R. v. Bowers Date:, 2013 BCPC 383

Citation: R. v. Bowers Date: 20130916 2013 BCPC 0383 File No: 177169-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DOUGLAS WAYNE BOWERS Ban On Publication s. 486.4(1) CCC, s. 486.4(3) CCC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: W.K. Kinash Counsel for the Defendant: G. Barnes Place of Hearing: Surrey , B.C.

Dates of Hearing: March 7, October 3, 24, 2011; January 19, March 13, April 30, Dates of Hearing: August 30, 31, September 5, October 15, 2012; August 15, 16, 2013 Date of Judgment: September 16, 2013 [ 1 ] THE COURT : On December 13 of 2010, Douglas Wayne Bowers pled guilty to Count 1 on Information 177169-2-C, that from October 26th of 2008 to June 25 of 2009, inclusive, at Surrey, British Columbia, he possessed child pornography, contrary to s. 163.1(4) of the Criminal Code . He is before the court today to be sentenced. [ 2 ] The Crown proceeded by indictment.

At the time this offence was committed, a minimum sentence of imprisonment on indictment of 45 days applied. The maximum sentence is five years. Since the date of this offence, Parliament has increased the minimum sentence to one year; however, it is the 45-day minimum sentence which applies in Mr. Bowers' case. [ 3 ] The Crown seeks a sentence of imprisonment of one year, followed by a two-year probation order with no contact conditions respecting a particular individual and her family. The Crown says Mr.

Bowers has been manipulative through the court proceedings, and his specific deterrence as well as general deterrence and denunciation must be the predominant sentencing considerations. The Crown seeks ancillary orders addressing… (reference removed for publication), DNA sampling and forfeiture. [ 4 ] Ms. Barnes, on behalf of Mr. Bowers, seeks a 90-day sentence to be served intermittently. She acknowledges the importance of general deterrence and denunciation, but says Mr. Bowers' ongoing rehabilitation remains important and is best addressed through an intermittent sentence with extended probation.

The ancillary orders are not contested, although Mr. Bowers seeks return of family photographs seized by police during the investigation. [ 5 ] Mr. Bowers was charged initially on the 18th of September, 2009. He came before the court and was released on a recognizance with strict conditions on September 19th of 2009. He has complied with those bail requirements. [ 6 ] As earlier noted, Mr. Bowers entered a plea of guilty on December 13th of 2010 with the benefit of legal counsel. Sentencing was adjourned to March the 7th of 2011 for the preparation of a pre-sentence report and a psychological assessment.

On that date counsel sought and was granted an adjournment to address unspecified issues arising from the pre-sentence report. The matter could not proceed on the next date due to the unavailability of Crown counsel. It was set for October 3rd of 2011. Mr. Bowers then sought to adjourn that date; it was re-set to October 24th of 2011. On that date the hearing was again adjourned. Both counsel understood certain admissions were to be made but defence counsel's instructions changed and the Crown was informed of that situation just before the matter was called in court.

The matter was again adjourned to permit the Crown to consider what evidence it might have to call as a result. [ 7 ] During discussion on the record, counsel for Mr. Bowers confirmed there was no intention to apply to strike the guilty plea. The Crown concluded it would call evidence on the sentencing hearing to address circumstances which were now not admitted. The matter was set for a three-day hearing to begin January 19th, 2012. On that date both counsel were present; Mr. Bowers did not appear. His counsel was eventually able to reach him in Vancouver. Mr. Bowers' counsel informed the court that Mr.

Bowers said his bail supervisor told him the hearing was to begin the following day. Counsel advised me he had left several voice messages for Mr. Bowers advising him of the correct dates, but Mr. Bowers told him he had not received those voice messages. The matter was then stood down to await Mr. Bowers' arrival. When the matter was recalled on Mr. Bowers' attendance, he informed the court he had discharged his counsel, intended to seek new counsel, and wished to consider an application to strike his guilty plea. He wished to adjourn the hearing.

He said he had intended to inform his counsel that day in anticipation of attending court the following day, which he understood was his next court date, and at that time inform the court. The Crown opposed the adjournment application. Ultimately, however, I granted that application and the matter was adjourned. [ 8 ] On January 25th of 2012, new counsel appeared and stated an intention to apply to strike the guilty plea. That application was set for April 30th, 2012.

