R. v. Bucknell, 2021 BCPC 309

Citation: R. v. Bucknell 2021 BCPC 309 Date: 20211208 File No: 102817-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SIMON PETER BUCKNELL Ban on Publication: A publication ban has been mandatorily imposed pursuant to s. 486.5 of the Criminal Code restricting publication, broadcasting or transmission in any way or evidence that could identify the complainants. This publication ban applies indefinitely unless otherwise ordered. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.

DOREY Counsel for the Crown: Lauren Kristjanson Counsel for the Defendant: Trevor Martin Place of Hearing: Port Coquitlam , B.C. Date of Hearing: November 24, 2021 Date of Judgment: December 8, 2021 1. Introduction

[ 1 ] On March 29, 2021, following a multi-day voir dire , Simon Peter Bucknell entered guilty pleas to the following charges on the Indictment:

a) Possessing child pornography, contrary to

section 163.1(4) of the Criminal Code on June 1, 2019 to June 28, 2019 (count 1).

b) Making child pornography contrary to

section 163.1(2) of the Criminal Code on June 28, 2016 and June 24, 2019 (count 2).

c) Touching, for a sexual purpose, directly or indirectly with a part of his body or with an object, the body of E.K., a person under the age of sixteen years, contrary to

section 152.1 of the Criminal Code on June 24, 2019 (count 3).

d) Touching, for a sexual purpose, directly or indirectly, with a part of his body or with an object, the body of B.E., a person under the age of sixteen years, contrary to s. 151 of the Criminal Code on June 28, 2016 (count 5). [ 2 ] Mr. Bucknell is before me for sentencing. [ 3 ] Before I begin, it is important to emphasize that sentencing is an individualized process which involves a careful balancing of the unique circumstances of the offender, the conduct and gravity of the offence, and its impact on the victims and broader community at large. This is no easy task. 2.

Joint Sentencing Position of the Parties [ 4 ] The Crown submits by way of joint sentencing submission that the following is an appropriate sentence in all of the circumstances of this case:

a) A custodial sentence for the duration of 2 years less a day followed by a probation order of 20 months with reporting and protective conditions.

b) Ancillary orders including: a DNA Order, s.161 Prohibition Order, Victim Fine Surcharge, Forfeiture Order, Firearms/Weapons Prohibition, and SOIRA Order. [ 5 ] Joint submissions are essential to the well-being and efficient operation of our criminal justice system. In order for them to be successful, the parties must have a high degree of confidence they will be accepted: R. v.

Anthony-Cook , 2016 SCC 43 . [ 6 ] It is the responsibility of the sentencing judge to carefully assess the recommendation to first determine that it meets the objectives and guiding principles found in s. 718 of the Criminal Code , and second, whether in light of this assessment, the sentencing judge is able to conclude that the proposed sentence is in the public interest that it be accepted. [ 7 ] In considering the joint submission of Crown and defence counsel in this case, I am bound to employ the following test: … a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. … R. v.

Anthony-Cook , at para. 32 . [ 8 ] A joint sentence is contrary to the public interest if “… it is so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”.

In such circumstances, a joint sentence would thus cause “the public to lose confidence in the institution of the courts”: Anthony-Cook , at para. 33 . [ 9 ] The Crown and Defence jointly submit that the public interest test set out in Anthony-Cook is satisfied in this case. [ 10 ] For the reasons that follow, I have concluded that the public interest test is met by the sentencing recommendation that is proposed. In other words, I am acceding to the joint submission. 3. Road Map [ 11 ] I will now explain why I have reached this conclusion in Mr.

Bucknell’s case and provide the following road map for my decision. [ 12 ] I begin my analysis with a review of the offence circumstances, and Mr. Bucknell’s personal circumstances, including his attitude and understanding of the offences. This review will be followed by a

summary of the victim impact statements and character references, and Mr. Bucknell’s forensic risk assessment. I will review the applicable sentencing objectives and principles and then apply them to Mr. Bucknell’s case. [ 13 ] Following this review, I will set state in detail the orders I make to implement my reasons for sentence. 4. Offence Circumstances [ 14 ] Mr. Bucknell’s offences are crimes of sexual violence against children. [ 15 ] The victims of the sexual interference charges (counts 3 and 5), E.K. and B.E., were toddlers at the time of these offences and are [omitted for publication] to Mr. Bucknell.

They are also the subjects of the making child pornography offence (count 2). [ 16 ] The offence circumstances are set out in the Agreed Statement of Facts. Briefly, Mr. Bucknell admitted to police in a warned statement that there was both adult and child pornography on his Apple iPhone 6 (iPhone) that was seized by police from his home on

August 17, 2019, that he was addicted to pornography and masturbating, and that he took photographs of the victims’ vaginas, and uploaded them onto a cloud storage device via Mr. Bucknell’s email account. 5. Offender Circumstances (

a) Personal Background [ 17 ] Mr. Bucknell comes before the court without a prior criminal record. He has been compliant with strict bail conditions since his release from police custody and has been fully cooperative with his assessors in the preparation of his pre-sentence reports. [ 18 ] Mr. Bucknell is currently 41 years of age. He was married to A. Bucknell. They separated shortly after these charges. He remains single. [ 19 ] Mr.

