R. v. Wright, 2023 BCPC 179

Citation: R. v. Wright 2023 BCPC 179 Date: 20230731 File No: 22843-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. GEORGE WRIGHT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: S. Salmond Counsel for the Defendant: D. Marshall Place of Hearing: Colwood , B.C.

Date of Hearing: May 9, 2023 Date of Judgment: July 31, 2023 The Issue [ 1 ] Mr. Wright has entered a guilty plea to a single count of possession of child pornography. The issue is the determination of a fit sentence for that offence. Mr. Salmond, for the Crown, seeks a six-month jail sentence, followed by two years’ probation. Mr. Marshall, for Mr. Wright, submits that a conditional sentence order, followed by probation, would be appropriate. Particulars of the Offence [ 2 ] Mr.

Wright admits that, on October 15, 2020, he was in possession of more than 1000 electronic images of child pornography, and that he downloaded those images from the internet between 1997 and 2020. The images display children, ages 3 to 12, engaged in a variety of sexual activities, including fellatio and vaginal intercourse, with adults and with other children. The Offender [ 3 ] Mr. Wright is 69 years of age. He has no criminal record.

The absence of a criminal record is of less significance in this case than in many others, because he admits that he engaged in criminal behaviour (downloading and possessing child pornography) over the 23-year period from 1997 to 2020. Mr. Wright told Dr. Kreklewetz, the psychologist who interviewed him for the purposes of a presentence report, that “I knew that it’s illegal … it’s not like I didn’t know …”. [ 4 ] During his submissions at the sentencing hearing, Mr. Marshall explained that it did not occur to Mr.

Wright that his conduct in accessing child pornography would encourage and support those who make and distribute that product, and so cause harm to the children who are depicted in it. A friend explained this to Mr. Wright, who says that he ceased to download such images as soon as he understood the implications. It is to be noted that the conversation did not impel Mr. Wright to destroy the images in his possession, which were seized from him by the police when he was arrested. [ 5 ] Mr. Wright graduated high school, and was employed as a supermarket clerk by the same employer for 40 years before he retired.

For 25 of those years, he was a volunteer firefighter with the local fire department, rising through the ranks to Assistant Fire Chief. In 2007 and again in 2012, he was awarded the Fire Services Exemplary Service Medal by the Government of Canada for his volunteer work. His colleagues in the fire department speak well of him. [ 6 ] Mr. Wright is in poor physical health. His doctor reports that he suffers from Type 2 diabetes, hypertension, dyslipidemia, hearing loss, gastroesphageal reflux disease, psoriasis, bifascicular heart block and osteoarthritis.

However, I was provided with no information about how those conditions affect his functional capacity, or how they might be adversely affected if he were incarcerated. [ 7 ] Mr. Wright’s mental health is difficult to assess. [ 8 ] Mr. Wright states that he has never experienced sexual intercourse. He once kissed a woman, but that was his only sexual experience. The following passage appears in the report of Dr. Kreklewitz: Mr. Wright denied a history of significant intimate relationships. … He denied ever having a girlfriend or being married, and elaborated that “I never wanted one”. Mr.

Wright explained that he did not want a partner because “women have moody cycles … I just couldn’t handle it”. [ 9 ] Most people are horrified and repelled by images of child pornography. Some people are sexually aroused by such images. Mr. Wright says that he is neither. He says that he was intellectually curious about how to access child pornography, about “…how far are they going to take this …”, and about “…are they going to kill this kid …?”. He said “… I wanted to track how bad had it got …”. [ 10 ] Dr. Kreklewich remarks that: While on the surface Mr.

Wright seemed to express concern regarding harm to the victims …, he appeared emotionally detached as he described what he viewed. At no point did he describe feeling negative emotions such as disgust, anger or sadness, that one might expect someone to experience when viewing child pornography if they were not doing so for sexual purposes. Further, absent from his comments was any mention of the victims’ pain, suffering or fear during the abuse, or any potential long-term impacts to victims. Mr. Wright took the opportunity to address me at the conclusion of the sentencing hearing.

He was calm, rational, courteous, dispassionate and well-spoken. He expressed his regret for his conduct and for its impact upon the victims. He assured me that he will never re-offend. Absent from his presentation was any emotional affect. [ 11 ] In the end, I don’t think that it matters very much whether Mr. Wright’s characterization of his motive is truthful or accurate. People make child pornography because other people download and watch it. Anyone who downloads it increases the market demand for the product, and so encourages its manufacture and distribution. Whatever his motive, Mr.