On that date the application to withdraw the guilty plea was itself withdrawn, and the matter was adjourned to August 30, 31 and September 5 of 2012 for evidence to be called on the sentencing hearing. [ 9 ] The hearing began on

schedule and the Crown called three civilian witnesses and two police officers during the first day. On the second day I was informed Mr. Bowers was at the hospital. He returned to court the following day. During the morning the evidence of a particular individual whose image was the subject of two photographs in issue, and the evidence of a police witness, was heard. However, for health reasons Mr. Bowers was unable to continue in the afternoon and the matter was again adjourned. This matter was re-set to continue before me on October the 15th of 2012. On October 12th, Mr.

Bowers' counsel appeared and withdrew as counsel. He said Mr. Bowers had not responded to his calls. He had lost contact with his client. [ 10 ] On October 15, Mr. Bowers appeared and informed the court he lost his job in September, was on social assistance, and would now need to seek Legal Aid. He had no explanation for his failure to inform his counsel of his circumstances, or the court, or to seek Legal Aid in a timely way.

Bearing in mind the issues to be resolved, the complexity of that process, and the potential for a lengthy jail sentence, I granted a further adjournment. [ 11 ] After several appearances in October and November, the court was informed on November 28th that Ms. Barnes, Mr. Bowers' current counsel, had been appointed to act. Although a further hearing date was adjourned in March of 2013 to allow Ms. Barnes to fully review the disclosure and past history, these proceedings have moved expeditiously since she became involved. The sentencing hearing resumed on August 15th and concluded on August 16th. Ms.

Barnes effectively, on behalf of Mr. Bowers, made appropriate admissions and focused the issues during examination and cross-examination of the remaining two Crown witnesses, and during her submissions. [ 12 ] I relate this history in detail in order for the record to be clear as to why it has taken so long for this matter to reach this concluding day on which sentence will be imposed, and also in order, in the course of determining a fit sentence, to assess whether Mr.

Bowers has been manipulative, as the Crown argues, in a manner which impacts sentencing principles and objectives such as specific deterrence, rehabilitation and restorative values. [ 13 ] The relevant circumstances are the following: During the period in issue here, Mr. Bowers rented the house at 16295 40th Avenue, Surrey, British Columbia. He lived on the main floor. Mr. Bowers sub-let rooms in the house to others. Ms. Barnes has confirmed, however, that Mr.

Bowers takes responsibility for the material the Crown alleges was child pornography, and does not now suggest anyone else is responsible for downloading the material found on his computers, or other material seized by police and relied on by the Crown for the purposes of this sentencing.

With this admission it will not be necessary to review and make findings in this regard respecting the evidence of three individuals who lived in the house during the relevant period and who were called by the Crown at an earlier stage in this hearing. [ 14 ] On June 24th of 2009, members of the RCMP Integrated Child Exploitation Team executed a search warrant at 16295 40th Avenue in Surrey, British Columbia. The house and its contents at the time of entry are shown in photographs in booklets marked Exhibits 2, 3 and 4. No one was at home at the time of the search.

The officers seized the Toshiba laptop computer belonging to Mr. Bowers found on the floor in the living room next to the computer desk, and the Acer laptop found on the computer desk itself, and a USB thumb drive storage device also found in the living room, all belonging to Mr. Bowers. Other computer and electronic gear and camera gear were also seized but ultimately were found not to be relevant to these proceedings. [ 15 ] On the floor in Mr. Bowers' bedroom, next to his bed, a quantity of printed material was seized. That material is Exhibit 14 and is visible in photograph 4 of Exhibit 2.

Investigators also seized eight pages of similar material from the computer desk in the living room, which is marked Exhibit 17. [ 16 ] Seized from a drawer in Mr. Bowers' bedroom were ten photographs. These are marked collectively as Exhibit 12. Three of those photographs were of a teenage girl known to Mr. Bowers. She gave evidence during these proceedings. In 2008, Mr. Bowers contacted this individual via Facebook, asking if she was the daughter of a particular relative of his whom he had not seen in a number of years. She confirmed that she was. At the time she was 15 years of age.

Communications ensued via Facebook and MSN messenger. Communications extended to telephone, text and voice communication. It became frequent; up to several times a week. With one or two exceptions, the communications were initiated by Mr. Bowers. [ 17 ] During their communication, which extended over three to six months, this young person informed Mr. Bowers of her age and provided her cell phone number. During their communication he offered to give her a used car as a gift but he failed to attend on several occasions to deliver the vehicle as arranged.

He also offered her work at a bed and breakfast he said he owned in France. The communications ended when this witness informed her mother of an invitation to work in some capacity for Mr. Bowers. It is clear from the evidence of this witness that she believed that she was the conduit through which Mr. Bowers was seeking to reconnect with relatives with whom he had lost contact. They never met in person. [ 18 ] This witness had posted several photographs of herself on her Facebook page which were taken before her 16th birthday. She never sent Mr. Bowers any photographs of herself.

She identified three of the photographs found in Mr. Bowers' bedroom and among those marked Exhibit 12 as being of her from her Facebook page. I emphasize here that these three photographs of this individual in their original form on her Facebook page are entirely unremarkable. [ 19 ] Mr. Bowers used those photographs taken from this witness' Facebook page to create child pornography. In one case he affixed a cut-out of an erect male penis to the photograph of the witness' face, positioned next to her mouth.

In the second case, he cut out and pasted this witness' head and face to the photograph of a naked female body. These altered photographs are among the ten photographs in Exhibit 12. Exhibit 12 also includes photographs of three other naked and unidentified young girls appearing to be in their teens. At the time of his arrest, Mr. Bowers had two entirely unremarkable photographs of this individual in his wallet, and they are Exhibit 15. [ 20 ] I have reviewed the written material seized from Mr. Bowers' bedroom and the computer table and marked Exhibits 14 and 17.

I have reviewed this material sufficiently to be satisfied that its dominant characteristic is the description, for a sexual purpose, of sexual activity with persons under the age of 18 years that would be an offence under the Criminal Code . It is child pornography consistent with the definition in s. 163.1(1)(

c) of the Code. It appears to have been printed from the internet. [ 21 ] Vello Kleeband is a civilian member of the RCMP. He was accepted as an expert in forensic examination of computers. He attended at the time the search warrant for Mr. Bowers' residence was executed. He ensured the computers to be seized were properly handled and secured so that evidence was preserved. He then examined the hard drives of the seized computers and related electronic equipment. He is trained to search the contents of the hard drives and determine whether child pornography is present.

He found images and video material on the two laptops and the USB drive which he believed met the Criminal Code definition of child pornography. [ 22 ] In carrying out his examination, Mr. Kleeband is familiar with terminology frequently used among child pornographers to identify such material for those who would access it. He identified the presence on the two laptops of the Limewire file sharing program. That program had been downloaded in two different versions to the two computers.

That program allows a person to enter search terms into the program which will then identify child pornography described in that terminology on the computers of other Limewire users. Those files can then be considered by the searcher, selected and downloaded to the searcher's computer and then viewed by the searcher. In this way, child pornography is shared by users of the Limewire software who seek out that material. Material downloaded using Limewire by a searcher to his computer, in this case Mr. Bowers', is available then to be shared with others seeking similar material via the Limewire program. [ 23 ] Mr.

Kleeband's assessment of these computers is a preliminary step to the more detailed review and documentation of the computer content by a second expert from the Integrated Child Exploitation Team, in this case Sgt. Collins. In respect to each computer and the USB drive, Mr. Kleeband found both still images and video material which he believed met the definition of child pornography. He prepared a disc, marked Exhibit 24, with examples of still images and videos taken from the three sources. They were shown in court.

The still images and the six videos shown all meet the definition of child pornography in the Criminal Code , s. 163.1(1)(a). They depict children, clearly under 18 years of age, engaged in all manner of explicit sexual activity. Sexual organs are depicted for sexual

purposes. In one of the videos a dog participates. In others, adults interact sexually with children, although only the child's face is exposed. The identity of the adult remains hidden. The length of the videos varies, but one was nine minutes long and another was 15 minutes long. [ 24 ] The two computers and the USB drive were then examined by Sgt. Collins who was similarly qualified as an expert witness. He is highly trained in the discovery and preservation and

interpretation of evidence from computer sources. He is very experienced in the application of this expertise. He confirmed the presence of the Limewire program on each computer. He determined it was downloaded to each computer on different dates. On one computer that occurred in January of 2009, and on the other computer it occurred in April of 2007. I am satisfied from his evidence these programs were downloaded by or on behalf of Mr. Bowers. [ 25 ] Sgt.

