R. v. Ingvaldson Date:, 2012 BCPC 437

Citation: R. v. Ingvaldson Date: 20121204 2012 BCPC 0437 File No: 214172 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER CHARLES INGVALDSON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W. KITCHEN Counsel for the Crown: M. Booker Counsel for the Defendant: I. Donaldson, QC Place of Hearing: Vancouver , B.C. Date of Hearing: October 16, 2012 Date of Sentence: December 4, 2012

[ 1 ] The offender has pled guilty to two child pornography offences that he committed between March 10 and June 4, 2010. The first is that he accessed child pornography, contrary to s. 163.1(4.1) of the Criminal Code , and the second that he had in his possession child pornography contrary to s. 163.1(4) . [ 2 ] The second of these offences attracts a minimum sentence of 45 days in jail, to a maximum of five years in jail. The Crown is in fact seeking a sentence of 6 months in jail, followed by probation for two years.

In addition the Crown seeks ancillary orders of forfeiture of the offender’s computers, registration on the Sex Offender registry for 10 years, and a prohibition for 5 years under s. 161 related to contact with persons under the age of 16. [ 3 ] This case began in the Spring of 2010 when Australian police, in a project code named “Project Ocean”, were investigating use of the Internet, particularly Facebook, in circulating child pornography. The police uncovered a 14 member group on Facebook entitled “Little Girls Love To Play Too” that appeared to be involved in possessing such pornography.

An undercover police officer sent a “friend request” to one of the 14 members who was using the name “Pedro Van” and this person turned out to be Ingvaldson. He answered the friend request and stated, “Please be discreet. You can message me. Enjoy what I have.” He made available 41 child pornography images. [ 4 ] Investigation by the Vancouver Police found that the offender was using primarily two Internet Protocol addresses to access the Internet – one at his place of employment at St. George’s School where he was a teacher, and one at his home where he lived with his wife. At St.

George’s the offender was using a laptop computer provided to him by his employer. [ 5 ] The police analyzed the computers and found the 41 images of pre-pubescent boys and girls being sexually assaulted and penetrated by adult male penises. There were also images of very young children in sexual poses.

These images have been filed and sealed as exhibits in this case and counsel agree they are examples of child pornography at the “high end of the scale”, lacking only the element of violence. [ 6 ] In addition to the child pornography there was legal adult pornography consisting of images and movies stored with the child pornography.

The police were not able to determine when the pornographic images had been stored on the computers or when they had been accessed. [ 7 ] The offender gave a lengthy forthright statement to the police in which he described how he had acquired the images and subsequently dealt with them.

He also gave his probation officer a similar explanation and advised that, “I didn’t think I was hurting anyone, now I know.” He later told his lawyer, “I contributed to the rape and torture of children in my own way and that is tough to live with.” Through counsel he advised the court that his use of the Internet became compulsive and he eventually strayed beyond lawful pornography into the unlawful, searching for greater shock value. [ 8 ] The probation officer who prepared the Pre-Sentence Report observed that Ingvaldson appears to have developed insight into the offences, and states he sees how his negative decisions and behavioural patterns have affected more than just himself.

The probation officer observed that since being arrested for the offence Ingvaldson has changed his previous behaviour patterns by attending at Edgewood Treatment Centre to deal with his pornography and Internet addictions, complying with Court sanctioned bail conditions, and attending sex addiction therapy and Sex Addicts Anonymous meetings. His therapy has been with a counsellor, Paulette Tomasson, and two doctors, psychologist Dr. Karl Williams and psychiatrist Dr. Shabehram Lohrasbe. [ 9 ] How and why Ingvaldson became involved in these matters is beyond understanding.

He was born in 1969 in New Westminster and raised in a healthy family environment in Coquitlam and Vancouver. His father is now a retired pharmacist who previously owned a drugstore and operated an importing business. His mother continues to work as a bookkeeper. He has an older brother who lives in England with his wife and two daughters, and a younger brother who lives in Surrey, B.C. [ 10 ] Ingvaldson married in 1996 but separated shortly after his arrest on these matters and will be obtaining a divorce. He is now in a stable relationship with Ms.

