R. v. Turner, 2018 BCPC 367

Citation: R. v. Turner 2018 BCPC 367 Date: 20181024 File No: 16083-1 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BLAKE ANTHONY TURNER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: R. Opel Counsel for the Defendant: B. Linsky Place of Hearing: Powell River , B.C. Date of Hearing: September 19, 2018 Date of Judgment: October 24, 2018 [ 1 ] Blake Anthony Turner appeared before me after entering a guilty plea admitting that between December 1, 2016, and March 31, 2017, at or near Powell River, in the Province of British Columbia, did possess child pornography, contrary to

Section 163.1(4) of the Criminal Code of Canada and further that between December 1, 2016 and March 31, 2017, at or near Powell River, in the Province of British Columbia, did access child pornography, contrary to

Section 163.1(4.1) of the Criminal Code of Canada. [ 2 ] Mr. Turner appears in this Court with no criminal record. He has been on bail since May 16, 2017, and there have been no breaches or allegations of breaches arising from his bail terms and conditions. [ 3 ] Briefly, the facts are such that Drop Box reported that they had found 59 files of child pornography connected to an account. A

Production Order and Search Warrant were granted. Mr. Turner was fully cooperative at all times, including providing his passwords tothe police and quickly admitted that he knew what he was doing was wrong and illegal. Pornography was located on his lap top, tabletand external hard drive. There were 15 images of child pornography located on his lap top, 1,000 videos of both adult and childpornography on his tablet, and 1,000 images of child pornography on his tablet. Those images and videos of children were largely ofages 2 - 10 years of age, with some depictions of males.

That is extremely aggravating given that toddlers at the tender age of 2 wereincluded. The depictions were at a Level 4 on the Oliver scale. [4] The leading case that succinctly summarizes child pornography and the principles of sentencing is Regina v Allen, 2012 BCCA377. Both denunciation and deterrence are to be emphasized in sentencing such matters (Section 718 of the Criminal Code of Canada). There are very specific sentencing principles when sentencing someone to such an offence and that is set out in Sections 718 to 718.2 ofthe Criminal Code of Canada. Similar to the matter before me with Mr.

Turner, in the Allen (supra) matter, Mr. Allen was not onlydownloading but also sharing such graphic images. Citing the trial Judge from the Allen (supra) matter, at paragraph 12, the BritishColumbia Court of Appeal stated: The root of child pornography is the sexual abuse of children. The sexual exploitation of innocent children has severe consequences, notonly to the victim, but to society as a whole. Society has a strong interest in safeguarding this most susceptible and vulnerable groupfrom sexual predators. Any violation carries high moral blameworthiness and societal repugnance at the highest degree.

It is notablethat with widespread internet distribution of child pornography… exploited children are re-victimized with every click of the mouse asthe images of their abuse live forever in the public domain. This

summary best describes the actions of Mr. Turner. The protection of children is paramount in every community and in every courtof law and further it is at the very core to all values held by Canadians, that being the protection of children. Every child, regardless ofwhere he or she lives, is vulnerable, and that innocence is entitled to be protected at all times. Child pornography at its very coredegrades, dehumanizes, and re-victimizes children. That harm is no less simply because it is through online and computer access, ratherthan in person. In the decision of Regina v.

Sharpe, 2001 SCC 2 (Can LII), SCJ No 3, then Chief Justice McLachlin at paragraph 28stated: The links between possession of child pornography and harm to children are arguably more attenuated then 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. [5] The mitigating factors before me are such that Mr. Turner was fully cooperative with the police, this is a relatively early guiltyplea, he is youthful being 25 years of age, he has no criminal record, and there are no images involving infants and sadistic imagery. Further, Mr. Turner has already, on his own initiative with the support of his family, undertaken and continues to undertake counselling. He is remorseful. Counsel for Mr.

Turner provided only verbal submissions that Mr. Turner suffers from anxiety, depression, and socialisolation; however, there was no medical documentation to confirm such, no diagnosis, no course of treatment, no medication regime,and an absence of documentation to support those submissions. Given the gravity of the offences to which he has entered guilty pleas, itwould have been best in hindsight for better documentation to be produced to this Court for the purposes of sentencing, rather thanextremely generalized counselling letters.

Defence counsel only produced two, very brief, unsigned letters from a counsellor, whosequalifications were not set out in either letter and are from a counsellor and not a psychiatrist or a physician. Those two letters simply setout that he has been engaged in counselling to understand his behaviours and to understand the severity of his actions. Similarly, I didnot have the benefit of a Pre-Sentence Report or a Forensic Psychological Report. It would be in Mr.

Turner’s best interest, whileincarcerated and thereafter, to see the professional assistance of a psychiatrist to address his actions and address his underlying mentalhealth concerns. [6] The aggravating factors before me are the number of images that a significant number of young children were found in bothimages and videos and that Mr. Turner file-shared this data. In Regina v.

Kwok, (ON SC), 2007 OJ No. 457, Mr.Justice Molloy summarized why such offences have a specific aggravating factor that must be considered when crafting a sentence to aparticular offender wherein he identified: “…certain factors that speak to aggravating factors on sentencing for purposes of the possession of child pornography.

