R. v. Swaby Date:, 2016 BCPC 478

Citation: R. v. Swaby Date: 20161114 2016 BCPC 478 File No: 234408 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATTHEW CHRISTOPHER SWABY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.F. GALATI Counsel for the Crown: L. Vizsolyi and M. Merry Counsel for the Defendant: P. Grayer Place of Hearing: Vancouver , B.C. Dates of Hearing: April 11, 12, 13, May 18, August 17, 2016 Date of Judgment: November 14, 2016

INTRODUCTION [ 1 ] On February 5, 2014, Mr. Swaby was charged with a single count of having possessed child pornography between October 24, 2013, and January 12, 2014, contrary to s. 163.1(4) of the Criminal Code . [ 2 ] On January 6, 2016, with the Crown having elected to proceed by way of

summary conviction, Mr. Swaby pleaded guilty and counsel advised the Court that Mr. Swaby would be challenging the constitutional validity of s. 63.1(4) in regard to the mandatory minimum sentence. It was not argued or suggested that the constitutional inquiry should not be undertaken as it could have no impact on the sentence to be imposed. At the request of both counsel, a Pre-Sentence Report with a psychiatric component was ordered and the matter was adjourned to the Judicial Case Managers to

schedule a hearing date. [ 3 ] On March 21, 2016, Mr Swaby filed a Notice Of Application For Constitutional Remedy for a declaration pursuant to s. 52(1) of the Constitution Act, 1982 that s. 163.1(4) prescribes a minimum sentence which is grossly disproportionate to the offence alleged and thereby amounts to cruel and unusual punishment, contrary to s. 12 of the Canadian Charter of Rights and Freedoms . That minimum sentence is currently imprisonment for 6 months, but at the time the offence, was committed the minimum sentence was imprisonment for 90 days. [ 4 ] On April 11, 2016, the matter came on for hearing.

An Agreed Statement of Facts was filed, as well as two psychological reports prepared by different psychologists, a Pre-Sentence Report and a transcript of Mr. Swaby’s warned interview with the police on February 5, 2014. [ 5 ] The Crown then sought to introduce into evidence a video compilation of samples from the pornographic videos and images possessed by Mr. Swaby. After hearing submissions and reviewing the authorities which were provided ( R. v. Hunt , 2002 ABCA 155 ; R. v. Haimour , 2010 ABQB 7 ; R. v. P.M ., 2012 ONCA 162 ; and R. v.

Davies , 2012 ONCA 6021 ), I made a brief oral ruling declining to allow the video to be tendered as evidence on the basis there was no significant probative value to watching it where the child pornography it contained was extensively described in the Agreed Statement of Facts and also taking into account my familiarity with such pornography from other cases. [ 6 ] The remainder of that day and the next two were occupied with submissions in respect to the appropriate sentence as well as in respect to the constitutional challenge. [ 7 ] I reserved my decision to May 18, 2016, but in the course of my deliberations, I determined that I wished to have a psychiatric assessment of Mr.

Swaby, either with his participation or based on the available materials, before proceeding further. My concerns were that the second psychological report, prepared 18 months after the first report did not address some of the issues raised in the first report and neither report addressed whether there was any connection between Mr. Swaby’s mental health and level of cognitive functioning and his commission of the offence.

Counsel were advised accordingly and had the opportunity to make submissions with respect to the five questions seeking psychiatric opinions which were ultimately posed. [ 8 ] In the result, pursuant to s. 721(4) and s. 723(3) of the Criminal Code and in accord with the decision in R. v. Blackwell , 2007 BCSC 1486 , I ordered a forensic psychiatric assessment. Mr. Swaby indicated he was willing to participate.

The matter was adjourned to allow for the assessment to be conducted and a report prepared. [ 9 ] Most unfortunately and without explanation, no psychiatric assessment was performed and the only thing provided to the Court was a letter from the psychologist, who had prepared the second report, indicating it should be read in conjunction with that report and addressing the five questions which had been posed. Crown Counsel took the position that the letter was not what the Court had ordered and it should be given little weight.