Layla Dennis who works for Canada Post. [ 11 ] Ingvaldson took his schooling at St. George’s School and was apparently an excellent student, graduating in 1987. He then went to UBC but did not do well and dropped out, having developed an alcohol problem. He started again at the University of Victoria but the same occurred, again because of the alcohol problem. [ 12 ] With the help of his family he was able to overcome the alcohol problem and finally quit drinking in 1994. He returned to UBC and completed his Arts and Education degrees, being on the Dean’s List.

In 2003 he also completed a Masters Degree in Education. [ 13 ] During his time in high school and university Ingvaldson became very involved in field hockey, playing on his high school team, the Vancouver Rowing Club Team, his university teams, and the Canadian National Team. He eventually became more involved in coaching and withdrew as a player because of the heavy alcohol use in the field hockey/rugby culture. [ 14 ] While obtaining his education he worked in his father’s import business. When he completed his first degrees in 1998 he began teaching and in 2006 took employment with St.

George’s School, in 2008 becoming head of the social studies department and in 2010 promoted to Director of Education Technology just before his arrest on these matters. His employment was terminated and he has since worked in construction and as a painter. [ 15 ] Until his guilty plea in these matters, Ingvaldson had no criminal record. Analysis

[16] The analysis of this matter should begin with a re-statement of important Code sections: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall bedeemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

d) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, … [17] I will consider how to apply those principles to Ingvaldson’s case after surveying the appropriate case-law. [18] General propositions concerning child pornography are stated by the Chief Justice in Regina v. Sharpe, 2001 SCC 2 ,2001 SCJ No. 3. At paragraph 28 she says: … The links between possession of child pornography and harm to children are arguably more attenuated than are the links between themanufacture and distribution of child pornography and harm to children.

However, possession of child pornography contributes to themarket for child pornography, a market that in turn drives production involving the exploitation of children. Possession of childpornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences.

And at paragraph 34: Parliament's main purpose in passing the child pornography law was to prevent harm to children by banning the production, distributionand possession of child pornography, and by sending a message to Canadians "that children need to be protected from the harmful effectsof child sexual abuse and exploitation and are not appropriate sexual partners": House of Commons Debates, 3rd Sess., 34th Parl., vol.XVI, June 3, 1993, at p. 20328. However, Parliament did not cast its net over all material that might conceivably pose any risk to childrenor produce any negative attitudinal changes.

Mindful of the importance of freedom of expression in our society and the dangers of vague,overbroad legislation in the criminal sphere, Parliament set its targets principally on clear forms of "child pornography": depictions ofexplicit sex with children, depictions of sexual organs and anal areas of children and material advocating sexual crimes with children.Through qualifications and defences Parliament indicated that it did not seek to catch all material that might harm children, but only

material that poses a reasoned risk of harm to children and, even then, only where the countervailing right of free expression or the public good does not outweigh that risk of harm.

Then, beginning at Paragraph 86: The Crown argues that prohibiting possession of child pornography is linked to reducing the sexual abuse of children in five ways: (1) child pornography promotes cognitive distortions; (2) it fuels fantasies that incite offenders; (3) prohibiting its possession assists law enforcement efforts to reduce the production, distribution and use that result in direct harm to children; (4) it is used for grooming and seducing victims; and (5) some child pornography is produced using real children. 87 The first alleged harm concerns cognitive distortions.

The Crown argues that child pornography may change possessors' attitudes in ways that makes them more likely to sexually abuse children. People may come to see sexual relations with children as normal and even beneficial. Moral inhibitions may be weakened. People who would not otherwise abuse children may consequently do so. Banning the possession of child pornography, asserts the Crown, will reduce these cognitive distortions. 88 The trial judge discounted this harm due to the limited scientific evidence linking cognitive distortions to increased rates of offending.

Applying the reasoned apprehension of harm test yields a different conclusion. While the scientific evidence is not strong, I am satisfied that the evidence in this case supports the existence of a connection here: exposure to child pornography may reduce paedophiles' defences and inhibitions against sexual abuse of children. Banalizing the awful and numbing the conscience, exposure to child pornography may make the abnormal seem normal and the immoral seem acceptable. 89 The second alleged harm is that possession of child pornography fuels fantasies, making paedophiles more likely to offend.

