A former teacher, convicted of child pornography and voyeurism charges, will not challenge his mandatory minimum jail sentence for secretly filming a naked 16-year-old co-op student in a London elementary school change room.
The decision comes just over a month after Jamie Gardiner was found guilty of producing and possessing child pornography, an offence that carries a mandatory sentence of one year in jail. At the London courthouse Friday, Gardiner's lawyer Richard Braiden told Justice Marc Garson his client does not wish to make a constitutional challenge but would rather proceed to sentencing.
"The complicating factor here is that he is also facing multiple counts of voyeurism. So, even if I was successful in striking down the mandatory minimum, on which I think our chances were quite good, we still have to deal with the voyeurism matters and it is quite probable he would receive a custodial sentence on those charges," said Braiden. "So the decision then became, is it really worth while challenging the mandatory minimum when it is likely that he still would get a custodial sentence?"
Gardiner, who was not in the courtroom on Friday, pleaded guilty in May to 16 counts of voyeurism in relation to an incident while he was a special education teacher at Ashley Oaks Public School. He admitted to placing a backpack with a hidden camera coming from a thumb size hole in a staff change room from 2011 until March 2015, when he was caught by a colleague. The backpack was left on the floor of the change room, angled to capture the genital or buttock area of female co-workers as they changed.
Among the 29 videos found on Gardiner's cellphone and a thumb drive was a two-minute-and-30-second clip of the 16-year-old student, a minor under the law. Garson ruled in June that the short video constituted child pornography.
While formal sentencing submissions have yet to be made, Braiden has indicated he will argue to have the sentence for the voyeurism charges run concurrent with the child pornography charges.
"His honour has to look at the concept of not just what's appropriate for each individual count, but in total for a first offender what would be an appropriate sentence. He needs to decide if the mandatory minimum is applied, which would be one year, is it appropriate to impose consecutive time or concurrent time on the voyeurism. I am going to be recommending that he consider imposing concurrent time," said Braiden.
Victim impact statements in the case will be heard on August 14. A date for sentencing will also be set at that time.