Bucknell continues to live with his mother, and his brother at their mother’s home in Pitt Meadows. [ 20 ] He has no issues with substance abuse or addictions, and is a moderate social drinker. [ 21 ] Mr. Bucknell and A. Bucknell have a 5-year-old son, with special needs. Their son is diagnosed with Autism. There are challenges around communication and interaction with his son. [ 22 ] Mr. Bucknell currently has supervised visits with his son three times per week. In the Presentence Report (“PSR”), Mr. Bucknell reports that “his world revolves around” his son.

As is noted in the PSR, he is reported to have a good rapport with his son and is noted by his mother as being an “excellent father” from her observations of Mr. Bucknell’s interactions with the child. [ 23 ] Mr. Bucknell is the middle child of eight children of a blended family. By all accounts, Mr. Bucknell grew up in a loving and stable family. Mr. Bucknell had a happy childhood and he described himself in the PSR as “a social person who had a lot of friends”. His parents followed the Jehovah’s Witness faith.

His mother reports that the family took their faith seriously in the raising of their family. [ 24 ] Mr. Bucknell struggled with focus and concentration at school. In grade 9, Mr. Bucknell was diagnosed with attention deficit disorder. He was prescribed Ritalin. This medication, coupled with a tailored learning plan, helped Mr. Bucknell turn himself around such that he was able to achieve good grades in school. He reports that he is no longer troubled by these symptoms. [ 25 ] Mr. Bucknell completed high school in Pitt Meadows. He then attended BCIT to study cabinet making.

He completed an apprenticeship in this trade and worked for a brief period as a cabinet maker. He changed career direction and qualified to become a construction safety officer. [ 26 ] Mr. Bucknell is employed as a construction safety officer with a large and reputable construction company, which is a job he “loves”. Mr. Bucknell is currently on medical leave from his position due to stress and anxiety resulting from these charges. (

b) Attitude and Understanding of his Offence [ 27 ] Mr. Bucknell acknowledges responsibility for his crimes through his guilty pleas and in the following statement to Sonia Lejung, probation officer, who prepared the PSR. At pp. 5-6, the PSR states: [Mr] Bucknell reports he knows what he did was “wrong” and he “hates” himself for it. He admits to looking at child pornography and taking photos of the victims but states he “did not” touch them nor did he get sexually aroused when he was looking at any child porn.

He states he is feeling “remorseful” and believes the two young victims will not be traumatized for him taking a photo of them. [Mr.] Bucknell states he and his wife watched porn videos to “spice up” their marriage and he believes his addiction to porn “grew into curiosity, obsession, and collection of various videos”. He denies any sexual intent or arousal when he viewed the photos or videos. [Mr.] Bucknell states he is aware that he hurt people by doing what he did.

He states that he is “very sorry” to the indirect victims as well as the Criminal Justice System. [Mr.] Bucknell was remorseful by stating that he understands how his actions have affected his family and everyone around him and he is grateful to have their support …” (

c) Pro-Social Supports [ 28 ] Letters of support from Mr. Bucknell’s mother and several members of his extended family members were filed in evidence. These letters indicate that Mr. Bucknell has and will continue to have a strong supportive family network. [ 29 ] He remains very close to his mother who has been a constant presence and source of support for Mr. Bucknell throughout the court proceedings. [ 30 ] Mr. Bucknell continues to have the support of all but his youngest sibling, and the support of some of his extended family members. Unfortunately, Mr.

Bucknell lost contact with most of his friends, many of whom abandoned him following the charges. [ 31 ] In her letter to the court, Mrs. Bucknell describes the steps Mr. Bucknell has taken since these charges. She described Mr. Bucknell as a broken man who has been struggling to deal with his shame, remorse and anxiety. She states that over time, Mr. Bucknell has returned to his faith, that he has found purpose in his life through his faith and in caring for his son, and finally, that he is a tremendous source of companionship and help for her around the house. [ 32 ] Mr.

Bucknell’s health and safety manager provided a letter of support on behalf of the company. In this letter, his manager confirmed that Mr. Bucknell is a valued and well-regarded employee who is respected by his peers for his dedication and commitment to work site safety. More importantly, his manager states that Mr. Bucknell will have a job to return to and confirms that he would not be

coming into contact with any employees under the age of 18 on job sites if he were to return. (

d) Risk Assessment [ 33 ] In his PSR (at p. 4), Mr. Bucknell reports that he was devastated by his father’s passing in 2015 and states that he had not come to grips with his grief at the time the offences began. He added his lack of “proper grieving” for his father’s death could be one of the factors for his current offending. [ 34 ] According to the PSR, Mr. Bucknell’s relationship with A. Bucknell was strained due to Ms.

Bucknell’s “social anxiety” and arguments about finances, and that he viewed adult pornography as a coping mechanism to deal with these stressors. [ 35 ] He explained during his forensic assessment how he came to be found in possession of child pornography on his iPhone. In this assessment, Mr. Bucknell acknowledges that he clearly knew what he was doing in committing these offences, but adamantly states that he “… didn’t do it for a sexual purpose”.

He further reports that he has “zero” attraction to underage females and does not get aroused looking at child pornography. [ 36 ] At pp. 2-3 of the forensic assessment report, Mr. Bucknell informed Dr. Sirkia how the child pornography offences came about: … [H]e explained that he and his wife [A.] were “passing photos back and forth … then we came across this website where people could upload photos and there were scenery and some nude photos every now and again and they were too young (i.e., the subjects of the nude photos) and I’d push it away … I didn’t like it”. Mr.

Bucknell said he “decided I’d try to stop it (i.e., the postings of young children), so he “got a hold of the profiles of the photographers… I was naïve I thought I could stop it … that left a digital footprint … I tried to delete them but they were still on my computer.” Mr. Bucknell advised that some of the images “were adults penetrating children … I wondered how that was possible … then I was doing a diaper change with [omitted for publication] and I didn’t want to look too close so I took a picture and then questioned why I did that and deleted it.” [ 37 ] While he admits to watching “too much porn”, Mr.

Bucknell clearly attempts through his explanation to cast some of the blame on his ex-wife, indicating that she was the one who was addicted to it (Forensic Assessment, p. 8). This blaming behaviour is troubling. [ 38 ] Also troubling is the fact that Mr. Bucknell did not explain during either his PSR interview or his forensic assessment why he photographed the victims’ genitals on two separate occasions three years apart, nor did he explain how those images came to be found on the internet. This concern is noted by Dr. Sirkia at p. 11 of his report: Mr.

Bucknell’s explanation regarding the offences before the court is unusual and naïve, and at some level, suspends believe [sic]; however, there does not appear to be anything in [sic] his history to suggest that it is anything other than what he described. The most troubling aspect of his account is why he would repeat his actions with two separate [omitted for publication], with three years separating the events. [ 39 ] Nevertheless, after administering a series of risk analytics, Dr. Sirkia concludes that Mr. Bucknell’s risk to reoffend sexually is in the low range. [ 40 ] Dr.

Sirkia’s report also includes a number of treatment recommendations which entail overall psychoeducation about the traumatic impact of child exploitation on the victims to help Mr. Bucknell achieve greater insight into his offending. [ 41 ] I have concluded from my review of Mr. Bucknell’s forensic assessment, that he has the capacity to benefit from treatment. In this regard, I note that Mr. Bucknell took some initial treatment steps on his own initiative. [ 42 ] He attended Sex Addict Anonymous in Langley from August, 2019 until March, 2020.

Through these sessions, he reported to his PSR assessor that he gained insight into his addiction to sex and pornography when it comes to “coping with stress and using pornography as an ‘escape’”. [ 43 ] He also attended 4 counselling sessions for individual counselling in late 2019 and early 2020, with a plan to resume counselling once his psychologist returns from maternity leave. [ 44 ] Mr. Bucknell has also returned to his faith, is receiving spiritual guidance, and lives in a supportive and positive home environment. [ 45 ] I have concluded from my review of the PSR and forensic assessment report that Mr.

Bucknell has a good prognosis for treatment and I accept Dr. Sirkia’s opinion and find that Mr. Bucknell’s risk for sexual re-offending is low. 6. Victim Impact [ 46 ] Two victim impact statements were prepared and read into the record by B.E. and E.K.’s mothers and entered as exhibits at the sentencing hearing. Both mothers described the significant impact the offences have had on their families. Each mother gave a personal account of their ongoing sense of fear and reluctance to leave their children in the care of other adults and family members as a result of these offences. 7.

Sentencing Principles and Principles Applicable to Sexual Offences Against Children [ 47 ] I will now address the applicable sentencing principles in Mr. Bucknell’s case. [ 48 ] The fundamental purpose of sentencing found in s. 718 of the Criminal Code is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. This purpose is achieved by a fair and balanced assessment of one or more of the following objectives:

a) Denouncing unlawful conduct and its harm to victims;

b) Deterrence, both general and specific;

c) Separating offenders from society where necessary to protect the public;

d) Assisting offenders in rehabilitation;

e) Providing for reparation for harms done to victims;

f) Promoting responsibility in offenders; and

g) Acknowledging the impact of the harm done to the victims or the community. [49] The sentencing principles found in sections 718.1 and 718.2 of the Criminal Code provide further guidance to assist thesentencing judge in tailoring a fit and just sentence that will give meaningful effect to one or more of these sentencing objectives. [50] All sentences begin with the principle of proportionality, codified in s. 718.1 of the Criminal Code: R. v. Friesen, 2020 SCC 9.