Defence counsel agreed that the letter was not very helpful except for the indication the author agreed with the opinion expressed in the first report that there are significant mental health concerns about Mr.

Swaby’s ability to tolerate incarceration. [ 10 ] Although I would have much preferred that the requested psychiatric assessment would have been performed and reported on, I decided against taking steps to seek compliance with my order, primarily because this matter has been outstanding for a very significant time and its disposition should not be delayed further, particularly when it is unclear, absent voluntary compliance from the appropriate authority, that I could enforce compliance. [ 11 ] That being said, I see no reason to give the opinions expressed in the letter any less weight than the opinions expressed in the two psychological reports given that it is no less helpful than those reports in the determination of an appropriate sentence and also with respect to the constitutional issue.

CIRCUMSTANCES OF THE OFFENCE [ 12 ] In January 2014, an online investigation of child pornography images and videos on the internet identified a computer associated to Mr. Swaby, at a residence in Burnaby where he resided with his mother and sister, as having downloaded a large number of suspected child pornography files between October 24, 2013, and January 12, 2014. [ 13 ] A search warrant was obtained and executed on February 5, 2014. Mr. Swaby’s computer was seized and upon examination it was found to contain 400 video files meeting the definition of child pornography. It is not alleged that Mr.

Swaby did anything more than download these files and it is not in dispute that he would, from time to time, sporadically watch them as part of playlists of other pornography that he put together. [ 14 ] Recognizing that some types of child pornography are more egregious than others, many of the videos on Mr. Swaby’s

computer fall at the more serious end of the spectrum as they involve penetrative sexual activity between adults and very young children, including in a few cases, sadistic behaviour. The Agreed Statement of Facts provides descriptions of the various sex acts being performed. They are disgusting examples of the sexual victimization of children. CIRCUMSTANCES OF THE OFFENDER [ 15 ] Mr. Swaby is currently 26 years old. He was 23 years old at the time of the offence.

He has no criminal record and but for this offence he has pro-social values and within the parameters I will discuss below, he appears to have been a productive member of society. [ 16 ] He was born and raised in Burnaby and until he was arrested for this offence he had lived in low-income housing with his mother and older sister his entire life.

By reason of his bail conditions, he was required to move into a rented room in a home where he shares living space with the landlord and one other tenant. [ 17 ] His father carried on a relationship with his mother for several years but never resided with the family and was never actively involved in parenting. That responsibility seems to have fallen entirely on the shoulders of his mother, who worked for a number of years in a hotel but has been on disability for several years. Notwithstanding these circumstances, Mr.

Swaby appears to have had an affectionate and adequately cared for upbringing at the hands of his mother, with whom he has a loving relationship and who remains his primary support. [ 18 ] With regard to school, Mr. Swaby was behind his peers in academic functioning and was placed in specialized learning classes and on an individual education plan (for students with special needs) but he did graduate with a Dogwood Diploma. During high school, he had a couple of part-time jobs and after graduating he worked four years at Sears but his work hours gradually decreased and eventually he was let go.

Thereafter, he found a warehouse job but was laid off after a few months and remained unemployed at the time of the offence. He has since then been employed for approximately 18 months as a dishwasher in a restaurant kitchen where he also helps prepare food. [ 19 ] Prior to having to move out of his mother’s residence, Mr. Swaby appears to have been socially isolative since completing high school, having very few friends that he spent time with. He has never dated and he gave conflicting reports as to whether he has ever had sexual intercourse.

It would appear that if he has, it was only on one occasion at age 19 or 20. He appears to have spent much of his time alone in his room using his computer, primarily to engage in video gaming. His mother has described that Mr. Swaby’s functioning deteriorated significantly approximately two years prior to the offence. She noted that he became quiet and withdrawn, spending most of his time alone in his room and described him as often non-responsive and somewhat of a hoarder, keeping food and bottles of urine.

