R. v. Wakefield, 2023 BCPC 274

Citation: R. v. Wakefield 2023 BCPC 274 Date: 20230707 File No: 179506-2 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. CHRISTOPHER MICHAEL WAKEFIELD ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: M. Rankin, KC Counsel for the Accused: R. Horne Place of Hearing: Victoria , B.C. Date of Hearing: June 28, 2023 Date of Judgment: July 7, 2023

[ 1 ] THE COURT: Mr. Wakefield, we are now proceeding to sentence. After your trial in this matter, I found you guilty of each of the four Counts in this information. Specifically, I found you guilty of possessing, accessing, and distributing or making available child pornography contrary to ss. 163.1(4) , (4.1) , and (3) of the Criminal Code .

In addition, I found you guilty on Count 4 which, by amendment, charges that you stored firearms contrary to s. 5 of the Firearms Storage Regulations . [ 2 ] Crown concedes that Count 1 and 3 of the information, the Counts of possessing and accessing child pornography, are duplicitous. Applying the rule laid out in R. v. Kienapple , I enter a stay on Count 2 of the information. Convictions following this sentence will be entered on Counts 1, 3, and 4 of the information. [ 3 ] Mr. Wakefield, the issue in this sentencing is the length of sentence.

When we last spoke at the sentence hearing, I advised you that you should expect to go into custody today and that will be the case. I have taken the comments you made at the close of the sentence hearing into consideration. I understand the effect a custodial sentence will have on you, Mr. Wakefield and I expect you were perhaps hoping for a different result today. [ 4 ] The fact, Mr. Wakefield, is that you are being sentenced, even as a first-time offender, for serious criminal offences. As you may recall from the sentencing submissions made by Crown and on your behalf by Mr.

Horne, persons found guilty of the charge of possession of child pornography, let alone persons found guilty of distributing or making child pornography available, must expect to serve a custodial sentence and a not insubstantial one at that. Only in the very exceptional case will a sentence other than a custodial sentence be imposed and, in your case, Mr. Wakefield, there are no exceptional circumstances. [ 5 ] You are, Mr. Wakefield, someone that actively engaged in downloading and sharing child pornography over a lengthy period of time and in some volume.

It appears to have consumed a great deal of your time, if not your thoughts. It is also an activity you say you decided to discontinue in a moment as you sat on your couch under arrest. Sadly, Mr. Wakefield, it seems to have taken your arrest to cause you to re-evaluate the conduct, conduct you knew to be wrong, not only criminally wrong, but morally wrong in any conventional sense.

Had you not been arrested, I think it fair to assume you would have simply carried on. [ 6 ] Even despite this, there remains in your case a concerning lack of insight as to the impact and effect on children that are or may have become the subject of the kind of imagery you so casually downloaded and shared.

It shows in the disconnect between your vehement assertion at the outset of your comments to the court that you never touched a child and the actual suffering of the children that must, to even the casual observer, be evident in these images. [ 7 ] It is as if your never having touched a child inappropriately relieves you of any responsibility for their suffering or makes you somehow less morally culpability for what is essentially your willing and eager participation in child abuse. The children depicted in these images defined as child pornography did not and could not have consented to these assaults.

They are unwilling, vulnerable, and frankly, helpless victims and they are suffering. You, Mr. Wakefield, are as responsible for that suffering as the person or persons abusing those children and the person or persons recording that imagery. [ 8 ] All of this is to say that, in this sentencing, the question is the length of sentence, not whether it is to be served under community supervision because the facts here demand a sentence that sends a clear message of deterrence and denunciation.

That is particularly the case given your sharing of these materials with like-minded persons on the internet, your lack of insight even now as to the connection between your viewing and sharing child pornography and the effect on those anonymous victims, not to mention your contributing to the ongoing production of child pornography by the very act of consumption suggests the community will be safer with a lengthy sentence followed by a lengthy period of community supervision during which time you will be required to take counselling. [ 9 ] Mr.

Wakefield, the length of the sentence in this case turns on a number of considerations. It turns on the nature of the offence, your degree of responsibility which, in turn, is informed in part at least by your personal circumstances, the general range of sentencing for these offences, and mitigating and aggravating factors. The sentencing principle of totality also applies in some respects, particularly as you are being sentenced for a firearms offence.

