In a unanimous decision by three judges, the court said Joshua Milne, then 24, sexually assaulted his 17-year-old ex-girlfriend, A.D., in November 2017.
“The sexual assault was prolonged, profoundly degrading and video-recorded by Mr. Milne on his cellphone,” Justice Gail Dickson said. “Two months later, he sent images of the sexual assault to a woman he was trying to impress, two of which showed A.D.’s face and, given her age, were child pornography.”
Milne pleaded guilty in December 2019 and was sentenced to a year’s imprisonment for the sexual assault, two months’ imprisonment consecutive, less time served, for transmitting child pornography and three years of probation.
The Crown appealed, saying the sentence was demonstrably unfit and disproportionate to the gravity of the offences, Milne’s moral culpability and the harm that he caused.
The appeal court agreed and increased the sentence to two and a half years for the sexual assault and one year consecutive for transmitting child pornography, less time served.
Milne and A.D. had been in an intimate relationship throughout August, September and part of October 2017. A.D. lived in Kelowna and Milne was there on a break from his schooling at the British Columbia Institute of Technology.
In September, Milne returned to Burnaby and they continued the relationship, although A.D. found Milne needy and demanding. She tried to break up with him. Milne, however, claimed he would kill himself and A.D. feared he might follow through, so, for a while, she did not end he relationship.
In October 2017, A.D. found a new partner, moving to Burnaby to live with him. However, she and Milne maintained contact and he continued to tell her repeatedly that he was considering suicide.
A month later, Milne contacted A.D. and said he was feeling suicidal so she went to his apartment to make sure he did not harm himself. She told Milne their breakup might be permanent, but he would not accept it.
She said she needed to sleep and he gave her a sleeping pill, later giving her Ativan, an anti-anxiety and sedative medication, which can cause amnesia.
A.D. was soon in a state of deep unconsciousness.
While she was in this state, Milne undressed her, bound her hands and ankles, blindfolded her and, over the next five hours or so, repeatedly sexually assaulted her, Dickson said. He documented these acts in photos and videos with his cellphone.
She awoke the next morning bruised and in severe pain. She convinced Milne she should go home but he was concerned she shouldn’t drive and called police who took her to hospital.
By mid-November A.D. began to recall aspects of the assault and the fact that Milne had filmed it. She went to the hospital where he had now been admitted, confronted him and asked for his phone and password, which he gave to her. She saw the images of the assault.
“A.D. did not consent to any of the acts depicted in the images and videos,” Dickson said.
Eventually, A.D. reported the sexual assault to police and Milne was arrested. They found he had sent the images to someone on a chat site.
“Those images meet the definition of child pornography,” Dickson said.
The trial court heard Milne has received various psychiatric diagnoses, including bipolar disorder, obsessive compulsive disorder, depression and borderline personality disorder, and was prescribed various psychotropic medications.
He said he did not remember making the videos.
Dickson noted the sentencing judge concluded Milne’s mental health at the time of the offence was “a significant contributing factor.”
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