161(3), the court may, on the application of the offender or prosecutor, vary a prohibition order "if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed." [65] Under s. 161(4), it is an offence to fail to comply with a prohibition order. [66] In K.R.J., the Supreme Court of Canada considered whether the retrospective operation of the amendments that created the current versions of s. 161(1)(c) and (d) offended s. 11(i) of the Charter: K.R.J. at para.

5. That section of the Charter provides that, if the punishment for an offence is varied after a person commits the offence, but before sentencing, the person is entitled to "the benefit of the lesser punishment": Charter, s. 11(i); K.R.J. at para. 2. [67] The Court concluded that the retrospective operation of the amendments breached s. 11(i): see K.R.J. at para.

6. In the Court's view, the retrospective operation of s. 161(1)(c) was not a reasonable limit on s. 11(i) and was therefore not saved by s. 1 of the Charter: K.R.J. at para.

7. The Court reached the opposite conclusion with respect to s. 161(1)(d). In other words, the retrospective operation of s. 161(1)(d) was a reasonable limit on s. 11(i) and passed Constitutional muster: K.R.J. at para. 7. [68] Relevant to this appeal, in K.R.J., the Court engaged in a discussion of the purpose, scope, impact and operation of prohibition orders under s. 161: see paras. 47, 54, 57, 65. I will focus, but not limit, my review of K.R.J. to its treatment of Internet prohibition orders. [69] The protective purpose of prohibition orders under s. 161 of the Code is obvious. The section empowers judges to shield children from the risk of sexual violence posed by convicted sexual offenders: K.R.J. at paras. 47, 65. [70] As noted, the scope of possible protection orders is broad. Among other things, they can limit an offender's mobility, employment and use of the Internet--for life: Code, s. 161(1); K.R.J. at para. 54. [71] In K.R.J., the Court recognized the need for amendments to s. 161(1)(d) to protect young people from "grave, emerging harms precipitated by a rapidly evolving social and technological context": K.R.J. at para.

101. At the same time, the Court also described the significant detrimental impact on offenders of, in particular, orders made under s. 161(1)(c) and (d): [54] Turning to the impact of the amendments, both s. 161(1)(c) and (d) can have a significant impact on the liberty and security of offenders -- potentially for the rest of their lives. This Court has recognized that living in the community under restrictions can attract a considerable degree of stigma (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 105). Further, a prohibition under s. 161(1)(c) on having any contact with persons under the age of 16 could potentially curtail the types of employment an offender can pursue, and an offender's ability to interact with people (including adults in the company of children) in public and private spaces. And depriving an offender under s. 161(1)(d) of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life: The Internet has become a hub for every kind of human activity, from education to recreation to commerce. It is no longer merely a window to the world. For a growing number of people, the Internet is their world -- a place where one can do nearly everything one needs or wants to do. The Web provides virtual opportunities for people to shop, meet new people, converse with friends and family, transact business, network and find jobs, bank, read the newspaper, watch movies, and attend classes. [Emphasis in original; footnotes omitted.] (B. A. Areheart and M. A. Stein, "Integrating the Internet" (2015), 83 Geo. Wash. L. Rev. 449, at p.

456) For many Canadians, membership in online communities is an integral component of citizenship and personhood. In my view, retrospectively excluding offenders from these virtual communal spaces is a substantial consequence that implicates the fairness and rule of law concerns underlying the s. 11(i) right. [98] The deleterious effects resulting from the retrospective operation of s. 161(1)(d) are also significant. A complete ban on "using the Internet or other digital network" -- an indispensable tool of modern life and an avenue of democratic participation -- is more intrusive than the previous ban on "using a computer system . . . for the purpose of communicating" with young people. This constitutes a significant deprivation of liberty. Therefore, the retrospective operation of s. 161(1)(d) can erect massive barriers to an offender's full participation in society, which may result in substantial consequences both socially and economically. [Underline emphasis added.] [72] In upholding the Constitutionality of the retrospective operation of the amendment to s. 161(1)(d), the Court described limits on the availability of orders under s. 161 and emphasized the "highly tailored and discretionary" nature of the statutory regime: K.R.J. at paras. 112, 114. Throughout its reasons, the Court explained: [48] Further, I agree with the line of cases holding that s. 161 orders can be

imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk: see A. (R.K.), at para. 32; see also R. v. R.R.B., 2013 BCCA 224, 338 B.C.A.C. 106, at paras. 32-34. These orders are not available as a matter of course. In addition, the content of the order must carefully respond to an offender's specific circumstances. [72] The amendments were enacted within the context of a highly discretionary provision that is tailored to its objective. Prohibitions listed in s. 161(1) are to be imposed only when a judge is satisfied that the specific offender poses a continued risk to children upon his release into the community and that the specific terms of the order are a reasonable attempt to minimize the risk. The law is therefore not "drafted in a way that unnecessarily catches [conduct] that has little or nothing to do with the prevention of harm to children" (Sharpe, at para. 95). In other words, the retrospective use of s. 161(1)(c) and (d) is available only when a judge is satisfied that the prohibitions will advance the enhanced child-protection goal of the amendments. No risk, no retrospective order. [73] Further, s. 161(1) permits a sentencing judge to impose any conditions or exemptions that correspond to

the circumstances of a particular offender. Section 161(1)(c) provides that offenders may have contact with persons under the age of 16 if "the offender does so under the supervision of a person whom the court considers appropriate". Similarly, s. 161(1)(d) permits offenders to use the Internet if "the offender does so in accordance with conditions set by the court". Finally, the prohibition order can be limited in duration (s. 161(2)) and reviewed periodically to ensure it continues to correspond to an offender's circumstances (s. 161(3)). [Emphasis in original; footnote omitted.] [73] The operation of s. 161 was expanded upon by this Court in R.J.H.: [19] The evidentiary basis will naturally include everything that is considered for the overall sentence. However, given the protective function of s. 161 prohibitions, the focus should be on the offender's specific risk and what is reasonably required to minimize that risk in the offender's particular circumstances. As the court in A.(R.K.) held, it is not necessary for the offender to have a record of related convictions or to have committed the offence in one of the proscribed circumstances set out in s. 161(1). In my view, the scope and duration of the prohibition is informed primarily by the nature and extent of the risk, with emphasis on the risk factors particular to the offender and the pool of potential victims. The

duration should also take into account the length of the sentence, the age of the offender upon release into the community, and the prospects for rehabilitation. [20] Finally, it is important to take into account the principles expressed in Friesen when considering s. 161 orders. While Friesen did not address these orders, the court's message that sentences "fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children" is important. Although the guidance provided in Friesen was focused on sentencing principles for the offence of sexual interference, the court made it clear that the principles are relevant to sentencing for other sexual offences against children, including child pornography offences: see Friesen at para. 44 and footnote 2. [21] Moreover, as this court held in Williams, the analytic approach in Friesen that focuses on the protection of children from sexual exploitation should inform the s. 161 analysis established in K.R.J., and reliance on precedents that pre-date Friesen may be of limited assistance to sentencing judges and appellate courts. I note as well that an emphasis on the protection of children from wrongful exploitation and harm takes on increased importance the higher the risk of re-offence and the younger the victim: see Friesen at paras. 123, 134-135. Did the judge err in law by providing

insufficient reasons? [74] In seeking to uphold the judge's lifetime prohibition orders, the Crown emphasizes: · the highly discretionary nature of the judge' sentencing exercise; · the deferential standard of review; · the heightened risk posed by Mr. H now that, among other things, he has been convicted of possessing child pornography and contact offences; · the diversity of risk posed by Mr. H and the wide pool of potential victims; · Mr. H's sexually deviant behaviour and offending has occurred over a long period of time; · Mr. H has not met his onus to provide information regarding the management of his risk; · the availability of a future application, supported by updated information, to vary the prohibition orders only when safe to do so; and · the psychologist's risk assessment. [75] I agree with most of these points. [76] Without question, the imposition of a prohibition order under s. 161 of the Code is part of the individualized and highly discretionary sentencing process. Further, this Court must, and does, respect the front-line experience, insights and judgment of the trial judge. Absent the imposition of a demonstrably unfit sentence or an error in principle that had an impact on the sentence, this Court must defer to the wisdom of the trial judge: see R.J.H. at para. 13. [77] In addition, the record and the judge's findings clearly identify a number of factors