The trial judge found that studies showed a link between highly erotic child pornography and offences. However, other studies suggested that both erotic and milder pornography might provide substitute satisfaction and reduce offences. Putting the studies together, the trial judge concluded that he could not say that the net effect was to increase harm to children (at para. 23). Absent evidence as to whether the benefit from sublimation equals the harm of incitement or otherwise, this conclusion seems tenuous. More fundamentally, the trial judge proceeded on the basis that scientific proof was required.

The lack of unanimity in scientific opinion is not fatal. Complex human behaviour may not lend itself to precise scientific demonstration, and the courts cannot hold Parliament to a higher standard of proof than the subject matter admits of. Some studies suggest that child pornography, like other forms of pornography, will fuel fantasies and may incite offences in the case of certain individuals.

This reasoned apprehension of harm demonstrates a rational connection between the law and the reduction of harm to children through child pornography. 90 The third alleged harm -- that criminalizing the possession of child pornography aids in prosecuting the distribution and use of child pornography -- was not expressly considered by the trial judge. Detective Waters testified that as a result of possession charges, the police have been able to uncover persons involved in producing and distributing child pornography.

The Criminal Lawyers' Association argues that it is dangerous to justify violations of rights on the sole basis that they will assist in the detection and prosecution of other criminal offences. Such reasoning, it argues, could be used to justify many other violations of fundamental rights. Given the evidence linking possession with harm to children on other grounds, it is not necessary to resolve the question of whether an offence abridging a Charter right can ever be justified solely on the basis that it assists in prosecuting other offences.

It is sufficient to note that the fact the offence of possession aids prosecution of those who produce and distribute child pornography is a positive side-effect of the law. 91 The trial judge was satisfied that the evidence relating to the fourth alleged harm, the use of child pornography to "groom" or seduce victims, showed a rational connection. The evidence is clear and uncontradicted. "Sexually explicit pornography involving children poses a danger to children because of its use by pedophiles in the seduction process" (para. 23).

The ability to possess child pornography makes it available for the grooming and seduction of children by the possessor and others. Mr. Sharpe does not deny that some child pornography can play an important role in the seduction of children. Criminalizing the possession of child pornography is likely to help reduce the grooming and seduction of children. 92 The fifth and final harm -- the abuse of children in the production of pornography -- is equally conclusive. Children are used and abused in the making of much of the child pornography caught by the law.

Production of child pornography is fueled by the market for it, and the market in turn is fueled by those who seek to possess it. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded.

The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone. [ 19 ] With that background, I have examined cases that bear more on the factual situation of this case.

As noted earlier in the recitation of Code s. 718.2(b), a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 20 ] Counsel, particularly the Crown, have referred me to and I have considered the following cases that bear on these and other issues: 1. Regina v. Allen , 2012 BCCA 377 2. Regina v. Bock 2010 ONSC 3117 3. Regina v. Crone 2009 BCPC 429 4. Regina v. CWF 2009 BCPC 85

5. Regina v. Gardiner 2009 BCPC ONCJ 305 6. Regina v. Johansen 2009 ONCJ 305 7. Regina v. Hammond 2009 ABCA 415 8. Regina v. Hopps 2010 BCSC 1875 9. Regina v. McGee 2006 NQTSC 59 10. Regina v. PMV 2010 BCCA 34 11. Regina v. Profit (SCC), 1993 3 SCR 637 12. Regina v. Sharpe 2001 SCC 2 13. Regina v. Smith 2008 ONSC 4558 14. Regina v. Simmons, Allen & Bezzo (ON CA), 1973 13 CCC 2d 65 ONT CA 15. Regina v. Harrison & Garrison (BC CA), 1978 1 WWR 162 16. Yardley v. Betts 1979 1 App Crim R. 329 17. Regina v.

Morrissette (SK CA), 1970 1 CCC 2d 307 [21] Many of these cases indicate a range of sentence that is well in excess of the six months sought by the Crown in this case. Infact, the range goes well into penitentiary sentences, beginning at about six months. However, as Ryan J. observed earlier this year in Regina v. Allen, 2012 BCCA 377: 57. While a range may not be detectable from these cases they do reveal the escalation in recent years in severity of sentencesimposed where children are the victims of sex offences. 58.

In my view, then, there is little guidance for this Court to be taken from the case law as to the appropriate sentence.

