R. v. T.J.R.M. Date:, 2016 BCPC 177

Citation: R. v. T.J.R.M. Date: 20160418 2016 BCPC 0177 File Nos: 77876-2-C, 77876-3-A Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.J.R.M. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: B. McCormick Counsel for the Defendant: C. Churchill Place of Hearing: Nanaimo , B.C. Date of Hearing: April 18, 2016 Date of Judgment: April 18, 2016

INTRODUCTION: [ 1 ] THE COURT: T.J.R.M. is before the court, having entered pleas of guilty on two separate charges. The issue that this court must deal with is a fit sentence with respect to the two offences which T.J.R.M. (the “accused”) has admitted by virtue of his guilty pleas. [ 2 ] On Information 77876-C-2, he is charged that, on or about the 13th of November, 2013, he did possess child pornography contrary to s. 163.1(4) of the Criminal Code . On Information 77876-A-3, he is charged with the offence of having been bound by a condition of a recognizance as directed by a judge or a justice.

He did fail, without lawful excuse, to comply with the following condition or direction: You shall not exercise access to the internet anywhere and you shall not maintain or possess any account with an Internet Service Provider or any account with a cellular phone carrier that includes internet access, contrary to s. 145(3) of the Criminal Code . [ 3 ] A guilty plea was entered on Count 1 of the allegation of possession of child pornography on April 14, 2015. A plea of guilty was entered on the breach charge on January 27, 2016.

FACTS Circumstances Surrounding the Offences [ 4 ] There is no material disagreement concerning the circumstances relating to each of these two offences. However in order to understand the sentencing positions adopted by both Crown and defence, it is important that the circumstances be summarized. [ 5 ] As a result of a B.C.

Integrated Child Exploitation Unit investigation concerning possession of suspected child pornography images and videos on the internet, an investigation led to identifying certain subscribers at an address in Nanaimo, British Columbia as being the holders of an IP address which had been identified as being used for the purposes of child pornography. The residence was the home of the accused and his spouse and, at that time, their two-and-a-half year old son. [ 6 ] A search warrant led to the seizure of two personal computers in the residence.

A search of those computers disclosed 82 images and 56 videos of child pornography which included depictions of male and female victims ranging in ages from two to 14 years of age. Vaginal and anal penetration of very young children was depicted in some of the materials. [ 7 ] The accused was arrested and shortly thereafter provided a warned statement to the RCMP sergeant who was investigating the matter. He admitted that the computers were his and he declared that his wife was not responsible for downloading illicit images or materials.

At that time, he indicated that he acknowledged that he had made a mistake and he also denied that he was a threat to touch his infant son in an inappropriate fashion. [ 8 ] The offender also gave a fairly significant amount of detail concerning his addiction to pornography, and in particular child pornography, which had occurred and been continuing for a number of years. [ 9 ] The material that was reviewed by the police met the definition of child pornography under the provisions of the Criminal Code .

There were three videos that were the subject matter of the attention of the RCMP and had been downloaded fairly recently, prior to the RCMP raid on the accused's residence. [ 10 ] The first was a short video that depicted a prepubescent child being penetrated by a naked adult. The second video depicted a close-up of a child apparently approximately eight years of age that showed a close-up of the child's vaginal area.

The third image was a single photo for a victim between the ages of five to seven years of age, lying in a naked position with her vagina exposed. [ 11 ] In the course of providing his statement to the RCMP, the accused detailed his struggle dealing with his addiction to pornography. He indicated that he felt great shame for his behaviour.

He also indicated that what he was doing was wrong and described himself to the police as "a monster". [ 12 ] Throughout the course of the police interview, the offender denied that he ever thought about molesting a real child, and explained to the RCMP officer that he had become desensitized to the images over time, and accordingly disassociated himself from the trauma that the children were experiencing. [ 13 ] He further admitted to the police that there would be no pleasure looking at the images if he considered the trauma of the victims.

He conceded to the police that he needed a counsellor's help. [ 14 ] The accused was placed on conditions of release. One of the conditions was contained within the provision that I have already detailed which prohibited the offender from having any communication over the internet. In rather a bizarre set of circumstances, the accused breached that provision and started to communicate using his wife's Facebook account with an ex-girlfriend. [ 15 ] He also apparently had communication via text. In some of the exchanges, he expressed some rather disturbing comments to the former girlfriend.

These are detailed in a presentence report of custody prepared by B.C. Mental Health and Substance Services, to which I will make further reference. At page 9 of that report, the author of the report, Dr. Kimberly L. Kreklewetz, indicates as follows [as read in]:

During the clinical interview, T.J.R.M. claimed that he was able to compartmentalize his viewing of child pornography and did not harbour sexual fantasies about children that he saw or wished to engage in sexual activities with children. However, T.J.R.M.'s comments in a selection of text message records indicate an interest in exploring sexual activity with children, as well as the belief that sexual activity between children and adults is not inherently harmful. For example, he wrote "There is nothing wrong with looking at naked kids. It is not rape." ...

"More girls grow (up) fine and still love (their) brothers, mothers and fathers (they) had sexual encounters with", and "I will find a pedo (pedophile) mum one day, LOL". [ 16 ] By way of explanation to the author of the report, T.J.R.M. explained that "I was role playing in those text messages and acting out a fantasy that was really quite disturbing". He went on to describe to the author of the report that this was a "shameful fantasy".

Circumstances of the Offender [ 17 ] I have the advantage of reading and having before me three separate reports that relate to the offender. [ 18 ] The first is a presentence report prepared by Mr. Paul Whitehead, who is a probation officer with the Nanaimo Community Corrections. That report was prepared and is dated May 14, 2015. [ 19 ] The second report that I have before me is the report that I previously referred to, namely the forensic assessment, completed by B.C. Mental Health and Substance Use Services, dated May 19, 2015, and authored by Dr. Kimberly L.

Kreklewetz, Registered Psychologist, based in Kelowna, British Columbia. [ 20 ] The third report has been tendered by the defence. It is a report prepared by Upper Island Sex Offender Program, Pacific Treatment Associates, and authored by Dave Owen, RSW, and Hank Oke of that particular organization. The original report was prepared, I take it, sometime in 2015, although the date of the report is not set out on the first page. However there is a second report prepared by the same Mr.

Dave Owen, dated January 20, 2016, and provides an update on the progress being made by the accused in terms of the treatment that he was undergoing with the Upper Island Sex Offender Program. [ 21 ] Based on the reports that I have before me from the sources cited, I understand that T.J.R.M. is approximately 31 to 32 years of age. He was born and raised on Vancouver Island in the Nanaimo area. He lived in a rather fractured home environment, being taken into care by the Ministry of Children and Family, at a relatively young age.

His mother was in a number of relationships and unable to care for the child, resulting in the child being taken into care by his grandparents -- or placed in care with his grandparents. [ 22 ] During his time with his mother, the accused was sexually abused by one of her partners and that occurred between the ages of seven and nine. The report of the accused to Probation Officer Whitehead was to the effect that he was molested and penetrated during his once-per-month visits at his mother's residence, where the abuser also resided.