Collins explained the process by which, using Limewire, a person is able to enter keywords and descriptive terminology and locate child pornography files available to download from other Limewire users. I earlier referred to the steps required to accomplish the downloading of such material. I am satisfied it requires the active participation by the person seeking out that material in order for that material to be accessible to the searcher. In this case, that was Mr. Bowers.

The evidence establishes that he altered the file-sharing settings on one of the computers in order to ensure his use of the computer was not slowed down when Limewire files on that computer were being accessed by a third party under the file-sharing function of Limewire. In respect of one of the computers, Sgt. Collins was able to identify a list of videos which were in the process of being downloaded using Limewire at the time the unit was seized. Some but not all of that material met the definition of child pornography. [ 26 ] Sgt.

Collins' initial report, Exhibit 26, shows the Limewire screen of the downloaded material available for sharing with Limewire users; a total of 43 files are in that list. The identifying terminology in all cases is consistent with child pornography. [ 27 ] In his more detailed report, Exhibit 27, Sgt. Collins stated that all three sources contained files consistent with the naming of child pornography. Twenty-six files were found on the user's desktop of one of the computers, being 25 videos and one image. All were reviewed by Sgt. Collins; ten met the definition of child pornography.

Thirty videos meeting the definition of child pornography were on the computers among Mr. Bowers' own personal documents and photographs. [ 28 ] In addition to Exhibits 26, 27 and 28, which are reports of Sgt. Collins, a further report prepared by Cst. Tousignant, an investigator from the ICE team and involved in this investigation, was also filed through Sgt. Collins. She was not available to give evidence. The evidence of Sgt.

Collins and these various reports is somewhat complicated, but what I take from that material is that ultimately investigators were able to isolate and confirm 253 videos meeting the definition of child pornography, totalling several hundred hours of viewing. [ 29 ] Investigators identified 1,205 photo images meeting the definition. Of these, 128 photographs were readily accessible to the average computer user, and 1,077 would be inaccessible to the average user because, for example, they had been deleted.

Inaccessible photographs, however, do not simply cease to exist on the computer; they can be retrieved with the right knowledge or special software. Of the 1,205 photographs, 651 are unique. The total number includes duplicates. [ 30 ] Sgt. Collins said the number of videos is not, in his experience, large, relative to other investigations, but falls into the medium- size category. He also said it was more extensive than average. A very small sampling was done to see how often individual items were viewed. I have concluded the sample was too small to draw any particular conclusions. [ 31 ] Sgt.

Collins agreed Mr .Bowers had not taken any steps to organize or categorize the material as is often seen, although from the photographs of his residence when police attended, I would conclude that Mr. Bowers is not a tidy individual, even in his own living space. [ 32 ] Sgt. Collins agreed there was no evidence Mr. Bowers took on an active role in sharing and communicating with others about child pornography beyond seeking the material through keyword searches and, through Limewire, making his library of material available for sharing. Sgt. Collins concluded Mr.

Bowers had viewed child pornography on the computer on the day preceding the seizure. [ 33 ] Sgt. Collins prepared a disc, Exhibit 31, including ten still images and ten videos sampled from the material discovered. That CD was played sufficiently that I was satisfied each image and video met the definition of child pornography in the Criminal Code . [ 34 ] To summarize, the material seized from Mr.

Bowers' home and his computers and confirmed to be child pornography is made up of the following: 1. 253 videos; 2. 1, 205 still images of which 128 were readily accessible to the average computer user; 3. the two doctored images of a child known to Mr. Bowers; 4. several images of unknown naked children discovered with the two doctored images; 5. a quantity of printed material describing sexual activity involving children under 18 years. [ 35 ] The determination of a fit sentence is governed by the purposes and principles of sentencing set out in s. 718 to 718.2.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions addressing one or more stated objectives. The objectives of particular importance in cases such as this are specific and general deterrence and denunciation of this conduct. I must also balance in the outcome Mr. Bowers' rehabilitation and other restorative objectives. Where the offence involves abuse of children under 18 years of age,

deterrence and denunciation must be the primary objectives. The sentence I impose must be proportionate to the gravity of the offenceand the degree of responsibility of the offender. I must consider aggravating and mitigating factors. The sentence should be similar tosentences imposed in similar circumstances. The custodial sentence I impose should not be longer than is required to address therelevant objectives. [36]

Section 718.2(iii) specifically provides that I must treat as aggravating abuse by the offender of a position of trust or authority inrespect of a victim. The Crown says Mr. Bowers violated a position of trust in relation to the young woman whose image Mr. Bowerstook from her Facebook page without her knowledge and defaced, creating child pornographic material. The defence says no trust wasviolated. This individual was not made or asked to do anything or otherwise taken advantage of, and learned only after the fact of Mr.Bowers' action. [37] I note that it was Mr.

Bowers who sought out and initiated contact with this 15-year-old. He identified his connection with hermother but focused his attention on developing an on-line and then telephone relationship with this young person. He requested access toher Facebook as a "friend." He initiated the offer of a car and the possibility of work, both at a bed and breakfast in France and here inthe Lower Mainland. In these ways she came to trust him. In a moment I will refer to her victim impact statement. [38] By virtue of his access to Facebook, having befriended this young person, Mr. Bowers had access to her photographs there.

Perhaps one could say that had he simply copied a photograph for his wallet, no abuse of that trust would likely have occurred. Buthaving been granted access to those Facebook photographs in what this young person would take to be innocent circumstances, heviolated a trust by misusing them as he did. I have considered the definition of "victim" in s. 2 of the Code. I conclude this individualfalls into the broad definition contemplated by that section. In relation to that portion of the offending material, I treat as aggravating thatMr.

Bowers violated a position of trust in respect to this young person. [39] In R. v. Sharpe, 2001 SCC 2 , [2001] SCJ No. 3, the Supreme Court of Canada in 2001 addressed the harm created bychild pornography and why it is that conduct relating to child pornography, including its production, distribution and possession, requiresstrong statements of denunciation and deterrence. The court recognized five basis on which prohibiting possession of child pornographycontributes to reducing the sexual abuse of children: 1. The material promotes cognitive distortions.

Repeated exposure may cause the awful abuse of children to appear normal andacceptable to viewers. 2. It may fuel fantasies that incite certain offenders to commit offences. 3. The offence of possession aids prosecution of those who produce and distribute child pornography, and in this way is a positiveside effect of the law. 4. Criminalization of possession of child pornography is likely to help reduce the grooming and seduction of children. 5. Children are used and abused in the production of child pornography. [40] The court made the following statement which I take from paragraph 92 in that decision.

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

The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates adownward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that thedegrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone. [41] I have reviewed the victim impact statements filed by the young person involved here, and by her mother. In those statements,both writers speak to these same concerns.

I was impressed by the young person’s ability to come before the court and speak about thesematters in this public forum. In particular, the statement of this person is to the effect that Mr. Bowers befriended her. She speaks incompelling words of the enormous impact his actions have had on her, her family and her relationships. She came to refer to Mr. Bowersas "Uncle Doug." She believed he was a trustworthy friend. She fears these images will, at some point in the future, reappear. [42] I will turn now to Mr. Bowers' circumstances.

The pre-sentence report and psychological assessment ordered by the court forsentencing scheduled for March the 7th, 2011 were prepared. I have reviewed both of those. At the time those reports were filed, Mr.Bowers' counsel, not Ms. Barnes, sought and obtained an adjournment to address unspecified issues he said were raised in the reports. Inher submissions on the last day, Ms. Barnes said that Mr. Bowers takes some issue with the pre-sentence report. The report states thatinformation provided by Mr. Bowers could not be verified because Mr. Bowers failed to provide contact information for familymembers. Ms.

Barnes said Mr. Bowers did not have collateral numbers and was not given much time to provide the information. [43] In excess of two years has now passed since those reports were filed. I am not aware that Mr. Bowers has ever provided thecollateral contact information. No other issues have been specifically identified with respect to the content of those reports. I haveconsidered Ms. Barnes' submissions and the contents of those reports, bearing in mind that considerable portions of the reports have notbeen confirmed through third parties. [44] I believe today is Mr. Bowers' 64th birthday.

