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Case Name:

R. v. Villeneuve
Between Her Majesty the Queen, and Conrad Francis Villeneuve [2008] O.J. No. 6017 2008 CarswellOnt 8730 File No. 07-A9277 Ontario Superior Court of Justice Ottawa, Ontario P.R. Belanger J. Oral judgment: November 6, 2008.
(69 paras.) Counsel: D. Elhadad, for Crown. J. Addelman, for Accused.

1 P.R. BELANGER J. (orally):-- Mr. Conrad Francis Villeneuve faces sentencing in relation to two charges. One, that he did, on the 14th of November in the year 2006, through the Internet, for a sexual purpose, expose his genital organs to a person who was believed to be under the age of 14 years, contrary to s. 173(2); and further, that he did, on the 8th of August in the year 2007, by means of a computer system, communicate with a person he believed to be under the age of 14 years for the purpose of facilitating the commission of an offence under s. 173(2) of the Criminal Code with respect to that person, contrary to s. 172.1(2) of Criminal Code of Canada. 2 Despite the exact dates and the exactness of the dates on the specific counts, I had a careful examination of the transcripts and it would appear to me, and I stand to be corrected, that there are two instances in which Mr. Villeneuve exposed himself and masturbated on the Internet, and I see five conversations which are of a sexual nature within the broad time context of the two counts. There are a number of other conversations but they are not of a sexual nature. THE COURT: Now, am I wrong, gentlemen, in my assessment of frequency and nature of conversations? I am just basing myself on what you have provided to me.

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MR. ELHADAD: For the Crown, Your Honour, what's contained at Tab 1A to E, those are the conversations that make up the gravamen of both offences. MR. ADDELMAN: And I made a note of that. THE COURT: Thank you. 3 It is important, and I think crucial, to note that in none of those conversations is there any invitation, or suggestion, or progress towards or escalation to any form of physical contact or face-to-face meeting with the person Mr. Villeneuve thought or should have thought was 13 years old. In that respect, as I say, I have had a careful examination of the transcripts, and I raise this because it is mentioned in the psychiatric report and it is mentioned in the pre-sentence report. Based on the contents of those conversations, it is most difficult to accept that Mr. Villeneuve could reasonably have believed that he was dealing with anyone but a very young adolescent female. I see at least two specific references to age, exact references to age. In addition, of course, the context, the nature of the conversations, which I will not go into, make it eminently clear that he could not have possibly believed he was dealing with anybody but a sexually inexperienced youthful young woman. That is really the only conflict and the only difficulty on all of the evidence before me. 4 So it is important, as I said, to note that the accused's criminal misbehaviour is limited to sexually explicit Internet chats and the exposure of his genitalia via webcam. Now, despite Mr. Elhadad's allusions to where the form of behaviour of this nature most often leads, any suggestion that these events were leading to something more serious is in the realm of speculation and conjecture, it is not borne out on the facts. That is why I think it is important to know that the entire time period we are dealing with is from November '06 to August of '07, a period of some ten months, during which there is no escalation or attempt to have the relationship between the fictitious person and Mr. Villeneuve become more intimate. 5 I have been provided with Dr. Fedoroff's report. Dr. Fedoroff is the Director of the Sexual Behaviours Clinic of the Royal Ottawa Mental Health Centre, and the Forensic Research Director of the Institute of Mental Health Research and an Associate Professor of Psychiatry in the Faculty of Medicine, now, clearly a person of very significant experience and expertise. And it is worth noting in his conclusions he states that he has reviewed the results of testing with Mr. Villeneuve and Mr. Villeneuve had indicated to him that he did not believe he required treatment for a sexual disorder, and pertinently, Dr. Fedoroff makes the following comment: Although I rarely assess people in Mr. Villeneuve's position without recommending treatment in programs such as those offered at the Sexual Behaviours Clinic at the Royal Ottawa Mental Health Centre, given that Mr. Villeneuve has no previous history of abnormal sexual interest in children, given his absence of criminal record, and given the absence of any indication of abnormal sexual interest on his Sexual Behaviours Clinical Assessment, in this case I am inclined to agree. 6 And of course, these are not strictly subjective assessments in the sense that it is merely a reporting by the patient to the doctor, but there are objective tests to which Dr. Fedoroff refers such as stimulus testing, what they refer to as "phallometric testing," testing of this nature which attempts to abstract the subjective from the clinical experience. And the doctor rioted that on this particular set of test stimuli, Mr. Villeneuve produced a rape index of 0, he produced a heterosexual pedophile index of 0, he produced a homosexual pedophile index of 0 and indices of 0 are considered not to be clinically significant. 7 And so Dr. Fedoroff continues by saying: There are no standardized risk assessment tools for men who have committed offences like Mr. Villeneuve's. Our best estimate is that men who have committed offences like this who have come to attention have an extremely low ...

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Not a very low, not just low, but an extremely low, ... likelihood of re-offending. In my opinion, this is the case for Mr. Villeneuve.

9 And so Mr. Villeneuve's denial of pedophilic fantasies or fantasies involving 13-year-old girls, often referred to as hebephilia, his denial of sexual interest in children or in exhibitionism is borne out by a respected and senior medical doctor. 10 Now, the pre-sentence report before me speaks of the devastating consequences of the criminal proceedings against Mr. Villeneuve. I say "devastating" because I can think of consequences no more serious than the jeopardizing of a long marital union; more importantly even perhaps, the destruction of the relationship with children, the loss of trust by his own children in their father (these are all adult children); in addition, of course, the loss of a significant and well-remunerated and meaningful employment; loss of his leadership role in the Canadian Sea Cadets, of which he was the commander in the Cornwall region; and the ostracization by friends and acquaintances in the community. That is outlined in the materials before me. 11 Mr. Villeneuve is a 50-year-old man who has benefited from a warm, caring and enveloping family. He is well educated. He had a perfectly normal upbringing. He has no addictions, no substance abuse problems, no identifiable psychiatric problems. At page 5 of the pre-sentence report, and I believe it is worth reading this paragraph in its entirety, this is an excellent pre-sentence report prepared by Martine Sabourin, and she says this: The subject describes an uneventful childhood where love and support were fostered in the family unit. He states that he maintains good ties with all family members and that they are aware of current charges. The offender has been married for 30 years and has had some marital problems which have essentially come to light since the offence occurred and, therefore, he has sought counselling with his wife and youngest daughter, Heather, who also have been deeply affected by the current situation. Subject readily admits that he has been actively involved in the community and that he has taken pride in doing a good job, especially with the Cadets, and that his dedication did lead to a breakdown in his family life. Sadly, he realizes that even though he has suffered the consequences of his actions, his family has also been significantly impacted by the current situation. The subject does appear to be remorseful and expresses regret for what he has done as this has affected his professional as well as his personal life. Nonetheless it appears that the offender is somewhat naive when it comes to the use of technology, believing that the Internet is not the real world and that he could be disconnected without having to take responsibility for his actions. 12 I pause here to indicate that the Internet is indeed becoming the real world, that it is a real world in which real children live and where real children are daily victimized, hurt and scarred for life. More often we hear these comments in the context of child pornography, but we also hear of similar consequences in cases similar to those which have been cited to me by counsel where the luring results in an eventual sexual aggression. But it has to begin somewhere and it begins in the real, not the cyber world of the Internet. 13 The report goes on: He claims that the Internet was a fantasy world for him and that he did not even account for the impact that his behaviour could have on him and his family members. It is odd that Mr. Villeneuve does not mention what the impact of his behaviour could have had, had the individual at the other end not been senior police officers but a real 13-year-old. Therefore, it would appear that the offender does lack some insight and a certain level of decision-making skills, believing that he could remain anonymous while using the Internet inappropriately and never face repercussions. Unfortunately, at this time, his lack of insight has led to the demise of his career in the workplace as well as Cadets ... 14 And I, again, parenthetically pause to say that parents trust the Cadets, believe it is a safe environment

