R. v. Mitchell, 2021 BCPC 246

Citation: R. v. Mitchell 2021 BCPC 246 Date: 20211013 File No: 22001-2 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRAVIS CURRY MITCHELL ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.V. SACCA Counsel for the Crown: S. Rupertus Counsel for the Defendant: C. Hatcher Place of Hearing: Colwood , B.C. Date of Hearing: September 15, 2021 Date of Judgment: October 13, 2021 Introduction

[ 1 ] Mr. Travis Curry Mitchell pled guilty to possessing child pornography on June 9, 2020 contrary to s. 163.1(4) of the Criminal Code . [ 2 ] The Crown proceeded summarily. [ 3 ] The Crown is seeking a custodial sentence of 12 months followed by a 12 month period of community supervision. The defence is seeking a conditional sentence order (CSO) in the range of 12 to 18 months followed by a lengthy period of community supervision. Circumstances of the Offender [ 4 ] Mr.

Mitchell is 32 years of age, he was born in Vancouver, completed high school and went on to obtain a university degree from the University of Victoria. He was employed with the Boys and Girls Club and most recently, with the Greater Victoria School Board, teaching grades 4 and 5. He has been on leave as a result of the within charges. [ 5 ] Mr. Mitchell is not in a relationship, does not have dependants and has been residing with his parents since October 2020.

Circumstances of the Offence [ 6 ] On June 8, 2020, police were notified by the parent of a youth who had found inappropriate messages and pictures on her 12 year-old son’s cell phone. The youth had been having sexualized conversations with his former camp leader, Mr. Mitchell. Police attended and spoke with the family and obtained photographs of the communications. A statement was taken from the youth the following day, and Mr. Mitchell was subsequently arrested. At the time of arrest, his cell phone and computer were seized. [ 7 ] Child pornography was found on Mr.

Mitchell’s devices consisting of approximately 500 to 700 child relevant images. Many of the images were characterized as animated rather than real. Although I was not presented with the images, the Crown described the images as “not being of a terribly egregious nature”. The pornography apparently did not include binding, bestiality, torture, adult on child activity or penetration. The images were pornographic in the sense that their main focus was prepubescent genitals. All of the images were obtained by Mr.

Mitchell from social media including Instagram and Tumbler and were not purchased or downloaded from commercial sources. [ 8 ] I have to accept from the limited information provided by the Crown that the child pornography was largely animated, focused on prepubescent genitals, was obtained through unpaid sources and would be characterized on the lower end of the scale of pornography or “not being of a terribly egregious nature”. Crown’s Position on Sentencing [ 9 ] The Crown suggests a 12 month custodial sentence followed by 12 month period of community supervision.

In addition, a number of ancillary orders are sought including a DNA Order, SOIRA designation for 10 years and the forfeiture of the cell phone and laptop seized. Defence Position on Sentencing [ 10 ] The Defence suggests a 12 to 18 month conditional sentence order followed by a lengthy period of community supervision. In the alternative, if a custodial sentence is imposed the defence suggests a range of 4 to 6 months to be appropriate in the circumstances. Victim Impact Statements [ 11 ] No victim impact statements were filed and the identity of the children in the images possessed by Mr. Mitchell is unknown.

Psychological Assessment and Presentence Report [ 12 ] Mr. Mitchell co-operated and participated in the preparation of a psychological assessment and Presentence Report. He disclosed that he began viewing child pornography two years prior to the offence. He was initially introduced to explicit child pornography at the age of 15 by a 39 year-old man with whom he had his first sexual relationship.

This exploitative relationship caused him trauma which he has only recently began to appreciate and process. [ 13 ] He has no history of mental illness but acknowledged suicidal ideation after his arrest going so far as to make a suicide plan and take steps to execute his plan. Mr. Mitchell credits his family and counsellor for saving his life. [ 14 ] He was clear in his understanding that by possessing child pornography he perpetrated the child abuse and harm caused to the children in the images. [ 15 ] Mr.