This principle mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. [51] In R. v. Ipeelee, 2012 SCC 13, at para. 37, LeBel J. explained the proportionality principle as follows: [37] … Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justicesystem …Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moralblameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate oneat the expense of the other. [52]

Section 718.2(

c) of the Criminal Code codifies the totality principle which mandates that where consecutive sentences areimposed, the combined sentence should not be unduly long or unduly harsh so as to ensure that the sentence does not exceed theoffender’s overall culpability: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 42. [53]

Section 718.2(

d) is the principle of restraint in sentencing. This principle provides that a jail sentence should not be imposed “ifless restrictive sanctions may be appropriate in the circumstances”. Similarly, s. 718.2(

e) provides that all available sanctions other thanimprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should beconsidered for all offenders. [54] Mr. Bucknell’s offences of possession of child pornography, making child pornography and sexual interference are violent sexualoffences against children. These are serious crimes that “wrongfully exploit children’s vulnerability and cause profound harm tochildren, families, and communities”: R. v.

Friesen, 2020 SCC 9, at para. 5. [55] In Friesen, the Court states, at para. 76: Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts tosimply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of theoffender’s actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R.v.

Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). [56] The harm caused by these offences to children is explained in Friesen, at paras. 51 and 56: [51] The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodilyintegrity, sexual integrity, dignity, and equality of children. This Court recognized the importance of these interests in Sharpe in thecontext of the production of child pornography.

As this Court reasoned, the production of child pornography traumatizes children andviolates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime(para. 92, per McLachlin C.J., and para. 185, per L’Heureux-Dubé, Gonthier and Bastarache JJ.).

Sexual violence against children isthus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity(see Sharpe, at paras. 172, 174 and 185, per L’Heureux-Dubé, Gonthier and Bastarache JJ.). … [56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attentionon emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional andpsychological harm that, as this Court held in R. v.

McCraw, (SCC), [1991] 3 S.C.R. 72, “may often be more pervasiveand permanent in its effect than any physical harm” (p. 81). [57] In order to protect children from exploitation and harm, Parliament “expressed its will” by increasing the maximum sentences forthese offences and by prioritizing the sentencing objectives of denunciation and deterrence under s. 718.01 of the Criminal Code: Friesen, at paras. 42 and 116. [58] The sentencing objective of denunciation is necessary to communicate a collective statement of society’s condemnation of theoffender’s behaviour. Chief Justice Lamer in the case of R. v.

M.(C.A.), supra, at para. 81, describes the purpose and objective ofdenunciation as follows:

… The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law ... A sentence which expresses denunciation is simply the means by which these values are communicated … [ 59 ] The objective of general deterrence often goes hand in hand with denunciation.

General deterrence is based on the belief that the sentence imposed will discourage others from holding “pro-offending” beliefs and from engaging in criminal behaviour. [ 60 ] The objective of specific deterrence is to discourage the individual offender from committing future crime by reminding him/her of the consequences that will arise from the sentence imposed.

If specific deterrence is the primary goal, greater emphasis will be placed on the individual, considering the offender’s record, attitude, motivation and prospects of rehabilitation. [ 61 ] The key sentencing objectives in this case are thus denunciation, general and specific deterrence, and the protection of the public. A further related and important sentencing objective in this case is acknowledging the impact of the harm done to children who are victims of these pernicious crimes. [ 62 ] With regard to Mr. Bucknell’s personal circumstances, and in light of the recommendations made by Dr.

Sirkia, rehabilitation is an important, albeit secondary, sentencing objective in his case. 8. Sentencing Ranges [ 63 ] A sentencing judge must give careful consideration to the principle set out in s. 718.2 that a sentence should be similar to sentences imposed on similar offenders for offences committed in similar circumstances. This is the parity principle. [ 64 ] General ranges of sentences for specific offences facilitate consistency between sentencing decisions following the parity principle.

It is, however, important to recognize that sentencing ranges are guidelines only and not “hard and fast rules” that are imposed on a sentencing judge: R. v. Nasogaluak , 2010 SCC 6 , at para. 44 ; Friesen , at para. 37 . The reason for this is because the offence and individual circumstances vary widely between offenders convicted of similar offences. Sentencing thus remains an individualized process. [ 65 ] Friesen , however, sent a “strong message” that sentences for sexual violence against children “must increase” (at para. 5).

At para. 114, the Court further explained its reasoning: [114] … [M]id-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward , and L.M.

In addition, as this Court recognized in L.M. , maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22).

Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20). [ 66 ] The Supreme Court in Friesen , however, declined to set sentencing ranges or starting points for sexual offences against children, leaving the task to provincial appellate courts as being best positioned “to know the particular circumstances in their jurisdictions” (at para. 106). [ 67 ] Friesen involved a “major sexual assault” (at para. 18) committed on a four-year-old girl by the accused and the attempted extortion of her mother.