He was 59 years of age during the period covered by this charge. [45] Mr. Bowers has a criminal record. Between 1969 and 1993 he has two convictions for false pretences, one for possession ofstolen property, a fraud conviction and two breach convictions. He has three convictions for breach of probation between 1996 and

1999. He has no convictions thereafter until the matter which is before me arose. Although the record does not include related offences and is somewhat dated, it cannot be said that Mr. Bowers is a first offender or unfamiliar with the court process. [ 46 ] Mr. Bowers grew up in Whitehorse. His father was physically and emotionally abusive towards him. He is now dead. Mr. Bowers' mother appears to have been relatively passive towards him. She lives now in the interior of British Columbia and is remarried. Neither report nor submissions suggest an ongoing and supportive relationship.

It appears there is no longer contact, or at least not significant contact with Mr. Bowers' several siblings. [ 47 ] Mr. Bowers says (text removed for publication). He has completed Grade 12 and some secondary education at community college. He has been steadily employed for the most

part in a variety of occupations. He has worked as a carpenter and as a jewellery maker for extended periods. I am told that he is now working as a contractor doing renovations, including what I am told is a lucrative project which will be lost if he is not able to serve an intermittent sentence. That work is not independently verified. [ 48 ] Mr. Bowers has been married three times; his last marriage ended in the early 1990's. Two sons were born to Mr. Bowers and his second wife. In 2001, Mr. Bowers' son David died, tragically, from injuries sustained in a snowboarding accident.

It is evident from the reports and Ms. Barnes' submissions that Mr .Bowers has struggled to overcome the loss of his son. It appears that this loss has affected his emotional and mental health in the years since. He reported to Dr. Lewis, who prepared the psychological assessment in 2011, that he continues to experience sadness, lack of interest in activities, low motivation and difficulty concentrating. He attempted suicide on the first two anniversary dates of his son's death. That report also notes that hospital records include a report of an earlier suicide attempt in 1992. Mr. Bowers reported to Dr.

Lewis recurring suicidal thoughts although no further attempts were identified. She noted these are concerning in light of features such as poor impulse control, a lack of social support and social isolation. Dr. Lewis concluded that Mr. Bowers' responses were significant with a significant depressive experience. [ 49 ] Mr. Bowers is described as a person with few social contacts and not a great deal of support in the community. Ms. Barnes advised that in more recent times Mr. Bowers felt his depressive feelings were abating somewhat. Dr. Lewis recommended in her report that Mr.

Bowers consult a psychiatrist and undertake therapy to address depression which contributed to her assessment that he was a moderate risk to reoffend, based on the information she had available. There is no suggestion that any such steps have been undertaken by Mr. Bowers. As an underlying concern contributing to Dr. Lewis' risk assessment, I have no basis to conclude reliably that Mr. Bowers is in a better position or place psychologically today than he was in 2011 when the report was completed. On a positive note, I am informed that Mr.

Bowers has abstained from marihuana and alcohol use since his arrest. [ 50 ] In the 2011 reports, Mr. Bowers denied a sexual interest in children. He asserted his sexual orientation was towards adult females. Even following his plea of guilty, Mr. Bowers appeared to dispute that he took any steps to acquire the child pornography on his computers. In her report, Dr. Lewis said Mr. Bowers stated that he does not feel guilty because he "didn't do it on purpose." The evidence establishes that it was Mr. Bowers who carried out the steps required using explicit search terms and Limewire to download that material.

He could not explain why he did so, nor did he assume responsibility for doing so during the preparation of either of the reports in 2011. Although he now has done so in the later stages of this sentencing proceeding, he appears to have little, if any, insight into why he sought out this material. Ms. Barnes refers to his depression brought on by the loss of son, a breakdown in relationship and other stressors; nevertheless, Mr. Bowers has not sought out professional help to address what may be the underlying issues which would motivate this conduct.