that demonstrate Mr. H poses a moderate risk to reoffend. [78] I disagree, however, there was an onus on Mr. H to demonstrate that a less restrictive order would have sufficed and that the availability of a future variation application can somehow save the order. [79] In support of its submission on onus, the Crown relies on S.C.W. In that case, this Court dismissed an appeal from the dismissal of the offender's application to vary a prohibition order under s. 161(1)(c). The offender had not met his onus to apply at the right time and on the basis of adequate information for the variation: S.C.W. at paras. 58-59. [80] Respectfully, S.C.W. is of no assistance to the Crown on the issue of onus as it involved an application to vary an existing order. The onus was clearly on the offender, as the applicant, to show under s. 161(3) of the Code that "the variation [was] desirable because of changed circumstances after the conditions were prescribed." [81] By contrast, in this case, the judge was not dealing with a variation application. At first instance, the judge was not to make a prohibition order by default unless Mr. H satisfied her not to make or to otherwise limit the order. Such orders are not to be imposed as a matter of course but only when the judge is satisfied there is an evidentiary basis to conclude the particular offender poses a risk to children and the specific terms

of the order are a reasonable attempt to minimize that risk: K.R.J. at para. 48. [82] The availability of a future application to vary also does not assist the Crown. The issue was addressed by the Court of Appeal for Ontario in R. v. Brar, 2016 ONCA 724: [25] While I acknowledge, as noted by the Crown, that the court has the power to vary a s. 161 order on application of the offender or prosecutor, such a variation requires a change of circumstance and imposes a significant burden on the offender. Variation of prohibition orders under s. 161(3) is not a matter of course but requires a full hearing. The fact that s. 161 orders may later be varied does not justify imposing orders that create overbroad or unreasonable restrictions on an individual's liberty. [Emphasis added.] [83] More fundamentally, none of the Crown's submissions is responsive to the sufficiency of reasons ground of appeal. As noted, when dealing with the sufficiency of reasons, the critical question is: "Do the trial judge's reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review?": R.E.M. at para. 57. [84] Here, respectfully, after a thorough review of the record, I am unable to discern the reasoning path followed by the judge. Neither the Crown nor defence assisted

the judge by referring to the jurisprudence surrounding the making of prohibition orders under s. 161 or by making a substantive submission. Also, the judge gave no reasons for imposing the most restrictive prohibition orders available to her. [85] At most, the Crown points to troubling aspects of the psychologist's risk assessment as supporting the judge's order. But, a contextual appellate review of reasons "is necessarily circumscribed by the reasons actually provided in support of a particular result." An appellate court may not "sustain a result because reasons in support of that result might have been, but were not, given": R. v. Pastro, 2021 BCCA 149 at para.

54. In this case, the record and reasons are devoid of information identifying why the judge considered the prohibition order she imposed to be appropriate. [86] In my respectful view, the judge erred in law by failing to provide sufficient reasons. Did the error in law (insufficient reasons) impact the sentence? [87] Having found that the judge erred in law by failing to provide sufficient reasons, the next question is whether the error had an impact on the sentence. In my view, it did. [88] It appears the judge took from the parties' submissions that the suitability of lifetime orders under s. 161 were not in serious dispute. As a result, it appears she did not set her mind to either the appropriate scope or duration of the required order. Rather, she adopted verbatim the wording of s. 161(1)(a) to (d). By doing so, she made the most restrictive order available under the legislation. [89] For reasons that will become apparent, had the judge received helpful submissions and set her mind to the issues of duration and scope, I am satisfied she would not have made the order she did. The circumstances certainly called for a lengthy and restrictive order--but not a "maximum" one. [90] Accordingly, the judge's error in law impacted the sentence she imposed. I would therefore allow Mr. H's appeal against the lifetime prohibition orders made by the judge under s.