Friesen coordinated the sexual violence perpetrated on the victim in concert with her mother. He pled guilty to sexual interference and attempted extortion. The aggravating factors in that case included the “instant effect” of the harm perpetrated on the victim, the victim’s “incredibly young age”, his complicity as the instigator of the mother’s breach of trust of the young victim, and his high degree of moral blameworthiness for these crimes. He received a six-year prison sentence for sexual interference and an 18- month concurrent prison sentence for the extortion charge.

The Manitoba Court of Appeal reduced the sentence for sexual interference to 4 and one-half year’s incarceration. On further appeal, the Supreme Court Canada restored the original sentence. [ 68 ] The post- Friesen cases discussed by the parties during submissions include three cases of our Court of Appeal: R. v. Williams, 2 019 BCCA 295 ( Williams #1 ) ; 2020 SCC 9 ; R. v. Williams , 2020 BCCA 286 (“ Williams #2) , R. v. G.T.A, 2021 BCCA 425 (these decisions which involve the offence of sexual interference), and in R. v.

R.J.H., 2021 BCCA 54 (this decision involves the offences of possession and distribution of child pornography). [ 69 ] Each of these cases, are factually distinguishable from the circumstances presented in the case at bar and all involve significant aggravating factors and more concerning risk factors for re-offending than what is present in Mr. Bucknell’s case. [ 70 ] The British Columbia Court of Appeal has, subsequent to Friesen, recognized that “reliance on precedents that predate that decision may well be inappropriate or of limited assistance” in sentencing for sexual offences against children: R. v.

Williams #2, supra, at para. 73; R. v. Alfred, 2021 BCCA 71 , at para. 33 . [ 71 ] The offence of sexual interference, contrary to s. 151 (

a) of the Criminal Code , carries a maximum term of imprisonment of 10 years, where the Crown proceeds by indictment, as in the present case. The one-year mandatory minimum sentence of imprisonment was declared unconstitutional and was found to be of no force or effect in R. v. Scofield , 2019 BCCA 3 . [ 72 ] On a review of these decisions, and in particular, R. v. Williams #1, supra, I agree with Crown counsel’s submission that the custodial range for sentencing for sexual interference has been identified by our Court of Appeal to be within the range of 1 to 3 years imprisonment.

This range accords with the custodial sentence imposed in R. v. G.T.A. , supra , which is the most recent pronouncement of our Court of Appeal for this offence. [ 73 ] The offence of possession of child pornography under s. 163.1(4) of the Criminal Code carries a maximum term of imprisonment

of 10 years, where the Crown proceeds by indictment. The one-year mandatory minimum sentence of imprisonment was declaredunconstitutional and was found to be of no force or effect in R. v. Hamlin, 2019 BCSC 2266, at para. 34. [74] Our Court of Appeal has identified a broad range of custodial sentences of four months to two years jail for the offence ofpossession of child pornography: R. v. Alexander, 2019 BCCA 100, at para. 38, citing R. v. R.L.W., 2013 BCCA 50.

I note, however,these decisions pre-date Friesen, and thus, this range may very well be revisited in due course. [75] A post Friesen case discussed during submissions is the case of R.J.H. This 25-year old male pled guilty to possessing andmaking available child pornography. In that case, the police found over 2,700 child pornography images and 125 videos of childpornography on his iPad, and there were communications between the offender and others in which child pornography was discussed. He had no prior record. The offender was diagnosed with paedophilic disorder and assessed to be a moderate risk to re-offend.

Hereceived a 30 month sentence of imprisonment and was prohibited for 25 years under s. 161 of the Criminal Code from having contactwith persons under 16 years of age. Among the aggravating factors in this offender’s case was his failure to understand his deviancy andrisk to children. He did not seek an appeal of his custodial sentence. Rather, he appealed the imposition and duration of the s. 161 orderas unfit. The British Columbia Court of Appeal allowed the appeal in part and reduced the prohibition order from 25 to 15 years. [76] The size of Mr.

Bucknell’s child pornography collection was relatively small (23 images found on his Apple device and another15 images found on his iCloud storage device). Many of the images constitute child pornography, and all involved explicit or highlysuggestive depictions of young people. Four of the images involved penetrative sexual activity between children and adults, and one ofthe images involved solo masturbation with a foreign object by a child.

Two of the images involved female infants’ vaginal regionsspread open by adult hands. [77] I agree with the submission of Crown Counsel that given the victims’ young ages, the limited number of images found in Mr.Bucknell’s possession, and the sexual acts depicted in that collection, that an appropriate range in this case is between 6-8 months for thisoffence. [78] The offence of making child pornography under s. 163.1(2) of the Criminal Code is an indictable offence which carries amandatory minimum term of imprisonment of one year and a maximum sentence of fourteen years imprisonment.