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and a healthy environment in which their children go from late childhood through adolescence to early adulthood with values, and I can well understand it is entirely justifiable that he should have lost that position specifically. 15 And finally, that sentence finishes: ... and has, without a doubt, amplified the ongoing strained relations he has had with his family members. 16 A little further on: According to collateral sources, the offender is a dedicated, hardworking and diligent individual who has been very involved in the Cornwall community, more specifically with Sea Cadet Corps for the last 20 years where he currently holds the position of commanding officer. He is described as a good leader who has brought a lot of knowledge and experience to the Cadet program and, as an individual, has never posed a threat to the young people involved with the Cadets. At this time, the offender has been suspended from his role as commanding officer. 17 Mr. Addelman, acting for Mr. Villeneuve, has, in addition, provided sentencing materials which involve quite a large number of letters of recommendation from people whose children were in the Sea Cadets, from acquaintances. He has provided me with a book of materials which show a large number of certificates acknowledging his work with the Sea Cadets and in other circumstances, for example, the Ontario Winter Games, and it goes on. 18 That compendium also contains a letter from the Family Counselling Centre signed by a social worker, Jody Souka-Marleau, who states that Mr. Villeneuve attended all scheduled meetings, has never missed an appointment, and describes his co-operation and serious participation in the Family Counselling Centre program. All of that to say that Mr. Villeneuve, immediately after he was charged, has been fully co-operative with the counselling opportunities provided to him, has been fully co-operative with psychiatric professionals at the Royal Ottawa Hospital, has been fully co-operative with the probation officer. 19 He has, very soon in the unfolding of these proceedings, entered a plea of guilty; there was no need for any form of trial or preliminary hearing and, apart from the usual formalities, it is clear to me that it was always his intention to enter a plea of guilty and that, indeed, was the situation reported to me by Mr. Addelman at one of the pre-trials in which I participated. The materials before me make it clear, and I accept, that apart from the fantasy world references that I have spoken about and that the probation officer speaks about, that he is fully accepting of his responsibilities, that he is regretful and that he is remorseful. 20 I want to refer in some detail to the authorities which have been cited to me. And obviously, the most important case, the one that comes perhaps in a sense closest to the one which occupies me is the recent decision of the Court of Appeal in R. v. Folino, [2005] O.J. No 4737. Before I go to Folino, however, I want to refer to all of the other cases cited very briefly. 21 R. v. Jarvis, [2006] O.J. No. 3241, a case of our Court of Appeal in 2006, where on the accused's computer pornographic pictures were found and where he had arranged to meet with the undercover officer at a park and showed up - this is the accused - with a condom in his pocket and was not wearing underwear. Very significant difference between this case and the case that was before the Court of Appeal in Jarvis. 22 In R. v. Kydyk, [2005] O.J. No. 4873, he had planned to meet with a young girl, a fictitious young girl I presume, or perhaps a real one. He brought a condom to the meeting, child pornography was found on his computer. And I pause here to note that on Mr. Villeneuve's computer, no child pornography of any sort was found after his computer was extensively analyzed by police authorities. 23 In our own Justice Ratushny's R. v. Jepson case, [2004] O.J. No. 5521, she felt that a conditional sentence was inappropriate in that Jepson had arranged to meet with his prospective victim, and a search warrant executed at his home revealed many child pornography images in it, some of very young girls