Mitchell was found to have problems with self-awareness, stress coping and problems resulting from the child abuse he suffered at adolescence. He suffers from problems with intimate relationships. He was found overall to have a Personality Assessment Inventory within normal limits and was found to be a low risk for sexual violence. Letters of Support [ 16 ] A number of letters of support for Mr. Mitchell were presented including letters from his father, sister, co-workers and counsellor. [ 17 ] Mr. Russell of WayPoint Counselling confirmed that Mr.

Mitchell had attended 37 counselling sessions with plans to continue. He was described as dedicated and committed to counselling showing progress in managing his suicidal ideation, accessing supports,

taking accountability for unhealthy behaviour and processing traumatic adolescent experiences. [ 18 ] His family and co-workers describe him as sincerely remorseful and regretful. They confirm that Mr. Mitchell understands the discord between his role in the community as a teacher in a position of trust and the abuse he perpetrated by accessing child pornography. Primary Objectives of Sentence [ 19 ] The primary objectives of sentencing in this case are denunciation, deterrence and rehabilitation. [ 20 ]

Section 718.01 requires me to give primary consideration to the objectives of denunciation and deterrence when imposing a sentence for an offence that involves the abuse of a person under the age of 18 years. [ 21 ] Other sentencing principles apply including the principles of restraint and parity. The principle of restraint is that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and reasonable in the circumstances.

The principle of parity is that sentences should be similar for similar offences committed by similar offenders in similar circumstances however uniformity in sentences is secondary to a fit sentence and a uniform approach to sentencing. Sentencing Range [ 22 ] In recent years, courts have developed a greater appreciation of the harm caused to children by the manufacturing, distribution and possession of child pornography. This has led to a greater emphasis on denunciation and deterrence causing sentences to increase. R. v.

R.L.W. , 2013 BCCA 50 at paragraph 49 . [ 23 ] These growing sentences for the possession of child pornography in British Columbia reflect a deeper societal understanding of the harms caused by child pornography. As stated by Hicks P.C.J. in R. v.

S.D.M. , 2015 BCPC 112 at paragraph 49 : [49] Children are victimized in the most brutal and intrusive way at every stage of the child pornography continuum; from the grooming to the undressing, to the posturing, to the exposure, to the forceful intrusion into their most private places, to the physical force and restraint of the child, to threats and physical violence, and to the emotional struggle many of these children will endure over a lifetime.

There is a concern that this offending against children is increasing and that the easy ability to circulate this material over the internet is encouraging that growth. Once these images are introduced to the internet, there is no ability to control where they appear, what use is made of them, how often they are re-sent and viewed. Those who possess, view, chat about and exchange child pornography provide the encouragement and the audience for those who abuse children in order to produce that content.

Thus the emphasis on deterrence and denunciation as the primary sentencing objectives in cases involving those who possess and circulate this material. [ 24 ] The Supreme Court of Canada in R. v. Friesen , 2020 SCC 9 , emphasized that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities. Incarceration will be necessary in all cases of possession of child pornography, except in exceptional cases, to properly emphasize the principles of denunciation and deterrence. [ 25 ] The Crown relied upon R. v.

Alexander , 2019 BCCA 100 , in suggesting the appropriate custodial range for a first-time offender to be between 6 months and 15 months. [ 26 ] The Defence relied upon R. v. Swaby , 2018 BCCA 416 and R. v. Proulx , 2000 SCC 5 as support that in “exceptional cases” a conditional sentence order may also be a punitive sanction capable of achieving the principles of denunciation and deterrence. [ 27 ] In the matter of Swaby , the Court of Appeal dismissed a Crown appeal against sentence in a child pornography case wherein the court imposed a conditional sentence order as opposed to a custodial sentence.