Eventually the abuse came to the attention of his grandmother and his visits with his biological mother discontinued. [ 23 ] The presentence report goes on to indicate that the accused struggled in school. He did finally complete a sufficient amount of school that he was able to leave, and then held a number of different jobs, mostly in what was described in one of the reports as semi- skilled in nature. However he did succeed. Notwithstanding that he had departed school before attaining his grade 10 education, he was able to procure a job working for a courier company, which he did for a period of time.

Then in April 2012, he began working for a local delivery company, and after approximately three years of work experience and one year of management, he became the sole proprietor of that business. [ 24 ] According to the forensic assessment report, he has three employees working for him, and his partner in the business is his domestic partner, who at one point was estranged from him as a result of the offences that are now before the court for sentencing. [ 25 ] The presentence report makes mention of the fact that the accused was, from the age of approximately 14 to 18, chronically using marihuana.

He subsequently recognized that he was using marihuana as a crutch and then took steps in order to deal with his addiction to substances. That has been an ongoing process for him. That process has included joining Alcoholics Anonymous. [ 26 ] The reports from both the probation officer as well as from forensics indicate that the accused was exposed to pornography at a very early age. That exposure led this offender to becoming a regular user of pornography. It is described in the reports as being used by him as a stress releaser.

He indicates in the reports that once the internet became in common operation, it opened several doors to him and accelerated his use of pornography on a regular basis. [ 27 ] The details of the accused's use of pornography and the growing concerns about it are carefully detailed in the reports. At one point, the accused reports that he became a binge user of pornography and then his interests became more focused on what is the concern of the charges before the court, and that is his access to child pornography.

That became a fascination for him and continued to expand in his use of time, even after he was formed a relationship with his present domestic partner, and even after they had a son in 2011. [ 28 ] The arrest of the accused on the possession of child pornography charges was, of course, a defining moment in the accused's life. At that point, it became necessary for him to confront his addiction and his antisocial behaviour, and to start seeking some treatment for himself.

In that regard, the reports do indicate that he has taken some successful steps with respect to treatment. [ 29 ] The first letter from Upper Island Sex Offender Program provides an overall view of the program in which this accused has participated. That program certainly requires all the participant offenders to confront their offending behaviour. It is a group therapy

process and on page 2 of the original report provided by Mr. Owen, he states as follows [as read in]: One of the many therapy techniques utilized is a required 80 to 150 pages autobiography. The offender writes, then reads this aloud before other members of the group. The purpose of this assignment is to provide the counsellors with the information pertaining to the early memories of the offender. These early memories recall a 'thinking man' which the offender uses to guide himself in his unconscious decision-making.

By writing this autobiography, the offender reveals the patterns of disturbed thinking which assisted him in rationalizing his offence to himself. The group therapy process, guided by counsellors, forces the offender to re-evaluate his thoughts and inject new and appropriate beliefs which block or interfere with his previous thinking patterns. In this way, by changing thoughts, we are successful in changing behaviour on a long-term basis.

When the offender reads a portion of his autobiography during session, he is critiqued, questioned and corrected until his writings reflect the reality of his life and his offences, rather than his rationalizations. This process also ensures that the offender takes responsibility for his life and offences. As behaviour is reviewed, the offender gains fresh insight. The offender is also required to submit a detailed description of his offence which is also read aloud. This forces the offender to understand the true nature of this crime and the significant emotional impact it has had on his victim.

A confrontational approach is used to break down the frequently complicated defence systems utilized by sex offenders. These defence systems rely on rationalizations to support the sex offence pattern. This approach frequently causes the offender great personal distress and anxiety, both in and out of the group setting. [ 30 ] The report, about this very challenging and confrontational approach to dealing with sex offenders, indicates that the accused before this court has attended 50 out of a potential 50, one a week, three-hour group sessions.

His spouse also attended for 11 out of the potential 12 sessions to which she had been invited. [ 31 ] Progress is noted by the accused while participating in this program. He was described as entering into the program as angry and controlled in his approach. However he showed tremendous growth and progress throughout that, soon taking responsibility for his offending behaviour. [ 32 ] The first report authored by Mr. Owen and Mr. Oke contains a prognosis. It states that, in the early stages of treatment, this offender showed little empathy for the children in the pornographic images that he had been caught with.

The report goes on to indicate that he came to understand that the children in the images were experiencing the same feelings and thoughts about themselves that he experienced as a result of his own victimization as a young child. [ 33 ] The report then states as follows [as read in]: When he was able to hear this, he showed significant remorse for the damage he has done to the children. This remorse deepened his motivation to overcome the deviant thoughts and behaviours that led to his acting out.

At this point in his treatment, T.J.R.M. became receptive to understanding what group members were saying to him when they challenged his maladaptive thinking. In short, he became receptive to giving and receiving constructive criticism. This openness to talk put his offences and deviant patterns associated with offensive behaviour, indicates that he is now taking full responsibility for his offences and the damage he has caused others.

In our experience, we have observed that when a sex offender takes and maintains these changes, they are at low risk to offend. [ 34 ] In the updated report, completed January 20, 2016, reference is made to T.J.R.M.'s behaviour in his group sessions following the breach that he committed by accessing the internet and by sending the very concerning text messages to a former girlfriend. [ 35 ] The suggestion in the report is that he eventually did accept that he had to admit to himself that he had to be much more honest, both with himself and with members of the group, when he attempted to rationalize the thought process that led him to commit this breach.

Once that had been established, the report then goes on to indicate that, by being honest, the accused has modelled what he expects from his support group and from the new members of the group. The suggestion I take from the report is that he has assumed a leadership role in the group discussions and activities. [ 36 ] In addition to attending the Upper Island Sex Offender Program, the accused also commenced and had regular weekly sessions with Alan Kaplan, who holds a masters and is engaged in counselling. The letter from Mr.

Kaplan dated January 12, 2016 contains confirmation that this offender seemed to be well aware of his motivation to engage in his antisocial behaviour, and also to understand the risk that that behaviour places him at and also places the community at. [ 37 ] In particular, there is a recognition that he will negatively impact on his ability to meet with and see his child if he does not come to terms with the type of offending behaviour in which he has engaged. [ 38 ] There is one line which bears special note which will be subject to further comment. Mr.

Kaplan states as follows with respect to this offender [as read in]: He appears to have some remorse for his past and he has spent considerable time reflecting on the negative consequences of his faulty decision.

[39] The forensic assessment report prepared by Dr. Kreklewetz was formulated on a number of tests and interviews conducted. Asa result of the tests that were conducted, there was an opportunity for Dr. Kreklewetz to come up with what I refer to as clinicalimpressions and also with a risk assessment diagnosis. The

summary and recommendations of that report are set out on page 9. [40] The risk assessment based on what is referred to as "A Risk for Sexual Violence Protocol" (RSVP) indicates that, at the time ofpreparing this report, that the accused posed a moderate risk to reoffend sexually. However the report does go on to indicate that theaccused self-reports that he finds the notion of child sexual abuse to be repugnant and extremely taboo. [41] Dr.