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between the ages of four and six. 24 In Symes, [2005] O.J. No. 6041, a meeting was arranged, if my memory serves me, and the accused had no condoms, I believe, in that case, and thought he was meeting with a girl who was 12 or 13. 25 In R. v. Lithgow, [2007] O.J. No. 4448, with a teacher, contacts developed into meetings which ultimately led to oral sex and unprotected intercourse on 25 to 30 occasions after the person was plied with alcohol, and sentence was the equivalent of 15 months incarceration. The facts in this case are significantly different. 26 In Dhandhukia, [2007] O.J. No. 1846, cited to me by the Crown directly, this was a case where the accused took active steps to meet a person he thought was a 12-year-old girl and the judge found that the absence of protective prophylactic devices meant that he was attending with the intention of having real sexual relations, unprotected, with a 12-year-old. 27 In R. v. Brown, [2006] O.J. No. 1523, a number of instances where the accused attempted to meet with the child. The child had run away from home and they were found in the accused's apartment. 28 R. v. Blanchard, [2003] O.J. No. 5510, many images of child pornography were found on the accused's computer. He was inviting a person he believed was 12 years old to touch herself sexually, and while there was no actual luring, this was a case of a joint submission with a joint recommendation of one year less time served. But Justice Forestell merely approves of the submissions and really makes no comments with which the court can be guided in coming to a conclusion as to the appropriate tests. 29 And finally, R. v. Harvey, [2004] O.J. No. 1389, was an arranged meeting, there were images of child pornography, that led to a jail term. 30 Now, as I have indicated, the leading authority is that of Folino, a recent decision, 2005, again, of our Court of Appeal, and it is interesting to note that in Folino, where the court did grant a conditional sentence, the accused not only engaged in sexually explicit conversation with the fictitious girl but he arranged to meet her for the specific purpose of having sex with her and drove 22 kilometres to a specified meeting spot. The accused in that case, in a sense, was a duplicate of Mr. Villeneuve in terms of absence of criminal record, loss of employment, co-operation and collaboration with psychiatric authorities. 31 There are only two differences. The first difference with our case is that he actually took positive steps to meet with the young girl and showed up ready to have sex. And the other difference is that the Court of Appeal, on hearing new evidence, found that he was in a rather fragile, emotional and physical state. 32 This, the Court of Appeal thought, was one of those rarest cases where an individual could be given the benefit of a conditional sentence. 33 Now, quite frankly and from an intellectual perspective, I have difficulty seeing why this case that occupies me, Mr. Villeneuve's case, where the only difference really is absence of a psychiatric condition, cannot fall within that category of rarest cases where a conditional sentence is appropriate, particular in view of the fact that there is no evidence at all of any attempt to set up meetings for any purpose with the fictitious girl in that chat room. I have decided in those circumstances, guided by the jurisprudence, that Mr. Addelman's submission to me that a conditional sentence is appropriate, is indeed the course I ought to follow. 34 Stand up at this point, Mr. Villeneuve.

35 Mr. Villeneuve, I sentence you to a term of imprisonment of 15 months, but I will allow you to serve your term in the community, subject to conditions, bearing in mind, sir, the fact that if you in any way breach the terms and conditions that I impose upon you this day, you will immediately go to jail without benefit of trial. Understand that. 36 This will be followed by a two-year probationary period. You will, in relation to the conditional sentence,

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keep the peace and be of good behaviour and you will appear before the court when required to do so. You will report within 48 working hours to a supervisor, and thereafter you will report to the supervisor when required and in the manner directed that you should do so. You will remain within the Province of Ontario unless written permission to go outside is obtained from the court or from the supervisor, and you will notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation. 37 You will remain in your house at all times except if you are travelling directly to or returning directly from a place of employment, to otherwise comply with the terms of this order, to attend for medical treatment, a medical emergency or dental care, or for religious observance, or, of course, as approved of specifically by the supervisor. 38 Once you have completed your term of imprisonment, you will report to a probation officer and you will continue reporting where and when directed. You will obviously, as well, keep the peace and be of good behaviour. 39 The following terms and conditions apply to both orders. You will submit to such assessment, treatment or counselling as the supervisor or the probation officer deems advisable in your circumstances. And if necessary, that may include the completion of a forensic assessment with the Sexual Behaviours Clinic at the ROH or follow-up treatment as deemed appropriate. 40 You will not, during either period, use a computer, personal or corporate, unless it is strictly related to your employment, and you will not possess a computer at home unless you can demonstrate to the supervising officer's satisfaction that it is necessary for you in your employment. And, more specifically, you will not under any circumstances use a computer to communicate with a person under the age of 18 years unless there are circumstances prevailing which the probation officer or supervisor deem acceptable and for which they have given you permission. 41 You will, sir, seek out and maintain full-time employment and provide proof of that employment to either officer. You will, at the request of either of these officers, sign any waiver or form required in order to obtain otherwise confidential materials from treating professionals in order that they can better monitor your performance while on probation. 42 You will, sir, at the direction of the supervisor and at the direction of the probation officer, perform 150 hours of community service at such place, places or times as they shall direct, provided that you perform at least 10 hours of community service per month, the first 10 hours to be complete no later than the last day of the month stipulated by the supervisor, and any unperformed community service at the end of the conditional sentence is to be performed in like manner during the probation order until the full 150 hours are complete. 43 There will be a number of orders requested by the Crown Attorney which are entirely appropriate. The first is an order that you provide this day, while out of custody, a sample of your blood. It may be a little late in the day so I am going to say within the next 24 hours, provide a sample of your blood for analysis and storage in the DNA RCMP administered databank. 44 Secondly, there will be an order under s. 161 prohibiting your attendance at a public park or public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre. You are also prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 14. Or finally, and this is a duplication I suppose, using a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 14 years. 45 THE COURT: Had you addressed, counsel, the duration?