Wright materially increased that demand over a 23-year period. [ 12 ] Mr. Wright’s motive is, of course, relevant to his risk of re-offending. Dr. Kreklewetz assessed Mr. Wright as a “low to moderate” risk to reoffend sexually. [ 13 ] Mr. Wright states that he does not feel a need for psychological counselling, but will participate in such counselling if directed by the court. He consents to an order, commonly referred to as a “Rogers Order”, requiring him to submit to forensic psychiatric assessment

and treatment and to take such medications as may be prescribed for him. The Jurisprudence [ 14 ] I am indebted to my colleague, Judge Whonnock, who provided a thorough, detailed and thoughtful analysis of British Columbia cases considering sentences for possession of child pornography in R. v. Bordal, 2022 BCPC 19 ; 2022 BCJ No. 243 . Although a non- custodial sentence may be appropriate in some cases, the general principle remains that articulated by Justice Marchand in R. v.

Swaby, 2017 BCSC 2020 ; [2017] BCJ No. 2250 at paragraph 159 (affirmed at 2018 BCCA 416 ; [2018] BCJ No. 3603 ; leave to appeal refused at 2019 SCCA No. 17): … the message to those who would contribute to the abuse of children through their possession of child pornography should be clear. If found guilty of the offence, they should expect to go to jail. [ 15 ] In R. v.

Alexander 2019 BCCA 100 ; [2019] BCJ No. 462 at paragraphs 37 – 43 , the Court of Appeal held that, absent “exceptional circumstances”, the appropriate range of sentence for a first offender on a charge of possession of child pornography is 6 to 15 months’ imprisonment. The Sentence in This Case [ 16 ] There are no “exceptional circumstances” in this case which would justify a lesser sentence than that described in Alexander . [ 17 ]

Section 718.1 of the Criminal Code articulates the “fundamental principle” of sentencing: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Also relevant is

section 718.2(b): … a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. It is not difficult to imagine cases of possession of child pornography which are significantly less grave than this one. Mr. Wright gathered and stored more than 1000 images of child pornography over a period of 23 years. Some of those depicted acts of sexual aggression by adults upon children and by children upon other children.

His offence is much more grave than, for example, the case of a person who downloads and stores a single image of a naked child which does not depict any sexual activity. On the authority of Alexander , a fit sentence for such a crime would be six months’ jail. Because Mr. Wright’s offence is significantly more grave, sections 718.1 and 718.2(

b) require a more severe sentence for him. It necessarily follows that the 6-month sentence proposed by the Crown in this case is inadequate. [ 18 ] I conclude that a fit sentence for Mr. Wright is 12 months’ incarceration, followed by 3 years’ probation on the following terms. Mr.

Wright must: a. keep the peace and be of good behaviour; b. attend court when required to do so by the court; c. report in person to a probation officer at 1756 Island Highway, Colwood, British Columbia within 7 days of his release from custody, and report thereafter as and when directed by his probation officer; d. provide his probation officer with his residential address and telephone number, and not change either of those without first notifying his probation officer; e. not possess any electronic device capable of accessing the internet, except with the written permission of his probation officer, and in accordance with any conditions which his probation officer may impose; f. not possess any electronic device capable of storing images, except with the written permission of his probation officer, and in accordance with any conditions which his probation officer may impose; g. upon the request of his probation officer, surrender to his probation officer any device in his possession which is capable of accessing the internet or storing electronic images and provide to his probation officer the passwords and other information necessary to allow his probation officer to search the device; h. not accept or engage in any employment or volunteer position which would, in the course of his duties, bring him into contact with persons under the age of 14 years; i. not attend at any school, public park, playground, swimming pool or recreation centre at which persons under the age of 14 years are, or may be expected to be, present; j. not be in the presence of any person under the age of 14 years unless other adults are present; k. attend, as and when directed by his probation officer, for forensic psychiatric assessment, counselling and treatment, or any other counselling program to which he is referred by his probation officer; l. take all medications prescribed for him; m. authorize and instruct his treating physician, psychiatrist and counsellor to notify his probation officer immediately if he fails to comply with any course of treatment recommended or prescribed by them.

[ 19 ] Mr. Wright must comply with the provisions of the Sexual Offender Information Registration Act for a period of 10 years from the date of these reasons for sentence. [ 20 ] Mr. Wright must provide a DNA sample to the officers at the correctional centre to which he is assigned. [ 21 ] Any electronic devices which: (

i) were seized from Mr. Wright at the time of his arrest; and (ii) contained pornographic images are forfeit to His Majesty for destruction. [ 22 ] The victim fine surcharge will be waived. _____________________________ The Honourable Judge T. Gouge Provincial Court of British Columbia