R. v. Quested, 2019 BCPC 95

Citation: R. v. Quested 2019 BCPC 95 Date: 2019-04-29 File No: 19371-2-C Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN EGERTON QUESTED REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.A. HIGINBOTHAM Counsel for the Crown: G. Merke and L. Vizsolyi Counsel for the Defendant: M. Mulligan Place of Hearing: Colwood , B.C. Dates of Hearing: January 15 and February 26, 2019 Date of Judgment: April 29, 2019

A corrigendum was released by the Court on May 8, 2019. The corrections have been made to the text, and the Corrigendum is appended to this document. [ 1 ] Mr. Quested has entered a guilty plea to a charge of accessing child pornography contrary to section 163 (4.1) of the Criminal Code . That

section provides for a mandatory minimum sentence of six months imprisonment where the prosecution proceeds by way of

summary conviction, as it has here. Coincidentally, a sentence of six months imprisonment is the sentence sought by the Crown, regardless of the mandatory minimum. [ 2 ] Counsel for Mr. Quested submits that imposing such a sentence would be grossly disproportionate to the circumstances of the offence and the offender, and asks me to reject the mandatory minimum sentence as unfit and to impose a conditional sentence in its place. The legal test [ 3 ] The framework for analysing this issue was formulated by the Supreme Court of Canada in R. v.

Nur, 2015 SCC 15 , and very recently used by our Court of Appeal in two sentence appeals, R. v. Swaby, 2018 BCCA 416 , and R. v. Alexander, 2019 BCCA 100 . In considering the Defence submission, my first task is to determine what I consider to be a fit sentence based upon the sentencing principles set out in

Part XXIII of the Criminal Code . Secondly, I must consider whether the imposition of the mandatory minimum sentence would be grossly disproportionate to the sentence I consider fit and proportionate. If the answer is no, the court will go on to determine whether, even if the mandatory minimum sentence is not grossly disproportionate for this particular individual, might it be for another offender in a different, but reasonably foreseeable case for the same offence. If the answer to that second question is yes, the sentencing judge will find that to sentence the offender to the mandatory minimum sentence would violate

section 12 of the Charter and will proceed to sentence the offender to the punishment deemed to be proportionate and fit. [ 4 ] In a case of this nature the primary consideration is to pass a sentence that will serve to denounce the offender’s conduct and to deter the offender and others from committing such a crime in the future. While a sentencing judge must keep these sentencing principles uppermost in mind, they do not preclude a consideration of the personal circumstances and previous good character of an offender or any other mitigating circumstances. In particular,

section 718.2 mandates that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances” (subsection d), and that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders…” (subsection e). Circumstances of the Offender [ 5 ] This offender, now 73 years of age, comes before the court with no criminal record.

He recently completed a career as a professional accountant and throughout his career held a variety of responsible positions with respected accounting firms. The materials submitted to me by defence counsel make it clear that Mr. Quested has, throughout his life, been a highly respected member of the community, a loving parent and doting grandfather. His wife of nearly fifty years also stands by him. [ 6 ] In reading the sentencing materials submitted on his behalf I am struck by the esteem in which he is held by others.

I am particularly impressed with the thoughtful letter written by his son D., the father of two children aged 13 and 11. I will quote from that letter, as it does much to describe the character of Mr. Quested, and, not incidentally, that of his wife M. He says of his childhood: My parents were always open to supporting friends, neighbours and teammates. From the time I was quite young , we were always driving kids from one location to another. My dad and I drove the neighbours to school every day. We packed half our lacrosse team into our old van and drove up and down the island to make it to games or practices.

As I was an only child, my parents always encouraged me to invite friends over for sleepovers or just to hang out for the days. We even billeted eight players from [omitted for publication] for the PeeWee Lacrosse Nationals. My parents found places for the players to sleep, creating bedrooms from curtains and sleeping bags, and wedging as many as possible on the floor of my bedroom. They fed nine growing boys three meals a day, often more, for a week.

My father became a permanent chauffeur, driving, quite literally, half of the [omitted for publication] team to their games, while still getting me to my games as well. I stayed in touch with all these players for years after. [ 7 ] In describing his father’s importance to the family, D. says this: My dad wasn’t just supportive of me and my friends. He has been the rock for immediate and extended family during times of crisis, and the thoughtful arbitrator during disputes. We have been unfortunate to lose four of my first cousins. Each time, my father helped comfort, support and plan.

He has been particularly important to my aunt, his sister, who saw both of her sons pass away far too young. Without my father’s assistance I don’t know that she would have made it through. Part of what makes him so supportive is his ability to listen and offer advice without judgement. At a time when my cousin and his wife were going through a particularly acrimonious divorce, both of them turned to my dad for advice and an attentive ear. He did what no one else in the family could: listen and offer understanding without becoming bogged down in the personal issues that plagued the dispute on both sides.