The child pornography consisted of 480 images and 400 videos including depictions of sadistic behaviour and penetrative sexual activity between adults and very young children. The pornography was described as “sickening”. [ 28 ] The offender was a 23 year-old man with a significant amount of mental impairment functioning at a child-like level. He had a history of mental illness and his psychologists opined that he would not be able to tolerate incarceration as a “young and vulnerable” person.

The Court held that a jail sentence would have been grossly disproportionate and would have breached the standards of decency of most informed Canadians. [ 29 ] In R. v. Quested , 2019 BCPC 95 the offender was a 73 year-old man with no criminal record who had been under severe stress in recent years due in part to caring for his ailing spouse.

He had a “precarious medical condition involving a dangerous, and perhaps fatal, inoperable brain lesion” resulting from a recent stroke. [ 30 ] Police had located almost 3,400 images on the offender’s computer including scenes of bondage, oral sex and other depravities with children between the ages of two and nine. The offending conduct took place for the two years prior to arrest. [ 31 ] Higinbotham P.C.J. clearly indicated that absent compelling circumstances a jail sentence was warranted.

He found the personal circumstances of the offender compelled the court to give considerable weight to the principle of restraint. This included his age, lack of a criminal record, guilty plea, voluntary counselling upon arrest and his significant, potentially deadly, medical condition. The court applied Proulx , finding a CSO to be the appropriate punitive sanction capable of achieving the objectives of denunciation and deterrence. [ 32 ] In R. v.

Bisson , 2020 BCSC 1778 the offender was a 55 year-old man with no criminal record who had been suffering from severe anxiety and depression following the death of his father and the dissolution of his marriage. The police located approximately 7,500 child pornography images and almost 200 videos. The images and videos depicted children between the ages of 3 months and 10 years of age and the content ranged from nude posing to penetrative assaults, bondage and bestiality. The images and videos were described as deeply disturbing.

[ 33 ] Weatherill J. found the offender’s compromised mental state made his case exceptional and imposed a conditional sentence order rather than a jail sentence. [ 34 ] In R. v. Vandermeer, 2021 BCPC 94 Reasons for Sentence dated March 25, 2021, the offender was a 78 year-old retired school teacher. The police commenced an investigation based on information that child pornography was being accessed over the internet at a particular IP address which ultimately was found to be Mr. Vandermeer’s. The offender had 91 images of child pornography consisting of five girls between the ages of 8 and 13 photographed naked.

The court found the images consistent with the lowest level of the five- level Oliver scale. See R. v. Oliver , [2002] EWCA Crim 2766. [ 35 ] The offender had a variety of medical illnesses and incarceration would have a clear risk to his health. He had no prior criminal record, was at low risk of reoffending, had begun counselling taking steps toward rehabilitation and was sincerely remorseful.

Judge Hewson found the offender’s advanced age, poor health and circumstances of the crime, including the low end of the range of the offending conduct, rendered the case “exceptional” and imposed a CSO commenting however that the matter was close to the line. [ 36 ] In the matter of R. v. Friesen [2021] A.J. No. 1178 , the offender was a 21 year-old musician who had risen to some national fame. Police located a collection of child pornography exceeding 100 images and 30 videos.

The pornography contained images of children between the ages of 6 and 16 including nudity, penetration and adult on child sexual activity, penetration. The images were described as being on the high end of the Oliver scale. [ 37 ] The offender was found to have alcohol use disorder and severe depressive disorder. He had no criminal record and had undertaken 24 cognitive behavioural therapy sessions at the time of sentence and had a low risk of reoffending.

The court found the humiliation he had brought upon himself, together with the significant damage to his career prospects coupled with a lengthy CSO gave effect to the principles of denunciation and deterrence. Aggravating and Mitigating Factors [ 38 ] I find the following to be aggravating factors: a. The nature of the offence being the possession of child pornography and the seriousness of the abuse upon children.

I must preface that this may have been even more of an aggravating factor but for the fact that the pornography was described as containing many animated images rather than real, focusing on prepubescent genitals and lacking in bestiality, bondage, torture, penetration, and adult on child sexual activity with a characterization of “not terribly egregious”; b. The size of Mr. Mitchell’s collection being over 500 images; and c. The fact that he had communications with a youth who knew Mr.