We musttherefore look to the principles, which govern sentencing to determine the proper sentence in this case. [22] Those comments are particularly important in Ingvaldson’s case where there are unusual aggravating factors, but also manypoints in mitigation that must be considered, so that comparison to similar offenders and similar offences committed in similarcircumstances is certainly not exact. [23] The Crown, in seeking a six-month sentence, points to factors in mitigation and aggravation that apply in this case. Inmitigation: 1. The offender has pled guilty. 2.

He is a first offender with a very good background. 3. He has voluntarily taken treatment. 4. He has performed well on bail. 5. He has demonstrated remorse. 6. He has shown an understanding of the harm he has done. 7. He has strong support from his family and others. [24] In aggravation, the Crown points to: 1. The pornographic material is extremely offensive, nearing the high end of the scale, although not the highest because there were nodepictions of violence. 2. The children depicted were extremely young. 3. There was penetration of the children. 4.

The offender was employed as a teacher, in a position where he was legally required to report sexual and other abuse he observed. 5. The offender was using a school computer to deal with the pornography. 6. The offender possessed the material for at least a year, although the amount of use of the material during that time is not known.

[ 25 ] The Crown, aware that the defence is seeking the statutory minimum of 45 days imprisonment in this case, says that the aggravating factors, particularly offender’s employment as a teacher and his use of a school computer, require that more than the minimum be imposed. [ 26 ] The defence agrees with the Crown’s points concerning aggravation, but submits that the employment of the offender as a teacher and his use of a school computer does not amount to a position of trust or authority in relation to the victim as contemplated in Code s. 718.2(a)(iii).

In addition, Ingvaldson has responded well since his arrest and experienced significant consequences. Therefore, rehabilitation, protection of the public, and specific deterrence require much less attention than might otherwise be the case, and the court should focus on denunciation and general deterrence, in which case the statutory minimum would suffice. [ 27 ] Mr. Donaldson points out there are aggravations absent in this case. The Chief Justice discussed five harms in the Sharpe Case , but those of inciting other offenders and use of pornography for grooming are completely absent in this case.

Although Ingvaldon’s images were “very bad”, there are more extreme cases such as in the Allen Case . Many of the other cases cited by the Crown involved much more involvement, including many more images, and movies, possessed and used on many demonstrated occasions. [ 28 ] I have concluded that as offences of their type, Ingvaldon’s offences must be regarded as serious. The images, though limited in number, were extreme.

They were offered up to others on the Internet, and Ingvaldson even communicated with another person concerning accessing the images and the need to be discreet, demonstrating an awareness of the serious criminality of the images. [ 29 ] I do not conclude there was a breach of trust as contemplated by Code s. 718.2(a)(iii) because these offences in no way involved the students with whom Ingvaldson was entrusted.

However, Ingvaldson himself acknowledged through counsel, “I explicitly agreed to a social contract [which involved expectations] … and I broke that.” He was a schoolteacher and society expects a higher standard of conduct from such professionals. In that regard, the offences are aggravated. [ 30 ] The background of the offender in this case is much more positive than is often the case with offenders in Criminal Court. Ingvaldson had established strong family and social connections during his formative years and was very successful in his educational and employment endeavours.

All of this is apparent from the investigations of his Probation Officer, the reports of his counsellor and doctors, and the letters of reference filed on his behalf. [ 31 ] The one area of concern in Ingvaldson’s past was his difficulty with alcohol. It is the opinion of his doctors that problem was a manifestation of an addictive personality that needed more attention, and he has received appropriate treatment and counselling. Since his arrest Ingvaldson has done exactly what a court would expect should be done in such circumstances.

I must conclude that there is every prospect that his rehabilitation has been and will continue to be effected, and that protection of the public is much less of a concern than would otherwise have been the case. [ 32 ] Specific deterrence is a related sentencing principle and I conclude that it also requires much less attention in this case because the offender has demonstrated that he understands the gravity of his offences and the necessity of his avoiding this behaviour in the future. [ 33 ] The remaining principles of sentencing that need to be addressed are denunciation and general deterrence.

The cases previously cited make it clear that those two principles require emphasis in all cases such as this. Parliament has underscored that requirement by imposing a statutory minimum of 45 days in jail for possession of child pornography. This is clearly a statement of Parliamentary denunciation over and above the societal denunciation given by a court in imposing sentence. [ 34 ] The effect of this statutory minimum sentence is to pre-empt the sentence that would be given by a court if it were determined that less than the statutory minimum would otherwise be appropriate.