At least, I have not been informed of any steps that he has taken. [ 51 ] Particularly troubling in this context are his actions respecting the doctored photographs earlier referred to. Further, his explanation for possession of the written material, that it was the sexual activity itself and not the fact that it is oriented towards children which interested him is troubling and not compelling. These are the considerations which led Dr. Lewis to conclude Mr. Bowers was a risk to re-offend. Whether that is a moderate risk or not, these factors, in my view, remain essentially unaddressed by Mr.

Bowers despite the considerable time it has taken to bring this matter to a conclusion today. With the benefit of Dr. Lewis' recommendations available to him over the last two years, Mr. Bowers has not engaged on those recommendations in any significant way that I am aware of. I must conclude that he still has limited insight and understanding of the offences and what motivated him to act as he did, and he has not done anything really to address that situation. As a result, I conclude his specific deterrence remains a sentencing concern. [ 52 ] I have reviewed the authorities provided.

Several decisions among those, including R. v. Blatchley 2009 Carswell Ont. 5504 , R. v. Bock 2010 Carswell Ont. 3681 , R. v. B. 2010 Carswell Ont. 2820 , and R. v. Johannsen 2009 Carswell Ont. 3698 were more aggravated circumstances respecting either the offence or the offender or both, and the sentences imposed or upheld were well beyond the range sought by the Crown in the case before me. [ 53 ] I found more helpful R. v. Faget 2004 Carswell BC 262 , R. v. F. 2009 Carswell BC 770 , R. v. Lazore 2008 Carswell Ont. 6630 , and R. v. Ingvaldson 2012 BCPC 437 .

In those cases, sentences in the three-month to one-year range were imposed. Ingvaldson is a recent decision of Judge Kitchen of this court. He imposed a three-month jail sentence with lengthy probation in respect of a school teacher with no prior record. In that case, however, the offender had readily admitted his actions and had undertaken counselling and treatment to address underlying issues. Judge Kitchen concluded his specific deterrence was well in hand.

It is unclear whether an intermittent sentence had been proposed in that case, but in any event, the sentence was not intermittent. [ 54 ] Recently in R. v. Allen 2013 BCPC 69 , Judge Chen of this court imposed a one-year jail sentence and three years' probation. The offender had no prior record. He had a larger quantity of material than Mr. Bowers, which was well-organized, and he was clearly involved in an active way sharing that material. He sought an intermittent 90-day sentence. The Crown proceeded summarily in that case.

That offender claimed the material was unintentionally downloaded, an assertion put forward by Mr. Bowers at an earlier stage. He had stability and support in the community, but he minimized his conduct and had not taken steps to gain insight into his actions. In those circumstances the court concluded denunciation and deterrence precluded a sentence in the range that would permit an intermittent sentence to be imposed. [ 55 ] Mr. Bowers' conduct demands a sentence which makes a statement of denunciation in strong terms. His specific deterrence remains to be fully addressed.

Beyond that, general deterrence must have a significant place in assessing an appropriate sentence for the reasons set out in cases like R. v. Sharpe , supra .

[ 56 ] Mr. Bowers' rehabilitation is important, but it must be balanced against the predominant objective of deterrence and considered in the context of a complete lack of initiative on his

part in the years since the guilty plea. I conclude a 90-day sentence does not adequately reflect the balance to be struck. [ 57 ] Mr. Bowers, if you could now stand up, please? I impose a sentence of nine months' imprisonment to be followed by a probation order for a period of two years. [ 58 ] The conditions of the probation order will be that you keep the peace and be of good behaviour. You must report to a probation officer before four o'clock in the afternoon on the first business day following your release, and thereafter as directed by the probation officer.

You will reside where directed by the probation officer; you must not change that address without the prior written approval of the probation officer. [ 59 ] You will have no contact, directly or indirectly, with C.N. and L.N. You must not attend any place of residence, school or employment of either of those two named individuals that you know of, or learn of while the order is in effect. [ 60 ] There will be additional conditions, and I just want to address those with counsel in a moment, that will address counselling and issues surrounding access to computer equipment and so on.

I'm going to set that aside for a moment; I want to just hear from the Crown and Ms.

Barnes about that. [ 61 ] I am going to move on to order (reference removed for publication). [ 62 ] This is a primary designated offence under the DNA databank legislation and I direct that you supply a sample of your DNA to the National DNA Databank, that to be done during the course of your imprisonment. [ 63 ] The victim fine surcharge is going to be waived. [ 64 ] In addition, I am going to make an order that provides for forfeiture to the Crown of materials seized, with the exception of family photographs, and I understand that Sgt.