Mitchell while in a position of authority and trust, sharing a sexualized cartoon image and having inappropriate conversations with him. [ 39 ] I find the following to be mitigating factors: a. Mr. Mitchell’s early guilty plea indicating his desire to take responsibility and sparing the necessity of a trial; b. His good character as detailed in the letters of support and his lack of a criminal record; c. His commitment to counselling and his rehabilitation including attending 37 sessions with plans to continue; d. The ongoing support of his family and friends; e.

His understanding and appreciation of his role in perpetrating child abuse by consuming and sharing child pornography; f. The low risk he poses to reoffend; g. The lasting trauma that he experienced as a vulnerable adolescent by the sexual exploitation he suffered and the exposure to child pornography by his abuser; h. The humiliation he brought upon himself by this experience as well as the loss of his career as a teacher and his leadership position in society; and i.

His relative young age at 37 and his positive prospects for rehabilitation and a prosocial life. [ 40 ] I find the combination of all of these mitigating factors as opposed to any one singular factor render this case sufficiently “exceptional” to warrant a conditional sentence order as opposed to a custodial sentence. A lengthy conditional sentence order of 18 months is a sufficiently punitive sanction capable of achieving the objectives of denunciation and deterrence. Sentence Imposed [ 41 ] The conditional sentence order will contain the following terms:

a) You must report in person to a conditional sentence supervisor at [omitted for publication], BC by 3:00 PM today (October 13, 2021), and after that, you must report as directed by your supervisor.

b) You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. You must remain in British Columbia unless you have prior written permission from the Court or your conditional sentence supervisor to leave the province.

c) You must live at an address approved in advance by your conditional sentence supervisor and provide your supervisor with your phone number. You must not change your address or phone number without prior written permission from your supervisor. d)

(1) You must obey house arrest by being inside your residence at [omitted for publication] , BC , (or on its lot), between 9:00 p.m. and 5:00 a.m., every day for 4 months.

(2) You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest.

(3) You may be away from your residence during the house arrest with the written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other compelling reasons. You must carry the permission with you when you are outside your residence.

e) You must not go to any public park, public swimming area, community centre, or theatre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, or playground. The exceptions are as follows: In the immediate presence of your sister, [omitted for publication].

f) You must not have any contact or communication, directly or indirectly, or be in the presence of any person under the age of 16. The exceptions are as follows: Except for your two nephews [omitted for publication] and [omitted for publication].

g) You must not engage in volunteer work or employment that would bring you in contact with persons under the age of 16 years without the prior written permission of your conditional sentence supervisor. You must carry the permission, which may be in electronic format, when you are engaged in the activity.

h) You must attend, participate in, and complete any intake, assessment, counselling or education program directed by your conditional sentence supervisor including mental heath and sex offender treatment program.

i) You must attend for a psychiatric intake, assessment, or treatment program through Forensic Psychiatric Services as directed by your conditional sentence supervisor.

j) You must not own, possess or use any device capable of accessing any computer network including the internet, unless

(1) You must not delete your browsing history.

(2) You must not access directly or indirectly any social media sites, social networks, internet discussion forum or chatrooms or maintain a personal profile on any such service including Facebook, Twitter, Tinder, Instagram, LinkedIn, or any similar service.

(3) You must not communicate or attempt to communicate with any person you know to be or reasonably appears to be or represents themselves to be under the age of 16 years through a social networking site, instant messaging service or chatroom program.

k) You must not posses any pornographic material or access any pornographic material by electronic means. [ 42 ] A probation order for a term of 12 months will follow on the same terms with the exception of the house arrest. Ancillary Orders [ 43 ] DNA Order, SOIRA designation for 10 years and the forfeiture of the cell phone and laptop seized. _____________________________ The Honourable Judge Sacca Provincial Court of British Columbia