That is why there is a clustering of sentences at or near the statutory minimum for offences where Parliament has mandated such minimums, other examples being drink driving offences and firearms offences. [ 35 ] Therefore, in spite of Code s. 718.2(

d) and s. 718.2(e), the statutory minimum prevails and must be imposed to give special effect to denunciation and general deterrence. [ 36 ] In almost every case such as this there are consequences to the offender beyond whatever the court might impose. If substantial, those consequences are effective in deterring others who might consider committing these offences. [ 37 ] The consequences to Ingvaldson have been much more considerable than is often the case. As a school teacher and department head in a highly respected city school, these offences have attracted considerable media attention.

Ingvaldson himself has recognized and very much regretted the terrible embarrassment to his school, his colleagues, his head master, and in particular his students – even though the offences did not involve the school in any way or endanger the students. He has lost friends and relationships, but fortunately he appears to have had strong support from his family throughout these proceedings.

He told the court himself, “I have lost many things since being arrested in June, 2010; a marriage, a career that I loved, numerous friendships, respect in the community at large.” He will never again practise the profession he worked so hard to enter, and practised diligently for so many years. [ 38 ] However, even recognizing these other consequences to Ingvaldson, I must conclude that the statutory minimum does not recognize the seriousness of his offences. The images were extremely serious. Ingvaldson provided them for others to access on the Internet, and was aware that was being done.

He was in a special position in society as a schoolteacher and his behaviour was particularly upsetting to his colleagues and students. Considering those circumstances, and giving due emphasis to denunciation and general deterrence, I must conclude that a sentence of three months must be imposed, with a conditional stay on Count 2. There is also probation for two years to follow the jail sentence, and ancillary orders. [ 39 ] The probation will have the following terms:

1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3. Notify the Court or the Probation Officer in advance of any change of name or address, and promptly notify the Court or the Probation Officer of any change of employment or occupation. 4. Within 72 hours of completion of your sentences, report in person to a Probation Officer at 275 East Cordova Street, Vancouver, BC, and thereafter as and where directed. 5. Reside where directed by your Probation Officer. 6.

You are not to be employed or volunteer in any capacity that involves being in a position of trust over a person under the age of sixteen years. 7. You are prohibited from using a computer system within the meaning of subsection 342.1(2) of the Code for the purpose of communicating with a person under the age of sixteen years. 8. You may possess one only computer system or device to access the Internet and you must provide your Probation Officer with any requested identifying information concerning that system or device. 9.

Upon reasonable request of a peace officer, you are to make available to them that computer or device for inspection. 10. You will attend such counselling as directed by your Probation Officer. [ 40 ] I am not imposing a restriction or limitation on Ingvaldson associating with persons under the age of sixteen. There was no indication whatsoever that Ingvaldson associated with children in any way in committing these offences, including in the production of, maintaining, accessing, or use of the child pornography he possessed.

He has nieces and nephews aged 6, 8 and 14 and at this stage he may be trusted to be in the presence of such youngsters. [ 41 ] I am not imposing a requirement for him to provide computer service billing information to the authorities. The restrictions I have imposed deal with any Internet access concerns. [ 42 ] I am making these ancillary orders: 1. Pursuant to Code s. 487.051 you will provide a DNA sample in an acceptable form while in custody serving your sentence. 2. The computers and hard drives seized by the police are forfeited to the Crown pursuant to Code s. 164.2(1). 3.

Upon the expiration of the time for any appeal, the computers and pornographic material in the possession of the police will be destroyed and the sealed exhibits filed in this matter will be destroyed. 4. You will be registered for a period of ten years under the provisions of the Sexual Offender Information Registry Act pursuant to Code s. 490.012(1). 5. Pursuant to Code s. 161(1), for a period of five years you are prohibited from: (

a) Attending a public park or swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare Centre, school ground, playground or community centre except while in the presence of an adult person over the age of 21. (

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 or; (

c) Using a computer within the meaning of Code s. 342.1(2) for the purpose of communicating with a person under the age of 16 years except that he may communicate with his nieces and nephews. [ 43 ] That is the sentence of the Court. The Honourable Judge W.J. Kitchen Provincial Court of British Columbia