She often heard him speaking to himself and sometimes crying, particularly after he lost his job at Sears. MR. SWABY’S STATEMENT [ 20 ] Mr. Swaby was not at home when the search warrant was executed, but he contacted the police on his return, was shortly thereafter arrested and taken to the Burnaby detachment where he engaged in a very lengthy conversation with a police officer. He can only be described as having been entirely cooperative with the investigation and open about his involvement in the offence. [ 21 ] Crown Counsel submits that from what he said in that conversation, Mr.

Swaby clearly understood what child pornography is and that he acknowledged he always knew what he was doing was wrong. [ 22 ] He was able to describe how he found and downloaded the child pornography and gave the example of typing “PTHC” into the search bar, which he understood to mean “preteen hardcore”. He said he had looked it up on Urban Dictionary “after”, which I take to mean after he first saw or used that initialism.

He said he understood child pornography to be anything that involved someone under the age of consent but there was a protracted conversation which involved the police officer describing adult pornography as adults engaged in sex before asking Mr. Swaby what child pornography meant to him. The response was in the form of a question: “Then that means kids having sex then?” [ 23 ] He was only able to explain his motivation for downloading child pornography as “kind of because I’m bored”, but he did acknowledge he sometimes masturbated while watching it.

However, he also immediately explained that he had all sorts of different pornography, which he described as “the craziest collection of stuff”, from which he would make playlists to watch, being attracted by the shock value of some of the videos and because he found some of them funny. [ 24 ] In my view, it is dangerous to place too much literal emphasis on what Mr. Swaby said during this interview.

It is clear to me that it was necessary to speak to him as one would speak to a child and his level of general knowledge, comprehension ability and memory are questionable, as is evident from the totality of the conversation. I will refer to some examples. [ 25 ] He was required to speak to legal aid duty counsel a second time because in response to whether he understood the legal advice he had been given, Mr.

Swaby said he could not remember something he had been told which he initially thought was “kind of important”, but when the police officer indicated that if he did not understand the advice, he had been given he would have to speak to legal aid again, Mr. Swaby then said that although he did not remember the one piece of advice, he did not think it was very important. [ 26 ] When subsequently asked whether he wished to speak to a lawyer of his choice rather than legal aid, Mr.

Swaby said it had to be legal aid because he did not have money to pay a lawyer and he understood “whenever you call another lawyer like that they charge you though, when you call them”. [ 27 ] In general conversation with the police officer Mr. Swaby said his goal in life was cooking, but that he was presently attending workshops hoping to get into a school where he could learn auto mechanics and then he would try to get into a culinary arts school and do both at the same time, although he did not know if he could. The police officer said he loved cooking and preferred it to mechanics at which point Mr.

Swaby indicated he would probably go more toward the cooking and have the mechanics so he could fix cars for his friends because auto mechanics charged a lot of money.

[ 28 ] At one point, the police officer indicated that Mr. Swaby was 23 years old, to which Mr. Swaby replied that he was 24 years old. The police officer then suggested that Mr. Swaby would be 24 years old that year, but Mr. Swaby replied he honestly believed he was 23 years old. When the police officer pointed out that Mr. Swaby would be turning 24 years old the following month, Mr. Swaby agreed and laughingly said he was pretty sure he had a birthday coming up that had not passed yet. [ 29 ] At the end of the interview, when asked if he had any questions, Mr. Swaby inquired about the criminal justice system.

He wanted to know how he paid for his bail hearing. He asked if there would be more than one court appearance and what would happen. He did not know what a crown prosecutor was but guessed it was the “head”. [ 30 ] In the context of the entire conversation and taking into account the views of the psychologists which I will refer to below, I am satisfied that Mr. Swaby knew what he was looking for when he downloaded child pornography but it is an overstatement to say he clearly understood what child pornography is.

I am also satisfied he knew that downloading and watching child pornography was wrong but it is enlightening in considering his degree of moral culpability that he likened watching child pornography to repeatedly watching a video of someone breaking their leg. THE PSYCHOLOGICAL REPORTS [ 31 ] Mr. Swaby initially attended an interview with Dr. Patrick Bartel, a Registered Psychologist, in September, 2014. He went alone and had difficulty finding the office, making several phone calls for directions and reassurance.