While it is a separate discrete delict, it should not work to extend your sentence beyond what is just in all of the circumstances. [ 10 ] The offences in this case involve, firstly, the possession and distribution of sharing of child pornography. Most, but not all, of the relevant circumstances regarding these offences are set out in the agreed statement of facts filed by both counsel. Some reflect findings or fact and evidence admitted at trial following Voir Dire #2, in particular. [ 11 ] As the agreed statement of facts outlines, police executed a search warrant at your residence here in Victoria, Mr.

Wakefield, following a lengthy investigation. Police expected to and did find inside your residence various electronic devices capable of storing data. Among those items include a desktop computer which police found in the bedroom of your home. When the warrant was executed, you were actively downloading and uploading and sharing child pornography [ 12 ] In your testimony at trial concerning Count 4, you testified to likely waking up that morning and starting your computer and downloading and sharing child pornography.

However, you testified that, when police knocked on your door, you were in another room in the house doing some maintenance on one of your firearms. The point here, Mr.

Wakefield, is not to single you out as a firearms enthusiast, but to emphasize that your consumption and sharing of child pornography had become so habituated it was an activity you simply engaged in upon waking up and casually continued to engage in as you went about your daily routine. [ 13 ] Again, this underscores your indifference to the fate of these children as the sad and horrible images capturing their abuse passed through your computer screen in the hundreds that morning while you say you were in another room engaged in your firearms hobby.

I do not say you would be any less morally culpable had you been there actively monitoring your screen, only that your particular pattern of consumption of child pornographic material had certain unique characteristics that have a bearing on the sentence. [ 14 ] These include that police discovered you were running a file-sharing application called "aMule," described as a peer-to-peer software program used for downloading, uploading, and sharing computer files. Mr. Elder, a forensic computer expert brought in by police to examine your computer, observed that the user, that being you, Mr.

Wakefield, had input the search term, "6yo," which is

understood to refer to six-year-old children. That morning, your computer was downloading 260 files, all having the phrase, "6yo" in their title. [ 15 ] After examining the list of shared filed in the aMule program, Mr. Elder confirmed that the desktop computer was sharing 683 files, all of which had child pornography titles. Finally, having received an external hard drive and tower seized from your residence, Mr. Elder examined their contents and found thousands of video and image files that relate to child pornography.

A sampling of those files confirmed that the files did contain images and videos of children being subject to explicit sexual assault. [ 16 ] As Mr. Horne explained on your behalf, Mr. Wakefield, the purpose of the file sharing was not to profit. Rather, you were, it was submitted, part of an online community of individuals engaged in the sharing of child pornographic imagery. You would have contributed to the store of available imagery and in turn would have viewed what others contributed. In this way, you and that group of individuals supported the proliferation of child pornography. [ 17 ] Mr.

Wakefield, all sentences are governed by the sentencing provisions of the Criminal Code which I will discuss briefly later in these reasons, but fundamentally sentencing is an individualistic exercise. Much turns on the circumstances of the offender. Those circumstances help put the offending conduct in context. It can often help to identify what are called mitigating factors or factors that might reduce an offender's moral culpability for a criminal offence. In that regard, your personal circumstances were explored to some extent in a presentence report and to some extent during the sentencing submissions by Mr.

Horne on your behalf and finally by your comments at the close of that hearing. [ 18 ] What is notable at the outset in this regard, Mr. Wakefield, is that you come before the court at age 72 with no criminal record. You live alone, Mr. Wakefield, as you noted in your comments to this court at the end of the sentence hearing and are comfortable doing so. You describe yourself as a combination of a standalone person and as a talker, the latter a holdover from your days as a door-to-door sales representative. [ 19 ] You have a family, Mr. Wakefield, or more precisely you had a family. You are the father of five.

You and their mother separated decades ago. While you and she would not have had much of an ongoing relationship, you advised that whatever your relationship with your children was, none will speak to you now because of these charges. In addition to your children, you say other friends have abandoned you, though you are of the view that they therefore could not have been friends. One friend, someone who knows about these charges, is, by your admission, unaffected by any of these charges and remains a friend.

You assured her, you say, that you did not touch a child. [ 20 ] The residence in which police executed the search warrant in this case functioned as both your living space as well as your business address. For many years now, you have offered a vacuum repair business. As you told this court, to do so, it is necessary that you be able to rent suitable accommodations. That has been difficult to do since these charges were laid.