Kreklewetz also made a number of behavioural observations and formulated the following diagnosis [as read in]: "Pedophilia, non-exclusive type, sexually attracted to females, cannabis use, disorder in remission." Dr. Kreklewetz posed the accused tobe a low risk for suicide or for self-harm. [42] The report of Dr. Kreklewetz also draws on information obtained from the Upper Island Sex Offender Program, which isconducted by Mr. Owen and Mr.

Oke, and she in particular makes note of the comments that I have referred to above made in the reportconcerning the initial lack of empathy for the children in the pornographic images that were part and parcel of that seized from thisoffender. Position of Crown on Sentencing [43] Crown indicates that the offence of possession of child pornography should attract a six-month custodial sentence followed by athree-year probation order with terms that are set out in the presentence report prepared by Mr. Whitehead.

Crown is also seekingancillary DNA orders and SOIRA orders, as well as a forfeiture order with respect to the computer hard drive on which the offendingmaterial was found. [44] With respect to the breach of the conditions of the recognizance, Crown notes that the accused is entitled to what would be11 days, having served seven days in custody. The Crown is therefore suggesting that an appropriate sentence would be between 14 and30 days in jail, to be served consecutively with the sentence on the child pornography charge. [45] Crown's sentencing position is shaped by a number of factors.

First of all, the Crown points out that the mandatory minimumfor this particular offence, as set out in s. 163.1(4), is, because Crown has proceeded summarily, the term would be a maximum of18 months and a mandatory minimum of imprisonment for a term of 90 days. That, says Crown, is an indication of the seriousness withwhich this particular offence must be treated in sentencing. [46] Crown indicates that this is not a situation where the offender has engaged in a one-off viewing or possession of childpornography. This accused has demonstrated and has admitted to an addiction to child pornography.

Crown does concede that thisoffender does not have a criminal record and has been gainfully employed and has provided employment to others for a significant periodof time. [47] However, given the lengthy period of time in which the accused apparently has been both collecting and utilizing pornography,Crown says that a real custodial sentence of the duration suggested will appropriately deal not only with denunciation, but also withspecific and general deterrence for these types of offences. [48] The sentencing position shaped with respect to the breach is in part driven by the alarming content of the material which wastexted to the former girlfriend.

Crown suggests that, when placed up against the suggestions as to the improvement and the rehabilitativesteps that have been taken by the accused, there must be some skepticism directed at that notion of success.

This is especially the casewhen, having committed the earlier offence of possession of child pornography, then a short period of time of some year and a half afterthat, while still well in the midst of counselling, he is speaking in rather disturbing terms about some level of participation, whether infantasy or in reality, which engages in abusing of young children. [49] Hence, Crown does indicate that there must be adequate steps taken in order to deal with the provisions of the Criminal Codethat deal with sentencing and which are protective to the community, and therefore I should put a lower priority on any rehabilitativegoals of sentencing contained within the Code. [50] The Crown relies on a number of cases; in fact there is a reliance on similar cases which have been presented to the court andare contained within the defence book of authorities. [51] Particular reliance is placed by Crown on the decision of R. v.

Smart, a decision of Judge R. Smith of the Provincial Court ofBritish Columbia, neutral citation [2015] B.C.J. No. 851, 2015 BCPC 100 . That decision was a possession of childpornography pursuant to which Crown had proceeded by way of indictment. [52] In that decision, Judge Smith made the following comments which Crown places particular reliance upon: [38] Children are one of the most vulnerable groups in our society. Nearly all in society agree that child pornography is not onlydegrading and dehumanizing, but it is particularly disgusting because it involves victimizing innocent and vulnerable children.

Evenpeople who you might think have no morals at all often are disgusted by such victimizing of children. [39] Children in any position of trust are groomed for such victimization. Breach of that position of trust leads to significant emotionaland mental violence, even if the child is never physically touched. We often hear of children growing into adulthood and still strugglingwith such emotional and mental abuse. [40] It potentially puts other children at further risk for being victimized. The courts have held that even simple possession of child

pornography contributes to the market for child pornography; a market which in turn drives production involving the exploitation ofchildren. [53] In the R. v.

Smart decision, based on the offender in that situation, who was assessed as a moderate-to-high risk of reoffending,Judge Smith concluded that the offender was not the most culpable of the accused, but ultimately in his decision in that case Judge Smithfelt that the appropriate range would have been 24 months, and then took into account the enhanced credit that was available to theoffender in that case and therefore sentenced the offender to 16 months on Count 1 of making child pornography and eight monthsconsecutive on Count 2 of possessing what are described as the hundreds of photos of child pornography.

That resulted in the globalsentence of 24 months less eight months' credit. [54] In addition to the decision in R. v. Smart that emphasizes the significant damaging effects of child pornography, Crown has alsomade reference to the case of R. v. Ingvaldson, a decision of The Honourable Judge Kitchen of the Province Court of British Columbia,neutral citation 2012 BCPC 437 , [2012] B.C.J. No. 2717 and 2012 BCPC 437 . [55] In that decision, Judge Kitchen makes particular reference to what he refers to as the "general propositions concerning childpornography".

In that regard, he makes reference, at paragraph 18 of his decision, to the Supreme Court of Canada decision in R. v.Sharpe, 2001 SCC 2 , [2001] S.C.J. No. 3, and refers particularly to the Chief Justice's decision commencing at paragraph 28. At paragraph 28, Chief Justice McLachlin says as follows: ... 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. [56] The decision in R. v. Sharpe then provides extensive details on the way that prohibiting possession child pornography is linkedto reducing the sexual abuse of children. Those are described at paragraph 86 of the decision in R. v.

Sharpe as follows: 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 lawenforcement efforts to reduce the production, distribution and use that result in direct harm to children; (4) it is used for grooming andseducing victims; and (5) some child pornography is produced using real children. [57] In the decision of R. v.

Ingvaldson, a number of aggravating and mitigating circumstances are set out in the decision of JudgeKitchen. Crown says several of the aggravating factors that are described in paragraph 24 exist in the case that is presently before me. [58] Judge Kitchen described the aggravating factors in the following fashion: [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. [59] The Crown says that with respect to those aggravating factors, numbers 2, 3 and 6 are appropriate to this particular case. [60] With respect to mitigating factors, in the circumstances, Crown does agree that several of the factors that were cited in R. v.Ingvaldson also exist here. First of all, the offender has pled guilty. Second, he is a first-time offender, with a good background. Third,he has taken voluntary treatment.

Fourth, he has demonstrated some remorse. [61] But there is some concern by the Crown that there was the breach by the accused while on bail, and that there has been somelimitations in his understanding of the harm that the accused has done; but weighed against that there is the strong support that he doeshave from family and others, as set out in a number of supporting documents that have been tendered by defence. Position of Defence on Sentencing [62] Defence submissions say that the appropriate sentence that should be imposed in this case is the mandatory minimum of90 days.