These include thesize of the collection; the nature of the collection, including the age of the children involved in the relative depravity and violencedepicted; the extent to which the offender is seen as a danger to children, including whether the offender is a diagnosed pedophile; and,whether the offender has purchased child pornography rather than downloading it for free from the internet. These factors are notexclusive and they are not exhaustive, but they do provide guidance.” [7] This is a joint submission and I am mindful of such. Defence counsel seeks to rely upon Regina v.

Berry, [2018] BCJ No. 986,however, the Berry, (supra), decision is distinguishable. Unlike Mr. Turner, Mr. Berry did not distribute or share any images or videos. Mr. Turner had no forethought into his actions and he distributed and shared both images and videos of these children. That is extremelytroubling. Mr.

Turner came before me with a joint submission on September 19, 2018, and I was not prepared to accede to the proposedjoint submission in that a Rogers Order had not been considered, which, given the gravity of his actions, is wholly appropriate; that therewas no proposed term contained in the joint submission that Mr. Turner sign consents that his mental health counsellors and, thereafter,probation officer have access to his mental health and medical information in order to craft any rehabilitation to the needs of Mr. Turner,and that the counselling letters simply noted that Mr. Turner has an interest in writing.

When asked in Court, he said that he writes whatis referred to as ‘fanfic’ and ‘fanfic” can have an element of pornography to it and I was concerned that none of his writings had beenseen by his counsellor, therefore I found it troubling for his counsellor to simply advise the Court that Mr. Turner has a productive outletof writing and nature photography. That absence of information required me to adjourn the sentencing to ensure that the principles ofsentencing were properly addressed.

These videos and images contain many children and those children may not have a name, but theyare entitled to ensure that any Court when imposing such a sentence addresses the protection of children, deterrence and denunciation. Counsel appeared before me once again on October 24th, and have provided the missing information. [8] I will impose the following sentence:

Mr. Turner shall be sentenced to 10 months in custody, to be followed by a three-year Probation Order with the following terms and conditions:

a) Keep the peace and be of good behaviour;

b) Appear before this Court as and when required to do so;

c) You are required to report in person to your Probation Officer within 72 business hours of your release and thereafter no less than one time per month in person;

d) At your first reporting you are required to provide your Probation Officer with your residential address and telephone number and do not change those without the prior written consent of your Probation Officer;

e) You must enrol, attend, participate in and successfully completely all counselling as so directed by your Probation Officer, specifically addressing your mental health;

f) You shall not access the internet by any means, including wireless, handheld devices such as Blackberry’s, IPads or IPods, IPhones, mobile devices, or any web-enabled internet-enabled electronic devices, except solely with the prior written case specific written consent of your Probation Officer;

g) You shall not own, possess, or use a computer system, including a cellular phone, with access to the internet, except with the prior written case specific written consent of your Probation Officer;

h) You are not to seek or obtain any employment or volunteer work that involves being in a position of trust or authority towards persons under the age of 16 years of age;

i) You shall not attend at any public park or public swimming area, community centre or at a day-care, school ground or playground, where persons under the age of 16 years of age are present or can reasonably be expected to be present;

j) You must provide your Probation Officer with the carrier information and phone number of any mobile device that you possess, and the make, model, colour and licence plate numbers of any vehicle that you drive;

k) Having consented, you must attend, participate in and successfully complete any intake, assessment, counselling or programme as directed by your Probation Officer, including any residential treatment, psychiatric intake, assessment, counselling or treatment programme through Forensic Psychiatric Services; you must comply with all the rules of any such programme so long as the rules do not conflict with this Order or the direction of your Probation Officer. If they do conflict, you must advise your Probation Officer as soon as possible. You must immediately provide proof of your completion of the programme to your Probation Officer;

l) Having consented, you must do the following: 1. At the direction of your Probation Officer, report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling or treatment; 2. Attend all scheduled appointments with your doctor, psychiatrist and counsellor; 3. Take all medications prescribed to you; 4. Give your doctor, psychiatrist and counsellor a copy of this Order; 5. Provide your Probation Officer the names, addresses and phone numbers of your doctor, psychiatrist and counsellor; 6.

Tell your doctor, psychiatrist and counsellor that, if you do not follow any terms of this Order, he or she is to inform your Probation Officer. If you decide not to follow these directions, you must immediately report in person to your Probation Officer, when his or her office is open and tell your Probation Officer;

m) Having consented, you must sign any waiver of confidentiality or release of information forms as will enable your Probation Officer, counsellor or treatment providers to monitor your attendance, and completion of any intake, assessment, counselling, or treatment programme, and to collaboratively discuss your treatment needs;

n) You must not possess any pornographic material and you must not access any pornographic material in any manner;

o) You must carry a copy of this Order on your person at all times when you are outside your place of residence and produce it forthwith upon demand to a peace officer. [ 9 ] You will be required to comply with the Sex Offender Information Registry for a period of 20 years pursuant to

Section 490.012(1) of the Criminal Code of Canada ; as this is a primary designated offence, you shall be required to provide a DNA sample forthwith; [ 10 ] There will be an Order pursuant to

Section 161 of the Criminal Code of Canada for five years; [ 11 ] Initially, defence counsel consented to a Forfeiture Order, however, Mr. Turner is now seeking the return of some of his writings and Crown has not been afforded the opportunity to have the RCMP review such, therefore the application for a Forfeiture Order is adjourned to November 20, 2018 at 9:30 a.m.

________________________________ The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia