R. v. Leask, 2013 BCSC 926

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Leask, 2013 BCSC 926 Date: 20130510 Docket: 30296-2 Registry: Prince George Regina v. Jordan Richard Leask Before: The Honourable Mr. Justice Bernard Oral Reasons for Sentence Counsel for Crown: M.L. AhrensCounsel for Defence: R.A. Mulligan, Q.C.Place and Date of Trial: Prince George, B.C. February 6, 7 and 8, 2013Place and Date of Judgment: Prince George, B.C. May 10, 2013 [1] THE COURT: On February 13, 2013, Jordan Leask was found guilty of possessing and accessing child pornography.

Thepornography consisted of still images downloaded onto a computer from the Internet as a result of a search for such on the morning ofJuly 15, 2008. There were 26 pornographic images, two of which depicted naked boys engaged in simulated sexual acts with one another.The remaining 24 were of persons under the age of 18 years with the dominant characteristic being the depiction of their sexual organsfor a sexual purpose. [2] Mr.

Leask was using the computer of an acquaintance at the time of the free download and access. [3] The possession and access were virtually simultaneous; thus, for sentencing purposes they will be treated as one criminaltransaction, and it is agreed that the principle in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, precludes registeringconvictions for both counts. [4] For these crimes, the Crown proceeded by indictment. In this circumstance, both offences are punishable by a maximumimprisonment term not exceeding five years and a minimum imprisonment term of 45 days: see ss. 163.1(4)(

a) and (4.1)(

a) of theCriminal Code of Canada (the "Code") as they read in July 2008. A conditional sentence order is not available as a sentencing option,and these offences were, in 2008, "secondary designated offences" for the purpose of ordering a DNA databank sample. A prohibitionorder pursuant to s. 161 of the Code is a mandatory consideration for an offence under s. 163.1. Finally, the Crown seeks a SOIRA orderfor a 10-year term, and such is not opposed. [5] The Crown seeks a jail sentence of 90 days, and does not oppose that it be served intermittently.

The Crown also seeks a three-year probationary period with many very restrictive conditions, including treatment programs. [6] In support of the Crown's position, it cites R. v. Lamb, 2011 BCSC 349, and R. v. Hopps, 2010 BCSC 1875. In Lamb, theoffender was sentenced to 45 days in jail for what was regarded as a small amount of child pornography. He had no criminal history, wasremorseful, took pre-sentencing steps to treat his addictions, and pleaded guilty. The Crown says the absence of some of these mitigatingfactors for Mr. Leask suggests that his sentence ought to be greater than that received by Mr.

Lamb. [7] The facts were dramatically different in Hopps, but the Crown relies upon the decision for its recitation of the sentencingprinciples applicable in child pornography cases. [8] The defence position is that no more than the minimum jail sentence of 45 days is required as a fit sentence for Mr. Leask. Thedefence did not cite any cases in support of its sentencing position. The defence says, however, that the offence was an isolated and brieftransgression at a time when Mr. Leask was abusing drugs and alcohol.

The defence notes that five years have passed since thecommission of the offence, during which Mr. Leask has matured and stabilized. He has become a responsible and contributing memberof the community. He is married, has three children, and is employed as a hotel desk clerk. [9] The defence suggests that Mr. Leask's best chance at maintaining a pro-social lifestyle is a sentence which would keep him onhis present pro-social and productive track. It submits that the protection of the public is best served by not imposing a sentence whichunduly risks derailing Mr. Leask. [10] Mr. Leask is 34 years of age.

He resides with his wife and children in Prince Rupert, British Columbia. As already observed, heis employed as a hotel desk clerk in Prince Rupert.

[ 11 ] Mr. Leask accessed the pornography in question while he was visiting Evelyn Williams in Prince George. He was passing through Prince George at the time. He and Ms. Williams had a sexual history together, and in the early morning of July 15, 2008, they had another sexual encounter. It was shortly after this that Mr. Leask downloaded and accessed the pornography while using Ms. Williams' computer. [ 12 ] Sections 718 and 718.1 of the Code provide as follows: 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance 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. ... 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 13 ] It is well established that the paramount sentencing objectives for child pornography offences are denunciation and deterrence, and that the sentencing range is broadly defined as four-months-to-two-years' incarceration: see R. v.

R.L.W. , 2013 BCCA 50 . [ 14 ] In R.L.W. , the court identified as factors the nature, quantity and use of the pornography as influencing where, within the range, a fit sentence should fall. The appellate court also agreed with the sentencing judge's view that, over time, the courts have developed a greater appreciation of the harm caused to children by the manufacture, distribution and possession of child pornography, resulting in greater emphasis on denunciation and deterrence as sentencing objectives, and in higher sentences.

In so doing, the court in R.L.W. adopted the following words of the sentencing judge: Children are among the most vulnerable in our society. To purchase images of them being sexually violated is an offence that touches the soul of the community and calls for a strong deterrent and denunciatory sentence. [ 15 ] Having due regard for the foregoing sentencing principles, in the case at bar I am satisfied that the possession and access in question must be placed at the low end of the seriousness continuum. [ 16 ] In relation to the nature of the images, they are relatively benign.

In most instances, they are still images of naked boys and girls with their genitals exposed as a dominant feature. In contrast, for example, are the images in R.L.W. which included video recordings of children as young as two years old engaged in sexual acts with adults and in acts involving violence and bestiality.

In R.L.W. , the trial judge characterized the material as repellant and repugnant. [ 17 ] In relation to the quantity of the images, 26 stills must be regarded as a very small number given the ease of image access and reproduction afforded by today's technology. [ 18 ] Finally, there is no evidence in relation to the use of the images beyond simple viewing; accordingly, there is no basis upon which to characterize the usage as aggravated.

As an example of stark contrast, the images in R.L.W. were used during the course of a violent sexual assault upon a woman. [ 19 ] I am satisfied that there is no evidence from which I might reasonably infer that the incident in question was other than an isolated one. I am asked to infer otherwise from the consistency within Mr. Leask's search results; however, the search terms he used could not be determined, and it would be impermissible speculation to conclude that only a person well versed in accessing child pornography could have produced such a collection of images. [ 20 ] In

summary, then, I have before me a first offender who, in one instance five years ago, performed an Internet search using another person's computer. He was abusing alcohol and drugs at the time. The search produced 26 relatively benign images which fit the definition of child pornography. Although the specific usage of the images remains unknown, there was no opportunity for it to be aggravated. The possession and access was brief. Since the time of the incident in question, Mr. Leask has married a woman with a young child and has had two children with that woman.

He supports his family through employment as a hotel clerk within the community where he resides. He is apparently well along a pro-social track. [ 21 ] In these relatively unique circumstances, I am satisfied that the minimum sentence in existence at the time would be sufficient to satisfy the principles and purposes of sentencing. I am not inclined to impose the myriad conditions sought by the Crown, many of which, in my view, are not sufficiently linked to the circumstances of the offence or the offender to be justifiable. [ 22 ] Mr.

Leask, on the count of accessing child pornography, you are sentenced to 45 days in jail. This sentence will be served intermittently on your non-working days by surrendering yourself into custody once each week for the purpose of serving your sentence, commencing the week of May 13-19, 2013, and continuing on consecutive weeks thereafter until you have completed serving your sentence. At all times when you are not in custody on this order and until your jail sentence has been served in full, and then for one year thereafter, you will be bound by a probation order.

In addition to the mandatory terms, you will be required to report within the next 72 hours to the probation office in Prince Rupert, British Columbia, and then thereafter as and when directed by your probation officer.

You must abide by the directions of your probation officer in relation to the service of your intermittent sentence, including when and where to surrender yourself into custody. You must refrain absolutely from the consumption of alcohol and illicit drugs, and you must have no contact or communication, directly or indirectly, with Evelyn Williams. [ 23 ] I ask those persons responsible for the custody of Mr.

Leask and for supervising his sentence to facilitate the serving of this jail sentence in Prince Rupert if such is permissible and can be reasonably accommodated. [ 24 ] I have not been requested to make an order of prohibition pursuant to s. 161; nonetheless, I have considered it as I am required to do, and decline to make such an order having regard to the circumstances of the offence and of the offender as I have described above. [ 25 ] There will be an order pursuant to s. 490.012 of the Code for 10 years. [ 26 ] There will be a conditional stay on the count of possession pursuant to the principle in R. v.

Kienapple , supra . [ 27 ] Finally, if Mr. Leask applies to the Court to serve his sentence on consecutive days, he may bring the application before any judge of this Court. [ 28 ] What remains is that on my reading of the Criminal Code this offence is a secondary designated offence for the purpose of a DNA order. [DISCUSSION] [ 29 ] THE COURT: Pursuant to s. 487.051 of the Criminal Code , there will be an order that Mr. Leask provide a DNA sample. “The Honourable Mr. Justice Bernard”