Followed by that, there should be a three-year period of probation with terms that have been recommended in the presentencereport. And then, with respect to the breach charge, it is suggested that it would be appropriate to deal with that by way of a time served

sentence. [ 63 ] The defence has relied on a number of case authorities. They are as follows, and I will number them:

(1) R. v. Hammond , 2013 BCSC 439 ;

(2) R. v. Lamb , 2011 BCSC 349 ;

(3) R. v. Ingvaldson ( supra );

(4) R. v. Heffernan , 2012 ONCJ 796 ;

(5) R. v. L.W. , 2008 BCPC 281 ; and

(6) R. v. M.(B.C.) , 2008 BCCA 365 . [ 64 ] I have reviewed carefully those decisions, although I may not make a specific reference to all of them. [ 65 ] The decision in R. v. Hammond , a decision of Justice J.W. Williams, is of great value. At paragraph 68 of that decision, the learned Justice reviews a total of nine cases where the court had imposed sentences for possession of child pornography. At that time, those cases were covered by the 14-day minimum sentence which predated the existing mandatory minimum.

Those cases are summarized as to the sentence imposed, a brief description of the facts, the mitigating factors and the aggravating factors. [ 66 ] Of particular value to me when reading this particular case, other than the sentence which was eventually reached by Justice Williams, is found at paragraph 70, where the learned Justice says as follows: [70] The statutory provisions in the Criminal Code have application.

These include the general statement of purpose of sentencing at s. 718, and also the specific objective set out at s. 718.01, namely that where a court imposes a sentence for an offence that involves the abuse of a person under the age of 18, denunciation and deterrence will be primary considerations. [71] In R. v.

B.C.M. , 2008 BCCA 365 , the British Columbia Court of Appeal observed, in the course of a discussion with respect to the minimum sentencing regime in the context of sexual offences and manufacturing of pornography, that denunciation and deterrence are primary considerations, and noted at para. 35, that "principles of restraint and rehabilitation, while still operative, are given secondary status in offences involving young victims". [ 67 ] Justice Williams goes on at paragraph 72 to note that when he takes into account the principles that are set out above, the actual range of sentences that he reviewed was quite broad from a minimum of some 14 days up to some 12 months. [ 68 ] In the end, the learned Justice upheld the sentence that was imposed on Mr.

Hammond, which was a sentence of 60 days of intermittent incarceration and a number of ancillary orders. [ 69 ] In the decision of R. v. Lamb , the offender in that case, who was deemed to be a low-risk to actually re-offend, and who admitted to a deviant interest in underage females at the time that he was arrested, was sentenced to 45 days' imprisonment, to be followed by two years of probation. In that case, Crown had sought a sentence of between six and nine months of imprisonment, with two years of probation. [ 70 ] In R. v. Ingvaldson , Judge Kitchen sentenced the offender in that case on two counts.

The first was accessing child pornography contrary to s. 163.1(4.1). In that case, on that charge, a sentence of three months was imposed, and then a conditional stay was directed on Count 2, being the possession of child pornography. A probation order of two years was imposed upon the offender. [ 71 ] In the decision R. v. L.W. , the accused was sentenced to 60 days, to be served intermittently, directed to be placed under a SOIRA registration for ten years, and then a $1,000 victim fine surcharge.

A DNA sample was not imposed since the offender posed no danger to the public. [ 72 ] What was persuasive in that case, in front of Judge Mackay of our Provincial Court, was that there was a positive presentence report. [ 73 ] Defence argues that the mitigating factors in this particular case are that this accused does not have a criminal record. He did enter the pleas of guilty. He has demonstrated genuine remorse.

He has also acknowledged real shame for his offending conduct, and there is the fact that he came from a very unstable background in which he also was the victim of sexual abuse. [ 74 ] Furthermore, in terms of mitigation, there is the supportive network that the accused has built up, his deep engagement in treatment, and the fact that he appears to be at the lower end for risk of reoffending; further is the fact that there is no indication that he has been re-accessing child pornography for a considerable period of time since his original arrest on these charges. [ 75 ] Defence does acknowledge that there was a significant breach, but says that since the time of that breach, there have (

a) been no breaches, and (

b) he has taken rehabilitative steps with continuation of his treatment. [ 76 ] The position of defence does acknowledge that there are some aggravating circumstances here, and I do not understand that the defence takes particular issue with many of the aggravating circumstances that have been described and set out by Crown in this case and referred to above. Purposes, Objectives and Principles of Sentencing [ 77 ] The general purposes and principles of sentencing are set out in

Part XXIII of the Criminal Code .

Section 718 specifically provides that the objectives of sanctions include denunciation of unlawful conduct, deterrence, rehabilitation of the offender, and the promotion of a sense of responsibility and acknowledgement of harm done. [ 78 ]

Section 718.01 of the Code provides that, when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[ 79 ]

Section 718.1 requires a sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 80 ]

Section 718.2 sets out a number of sentencing principles, including the fact that a sentence should be consistent with sentences for similar offences and similar offenders so that an offender should not be liberty if less restrictive sanctions may be appropriate in the circumstances. As well, the

section requires that all all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders. ( See R. v.

Lamb ( supra ) at paragraphs 18 through 21, inclusive.) Analysis [ 81 ] I accept that the aggravating and the mitigating circumstances and factors that have been outlined by both Crown and defence are applicable in the matter before me. [ 82 ] With respect to the breach, while I do not take that into account as a specific aggravating factor, I do consider that the conduct of the accused and the statements that he was making by way of text to be of great concern, and I must take it into account when considering whether or not any sentence that is being proposed is a fit sentence. [ 83 ] However, I do acknowledge that since that breach did occur that there has been a significant and concerted effort on the part of the accused to rehabilitate himself. [ 84 ] I have had the opportunity of going through a number of the letters of support that have been provided.

The general theme of these letters may be summarized in the following fashion, namely: that during the period of time after the charges were laid, that the accused has taken significant rehabilitative steps, by way of both physical and emotional methods. Attention is being paid to a more balanced lifestyle in which the accused is seeking to heal himself from his past physical and sexual abuse that he suffered during his upbringing. [ 85 ] The second theme is that the individual who is before me as the named offender has demonstrated great improvement in terms of things like his demeanour.

A letter from his grandmother says that his demeanour is greatly improved, and that he no longer shows what she describes as the "anger he has shown for many years"; it has now totally gone away. He is demonstrating that he approaches life and the challenges of life in a positive fashion, and has taken incredible steps to reunite his family through his commitment to improving himself. [ 86 ] There is a letter provided by a family friend who does have a background as a mental health housing program team leader; that individual has known the family for several years.

She is fully aware of the circumstances that the offender finds himself in and indicates that she has witnessed what she describes as "a tremendous change" in the offender. She indicates that he has demonstrated that he is taking full responsibility, not only for his offending behaviour, but the very difficult circumstances in which he has placed his spouse and his child. [ 87 ] The

summary paragraph says as follows [as read in]: [The accused] has made numerous positive life changes through this experience. He utilizes the strategies and techniques that he has learned through his therapy. He reaches out to those in his community of supports and continues to maintain a healthy lifestyle. [ 88 ] There is also a letter of support from an employee of the accused. It emphasizes the fact that this offender has been very forthcoming to his employees about the challenges that he faces.

There is obviously some concern amongst those employees as to the future of the business which they rely upon for their own livelihood if the accused were to be jailed as is the sentencing position of the Crown. [ 89 ] The last letter which I will make reference to is the one that has been provided by the accused's spouse. She has obviously a very unique perspective on what has occurred. In one sense, I draw the inference from the letter, which is quite clearly articulated, that this has been a very challenging time for her and for her child.