161. The appropriate order [91] I next address the scope and duration of the prohibition orders that are appropriate in the circumstances of this case. As an essential part of that exercise, I must review the evidentiary basis for finding Mr. H poses a serious risk to children and then satisfy myself that the terms of the s. 161 order represent a reasonable attempt to minimize the risk he poses: K.R.J. at para.

48. The order must respond to Mr. H's specific circumstances: K.R.J. at para.

48. I also note that the duration of the orders must take account of the length of Mr. H's sentence, his age upon release into the community, and his prospects of rehabilitation: R.J.H. at para. 19. [92] I begin by recognizing that children are vulnerable and need to be protected from the many serious harms that flow from sexual predation by exploitive adults. As directed by the authorities, I do so primarily through a consideration of the risk posed by Mr. H. [93] The risk posed to children by Mr. H is obvious: · Mr. H possessed and made use of child sexual exploitation materials over many years; · Mr. H has committed sexual contact offences over a number of years against three children of different ages and genders, two of whom were family members and one of whom was not; · Mr. H committed his sexual contact offences both in his home and in a public location; · Mr. H's offending against the nine-year-old friend of C.H. was planned and Mr. H used C.H. to execute his plan; · Mr. H's pool of potential victims is wide; · Mr. H denies sexually offending against his sons; · Children are making increasing use of the Internet and have the right to do so safely; and · At the time of sentencing, Mr. H had not successfully completed sexual offender treatment. [94] Informed by this background, the psychologist who authored Mr. H's psychological assessment report diagnosed Mr. H with

Paedophilic Disorder and a history of low mood and anxiety. According to the psychologist, Mr. H has difficulty developing and maintaining age-appropriate intimate relationships, and low self-esteem. He is most likely to reoffend when he is feeling rejected by an intimate partner and will attempt to cope through consumption of child sexual exploitation material and/or sexual contact with a child. He feels more confident with younger girls because they are less likely to reject him. His motivation for sexual offending against his sons is unclear, as he maintains that he is not sexually attracted to males. He requires sexual offender treatment and poses a moderate or elevated risk of reoffending. [95] Without intending to minimize any of Mr. H's risk factors, to his credit, Mr. H has been forthcoming about his sexual attraction to female children, his possession and use of child sexual exploitation material, and the circumstances of his offending against C.H.'s friend. None of his sexual contact offences involved communicating with children via the Internet. Further, he expressed to the psychologist a strong desire to participate in sex offender treatment. Finally, all of Mr. H's offences occurred before his first conviction. While he has not had access to children since his initial arrest, he has not offended after serving a sentence. [96] In formulating appropriate terms, I

note that the psychologist recommended that, until Mr. H successfully completes sexual offender treatment, his Internet access "be restricted and closely monitored"--not banned. Further, the psychologist recommended that "Mr. [H] have no unsupervised contact with minors." [97] Mr. H is currently 50 years old. He has been incarcerated for over three years. I do not know when he will be released from prison but he will be eligible for day parole this year. Any prohibition order imposed against Mr. H will commence when he is released from prison, including if he is released on parole (including day parole). If Mr. H is released on parole, he will be under the supervision of a parole officer until the expiry of his cumulative 11-year sentence. [98] I do not know whether Mr. H has successfully completed sexual offender treatment. However, the psychologist had some level of optimism that he would. Mr. H appeared to be motivated and the psychologist assessed him as posing a moderate, not a high, risk to reoffend. [99] The ten-year prohibition orders made against Mr. H in February 2021 generally follow the legislative language of s. 161(1)(a) to (c). The orders specify that he is prohibited from being within two kilometres of any dwelling house where the female complainant ordinarily resides, attends school or works. [100] In relation to s. 161(1)(d), the existing ten-year prohibition