The mandatoryminimum sentence has not been declared unconstitutional in British Columbia to date, but this sentence has been struck down in otherProvinces. [79] The Crown submits the circumstances of this case do not bring the offence into the very low end of a range, given the twoseparate victims, their young ages, and Mr. Bucknell’s position of trust, and the nature of the images. As such, the Crown submits that asentence of 14 months is an appropriate range for this sentence. I agree with this submission. 9. Aggravating Factors [80]

Section 718.2 of the Criminal Code directs that a sentence should be increased or reduced to account for any relevant aggravatingor mitigating circumstances. [81] The sentencing objectives of denunciation and deterrence are statutorily mandated by sections 718.01 and 718.2 of the CriminalCode which direct that such crimes be treated as an aggravating factor where the victim is a child, the crimes involve abuse of a child,and/or involve a breach of trust or authority, as in the present case. 10. Mitigating Factors [82] Mr. Bucknell comes before the court without a prior criminal record. [83] Mr.

Bucknell has been supervised on bail since August, 2019 without incident and is reported to be polite and cooperative withstaff at community corrections. [84] He has strong family and pro-social support and ties to the community. Mr. Bucknell is gainfully employed as a constructionsafety officer. He is a dedicated and valued employee with excellent prospects for returning to his employment. [85] The PSR and Forensic Reports indicate that Mr. Bucknell is at the low end of risk for future offences. [86] Remorse is a relevant mitigating factor in sentencing.

In Friesen, supra, at para. 165, the Supreme Court of Canada explainedthe significance of remorse in sentencing: Remorse is a relevant mitigating factor (see Lacasse, at paras. 77-78). However, remorse gains added significance when it is paired withinsight and signs that the offender has “come to realize the gravity of the conduct, and as a result has achieved a change in attitude orimposed some self-discipline which significantly reduces the likelihood of further offending” R. v. Anderson (1992), (BC CA), 74 C.C.C. (3d) 523 (B.C.C.A.), at p. 536 (emphasis in original)). [87] Mr.

Bucknell also expresses his remorse through his guilty pleas, and in his PSR his guilty pleas spared the victims’ families thestress of a full trial on its merits. 11. Charter Breach [88] In my decision of March 18, 2021, I found that the police breached Mr. Bucknell’s right to counsel under s. 10(

b) of the Charterduring the execution of the search warrant on August 17, 2019. This breach was solely in relation to Cst. George’s failure to hold offeliciting evidence from Mr. Bucknell in relation to the Passcode Statement before Mr. Bucknell had a reasonable opportunity to consultwith legal counsel.

[ 89 ] The Crown conceded this breach, and submits that Mr. Bucknell’s guilty plea in the face of a potentially triable issue is a factor for the Court to consider as part of all the circumstances of the offence and the offender in determining a fit and appropriate sentence. I agree with this submission. 12. Collateral Consequences of Sentencing [ 90 ] A sentencing judge may exercise his or her discretion to take collateral consequences of a sentence into account, but must not allow these consequences to “dominate the exercise or skew the process”.

A sentence that is ultimately imposed must remain proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15 , at paras. 14 and 16 . [ 91 ] I recognize that a custodial sentence will place added difficulties on Mr. Bucknell as a parent as he may not be able to see his son during his incarceration. I also acknowledge that his son may experience emotional hardship and adjustment challenges with the loss of his weekly parenting visits with Mr. Bucknell. [ 92 ] I further acknowledge that Mr. Bucknell’s incarceration will have an impact on Mrs.

Bucknell who relies on her son for emotional support and assistance in the home. 13. Decision [ 93 ] Friesen (at para. 121 ) indicates the significant factors to determine a fit sentence in cases involving sexual offences involving children include: • The offender’s likelihood to reoffend; • An abuse of a position of trust or authority; • The duration and frequency of sexual violence; • The age of the victims; and • The degree of physical interference. [ 94 ] In this case, Mr. Bucknell has a low risk of re-offending. [ 95 ] The victims were very young. Mr.

Bucknell sexually abused them as he changed their diapers, when the victims were at their most vulnerable state. These offences were committed three years apart, in 2016 and in 2019. The offence circumstances were opportunistic and Mr. Bucknell provides no explanation for his offending behaviour. [ 96 ] The degree of physical interference in this case was significant but brief. Mr. Bucknell then photographed the victims’ vaginas and uploaded the images onto an icloud storage device. In sum, he abused his position of trust through these activities. [ 97 ] The volume of Mr.

Bucknell’s child pornography was relatively small, but disturbing. None of the evidence before the Court demonstrates that Mr. Bucknell had any of the hallmarks of a collector of child pornography. [ 98 ] I have thus concluded that given all the circumstances that the joint sentence submission recommending a custodial sentence of 2 years less a day followed by a probation order of 20 months is a fit and appropriate sentence for Mr. Bucknell. In my opinion, the proposed sentence will satisfy the sentencing objectives of the Criminal Code and is not contrary to the public interest pursuant to R. v.

Anthony-Cook . 14. Sentence Allocation [ 99 ] Mr.

