A former North Vancouver elementary school custodian who shared a sexually explicit photo of a young girl will serve 12 months of probation, but he will not have a criminal record after.
Ernesto Bihis, who worked at Lynnmour Elementary, was arrested at his Burnaby home in December 2020 following a lengthy investigation.
In August 2020, Facebook alerted the RCMP’s child exploitation unit about a photo featuring a girl between eight and 12 years old, being shared in a private message via their servers. North Vancouver RCMP investigators got a warrant and determined the message was forwarded by Bihis while he was at the school. Bihis, now 64, went into early retirement the day after his arrest.
Initially, he was charged with one count of possession of child pornography and one count of distribution of child pornography. The court stayed those charges on Sept. 3 and Bihis pleaded guilty to one count of sending an intimate image without consent.
Bihis received the image, unsolicited, from a friend in the Philippines, the court heard, and he forwarded it to another friend. That friend immediately wrote back and admonished Bihis, telling him to delete the photo and reminding him he has grandchildren.
Following his arrest, Bihis admitted to police what happened and co-operated in the investigation.
Bihis wept as he apologized at his sentencing in North Vancouver provincial court, Friday.
“It was an impulsive action and I immediately regretted it,” he said. “I should have deleted that image as soon as it was sent to me and I know that now. I do not blame anyone else other than myself. My action has brought shame on me and my family.”
In addition to losing his job as a custodian, the stigma of his arrest also led to his wife having to quit her job, forcing them to move in with family, his lawyer said.
The Crown sought one year of probation and a suspended sentence, which would have stayed on Bihis’s record unless he were to receive a pardon. His lawyer, however, asked for a conditional discharge, meaning he will not have a criminal record unless he fails to live up to the terms of his probation.
After a lengthy analysis, a psychologist advised Bihis was “a very low risk to reoffend” and even less likely to harm a child directly, his lawyer noted.
Ultimately, Judge David St. Pierre agreed, and acknowledged Bihis’s remorse.
“I'm satisfied that Mr. Bihis is not the kind of individual who is seeking out this material. He's not some person who is trolling the internet, trying to possess this material. He is a person of previously stellar character who received it, and then made the terrible decision to forward the image,” he said.
Far worse in the realm of child exploitation are the people who produce child pornography and consume it, harming children in the process, St. Pierre said.
“He has to know, and I'm sure he knows now, that this material is created by the very worst kind of people,” he said. “These young children around the world are being exploited every single day. … It's sad. It's pretty devastating and sickening, when you think about it.”
St. Pierre added he was impressed with the ability of investigators to interdict the movement of exploitative images of children.
Although no one in the investigation knew who the victim was and the photo itself was deleted before Bihis was charged, St. Pierre did speak up in the young girl’s honour.
“She deserved to be protected. She deserved to be shielded from this kind of activity and she would be very upset, I'm sure, to know that there are people around the world that are sharing that image,” he said.