Ultimately, his love and concern for his family is illustrated in the last year and a half of my Grandma’s life. My Grandma passed away in November 2017. But she had not been herself for the last year and a half of her life. She suffered a stroke in 2016, and though she was still mobile and somewhat capable, she was no longer the stubborn independent person she had been. She still knew who everyone was, and she was thrilled when we would visit. She was especially happy when she saw her great grandchildren.

But she began to lose the ability to do the little things: keep track of her pills, make her own lunch and dinner, and take

part in a conversation. My grandmother loved nature. She lived in a house with a forested backyard, deer, raccoons, squirrels and rabbits. She was adamant, much like my father is, that she did not want to end up in assisted living. In order to honour that desire and keep her in her own home, my dad walked up to her house three times every day for the final year and a half of her life. He made sure she took her pills, re-bandaged her legs and left her a note every day reminding her what day it was and what the plan was for the day. He would go up in the afternoon to check on her and visit.

Then he would go up again after dinner to make sure she had eaten, was ready for bed and had taken her last pills. In the end, she did spend the final month of her life in the Priory, but without my dad’s dedication and love, she would have been in a home much

sooner. As a result, she was able to spend her final years enjoying her independence, walking out daily to feed the deer and other animals in her backyard. [ 8 ] D. also spoke in his letter about the close, loving relationship his father has with D.’s children. He eloquently describes his father’s commitment to, and involvement with, his grandchildren and the love reciprocated by his grandchildren to him. [ 9 ] Mr.

Quested has throughout his life generously served the community in his support of charitable causes, sometimes taking on a leadership role in addition to contributing financially. [ 10 ] There is no doubt that in recent years Mr. Quested has been under severe stress. In addition to being the primary care giver for his family members, he was particularly focussed on providing his mother with the care and attention she needed in order to maintain a decent quality of life. He began to drink heavily, often leaving work to go to bars where he would drink to the point of intoxication then hail a cab to take him home.

At one point a VIHA nurse who was assisting with his mother’s care became alarmed at what she perceived as his mounting stress levels and connected him with counsellors from the Alzheimer’s Society who told him in no uncertain terms that he was endangering his physical and mental health by continuing to look after everyone but himself. [ 11 ] After his arrest in November 2016, Mr. Quested began counselling with Andrew McWhinnie, a psychologist with particular expertise in sex related criminal conduct who routinely conduct risk assessments at the behest of government agencies both in Canada and the United States.

The therapeutic relationship continues to this day. [ 12 ] Mr. McWhinnie provided a detailed report of his counselling sessions with Mr. Quested as well as a risk assessment. He also noted that Mr. Quested has a “precarious medical condition involving a dangerous, and perhaps fatal, inoperable brain lesion” resulting from a brain stem stroke in August of 2017. [ 13 ] In his report Mr. McWhinnie distinguishes two different types of person attracted to child pornography.

His report states as follows: For some individuals – those prone to molest children and people afflicted with pedophilia, for instance – their use of child exploitation materials on the internet is not about coping with day-to-day strife and stress; those individuals search out child exploitation images as a way of fulfilling ongoing deviant sexual fantasies and desires. Many other men are like Mr. Quested; they are not pedophilic and are unlikely to harm a child and have children or grandchildren of their own. They are generally not criminogenic individuals with no other criminal history.

For this group, the question always becomes why they would decide to view child sex abuse images. These are men who have begun to feel that their lives are growing slowly unmanageable; they have a long history of resorting to so- called “legal” pornography and have relied on masturbation to pornographic imagery as a way of “soothing” the slings and arrows of their lives. Their attempts to cope are very often exacerbated by increasing reliance on the abuse of alcohol, which has grown out of control. Very often the sexual intimacy in their marriage has grown stale or non-existent.

Their increasing use of “normal” pornography increasingly fails to satisfy their needs as they reach the point known clinically as “satiation”. [ 14 ] Mr. McWhinnie goes on to describe that with respect to the latter, non-pedophilic group of men, they go on to find “darker, more prohibitive” images even though they may feel disgusted and ashamed of themselves. But the activity continues, with the men rationalizing their conduct by thinking they are just looking, it’s only a photograph, and that they are not personally harming a child. With this group of men, of which Mr.

Quested is one, there is no external reality at play to counter their rationalizations, and the offending activity continues. In the end, the offending activity resulted in the arrest of Mr. Quested. [ 15 ] In addition to the report of Mr. McWhinnie, defence counsel commissioned a risk assessment from another well-known professional, Dr. Peter Meuser. This was done so that no criticism could be made that Mr. McWhinnie’s report may be flawed or biased as a result of their therapeutic relationship. [ 16 ] In addition to interviews with Mr. Quested and collateral contacts, including Mr. McWhinnie, Dr.

Meuser administered psychological tests and conducted a full DSM mental status examination of Mr. Quested. [ 17 ] Dr. Meuser’s

summary is as follows: • If the assessor were a “betting man”, money would be squarely and significantly placed on John never coming before the Courts again for this, or any, issue; • The Assessor believes, with an exceptionally high degree of confidence, that John has soundly realized the tragedy, incongruence and far-reaching consequences and implications of his actions, not only for himself, family and social network, but for the hapless children in images he viewed; • The Assessor attests that John has overwhelmingly “learned-his-lesson”.

For greater clarity, the Assessor does not believe John to be a Paedophile, “risk” to any child, or be prone to any form of recidivism with the indexed behaviour; • The Assessor believes that due to his nature, strong moral convictions, and close family ties, John has suffered immensely from the fallout of his actions since his arrest in November 2016; • A strong argument might in fact be made that John suffered from the incongruity and dissonance of his action long before he was arrested, as he “knew” what he was doing was patently wrong and did not harmonize in any way with his principles and morals; • John has offered his “word”.

From some persons that may not be worth much. The Assessor believes that for John, given his overall personality constructs, obsessive-compulsive nature, inherently sound values and morals, and his commitment as a “man-of- his-word”, this matter might rightfully and assuredly be considered “closed”.

[ 18 ] Finally, Dr. Meuser concludes that Mr. Quested is not a risk to any children in his care. He also considers Mr. McWhinnie’s report a generally accurate assessment of Mr. Quested. Circumstances of the Offence [ 19 ] In September of 2016, police were notified by Google that a suspected child pornography image had been downloaded to Mr. Quested’s computer. Following an investigation, Mr.

Quested was arrested in November of that year, taken to court and released bail with strict conditions limiting his contact with children and prohibiting him from using any device capable of accessing the internet. [ 20 ] Within his computer, police investigators found almost 3400 images, of which over 1000 were considered to fall into the prohibited category of child pornography. These images were found in various locations, including his browser cache, trash and internet history.

The images were not stored in any organized fashion. [ 21 ] The images contained scenes of bondage, oral sex and other depravities with children whose age appeared to be between two and nine. Mercifully these images were not shared with the court, and I can say little more about them.

There is no dispute, however, that these images were graphic and disgusting, and to any objective observer revealed horrendous abuse of the children depicted. [ 22 ] The offending conduct took place for the two years prior to arrest. [ 23 ] Our societal understanding of the harm caused by the child pornography industry has evolved over time, particularly with a greater acknowledgment that merely viewing such images contributes to the abuse. Without a consumer there would be no product. Viewing child pornography is not a harmless pastime, and rationalizations must not be entertained.

In this case it is abundantly clear that Mr. Quested now fully understands the role he played in supporting the exploitation of children. What is a fit and proportionate sentence? [ 24 ] Based upon a review of the authorities I have no doubt that, absent compelling circumstances, a jail sentence is warranted. Such cases offer no reason to look in any depth beyond the principles of denunciation and deterrence. However in this case I find the personal circumstances of Mr. Quested compel me to give considerable weight to the provisions of

section 718.2 (

d) and (

e) and consider whether a non-custodial sentence would serve to provide a fit and proportionate sentence. [ 25 ] The aggravating factors in this case consist of the relatively large size of the collection of images and their nature, depicting as they do, very young children engaged in the most serious type of sexual activity, sometimes with adult males. [ 26 ] The mitigating factors are significant: • The lack of any criminal history; • The guilty plea; • Complete compliance with strict bail over a lengthy period of time; • Mr.

Quested’s otherwise good character; • That he has shown insight, and a true understanding of the harm to which his actions have contributed; • The fact that upon arrest he immediately commenced counselling with a psychologist with specific expertise; • The obvious remorse felt by Mr. Quested; • That he has already suffered greatly in terms of the impact of being charged; • That he has very strong support from his family; and • That his involvement with the offending material was situational in nature, as it was in R. v. Pommer, 2008 BCSC 737 . [ 27 ] Mr.

Quested burned himself out as a care-giver and turned to alcohol and child pornography as a means to relieve the oppression he felt. His arrest brought his drinking and internet browsing to an abrupt halt. It was a reality check like no other. He has faced his demons with the help of family and Mr. McWhinnie and is not a danger to anyone, including children. He has had a lifetime of honest work and exemplary service to the community in which he lives.

He has strong family and community support, and the events that brought him to court were an aberration in an otherwise long and productive life. [ 28 ] I think it is also important to remember that Mr. Quested has a significant and potentially deadly medical condition. He would not do well if confined to prison for a variety of reasons, including his age, the nature of the offence, and his health challenges. [ 29 ] In R. v.