It will be more difficult in the future and I acknowledge that these convictions, your sentence, and the ancillary orders I have to make will adversely affect you. [ 21 ] The intent is not to hobble you, Mr. Wakefield, it is not to make your reintroduction to society unfeasible. Rather, you will be placed under a lengthy period of probation, the purpose of which is to foster your rehabilitation. That is for your own benefit, but also as significantly for the benefit and safety of the public generally, but I do acknowledge in this sentencing, Mr.

Wakefield, the collateral consequences of these convictions for you, a person aged 72, living on a limited pension with little in the way of community supports. [ 22 ] The difficulty is that there is little I can do in the sentencing to lessen these particular impacts. Even despite your being somewhat isolated and for that reason perhaps engaging or continuing to engage in viewing and sharing of child pornography, you are still highly morally culpable for what are serious criminal offences.

A community sentence order is not appropriate in this case and this has generally been found not to be appropriate in many cases. A number of these are cited by our Court of Appeal in R. v. Hagen , 2021 BCCA 208 , at para 41 . [ 23 ] In terms of the length of sentence, the Crown seeks a sentence in the range of 18 months to two years for these offences in addition to a sentence of somewhat less in the range of two months or so for the unsafe storage of your firearms. Mr.

Rankin suggests a global sentence of two years less a day would be fit and it enables this court to impose a lengthy period of probation, during which time, you would be under community supervision and be required to engage in counselling. [ 24 ] On your behalf, Mr. Horne seeks something less than 18 months for the offences charged in Counts 1 and 3. He suggests a small fine for the firearms offence with some time to pay. [ 25 ] Mr. Wakefield, in addition to the question of length of custody and a potential for a probation order, convictions on Counts 1 and 3 call for several mandatory ancillary orders.

I will set those out on the record after I speak to your sentence, but these will include a mandatory 20-year SOIRA order, a mandatory DNA order, and various firearms and other forfeiture orders. [ 26 ] As I mentioned only moments ago, in sentencing for offences under the Criminal Code , the court is bound the purposes and principles of sentencing and those are set out in ss. 718 to 718.2 of the Code .

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with other crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives.

Those include: to denounce unlawful conduct and the harm done to the victims or to the community that is caused by the unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to the victims or to the community. [ 27 ] In the case of the offences involving sexual violence against children, the sentencing objectives of denunciation and specific and general deterrence must be given considerable weight.

Section 718.01 of the Criminal Code states as much, in any event. Clearly, in cases such as this, rehabilitation in the form of sex offender treatment is also an important sentencing objective as it does offer protection to other potential vulnerable victims. Still, rehabilitation must generally be a secondary consideration in sentencing's for the offences here charged in Counts 1 and 3.

[ 28 ] Other relevant sentencing principles include the principle of proportionality as well as the principles of restraint and parity. With respect to parity, the general rule is that an offender should receive a sentence that is similar to one imposed on a similar offender for similar offences. I say it is a general rule because in R. v.

Friesen , 2020 SCC 9 , the Supreme Court has made clear that previous offences for sexual violence against children, that is to say, sentences before Friesen was decided in 2020, have been too low. [ 29 ] The fundamental principle of sentence is the principle of proportionality. An offender's sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender. [ 30 ] Here, Mr.

Wakefield, it seems that you have in your own mind and for your own purposes fixed on the idea that viewing and sharing child pornographic imagery is not as serious as the offence of child abuse, for example; that the viewing of child pornography is somehow disconnected from the physical abuse being suffered by the children whose images are captured. [ 31 ] The question of the seriousness of the possession of child pornography is raised time and again in sentencing decisions. In many of these cases, sentencing courts refer to some of the passages in R. v.

Andrukonis , 2012 ABCA 148 , a decision written many years ago but still sadly relevant today. In R. v. Krock , for example, 2020 BCSC 1858 , at paragraph 25 , the court emphasizes that there is no question possession of child pornography is a serious offence.

It then quotes from Andrukonis at paragraphs 29 to 30 as follows: [29] First, this Court has repeatedly stated that child pornography constitutes a clear and present danger to children round the world … Its very existence is inherently harmful to children and to society … We reject the proposition that because the possession of child pornography involves use of technology to view the sexual abuse of children elsewhere in the world, it is somehow much less culpable than abetting the sexual abuse of the same children in person.

The reality is that the children captured for life in the child pornography have been abused somewhere. Therefore, the fact that child pornography allows perpetrators to take in the sexual abuse of children virtually through the internet does not change its essential character. The unvarnished truth is this: possession of child pornography is itself child sexual abuse.

To fail to recognize that this is so improperly diminishes the gravity of this offence. [30] Second, the existence of a market for this material necessarily encourages and enables the continued production of child pornography. … “The existence of a market for this material is necessarily an inducement to the production and distribution of child pornography by others.” The producers, distributors and users of the child pornography are part of a destructive, often integrated, subculture intent on ruining children for their own perverted purposes. [ 32 ] So the offences here, Mr. Wakefield, are grave.

Having considered your personal circumstances, I see nothing that would serve to diminish your moral responsibility for having committed these offences. You are somewhat socially isolated, to be sure, but you are intelligent, you run a business and have done so for years. You would have had trusting customers. You have raised a family. You are obviously capable of functioning at a reasonably high level on the internet. You have or had friends. Even now, you have some, as well as some family support. You made a conscious choice to commit these offences, Mr.

Wakefield, and your poor decision making was not driven by anything other than your own personal gratification. You are highly morally culpable for having committed serious criminal offences involving the abuse of children. [ 33 ] The sentencing principles of deterrence and denunciation command a sentence that sends a message to you and others like you that these offences will not be tolerated within our community.

Within the bounds of the law, your sentence must reflect society's abhorrence of these offences and its insistence that the criminal justice system do what it can within the law to deter such offences from occurring, recognizing as we must that child pornography is a worldwide scourge. So long as there is a market of consumers, these materials will be produced and children will continue to be victimized to satisfy the perverse urges of others. [ 34 ] The law in this case requires that I consider other matters in addition to the sentencing objectives and the recognition of the doctrine of proportionality.

First, I must bear in mind the principle of restraint. You are here, Mr. Wakefield, as a first-time offender and I am mindful this court should be wary of imposing a custodial sentence for that reason unless it is otherwise appropriate. In this case, I find it is not.

Secondly, your sentence should be similar to sentences imposed on similar offenders for similar -- or similar offenders for similar offences, the parity principle; and thirdly, the length of sentence should be informed by both aggravating and mitigating factors. [ 35 ] With respect to parity, Crown relies on two cases to support a range for both the offence of possession of child pornography and for the distribution of child pornography. In R. v. R.J.H. , 2020 BCSC 1070 , the court held at para 40 that the sentencing range was roughly between one to four years with respect to distribution.

With respect to possession, in R. v. Hagen , 2021 BCCA 208 , the court writes at paragraph 69 that the sentence of 10 months in that case for possession of child pornography was well within the generally accepted range of sentences for possession, namely, four months to two years. Here, it bears noting that Gladue principles played a significant role in Mr. Hagen's sentence which was ultimately upheld on appeal. [ 36 ] Both Crown and Mr. Horne on your behalf have referred to a number of cases in which offenders have been sentenced for the offence of the possession and distribution of child pornography.

The facts and circumstances of the offender differ in all of these cases, but generally they provide some guidance as to the appropriate disposition in this case. I have reviewed all of the cases. I am going to refer to only some of these in these reasons with a particular emphasis on decisions post- Friesen . [ 37 ] In R. v. Adams , 2022 BCSC 2289 , the offender, Mr. Adams was sentenced to 16 months in custody and a further two-year probation for the offence of possession of child pornography. Mr. Adams appeared before the court at age 31 with no criminal record.

He was found in possession of several hundred images depicting sexual assaults on children, some described as serious and clearly horrific. Mr. Adams had been viewing child pornography for about a year. Despite his having pled guilty, the sentencing judge noted Mr. Adams' reported lack of insight into the offence and his lack of understanding of the harm caused by his behaviour. Mr. Adams was noted to exhibit a lack of remorse, as well, again, despite the guilty plea.

At paragraph 44 of the case, the court notes that, while that lack of remorse is not an aggravating factor, it speaks to the offender's risk to reoffend. [ 38 ] In R. v. L.H.H. , 2023 BCJ No. 797 , the accused received a custodial sentence of 13 months followed by a two-year probationary period after entering a guilty plea on the charge of possession of child pornography. In imposing that sentence, the court referenced several authorities, two post- Friesen , satisfying itself that the sentence was well within the range of sentencing for the offence.

The court in L.H.H. found a number of mitigating factors present, most significantly, efforts the accused had made towards rehabilitation, the

accused's remorse, and that he had developed some insight into the harm caused by his conduct. There were aggravating factorsincluding the size of the collection at issue, numbering in the hundreds of thousands all saved as well as their nature, horrifying, asdescribed by the court at paragraph 33. [39] In R. v. R.J.H., the accused, R.J.H., was sentenced for both the offence of possession of child pornography as well as for theoffence of making available and distributing child pornography contrary to s. 163.1(3), the charge at issue in Count 3.

R.J.H. and hiscommon law spouse, sentenced at the same time for possession of child pornography, both pled guilty. The materials at issue in R.J.H.were extensive, numbering in the thousands, many of which were on the most serious end of the spectrum as described in paragraph 5 ofthe court's reasons for sentence. [40] Having participated in a psychological assessment for the sentencing, R.J.H. was diagnosed with pedophilic disorder. It wasdetermined he met the criteria for alcohol disorder. He presented as being a moderate risk for recidivism and presented as having a poorunderstanding of his risk of reoffending.

Crown sought a 40-month sentence while the court imposed a sentence of 30 months givenseveral factors. These included some mitigating factors: the guilty plea, R.J.H.'s age and somewhat difficult childhood. Moreover, thecourt distinguished R.J.H.'s distribution of child pornography of other more serious cases including R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, and R. v. Prince, 2018 BCSC 987 and that R.J.H.'s distribution consisted of his online communication withvarious individuals and with his co-accused, C.S. [41] I have already noted the 10-month sentence imposed on Mr.

Hagen, which sentence was upheld on appeal. Mr. Hagen, whocame before the court aged 35 with no related record, pled guilty to possession of child pornography after police found he haddownloaded several hundred videos of child pornography onto his phone. The sentencing judge described the collection as moderate, notinvolving the affliction of bodily harm or gratuitous violence against the children. In sentencing, Gladue factors were present and wouldhave served to reduce Mr. Hagen's moral culpability. Mr.

Hagen was described as remorseful and someone who had sought counsellingon his own initiative. [42] Finally, in R. v. Perry, 2022 BCPC 251, Mr. Perry received an 18-month sentence for possession of child pornography. WithinPerry, a number of cases are reviewed which also provide guidance on sentencing for the offence of possession of child pornography. Attrial, Crown proved Mr. Perry was in possession of a significant amount of child pornographic materials on both the home computer andhis cellphone and that some of the imagery stored on these devices was at the most serious end of the spectrum.

Aside from presentingwith no criminal record, there were no mitigating factors in Perry. As in your case, Mr. Wakefield, Mr. Perry, too, outlined a number ofcollateral consequences to the conviction that added to the burden of his sentence. The aggravating factors included the nature and size ofthe so-called collection of imagery as well as Mr. Perry's risk to children as evidenced by his canny ability to connect with young personson the internet. Mr. Horne on your behalf submits the sentence in this case should be lower than that imposed on Mr.

Perry because ofthis lack of aggravating factor. [43] I noted earlier that aggravating and mitigating factors are important in a sentencing. They inform an appropriate length ofsentence at the least. In R. v. Kwok, , many such factors are helpfully listed as the court writes in part of paragraph 7: Generally speaking, any of the following are considered to be aggravating factors: (

i) a criminal record for similar or related offences; (ii)whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of thecollection (including the age of the children involved and the relative depravity and violence depicted); (

v) the extent to which theoffender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past byassaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization ofchildren for profit as opposed to merely collecting it by free downloads from the internet. Generally recognized mitigating factorsinclude: (

i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender hasshown insight into his problem; (iv) whether he has demonstrated genuine remorse; (

v) whether the offender is willing to submit totreatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which theoffender has already suffered for his crime (for [instance], in his family, career or community). [44] Using these factors as a guide, I find the mitigating factor in this case to be your lack of a criminal record, Mr. Wakefield, as wellas I acknowledge some of the collateral consequences of this sentence which I have outlined.

The aggravating factors in sentencing forthese two offences include a prolonged period of offending, ending only upon your arrest. You were, Mr. Wakefield, a prolificdownloader and sharer of child pornography. Mr. Horne described you as being part of a sort of an online community of individuals whoshared and viewed with you.

In addition to these factors, the size and nature of the collection described in the agreed statement of factsalso constitutes an aggravating factor, though unlike most of the other cases, this court is not in a position to say much more of thematerials in your possession. [45] The actual crime of distribution or sharing child pornography does not constitute an aggravating factor, Mr. Wakefield that is anoffence charged. The sharing or distribution, noting it was not for profit, is however conduct that merits a not insignificant custodialsentence in order to send a message of deterrence, if not denunciation.

That was fundamentally the point in R. v. R.J.H. [46] As I consider the range of sentencing for these offences and the circumstances in the various cases in which the sentences havebeen imposed for these offences as well as the aggravating and mitigating factors and bearing in mind the collateral consequences ofthese convictions and this sentence, I am nonetheless convinced that for the conduct at issue, Mr. Wakefield, the sentence could easilyapproximate the 30-month sentence imposed in R.J.H. [47] With respect, I find I cannot agree with Mr.

Horne that the sentence in this case should be less than the sentence imposed inPerry. For one thing, it entirely discounts the fact you are here charged not only with possession, but also for distribution of childpornography. Possession of this material clearly harms children for the reasons outlined. The distribution or sharing of that material, evenwith like-minded persons in an online chatroom, unquestionably exacerbates that harm. It has to be soundly discouraged and denounced. [48] While I find a fit disposition could easily find you serving a federal sentence, Mr.

Wakefield, I accept the wisdom in a provincialsentence that enables this court to impose a lengthy period of probation. The sentence will be long enough to have a deterrent effect, but

the probation order also fulfills the purpose and principles of sentencing in that a lengthy period of community supervision and counselling should work to best ensure the safety of our community and, at the same time, facilitate your rehabilitation. [ 49 ] Before I impose the sentence on these two offences, I must address Count 4, that is, the unsafe storage of firearms. I gave my reasons for the finding of guilt on Count 4 earlier this morning and I do not propose, therefore, to reiterate those in any detail here.

Briefly, I found the firearms in one of the rooms in your home were not safely stored and you left that room unlocked to answer your front door. Inside that unlocked room were seven firearms, six of which are non-restricted, only two had trigger locks, all had their firing bolts in place, ammunition was in the room within arm's reach of the guns. It was not separately stored as required under the Regulations . For that reason, I found, as well, that it would not have mattered if you had locked the door to the room.

The weapons were nonetheless unsafely stored. [ 50 ] Crown seeks a sentence of three to six -- or originally sought a sentence of three to six months for this offence, emphasizing your carelessness with the firearms certainly relative to the danger they posed. As for range, the Crown refers to R. v. Libon , 2013 BCCA 156 , at para 9 ; R. v. Robertson , 2018 BCSC 521 , at para 131 ; and R. v. Hale , 2018 ABCA 58 , as demonstrating that the range can traverse anywhere from a fine to a suspended sentence to a period of six months' custody. [ 51 ] In R. v.

Beck , 2016 Carswell Nfld 149 , for example, the court granted an absolute discharge to a 74-year-old offender with no prior record who pled guilty to the unsafe storage of firearms in his home in which he was the sole resident. It is impossible, I find, to discern the exact facts in that decision. [ 52 ] In Hale , the court rejected a discharge, holding that the unsafe storage in that case rose well above a minor violation.

Rather, the court found the accused, who possessed a substantial arsenal of dangerous weaponry, dealt with them in a manner that constituted a "serious and protracted departure from the law." The description in the reasons of Mr. Hale's handling and storage of his weapons over the years more than bears this out. [ 53 ] Mr. Libon received a 20-month suspended sentence for this offence for having stored firearms contrary to s. 5(1)(b)(iii) and (

c) of the Storage Regulations . That is to say that Mr. Libon had stored his firearms in a room not constructed so that it could not be readily broken into and, in any event, in a room where ammunition was present and not securely stored. That sentence was upheld on appeal. [ 54 ] Finally, the accused in R. v. Robertson received a six-month sentence for the careless storage of firearms concurrent with sentences for a number of other offences.

Clearly, careless storage was involved in that case in a home with children, but also involving alleged drug trafficking and the presence of stolen weapons. [ 55 ] In this instance, I accept there is evidence of carelessness on your part, Mr. Wakefield. If nothing else, clearly, you had no intention of abiding by the regulation requiring that the ammunition be stored separately from any firearms. As for leaving the door unlocked where the firearms and ammunition were stored, this evidences a lack of due diligence, but on the evidence only at that time.