Collins was prepared to make a disc of that material as it appeared on the computer, and I understand he will do that. [ 65 ] I am going to as well order that all of the exhibits in respect of this matter be sealed, and that at the conclusion of a 90-day period from today's date if no appeal has been filed, the pornographic material, the computers, the hard drives and the USB drive be then delivered to the investigating agency for destruction, and I have noted those items to be the following list of exhibits: 6, 7, 8, 9, 10, 12, 14, 15, 17, 18, 19, 24, 30 and 31. [ 66 ] THE COURT: Now, I want to go back, Mr.

Kinash, to the issue of ongoing terms in the probation order, and also s. 161(1) of the Code and how that should apply or if those conditions should apply in this case given my -- I looked at the conditions that Judge Chen had included in his order in the Allen case as a possible format but I just wanted to -- [ 67 ] MR. KINASH: Yes, these -- [ 68 ] THE COURT: -- confirm what your position was. [ 69 ] MR. KINASH: When you look at the case law this -- this changes every year with respect to the movements in technology -- [ 70 ] THE COURT: Yes. [ 71 ] MR.

KINASH: -- and I think that he has -- he, as well as -- that he seems to have covered it. One matter I looked at this morning that appears to also have -- cover the whole range of technology, it's actually the bail -- bail document itself and I could pass it up to Your Honour. [ 72 ] THE COURT: Mm-hm, yes. Perhaps what I can just do is I can go on and add a general counselling condition, which I don't think I referred to a moment ago. [ 73 ] MR.

KINASH: No. [ 74 ] THE COURT: So there will be a condition that you attend, participate in and complete to the satisfaction of the probation officer any assessment, treatment or counselling that may be directed by the probation officer. That will be included, Mr. Bowers, as well. (PROCEEDINGS) [ 75 ] THE COURT: Mr. Bowers, I have determined that at this stage, based on the information that I have, that it is appropriate to address all four of the issues covered by s. 161 in the probation order.

Now, at some point in the future it may well be that through the process of counselling and so on, some aspects of this can be moderated, but in the absence of that, at this stage I have determined that it is appropriate to address each of these four issues in the order and so, with the benefit of what counsel have said today, I am going to do that. [ 76 ] Included in the order then will be the following: You are not to attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre. [ 77 ] You are not to seek, obtain or continue any employment, whether or not the employment is remunerated, or become a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

[ 78 ] You are to have no contact and must not communicate by any means with a person who is under the age of 16 years unless you do so under the supervision of a person who the court considers appropriate. [ 79 ] You are not to access the internet or other digital network. [ 80 ] Those are the conditions that will apply. Now as I say, in time it may be that those issues can be somewhat moderated, but at this stage, based on concerns that I have addressed in my decision, they will be part of the probation order. [ 81 ] Now Ms. Barnes, you want to go back and address the timing -- [ 82 ] MS.

BARNES: Okay, I just wanted to ask Your Honour one thing. Is Your Honour making those last four terms as conditions of a probation order -- [ 83 ] THE COURT: Probation order. [ 84 ] MS. BARNES: -- and not a s. 161 order formally? [ 85 ] THE COURT: They are included in the probation order. [ 86 ] MS. BARNES: That's fine. So it's not really a -- using the terminology of 161 -- [ 87 ] THE COURT: 161 refers to the probation order, and I have chosen to put them in a probation order. [ 88 ] MS. BARNES: That's fine.

Thank you. [ 89 ] THE COURT: Now, on the issue of the sentence coming into effect… (SUBMISSIONS) [ 90 ] THE COURT: Mr. Bowers, I have determined the sentence must start today. This matter has been over for these reasons to be delivered for a period of close to a month, and it was clear that the issue before the court was going to be whether or not an intermittent sentence should be granted, whether the timeframe would be appropriate for that to be considered.

The whole issue of the prospect that you would go into custody today was well known and the risk that that would occur, the possibility that would occur was before you as of the day the submissions were heard. The sentence commences now. You are in the custody of the sheriffs. (REASONS FOR SENTENCE CONCLUDED)