She notes what she refers to as the "stigma" that lies around sex offenders. She has been obviously touched by that stigma also.

But, interestingly enough, although she separated from the accused, not when the original charges were laid but as a result of his breach by reaching out to a former girlfriend, she has, in one sense, forgiven the accused based on the fact that he has taken such concrete steps to improve himself. [ 90 ] She refers to it as his "remarkable progress" [as read in]: ...in his ability to control his actions and behaviour, and most importantly his ability to communicate his thoughts and feelings to his support network -- myself included.

I am very proud of the work that (he) has done and is continuing to do. [ 91 ] The other unique perspective of his spouse is that she is a support worker with the Canadian Mental Health Association. She is obviously very much dealing on a day-to-day basis with those people who are struggling with what she describes as "addictive behaviours and deviant thoughts", and notes the need for those individuals to be supported in their recovery. Conclusions [ 92 ] Having regard to all of the circumstances in this case, and having regard to both the aggravating and mitigating factors that I

accept and as have been presented by Crown and defence, and having regard for all of the circumstances surrounding these offences, I am of the view that a sentence as proposed by defence is the appropriate sentence on the possession of child pornography. [ 93 ] Accordingly, with respect to that offence, I will consider the further submissions made by defence and accept those which submit that an appropriate method of serving this particular sentence will be through an intermittent sentence. [ 94 ] I am going to ask T.J.R.M. to stand. [ 95 ] T.J.R.M., there are going to be two aspects to your sentence on the possession of child pornography.

One is going to be the intermittent sentence which I am going to impose upon you. I am sure you have spoken with Mr.

Churchill and you understand that there will be conditions attached, not only to the sentence but also there will be a lengthy period of probation that will be imposed upon you. [ 96 ] You must understand that if you are to breach either the terms that apply to your intermittent sentence -- and I will give you an example, such as failure to report on time, failure to report free of any drugs or alcohol -- that that could rise to a further charge against you for a breach. [ 97 ] Furthermore, with respect to the conditions that will be attached to the probation order, those must be treated by you as things you must do.

They cannot be treated by you as something in the nature of an inconvenient suggestion. You have already found out what the implications and the consequences are of a breach. You have been charged further with breaching the original terms of your release, and you have done custodial time as a result of that. If you were to breach again, I have no doubt that Crown will be seeking a custodial sentence. [ 98 ] So you must take all of these conditions and apply them in the whole of the circumstances and understand that the conditions that you will have to live with meet two ends.

One is punishment and the other is rehabilitation, and you must treat them in that regard and ensure your compliance with all the conditions. Do you understand that? [ 99 ] THE ACCUSED: Yes, sir. [ 100 ] THE COURT: All right.

So for sentencing with respect to the charge on Information 77876-C-2, the possession of child pornography, I will impose a sentence of 90 days. [ 101 ] There will also be a probation order for a term of three years attached to that particular offence. [ 102 ] Both Crown and defence have indicated to me that they are of the view that the conditions that are outlined in the presentence report prepared by Mr. Whitehead should be the basis of the conditions. I agree, having reviewed those carefully and in the context of the offence that is before me. I will utilize, for the convenience of Mr.

Clerk, the pick list for our standard conditions. [ 103 ] So we will start off with number 200: you shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court.

You shall notify the court or your 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. [ 104 ] 202: within 72 hours after the completion of your jail sentence, you shall report in person to the probation office here in Nanaimo, British Columbia at the address that will be provided to you, and after that you shall report as directed. [ 105 ] 205: when first reporting to the probation officer, you shall inform him or her of your residential address and telephone number. [ 106 ] 206: you shall not change your address or telephone number without first notifying your probation officer. [ 107 ] 209: you shall remain in the Province of British Columbia unless you have received the written consent of the probation officer or of the court to go elsewhere. [ 108 ] Relying on the next provision contained specifically in the wording of the presentence report, you shall not contact or communicate, directly or indirectly to, or be alone in the presence of any person that you know to be, or who reasonably appears to be of the age of 16 or less -- that's 16 years or less, unless you are in the company of an informed person, age 18 or over, approved of in writing by your probation officer.

An informed person will be a person who is fully familiar with your criminal convictions and the circumstances surrounding those criminal convictions. [ 109 ] Next provision, you shall not contact or communicate, directly or indirectly, with or be alone in the presence of any person that you know to be or who reasonably appears to be the age 16 or less. [ 110 ] MR. CHURCHILL: Your Honour, if I might -- as I had looked over that earlier, I wondered if the previous condition that you have placed him on actually covers that.

It seemed to me that it was a duplication -- I should have brought that to your attention. [ 111 ] MR. McCORMICK: It appears to be a duplication, except the one that you just referred to -- unless you are in the company of an informed person -- is more specific and Crown would suggest that should be the condition that is in place. [ 112 ] THE COURT: All right, so your content to have me drop -- [ 113 ] MR. McCORMICK: Yes. [ 114 ] THE COURT: -- the second one that -- the second -- [ 115 ] MR. CHURCHILL: Yes, Your Honour. [ 116 ] THE COURT: -- which on second reading I agree with you.

I am not sure that it adds anything.

[ 117 ] MR. CHURCHILL: I don't think it does and I wonder if the one that you've just imposed, if that might be respectfully the place to put an exception for the son, D.M., with the authorization of the Ministry. [ 118 ] THE COURT: Well, I was going to add -- then that was going to be the next one. [ 119 ] MR. CHURCHILL: I understand. [ 120 ] THE COURT: So the -- and I will pause here because this is, I think, an important condition that did receive some attention in some of the submissions.

As I understand it, the Ministry became involved at one point as a result of these charges. [ 121 ] If I use the language that is suggested by Mr. Whitehead, it says, "you shall not have access to your son" and then the child's name "unless authorized by the Ministry for Children and Family Development". Is that still the situation as it applies, or are they still conducting what I will refer to as a "watching brief" here? [ 122 ] MR. CHURCHILL: I think they are still monitoring the situation is my understanding. [ 123 ] THE ACCUSED: They're monitoring it but there's no orders. [ 124 ] MR.

CHURCHILL: There's no orders and they have permitted him to have contact with his son. [ 125 ] THE COURT: Okay. Is he residing in the home at this point, or not? [ 126 ] MR. CHURCHILL: Still living with the -- [ 127 ] THE COURT: His grandmother. [ 128 ] MR. CHURCHILL: -- with his grandmother. [ 129 ] THE COURT: All right. [ 130 ] So if I use the language that has been suggested by Mr. Whitehead, does that meet the concerns of both Crown and defence? [ 131 ] MR. CHURCHILL: I believe so, Your Honour. The Ministry -- well, perhaps we should be more precise with the language, thinking about it.

Originally, the Ministry sought and obtained orders. Those orders have lapsed and they have not sought to find -- to seek any other orders. So if this is something proactive in the sense that he would have to now go the Ministry, that might be problematic because currently they are content for him to have contact with his son. [ 132 ] THE COURT: Well, if I rephrase it and say, "you shall not have access to your son if prohibited by the Ministry of Children and Family Development"? Is that -- [ 133 ] MR. CHURCHILL: I think that -- that fits. [ 134 ] MR. McCORMICK: I can't agree to that.

I haven't had any contact with the social -- or for the Ministry of Children and Family Development, and I think that's a significant change if you say if it's prohibited as opposed to authorized by. I don't know the current status of it, so I'm afraid I -- I'm unable to speak to it. [ 135 ] THE COURT: Well, what I'm going to do is, I am going to change it in this fashion, that "you shall not have access to your son", and the child's name, D.M., "unless authorized by the Ministry for Children and Family Development, or by the court". Right?

And then that -- or maybe I will say, "or by the court in the event that the Ministry shall fail to permit authorization". [ 136 ] MR. CHURCHILL: Yes, Your Honour. I think it -- I think it true. I think currently they are not authorizing, they're just not trying to stop him. Originally they had sought orders and stopped him from having access. Now they've drawn back. So it's more of a - - so I think if there -- if there's an order that says he has to be authorized by the Ministry, he will have to seek some kind of authorization or something in writing from the Ministry.

That's not the current state, as I understand it. [ 137 ] That's the one concern I have is that I believe it would mean -- he's having a lot of contact with his son and has for some time. If it says he is to seek their authorization, I don't think he could go home -- go to the wife's to see -- until he has something from the Ministry, and I'm not sure what their process will be there. [ 138 ] THE COURT: Well, this might be the same problem we have run into where discretion is left in the hands of probation officers and they have a policy that they won't provide it. [ 139 ] MR.

CHURCHILL: That's -- yes. [ 140 ] THE COURT: I'm thinking in domestic violence situations, they quite often will not, as a matter of policy, permit it to take place. [ 141 ] MR. CHURCHILL: They are bound by policy, and I'm just not sure what the Ministry necessarily will do. What I am advised they have done is that they have backed off now and let orders lapse, so that he is entitled to have contact with his son. So that is my concern. I am wondering if -- [ 142 ] THE COURT: Well, another approach is to do it in this fashion, and I will hear you both on this.

I say, unless notice -- unless you have provided written notice to the Ministry for Children and Family Development. So then that puts the emphasis on him to provide them with a written notice. Then it is up to them to take what steps they think is essential.

[ 143 ] I think that would formalize what they have already been doing -- is, when they felt they needed to take steps, they did, and they're not taking steps now because I think they've come to that conclusion. So it should be: "you shall not have access to your son D.M. unless you provide written notice to the Ministry of Children and Family Development", then it's up to them to take steps if they want to interfere with what's currently going on. [ 144 ] THE COURT: Well, and I am also thinking that I should also be including, "and with the consent of the child's mother". [ 145 ] MR. CHURCHILL: Yes.

And thus far that consent has been granted. In fact his mother-in-law is present in the court today. [ 146 ] THE COURT: Mr. McCormick, do you have an issue with that? So he has got to provide written consent -- or sorry, written -- [ 147 ] MR. McCORMICK: Written prior notification to the Ministry of Child and Families. [ 148 ] THE COURT: Written prior notification and with the consent of the mother. [ 149 ] MR. McCORMICK: I'm content, given the circumstances, along with my friend. I expect, if they have an issue, they'll be making application to the court. [ 150 ] THE COURT: I am sure they will be. [ 151 ] MR.

McCORMICK: Yep. [ 152 ] THE COURT: All right. [ 153 ] So the next condition I will finalize in this fashion -- you shall not have access to your son, D.M., unless you have provided prior written notification to the Ministry for Children and Family Development, and you have the consent of the child's mother -- [ 154 ] MR. CHURCHILL: And just for clarity for T.J.R.M., that would anticipate him providing written notice that he intends to access his son with the consent of mother, but not on each occasion, but just generally. [ 155 ] THE COURT: No, no. Without a -- I am going to say -- maybe I will clarify it.

I will say, without providing, before any access, a written notification of his intention to exercise access to his child on an ongoing basis. [ 156 ] MR. CHURCHILL: On an ongoing basis. [ 157 ] THE COURT: Yes. And with -- [ 158 ] MR. CHURCHILL: Is that -- did you get that, Mr. Clerk? [ 159 ] THE COURT: Do we have that, Mr. Clerk? Do you want me to go back and read it again? [ 160 ] THE CLERK: Yeah. Can we start it from the beginning? [ 161 ] THE COURT: All right, let's go again. All right.

So, it will now read, you shall not have access to your son -- and then the child's name, D.M. -- unless you have provided written notification of your intention to have ongoing access to your son to the Ministry for Children and Family Development and that you have the consent of the child's mother, H.K., to that access. [ 162 ] Do we have that, Mr. Clerk? [ 163 ] THE CLERK: I think so. [ 164 ] THE COURT: Thank you. [ 165 ] Carrying on, 245: you shall not possess any pornographic materials nor access any pornographic materials by electronic means.

This includes, but is not limited to, pornographic images accessed by the internet. [ 166 ] Next provision will be, you will provide the local detachment of the Royal Canadian Mounted Police and your probation officer with the name of your internet service provider, and you will provide all required permissions and consents for the logs of your internet access to be turned over to your probation officer or to the local detachment of Royal Canadian Mounted Police [ 167 ] The next provision will be, you will allow any peace officer -- I will make that any peace officer personnel -- to examine any computing equipment, peripheral devices, communication devices, or such computing equipment, data storage devices, media storage devices, removable media, and any manual associated to any computing equipment, passwords and access codes, to enable examination of any computer you are using, to verify compliance with this order. [ 168 ] I take it he is consenting, Mr.

Churchill, to the next provision. [ 169 ] MR. CHURCHILL: Perhaps, if I might, Your Honour, before you move on, I am just wondering that the last provision, if there might be a notice provision in that, so that if -- what I'm thinking is that a peace -- it probably ought not be that a peace officer can arrive 24/7 and just demand to come into the house and examine those things. [ 170 ] I'm just wondering if there -- if there could just be -- it could be within daylight business hours. So if the police came during the day. [ 171 ] MR. McCORMICK: Crown will object to that, Your Honour.

It's in the nature of, for instance, a curfew. If in fact there is a

notice provision, and I am not suggesting that T.J.R.M. would resort to this, but it would allow the possibility of disposing of any offending material to remove himself from the situation of breach if there a notice provision. [ 172 ] It seems to me in terms of the spirit and intent of the order, it is to ensure that at any given time he is not accessing the internet for the nefarious purpose of accessing child pornography, or have any media or storage capability of doing that -- that's in offending that - - that provision. [ 173 ] So it strikes me it is in the nature analogous to a curfew and the police ought to be able to attend his residence at any time to ensure compliance with that provision. [ 174 ] MR.

CHURCHILL: Your Honour, I don't think it -- it's not a curfew in my respectful submission. There is -- if he returns to reside with his son and wife, there will be children in the house and an innocent party, so I am simply saying perhaps you would consider such an examination to be conducted during daylight -- during the day, so that they come over between 8 and 5 -- 8:00 a.m. to 5:00 p.m. - - rather than -- otherwise there doesn't appear to me to be any reason why they couldn't arrive at 2 in the morning and ask to come in, and he would be bound to permit it.

That's the concern I have. [ 175 ] I mean, otherwise -- I mean unless a person was involved in something illegal and nefarious and then each evening shut down or wiped equipment, it seems to me that it could be dealt with during the daytime. We'll leave that for Your Honour's consideration. [ 176 ] THE COURT: Well -- [ 177 ] MR.

CHURCHILL: And you had asked me, Your Honour, whether he -- the next provision he had consented to that, and he certainly does. [ 178 ] THE COURT: Well, I am going to leave the provision -- as I have outlined it, with liberty to him -- I will not put it in the terms of the probation order, but you can make a note -- he is at liberty to come back before me if the provision becomes problematic. [ 179 ] MR.

CHURCHILL: Thank you. [ 180 ] THE COURT: So for example, if every night they arrive at 3:00 a.m. for two weeks consecutive, then I may be persuaded to put some limitations on that. [ 181 ] However, if they do show up at 1 o'clock, while he is still living with his grandmother, and say, "we know you've got an internet, you know, you've given us the records.

We just want to make sure that what you're doing is appropriate, and it's a one-off", then that's going to be entirely different than the scenario that you provided me. [ 182 ] So I think I am going to leave it in the fashion that I have described it, and I will leave it to you to -- if it becomes problematic, then you can bring the matter back before me. [ 183 ] MR. CHURCHILL: Thank you, Your Honour. [ 184 ] THE COURT: All right.

All right, so then the next provision -- having consented in court -- and then it will be, the language in number 251: you shall attend, participate in, and successfully complete any assessment, counselling or program as directed by your probation officer which may include individual counselling and/or group therapy counselling and/or program(

s) for sex offenders as directed by and to the satisfaction of your probation officer, and you shall comply with all rules and regulations of any such assessment, counselling or program. [ 185 ] Next provision: you will attend and participate in forensic assessment, counselling or treatment through the Forensic Psychiatric Centre in Victoria, British Columbia or of such other facility designated by your probation officer, and to the satisfaction of your probation officer. [ 186 ] Next provision: you must maintain involvement with Forensic Services -- I am not quite sure what the wording -- is that wording correct?

Must maintain involvement with -- [ 187 ] MR. McCORMICK: I think it would be sufficient just to say the Forensic Services. I think it's in reference to Forensic Services Commission -- [ 188 ] THE COURT: Oh yes. [ 189 ] MR. McCORMICK: -- which is typically independent of the courts but where we get our psychiatric assessments from. [ 190 ] THE COURT: All right. I will say you must maintain involvement with Forensic Services as directed by your probation officer or by the courts. Put it in that fashion. [ 191 ] MR.

McCORMICK: Thank you, Your Honour. [ 192 ] THE COURT: And then the final provision will be 227: you shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 193 ] All these will be given to you in writing. [ 194 ] The next provision is with respect to serving the sentence on an intermittent basis.

I am going to direct that the sentence of 90 days be served intermittently at the Nanaimo Regional Correctional Centre, Nanaimo, British Columbia, and that you will commence serving that sentence on Friday, April 22nd, 2016, and you shall serve that sentence to the following Sunday, and the sentence will be served thereafter on consecutive weekends, from Friday to Sunday, until the sentence is fully served.

[ 195 ] On your first reporting day of April 22nd, 2016, you shall attend no later than 3:00 p.m. and continue your sentence until the following Sunday at 4:00 p.m. Thereafter you will attend each Friday, commencing at -- is it 6:00 p.m. is the check-in -- 6:00 p.m. [ 196 ] MR. McCORMICK: 6:00 p.m. check-in and check-out. [ 197 ] THE COURT: -- and continue to serve your sentence until the following Sunday at 4:00 p.m. [ 198 ] I am going to attach to the intermittent sentence a further probation order which will continue throughout the duration of the intermittent sentence.

The conditions will be, you shall keep the peace and be of good behaviour. You shall attend at the Nanaimo Regional Correctional Centre for the purposes of serving your intermittent sentence, and you shall have no alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician, in your body. [ 199 ] Anything further with respect to that? [ 200 ] MR. CHURCHILL: Well, my one concern is we say that's a further probation order and the first probation order is three years.

I think that second probation order puts over to the third year, does it not -- an offence that three years old? [ 201 ] THE COURT: Oh, this is a separate -- this is not attached to that, it is a separate probation order. Don't I need that to run with the intermittent sentence? [ 202 ] MR. CHURCHILL: I think what you could do is put the three years' probation to incorporate the intermittent sentence in that -- [ 203 ] THE COURT: I see. [ 204 ] MR. CHURCHILL: -- as opposed to possibly violating the three-year rule. So -- [ 205 ] THE COURT: I see your concern. All right.

Well, then what I will do is I will add on a provision in the probation order, but the probation order attaches -- the probation order runs -- when will the probation order start, I guess, is the next question? [ 206 ] MR. CHURCHILL: Well, I think the probation order could start at this stage to incorporate the intermittent sentence -- [ 207 ] THE COURT: I see. [ 208 ] MR. CHURCHILL: -- that you report on time in a sober condition and have the outline at 3:00 p.m. this coming Friday to 4:00 p.m. Sunday and thereafter as directed, with all of the other terms and conditions.

Otherwise what you're going to run into is a situation whether you've got -- [ 209 ] THE COURT: All right. [ 210 ] MR. CHURCHILL: -- two consecutive probation orders that will put him over the three-year rule.

Either that or you put on the one separate probation order with respect to intermittent, do the math, and then the second order that is to run [indiscernible] terms of the third-year's rule. [ 211 ] THE COURT: I think that is more complicated than I am going to be able to calculate at this point, so it will be the three-year probation order as I have outlined, and then I will make a further provision that "so long as you are serving your intermittent sentence, you shall --" and then in the same language that I have provided in terms of the -- [ 212 ] MR.

CHURCHILL: Yes. [ 213 ] THE COURT: -- not having any drugs or report on time and not have any drugs. [ 214 ] MR. CHURCHILL: Right. All the conditions will be in place from this time forward. [ 215 ] THE COURT: Yes. [ 216 ] MR. CHURCHILL: That's the intent, I believe. [ 217 ] THE COURT: Yes, correct. Do we have that, Mr. Clerk, so -- [ 218 ] THE CLERK: Yeah, yeah. Starting at the commencement of the intermittent sentence, the probation order -- yeah. [ 219 ] THE COURT: Correct. Yes. So that that is part and parcel with what he has got to do.

He has got to show up on time and he has got to show up free and clear of any drugs or alcohol. [ 220 ] MR. CHURCHILL: Yes, Your Honour. I agree to incorporate it in the single order. It's more elegant. [ 221 ] THE COURT: All right.

Thank you for drawing that to my attention. [ 222 ] And then that leaves us with the sentence on the breach, and I am going to sentence him to an effective sentence of 11 days on the breach, and that has been satisfied by the seven days plus credit time served, with no further time necessary with respect to that particular charge. [ 223 ] There will be a victim fine surcharge on each of the two offences. I will give him the maximum two months to pay all of the victim fine surcharges.