There is negligence here and a lack of care, to be sure, but you are here today being sentenced as a first-time offender. The firearms were dangerous. There were, however, no other persons in the home, certainly, not children, and in my view, a custodial sentence on these facts is not necessary.

However, neither is a discharge of any kind a fit sentence. [ 56 ] I find, given the range of sentences and the circumstances in this case, bearing in mind all of the ancillary orders that must be made, that a fit sentence on Count 4 is a fine and that fine will be in the amount of $1,000, and I will speak to time to pay shortly. [ 57 ] At this point, Mr. Wakefield, I am going to proceed to sentence so I will ask you to stand, and I may need you to move because I cannot see you there. [ 58 ] THE COURT: Thank you, Mr. Wakefield. [ 59 ] Mr.

Wakefield, for the offence of possession of child pornography contrary to s. 163.1(4) of the Criminal Code , I sentence you to 18 months in custody. For the offence of transmitting or distributing child pornography contrary to s. 163.1 of the Code , I sentence you to two years less a day to be served concurrently with the sentence for Count 1. On Count 4 of the information, as I have indicated, I impose a fine in the amount of $1,000 and, at the end of this, we will discuss time to pay. [ 60 ] In addition to the sentence, the global sentence two years less a day on Counts 1 and 3, Mr.

Wakefield, you are going to be subject to a three-year probationary order. I am going to set out the conditions of that probation order shortly. [ 61 ] At this point, Mr. Wakefield, I am going to deal with the ancillary orders as well as the probation order and ultimately speak to time to pay on the fine. So I am going to invite you to sit back down because this is going to take a while.

I have indicated that in addition to the custodial sentence and the probation order, the conditions of which I am going to set out, there are a number of mandatory orders that have to be made and I will make those now. [ 62 ] Counts 1 and 3 are primary designated offences pursuant to s. 490.01 of the Code . Because the maximum term of imprisonment for this offence is 14 years in accordance with 490.013(2)(

b) of the Code , I order you to comply with the Sex Offender Information Registration Act for a period of 20 years. [ 63 ] Counts 1 and 3 are also primary designated offences for the purposes of the provision of DNA. In accordance with s. 487.051(1) of the Code , I make an order in Form 5.03 authorizing the taking of bodily substances from you for the purpose of registration in the DNA national databank. The samples will be taken from you while you are in custody and you must submit to the taking of those samples. [ 64 ] Pursuant to s. 161 of the Code , Mr. Wakefield, you are prohibited, starting on the date of your release from custody, for a period of 10 years thereafter from: (

a) attending a park, a public swimming area, or community centre where persons under age 16 are present or can reasonably be expected to be present, or a daycare, school ground, playground, or community centre, except with the written permission of your probation officer; if you have the permission, you have to carry it with you whenever you are in a prohibited area; (

b) seeking, obtaining, or continuing any employment or volunteer activity in a capacity which involves you coming into contact with or working with or supervising any child under age 16; having contact or communication with a person who is under the age of 16 years, unless, (b), having any contact including communication by any means -- or, sorry, having any contact, including communication by any means, with a person who is under the age of 16 years unless: (1) you are in the presence of or under the supervision of a person approved in writing by the court, your probation officer, or the person to whom you are reporting under the Sex Offender Information Registration Act , in which case, you must carry a copy of the written permission with you; or you are in the course of your lawful employment with the circumstances of your employment being approved in advance by the court, your probation officer, or the person to whom you are reporting to under the Sex Offender Information Registration Act , in which case, you must carry a copy of the written permission with you; and as otherwise approved in advance in writing by the court, your probation officer, or the person to whom you are reporting to under the Sex Offender Information Registration Act , in which case, you must carry a copy of the written permission with you; using the internet or other digital network for the purposes of accessing any content that violates the law or accessing any social media site, social network, or internet discussion forum or chatroom or maintaining a personal profile on any service where persons under age 16 years are present or may reasonably expect to be present. [ 65 ] Pursuant to s. 110 of the Criminal Code , Mr.