46 MR. ELHADAD: I did not, Your Honour. I would normally seek a ten-year period for that specific condition. I leave it to your discretion.

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47 MR. ADDELMAN: I thought ten years was the minimum, so I would just ask that the minimum be imposed in this case. 48 49 50 THE COURT: For a period of ten years. And finally, the S.O.I.R.A order - again, I'm sorry, I'm not good with numbers. MR. ELHADAD: That's 490.011, .012 and .013, and the orders are in Mr. Clerk's hands.

51 THE COURT: For a period of - I think we had decided yesterday that Mr. Villeneuve fell under 2(b), right, 20 years? 52 MR. ELHADAD: That's correct, sir. We proceeded by indictment, so it's mandatory.

53 THE COURT: I make an order in Form 52 under the Sex Offender Information Registration Act for a period of 20 years. 54 And for that purpose - you are recommending that I order that he attend ... .

55 MR. ELHADAD: I filled it out, the particular provision indicates exactly where he has to register in Cornwall, that's his place of residence. 56 THE COURT: And that you must appear in person to a registration centre referred to in s. 7.1 of the Sex Offender Information Registration Act, and the Cornwall Community Police Service, 340 Pitt Street, Cornwall, Ontario. 57 MR. ELHADAD: Sorry, Your Honour, the only section that we didn't fill out was when he has to report. There are a number of boxes available, depending on what ... . 58 THE COURT: Well, I am going to say within seven working days, that should be sufficient.

59 Now, I have made a number of orders in relation to probation and the conditional sentence. Have I omitted anything? Is there anything you wish to address? 60 MR. ADDELMAN: I would ask Your Honour to perhaps consider three hours per week for Mr. Villeneuve to obtain the necessities of life. I have seen that in previous conditional sentence orders. Perhaps ... . 61 THE COURT: Let me simply put it this way, I will leave it up to him, for a continuous period once per week of three hours in order to obtain the necessaries of life, clothing and that kind of thing. He can choose the day he wishes. 62 MR. ELHADAD: Yes, Your Honour, when we've left it open in that manner and not specified a date, it causes some difficulties for the supervising agencies to say whether or not he is within that three hours or not. So they usually require through CPIC that there be a defined period. That's why we stick to the ... . 63 THE COURT: I want to give it some flexibility, so let me put it this way: That for a three-hour period at a date convenient both to him and the supervisor, so that they can choose a date between themselves and they can vary the date. It may not always be the same date, but the day of the week has to be satisfactory to the supervisor, but it need not be fixed. 64 65 Is there anything else that I have overlooked? MR. ELHADAD: Not from the Crown. Thank you, Your Honour.

66 MR. ADDELMAN: And I'd just like to make sure that Mr. Villeneuve is able to transfer all of these orders to Cornwall.

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67 THE COURT: Well, the probation order and the conditional sentence will contain a comment, Mr. Clerk, by me that the supervision of the probation order and the conditional sentence may be transferred to Cornwall in Stormont-Dundas-Glengarry without first requiring the court's approval. 68 Sir, the clerk of the court will review these orders with you, will have you sign both orders, will advise you of the consequences of a breach, will have you sign them before you leave the court today. 69 You have made a very serious mistake, Mr. Villeneuve, obviously. You, on the other hand, have otherwise been a contributing and worthwhile member of society. These orders obviously have a punitive aspect to them and that is something you brought upon yourself, but your life is not over. You have a lot of things that you can still contribute and I strongly suggest that you persevere in the co-operative manner in which you have acted, at least since these offences were brought out and discovered and you were charged. So good luck to you. cp/e/qljel/qljxr/qlced