Bucknell, I sentence you to a term of imprisonment of two years less a day, allocated as follows: Count Sentence 1 (Possessing child pornography between June 1, 2019 and August 17, 2019) 6 months (concurrent to count 2) 2 (Making child pornography between June 28, 2016 and June 24, 2019) 14 months (concurrent to count 1 but consecutive to counts 3 and 5) 3 (Sexual interference with E.K. on June 24, 2019) 14 months (consecutive to counts 1 and 2, and 5) 5 (Sexual interference with B.E. on June 28, 2016) 14 months (consecutive to counts 1, 2, and 5) Aggregate sentence, before totality 42 months [ 100 ] The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence does not exceed the overall culpability of the offender: Friesen , at para. 157 .

As set out earlier in my reasons, s. 718.2 (

c) of the Criminal Code provides that, “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. [ 101 ] I have concluded that a sentence of 42 months imprisonment in Mr. Bucknell’s case would be a crushing sentence that would be unduly harsh and offend the totality principle. Accordingly, I have reduced his aggregate sentence as follows:

Reduction for totality principle 18 months and one day, allocated as follows: - 2 months subtracted from the 14-month sentence in respect of count 2 - 8 months and one day subtracted from the 14- month sentence in respect of count 3; and - 8 months subtracted from the 14-month sentence in respect of count 5 Total sentence after accounting for totality 2 years less one day 15. Probation Order [ 102 ] Mr. Bucknell, following your release from imprisonment you will serve a term of 20 months’ probation. [ 103 ] The conditions that will attach to your probation order are as follows:

a) You must keep the peace and be of good behaviour.

b) You must appear before the court when required to do so by the court.

c) You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation.

d) You must have no contact or communication, directly or indirectly, with B.E. or E.K.

e) You must not go to or be within 200 metres of any place where B.E. or E.K. live, work, attend school, worship, or happens to be. If you see them, you must leave their presence immediately without any words or gestures.

f) You must report in person to a probation officer at Maple Ridge Probation within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your officer.

g) You must live at an address approved in advance by your probation officer and provide them with your phone number. You must not change your address or phone number without prior written permission from your officer.

h) You must not go to any public park, public swimming area, community centre or theatre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school or playground. The exceptions are as follows : i. With the prior written permission of your probation officer. Such permission is to be given only for compelling reasons. You must carry the permission, which can be in electronic format, with you at all times when you are in the prohibited area. ii. In the immediate presence of a person approved of in writing by your probation officer.

i) You must not have any contact, communication directly or indirectly, or be in the presence of any person under the age of 16. The exceptions are as follows: i. With the prior written permission of your probation officer. ii. Such permission is to be given only for compelling reasons. You must carry the permission, which can be in electronic format, with you at all times. iii. In the immediate presence of a person approved of in writing by your probation officer. iv. They are your children. v. In the immediate presence of the child's guardian.

j) You must not engage in volunteer work or employment that would bring you in contact with persons under the age of 16 years without the prior written permission of your probation officer. You must carry this permission, which can be in electronic format, when you are engaged in the activity.

k) You must not enter into or continue any dating relationship, or marriage, or common-law relationship with any person who has children under the age of 18, or who has the care of or access to children under that age, until you have identified to your probation officer the person with whom you are in, or propose to enter, a relationship, (and your probation officer has informed that person of your convictions, and this order and your history as described in your criminal record, Pre-Sentence Report, if any, and these Reasons for Judgment).

l) You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your

probation officer. This may include counselling or programming for mental health or sexual offence prevention.

m) You must not possess or use any device capable of accessing any computer network including the internet, except as permitted by this order.

n) While possessing and using any device capable of accessing any computer network including the internet: i. you must be in the immediate presence of a person approved of in writing by your probation officer; or ii. you must have the prior written permission of your probation officer; or iii. you must only use a computer or other device that is owned and controlled by your employer other than yourself. The device must be used only in the course of your employment, only during hours of employment, while at your work site and with the permission of your employer, and only after your employer has confirmed with your probation officer that she or he has read a copy of this order;

o) You must not possess any pornographic materials or access any pornographic materials by electronic means. p) "Pornographic materials" means: i. a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, 1. that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or 2. the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person; ii. any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person; or iii. any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person.

q) The exception is as follows: "Pornographic materials" do not include material that has a legitimate purpose related to the administration of justice or to science, medicine, education, or art, and that does not pose an undue risk of harm to persons under the age of 18 years. 16. Ancillary Orders [ 104 ] I make the following ancillary orders: DNA Order [ 105 ] Pursuant to

section 487.051(1) of the Criminal Code , an order authorizing the taking from Mr. Bucknell, for the purpose of forensic DNA analysis, any samples of one or more bodily substances, is mandated by means of the investigative procedures described in subsection 487.06(1): Counts 1, 2, 3, and 5 on Indictment 102817-1 are primary designated offences. Pursuant to

section 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. The samples will be taken from you while you are in custody and you must submit to the taking of the samples. SOIRA [ 106 ] Pursuant to s. 490.012 of the Criminal Code , Mr. Bucknell shall comply with the Sex Offender Information Registration Act . Mr. Bucknell is guilty of four counts on the Indictment, all of which are designated offences under s. 490.011(1). Where a person is convicted of more than one designated offence, the order made under s. 490.012(1) applies for life.