Proulx, 2000 SCC 5 , Chief Justice Lamer said at paragraph 109 that: [109] While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence is generally better suited to achieving the restorative objects of rehabilitation, reparations, and promotion of a sense of responsibility in the offender... Importantly, however, the court also said at paragraph 22 that a CSO is: [22] …also a punitive sanction capable of achieving the objectives of denunciation and deterrence...

[ 30 ] In this particular case I believe that less restrictive sanctions, not imprisonment, are appropriate and proportionate in the circumstances. I am satisfied that a conditional sentence order with significant conditions, including reparations to the community, will satisfy both the need to denounce and deter the conduct to which he has pled guilty, and to achieve those restorative goals referred to by Chief Justice Lamer.

Given the mitigating factors present in this case I find a conditional sentence order to be a proportionate sentence. [ 31 ] I also find that the imposition of the mandatory minimum sentence of six months imprisonment would be grossly disproportionate for this particular offender, and would violate

section 12 of the Charter, which mandates that every person has the freedom not to be subjected to cruel and unusual punishment. [ 32 ] To take the matter a step further, if I am incorrect in my finding that a mandatory six month sentence would be grossly disproportionate for Mr. Quested, it would clearly be grossly disproportionate for the offender Swaby in the case of R. v. Swaby (supra). The Crown concedes that the Swaby circumstances constitute a “reasonable hypothetical” in all the circumstances. [ 33 ] I decline to sentence Mr. Quested to a mandatory term of imprisonment. Therefore Mr.

Quested qualifies in all respects for a CSO under s.742.1 of the Criminal Code of Canada and will be sentenced to a Conditional Sentence Order of twelve months duration followed by a Probation Order of twelve months duration. [ 34 ] The terms of the Conditional Sentence Order are as follows: • Keep the peace and be of good behaviour; • Appear before the court when required to do so by the court; • Report to a supervisor at the Community Corrections office in Colwood, B.C. within two working days and thereafter, when required by the supervisor and in the manner directed by the supervisor; • Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; • Notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation; • When first reporting to the supervisor you must inform him or her of your residential address and phone number.

You must not change either without first notifying the supervisor; • For the first three months of this order you must remain inside your residence or on the lot of your residence between the hours of nine p.m. and six a.m. daily.

You must present yourself immediately to the door to your residence or answer the phone when any peace officer or supervisor attends at your residence or calls to check your compliance with the curfew condition of this order; • You may be away from your residence during the curfew hours with the written permission of your supervisor, and if such permission is granted you must carry a copy of the written permission on your person when you are outside your residence. You may also be away from your residence during the curfew hours:

a) While in the course of your employment or community service work or when travelling directly to, or returning directly from, your place of employment or community service work;

b) In the event of a medical emergency and then only when at a health care facility or when travelling directly to, or returning directly from the facility;

c) When you are in the presence of a person approved of in writing by your supervisor. You must carry the written permission with you when you are away from your residence during the curfew hours. • You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription; • You must continue counselling with Andrew McWhinnie, or if he discontinues your counselling relationship, with such other counsellor to whom you are referred by your supervisor; • You must complete eighty hours of community work under the direction of your supervisor.

Your community service work must be completed by July 31, 2019; • You must not possess or access any pornographic material by electronic means depicting children or otherwise access any pornographic material depicting children; and • You must permit your supervisor or a peace officer upon demand to inspect any device you own, possess or use that is capable of accessing any computer network including the internet. [ 35 ] During the probationary period to follow you will be subject to these conditions: • You must keep the peace and be of good behaviour; • You will report to a probation officer by telephone, or in person if so directed the probation officer, as and when directed by your probation officer; • You are not to consume any alcoholic beverage outside your residence unless you are in the company of your wife M. or

your son D.; and • You must not possess or access any pornographic material depicting children. [ 36 ] There will be two ancillary orders. This is a primary designated offence and pursuant to

section 487.05(1), I make an order authorizing the taking of bodily samples from you for purposes of registration in the DNA National Databank. You will attend at a local police station within two weeks upon direction of your supervisor and submit to the taking of samples. Finally, pursuant to

section 490.012 you are required to comply with the Sex Offender Information Registration Act for ten years. __________________________________ The Honourable Judge R.A. Higinbotham Provincial Court of British Columbia CORRIGENDUM - Released May 8, 2019 In the Reasons for Judgment dated April 29, 2019, the following changes have been made: [1] Paragraph 11 should read: After his arrest in November 2016, Mr.

Quested began counselling with Andrew McWhinnie, a psychologist with particular expertise in sex related criminal conduct who routinely conduct risk assessments at the behest of government agencies both in Canada and the United States. The therapeutic relationship continues to this day. __________________________________ The Honourable Judge R.A. Higinbotham Provincial Court of British Columbia