[ 224 ] MR. CHURCHILL: Thank you, Your Honour. [ 225 ] THE COURT: Is there anything I need to -- [ 226 ] MR. McCORMICK: The ancillary orders, Your Honour -- [ 227 ] THE COURT: Thank you. [ 228 ] MR. McCORMICK: -- DNA, SOIRA , forfeiture. [ 229 ] THE COURT: Yes, I will make the ancillary order. There will be the DNA order. It is a primary designated offence. I believe that is under s. 487.051 -- is that correct? [ 230 ] MR. McCORMICK: That's correct, Your Honour. [ 231 ] THE COURT: Then there will be the SOIRA order under s. 490, I think it is .012(1).

That will be for a period of ten years and I will make the forfeiture order as requested. I believe that is under s. 164.2(1). [ 232 ] MR. CHURCHILL: Yes. [ 233 ] MR. McCORMICK: That's correct. [ 234 ] THE COURT: And that is for the computer hard -- is it the computer and the hard drives or is it the -- [ 235 ] MR. McCORMICK: We were just asking for what was seized, which was two computers. I don't have it broken down, Your Honour. [ 236 ] THE COURT: All right, so it is the entire computer -- [ 237 ] MR. McCORMICK: Correct. [ 238 ] THE COURT: -- including the hard drives; is that correct? [ 239 ] MR.

McCORMICK: Yes. That is correct. [ 240 ] THE COURT: All right. I will make that forfeiture order. [ 241 ] Anything further? [ 242 ] MR. CHURCHILL: Just with respect to the DNA, I wondered -- I believe it's usually Wednesdays here in Nanaimo. So today we are -- perhaps you could just allow him two Wednesdays, which would be the 20th and 27th, so perhaps to provide the DNA by the 30th of April. [ 243 ] THE COURT: All right. By 4:00 p.m. on the 30th of April, 2016. [ 244 ] MR. CHURCHILL: Thank you. [ 245 ] MR. McCORMICK: There's one last thing, Your Honour, and I don't know if your notes have it.

I think I referred to a s. 161 order, and my friend can correct me if I'm wrong on that -- in my original submissions. [ 246 ] THE COURT: That's the prohibition order? [ 247 ] MR. McCORMICK: When I was looking back at my notes, I had it included as part of the ancillary orders, but I can't, frankly recall, it's been so long. Are there any detailed submissions about that? [ 248 ] THE COURT: Well, I don't see that in my notes. That's the prohibition order, isn't it? [ 249 ] MR. McCORMICK: That is correct. [ 250 ] MR. CHURCHILL: I believe my friend and I had a discussion with respect to that.

I don't have it as a note in his submissions, and I think we had discussed -- but memory is foggy now -- but I think we had discussed that, Mr. McCormick. [ 251 ] MR. McCORMICK: May I have one moment with my friend? [ 252 ] THE COURT: Okay. [DISCUSSION AMONGST COUNSEL] [ 253 ] MR. CHURCHILL: My friend's notes and mine may not correspond -- these things happen. So if my friend is going to make submissions on that particular -- [DISCUSSION AMONGST COUNSEL] [ 254 ] MR.

McCORMICK: I'm afraid, Your Honour, given the passage of time, I can't quite accurately recall the discussion my friend and I had surrounding the s. 161 order. My friend doesn't have notes, and I had it in my preparation of notes, but I'll default to my friend and, given the life of the probation, the terms and conditions therein, I am not going to insist on a 161 order, but I'm afraid there has been

some confusion on that. [ 255 ] MR. CHURCHILL: Your Honour, I don't have a note -- it's been too long for me to be accurate with respect to the conversations, I must say, with my friend, and I can only say that my note of his submission did not include a reference to s. 161. [ 256 ] THE COURT: Well, I'm looking -- and I did take down the

summary position as at the outset and that it does not include reference to the prohibition order. [ 257 ] MR. McCORMICK: It does not. [ 258 ] THE COURT: No. [ 259 ] MR. McCORMICK: Very well, Your Honour. [ 260 ] THE COURT: All right. All right, so I believe that's everything, is it? [ 261 ] MR. McCORMICK: I'll stay the remaining counts, Your Honour -- [ 262 ] THE COURT: All right. [ 263 ] MR. McCORMICK: -- on each information. [ 264 ] THE COURT: So that is on -- that's Count 2, a stay of proceedings recorded on Count 2 of 77876-C-2, is that correct? [ 265 ] MR.

McCORMICK: That's correct, yes. [ 266 ] THE COURT: And then that will be Count 2 on Information 77876 -- [ 267 ] MR. McCORMICK: I believe that it's Count 2 and 3 on the A-3. [ 268 ] THE COURT: Oh, I'm sorry -- 2 and 3 on the A-3. [ 269 ] MR. McCORMICK: Yes. And I don't know if there was a stay of proceedings on the lead information at the time T.J.R.M. entered guilty pleas, but if that hasn't already been done, I'll do that now at this stage as well. [ 270 ] THE COURT: That is on the original -- [ 271 ] MR. McCORMICK: On the C -- that's correct. [ 272 ] THE COURT: -- on the C-2 or C-1? [ 273 ] MR.

McCORMICK: That would be the 77876-1. [ 274 ] THE CLERK: Yes. [ 275 ] THE COURT: Dash 1. [ 276 ] MR. McCORMICK: Has that already been made, Mr. Clerk? [ 277 ] THE CLERK: Yeah. [ 278 ] MR. McCORMICK: Very well. Thank you, Your Honour. [ 279 ] THE COURT: All right. I believe that concludes everything. I will stand down. I do have to have a quick word with Mr. Clerk before he leaves. I'll stand down. Thank you. (PROCEEDINGS CONCLUDED) (PROCEEDINGS RECONVENED) [ 280 ] THE CLERK: Recalling file 77876-3-A and 2-C, T.J.R.M. [ 281 ] MR.

McCORMICK: Sorry, Your Honour, we neglected after the discussion about the probation orders to ensure that T.J.R.M. report to probation, I would suggest, by 4:00 p.m. tomorrow, as opposed to within 72 hours of the completion of the intermittent sentence. [ 282 ] THE COURT: Yes. [ 283 ] MR. CHURCHILL: It makes good sense, Your Honour. [ 284 ] THE COURT: Yes, given the change I made to cover the intermittent sentence, yes.

So it will be, report here in Nanaimo before 4:00 p.m., and just for greater certainty, that probation order only attaches to the possession of the child pornography, and not to the intermittent sentence -- [ 285 ] MR. McCORMICK: To the breach.

[ 286 ] THE COURT: -- or to the breach. [ 287 ] MR. McCORMICK: Understood, Your Honour. [ 288 ] THE COURT: All right? [ 289 ] MR. CHURCHILL: Thank you. [ 290 ] MR. McCORMICK: Thank you, Your Honour. [ 291 ] THE COURT: I am sure the Registry will be very pleased to hear that it is tomorrow by 4:00 p.m. (REASONS FOR SENTENCE CONCLUDED)