order provides: [Mr. H] must not access any computer network including the Internet to: (1) access any content that violates the law; (2) access, directly or indirectly, or maintain any personal profile on any social media sites, social networks, Internet discussion forums or chat rooms; (3) communicate or attempt to communicate with any person [he] know[s] to be or who reasonably appears or represents themselves to be under the age of 16 years, unless they are members of [his] family. And (4) [Mr. H] must, upon the request of a peace officer, give them access to any device in [his] possession that is capable of accessing the Internet or any computer network so they can verify compliance with this condition. [101] Terms (1) and (2) are modeled after the Court of Appeal for Ontario decision in Brar (at para. 29). These terms appear to have become relatively common in this jurisdiction. [102] Mr. H generally accepts that the scope of the existing 2021 prohibition orders is appropriate but submits they should be extended to 15 years. The Crown notes Mr. H should be prohibited from having any contact with C.H. and T.H. and there should be no exception permitting Mr. H to have contact with family members under the age of sixteen. The Crown is understandably and especially concerned about the monitoring of any permitted use of the Internet. [103] In all of these circumstances, the

moderate risk posed by Mr. H justifies the imposition of lengthy, but not lifetime, prohibition orders under s. 161 of the Code. Further, to facilitate Mr. H's successful reintegration into the community, a total ban on his Internet use is, in my view, not justified. [104] Mr. H proposes, and I accept, that his Internet use can be adequately monitored in the same manner as his current order, namely by permitting any peace officer to verify his compliance by giving them access to any device in his possession that is capable of accessing the Internet or any computer network upon request. Assuming Mr. H is released on parole soon, I also note his conduct in the community will be monitored by a parole officer for many years. Disposition and Order [105] For all of these reasons, I would allow Mr. H's appeal, in part. I would dismiss his appeal against his global eight-year prison sentence. I would allow his appeal against the lifetime prohibition orders under s. 161 of the Code and set aside those orders. [106] Under s. 161(1) of the Code, for 15 years commencing on his release from prison, I would prohibit Mr. H from: 1. attending any public park, public swimming area, community centre or theatre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school or playground without the prior written permission of his

parole officer or the court. He must carry the permission, which can be in electronic format, with him at all times when he is in a prohibited area. 2. being within two kilometres of any place he knows that C.H. or T.H. live, work, attend school, worship, or happen to be except while in a moving vehicle on his way to some other place. If Mr. H sees C.H. or T.H. he must immediately leave their presence without any words or gestures. 3. engaging in volunteer work or employment that would bring him in contact with persons under the age of 16 years without the prior written permission of his parole officer or the court. He must carry the permission, which can be in electronic format, when he is engaged in the activity. 4. contacting or communicating, directly or indirectly, or being in the presence of any person under the age of 16 without the prior written permission of his parole officer or the court. He must carry the permission, which can be in electronic format, with him at all times. 5. accessing any computer network including the Internet to: (1) access any content that violates the law; (2) access, directly or indirectly, or maintain any personal profile on any social media sites, social networks, Internet discussion forums or chat rooms; and (3) communicate or attempt to communicate with any person he knows to be or who reasonably appears or represents themselves to be

under the age of 16 years. On the request of a peace officer, Mr. H must give them access to any device in his possession that is capable of accessing the Internet or any computer network so they can verify his compliance with this condition. "The Honourable Chief Justice Marchand" I AGREE: "The Honourable Justice MacKenzie" I AGREE: "The Honourable Madam Justice Horsman" [1] In these reasons, where required by the context, I will use the statutory language of "child pornography"; however, this terminology dilutes what these videos and images represent: R. v. Large, 2020 BCPC 216. What is really at issue are pictures and videos of children being sexually assaulted: R. v. LaPlante, 2022 NWTSC 9 at para.

6. Judges do not have the power to change the language of the Code, but they do have the ability to decide what language to include in their decisions: LaPlante at para.

7. I choose--as many others have--to use the terminology of "child sexual exploitation material" where possible: see also R. v. W.H., 2024 BCSC 336 at paras. 8-9.