Approximately 18 months later, in February, 2015, he attended an interview with another Registered Psychologist, Dr. Sarah Mordell. He was unable to find her office and after at least two phone calls with directions, Dr. Mordell went to meet him a block away from her office to escort him there. On entering the building, Mr. Swaby explained he had been confused as he did not expect the building to look like it did. [ 32 ] The reports prepared by Dr. Bartel and Dr. Mordell are somewhat divergent, but there are common features. [ 33 ] Mr.

Swaby reported to both of them that he has been talking to a voice in his head since elementary school. As I have noted, his mother confirmed that while alone in his room, she has heard Mr. Swaby talking to himself. Mr. Swaby has named the voice “Chris” and although it can variously be reassuring or threatening, he told Dr. Bartel that he does not wish to lose the voice, describing “Chris” as his best friend. He told Dr. Mordell with respect to the voice that generally he feels he is able to “deal with it”. [ 34 ] Both psychologists refer to past suicidal behaviour by Mr.

Swaby and to current active suicidal ideation. The most recent suicide attempt, by overdose of sleeping pills, was apparently just prior to a court appearance in respect of this matter in 2014. He was subsequently referred for counselling and attended three sessions. When being interviewed by Dr. Mordell, Mr. Swaby advised he still experienced passive and active suicidal ideation a few times each month. The psychologists both also refer to chronic sleep disturbance and a history of depressed mood as well as what appears to be relatively light marijuana use by Mr.

Swaby. [ 35 ] With respect to psychological testing, both psychologists administered the Wechsler Adult Intelligence Scale Fourth Edition to estimate Mr. Swaby’s level of intellectual functioning. Dr. Mordell reported that Mr. Swaby demonstrated significant discrepancies between and within the scores used to calculate the indices such that an overall score would not provide “the most meaningful information regarding his functioning.” She did not provide an IQ score but noted that Mr.

Swaby’s verbal comprehension was significantly higher than his processing speed and there were significant differences within the perceptual reasoning scores. She noted that the results she obtained should be contrasted with the scores obtained during testing with Dr. Bartel, where Mr. Swaby uniformly scored in the Extremely Low range with respect to verbal comprehension, perceptual reasoning, processing speed and working memory. In the letter she subsequently prepared, she opined that the reason for the discrepancies could be that Mr.

Swaby appeared to be experiencing more severe depression at the time he was assessed by Dr. Bartel, which could impact the motivation and concentration required for the tests. [ 36 ] In addition to the aforementioned cognitive domain scores in the Extremely Low range (at or below the 1 st percentile), Dr. Bartel reported that Mr. Swaby produced an IQ score of 53, which means that his true IQ will be between 49 and 59, nineteen times out of twenty. [ 37 ] Other psychological tests administered by Dr.

Mordell indicate depression concerns, particularly related to depressive thinking and suicidal ideation, as well as confused thought processes, distractibility and difficulties concentrating. With respect to Mr. Swaby’s adaptive functioning (the skills required for daily living), despite significant variability within the indices, his overall level of adaptive behaviour was in the Borderline to Extremely Low range. [ 38 ] Both psychologists agreed that Mr.

Swaby presented with paedophilic interests but does not have a paedophilic disorder and he is at a relatively low risk to commit a sexual contact or child pornography offence. Neither of them felt there is a need for specialized treatment, but they both felt that Mr. Swaby should have ongoing mental health care. [ 39 ] The differences in the psychological assessments are primarily in respect of the characterization of Mr. Swaby’s mental health issues and his level of intellectual functioning. [ 40 ] Dr. Mordell reported that Mr.

Swaby appears to meet criteria for Persistent Depressive Disorder, but she noted some symptoms that may reflect mania and stated that further monitoring, outside the scope of her assessment, would be necessary to rule out the presence of bi-polar disorder as well as a primary psychotic disorder. [ 41 ] Dr. Bartel reported that the result of his assessment of Mr. Swaby indicated the presence of multiple and significant mental health disturbances. He referred to the significant auditory hallucinations experienced by Mr.