Accordingly, I make the following order: You have been found guilty of more than one designated offence and pursuant to

section 490.013(2.1) you are required to comply with the Sex Offender Information Registration Act for life. Firearms Prohibition [ 107 ] The Crown requests that Mr. Bucknell be prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for 5 years pursuant to s. 110(1) (

a) of the Criminal Code . [ 108 ] The Crown submits, citing R. v. Campbell, [2017] N.J. No. 1 , at paras. 90-91 (Nfld. Prov. Ct.) , and Friesen , at para. 77 , that because the sexual interference of a child is inherently a violent offence, that a firearms order should be made . [ 109 ] This is a discretionary order. As I have found that Mr. Bucknell’s risk of sexual offending is in the low range and given that no weapons were used in the commission of the offences, I decline to make an order for a firearms prohibition. Victim Fine Surcharge

[ 110 ] Pursuant to section 737(1) of the Criminal Code , I make the following order: Mr. Bucknell shall pay a victim surcharge in addition to any other punishment imposed on the offender. The amount of the victim surcharge is $800 pursuant to section 737(2)(b)(ii). This fine shall be paid by the end of Mr. Bucknell’s probation term. Forfeiture Order [ 111 ] The Crown seeks that all items containing pornographic images be forfeited to Her Majesty and be disposed of as the Attorney General directs. In particular, that Exhibit 3 – the Apple iPhone 6S be forfeited. This order is by consent and is granted.

Section 161 Prohibition Order [ 112 ] The Crown submits that a 5-year s.161 prohibition order is appropriate as part of the sentence in this case. [ 113 ] The British Columbia Court of Appeal recently reviewed the law with respect to s.161 orders and confirmed that such orders have an “overarching protective function, to shield children from sexual violence” and can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk: R. v.

R.J.H , supra, at para. 16, citing R. v. K.R.J., 2016 SCC 31 . [ 114 ] The Court in R.J.H. (at para. 18 ) further notes that orders should be carefully tailored to the circumstances of the offender and the nature and risk that offender poses to children upon release into the community. [ 115 ] This is a discretionary order. The circumstances surrounding these offences, as set out in the Agreed Statement of Facts, provide the evidentiary basis upon for me to make the order. On a careful consideration of these authorities, I have concluded that a 5-year term is excessive in Mr.

Bucknell’s case given his low risk of re-offending, and find that a 4-year term is a fit and appropriate term. [ 116 ] This order will begin once Mr. Bucknell is released from custody and will continue for 4 years (48 months) on the following conditions: Pursuant to

section 161 of the Criminal Code , you are prohibited for 4 years, commencing on the date you are released from prison from: 1. You must not go to (or be within 200 metres of): Any place where B.E. or E.K. live, work, attend school, worship, or happens to be. If you see them, you must leave their presence immediately without any words or gestures. 2. You must not go to any public park, public swimming area, community centre or theatre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school or playground. The exceptions are as follows :

a) With the prior written permission of your probation officer, a person approved in writing by the Court, your parole officer, or the person to whom you are reporting under the SOIRA . Such permission is to be given only for compelling reasons. You must carry the permission, which can be in electronic format, with you at all times when you are in the prohibited area.

b) In the immediate presence of a person approved of in writing by your probation officer, a person approved in writing by the Court, your parole officer, or the person to whom you are reporting under the SOIRA . 3. You must not engage in volunteer work or employment that would bring you in contact with persons under the age of 16 years without the prior written permission of your probation officer, a person approved in writing by the Court, your parole officer, or the person to whom you are reporting under the SOIRA .

You must carry this permission, which can be in electronic format, when you are engaged in the activity. 4. You must not have any contact, communication directly or indirectly, or be in the presence of any person under the age of 16. The exceptions are as follows:

a) With the prior written permission of your probation officer, a person approved in writing by the Court, your parole officer, or the person to whom you are reporting under the SOIRA . Such permission is to be given only for compelling reasons. You must carry the permission, which can be in electronic format, with you at all times

b) In the immediate presence of a person approved of in writing by your probation officer, a person approved in writing by the Court, your parole officer, or the person to whom you are reporting under the SOIRA .

c) They are your children.

d) In the immediate presence of the child's guardian. 5. You must not possess or use any device capable of accessing any computer network including the internet, except as permitted by this order. The Exceptions are as follows:

a) you must be in the immediate presence of a person approved of in writing by your parole officer, or the person to whom you are reporting under the SOIRA ; or

b) you must have the prior written permission of your parole officer, or the person to whom you are reporting under the SOIRA ; or

c) you must only use a computer or other device that is owned and controlled by your employer other than yourself. The device must be used only in the course of your employment, only during hours of employment, while at your work site and with the permission of your employer, and only after your employer has confirmed with your probation officer that she or he has read a copy of this order. _____________________________ The Honourable Judge D. Dorey Provincial Court of British Columbia