Wakefield, I make an order prohibiting you from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, or all such things for a period of five years following the date of your release from custody. [ 66 ] A conviction under s. 86 of the Criminal Code requires the court to order, pursuant to s. 491 of the Code , that the weapons and ammunition seized from your residence be forfeited to the Crown to be disposed of or otherwise dealt with at the direction of the Attorney General. [ 67 ] Finally, the Crown seeks, and I order, that pursuant to s. 164.2 of the Criminal Code , the electronic devices seized from your residence be forfeited to the Crown again to be disposed of or otherwise dealt with at the direction of the Attorney General. [ 68 ] I am going to return now to the probation conditions. [ 69 ] I will indicate firstly, Mr.

Horne, with respect to the victim impact surcharge, that would be $600, I am going to waive that victim impact surcharge in the circumstances. [ 70 ] Time to pay the $1,000 fine on the -- on Count 4? [ 71 ] THE COURT: Okay, four years. [ 72 ] CNSL R. HORNE: Thank you. [ 73 ] THE COURT: Okay. Now, back to the probation order, Mr. Wakefield. Madam Clerk, it is four years on that, then, so $1,000 on Count 4, four years to pay. [ 74 ] On the probation order, I am going to set out the conditions, Mr. Wakefield. You are going to be required to sign this much later and have that order be read out to again.

I am just going to set the conditions out now. [ 75 ] So -- and as I say, it is a three-year order, and Madam Clerk, the Crown has given us a draft of the order. I have not heard any concerns from Mr. Horne. [ 76 ] I assume there is no issue with the proposed probation order, Mr. Horne? [ 77 ] CNSL R. HORNE: Those were discussed or at least exchanges of emails and there are not. [ 78 ] THE COURT: The order requires, first of all, the mandatory conditions, you must keep the peace and be of good behaviour. Attend at court when required to do so by the court.

You will also have to notify the court or your probation officer in advance of any change of name or address and promptly of any change of employment or occupation. [ 79 ] The reporting requirement will be this, that you will report in person to the probation office at 836 Courtney Street in Victoria, British Columbia, within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different timeframe and, after that, you are going to report as directed by your probation officer. [ 80 ] When you report to the probation officer, Mr.

Wakefield, you must provide them with the address or the location where you live and/or regularly sleep as well as your phone number if you have one. You must not change either without first notifying your probation officer in writing at least seven days before making the change. [ 81 ] There is an order, Mr. Wakefield, that you attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer.

That should include sex offender treatment. [ 82 ] There is an order, as well that you must not seek, obtain, or continue with any volunteer position or employment that involves being in a position of trust or authority toward a person under the age of 16, unless you have the advance written [ 83 ] You must not go to any public park, public swimming area, daycare centre, school ground, playground, community centre, theatre where persons under the age of 16 years are known by you to be present or reasonably could be expected to be present. [ 84 ] You must not have contact or communication directly or indirectly or be within the presence of any person under the age of 16 years of age unless: (1) you have a court order made by a master, judge, or judicial justice who has received a copy of this order; (2) in the immediate presence of an adult person over the age of 16 years who is also in the immediate presence of the person under 16; (3) in

the immediate presence of a guardian of the child; incidental communication, contact, or presence in the course of your or the child's employment; incidental communication, contact, or presence in a public place where other adults are present. [ 85 ] You must not access any computer network, including the internet, or possess any device capable of accessing the internet unless: you are in the immediate presence of your probation officer; you are in the immediate presence of a person approved in advance by your probation; you have the prior written permission of your probation order and, if you have that, you will have to carry that with you. [ 86 ] So those are the conditions of the probation order.

I have waived the victim impact surcharge. [ 87 ] Madam Clerk, any issues? [ 88 ] THE CLERK: Not at this time, Your Honour. [ 89 ] THE COURT: All right. Well, that does, then, dispose of the sentence. Mr. Rankin? [ 90 ] CNSL M. RANKIN: Just the one thing, Your Honour, and this is probably me mishearing you, but I think when Your Honour indicated that the count that would be stayed under Kienapple , you may have said Count 3, but I just want to clarify for the record that it's Count 2 and it may have been me that misunderstood you, but -- [ 91 ] THE COURT: It may or may not have been. [ 92 ] CNSL M.

RANKIN: -- just to clarify that. [ 93 ] THE COURT: It does not matter. I will clarify. I stayed Count 2 and I sentenced on Counts 1 and 3. [ 94 ] CNSL M. RANKIN: Thank you, Your Honour. [ 95 ] THE COURT: Yes, and four. All right. [ 96 ] Mr. Wakefield, that concludes the sentence today, sir. I wish you luck. (REASONS FOR SENTENCE)