Swaby, as well as the onset of significant depressed mood and related isolation from others in the three years prior to the offence, and the onset of significant suicidal ideation and three suicide attempts within a period of approximately one year prior to the assessment. He concluded that considered together, this suggested the presence of a significant schizoaffective disorder such as a combined Schizophrenia and Major Depressive Disorder. [ 42 ] Dr. Mordell felt that at the time she assessed Mr. Swaby, he did not meet the criteria for Intellectual Disorder as he provided a

very uneven cognitive profile and inconsistent level of adaptive functioning. She described his overall functioning as being in theborderline to extremely low range but noted that he was able to live independently and hold a job. She felt that if his circumstances wereto change, for example if he lost his job or his support system, his test results placed him in a situation where he could meet criteria foran Intellectual Disability. [43] Dr.

Bartel reported that the cognitive testing he undertook (eighteen months earlier) indicated global intellectual deficits acrossmost areas of cognitive functioning with no areas of significant or relative intellectual strength. He concluded that Mr. Swaby did havean Intellectual Disability (formerly known as Mental Retardation) which combined with his mental illness, would pose challenges forhim to effectively manage his own affairs. [44] Dr. Bartel stated that he had significant concerns about Mr. Swaby’s ability to tolerate incarceration, including his potentialheightened suicide risk.

In her follow-up letter, Dr. Mordell agreed with this opinion and added that at the time of her assessment Mr.Swaby had obtained a job and was more socially engaged, which appeared to have reduced the severity of his depressive symptoms andconsequently his risk, which would be compromised by a period of incarceration. APPROPRIATE RANGE OF SENTENCE [45] As previously stated, the Crown having proceeded summarily, the mandatory minimum sentence applicable to Mr. Swaby isninety days imprisonment.

The maximum sentence is imprisonment for 18 months. [46] The Crown submits that imprisonment for ninety days, followed by probation for two years, is the appropriate sentence for Mr.Swaby and does not oppose the sentence of imprisonment being served intermittently. In this latter regard, the Crown submits that anintermittent sentence would be less likely to affect Mr.

Swaby’s mental health or his employment. [47] The Crown submits that in addition to the requirement in s. 718.01 of the Criminal Code to give primary consideration to theobjectives of deterrence and denunciation, the aggravating factors which must inform the sentence in this case are the large number ofchild pornography video files possessed, the fact some were collected over a lengthy period of time and the fact that several of them fallinto the more serious categories with respect to the sexual offending depicted. [48] Case authorities were provided in respect to the range of sentence for possession of child pornography.

In R. v. Donnelly, 2010BCSC 1523, at paragraph 35, the range was said to be 6 to 12 months and in R. v. Kwok, (ON SC), [2007] O.J. No.457, at paragraph 5, it was said to be 6 to 18 months. [49] In R. v. Hammon,d 2013 BCSC 439, after a review of nine cases imposing sentences for possession of child pornography whenthere was a mandatory minimum sentence of 14 days, it was determined, as set out at paragraph 72, the actual range was from 14 days to12 months.

However, in circumstances which did not involve a constitutional challenge to the mandatory minimum, it was noted atparagraph 58 that there were cases involving discharges and suspended sentences which, as noted at paragraph 64, were not relevantbecause they pre-dated the introduction of the mandatory minimum sentence. A similar observation was made in R. v. Pommer, 2008BCSC 737, at paragraph 50. [50] The Crown provided several cases in which custodial sentences were imposed after the introduction of a mandatory minimumsentence for this offence, ranging from 45 days to 15 months.

These cases are useful examples of individually crafted sentencesdependant on the presence or absence of aggravating and mitigating factors, from the starting point of the mandatory minimum sentencethen in effect. In addition to those already mentioned, these cases include R. v. Lamb, 2011 BCSC 349; R. v. Buss, 2014 BCPC 381; R.v. Cafferta, 2009 YKTC 95; R. v. Crone, 2009 BCPC 429; R. v. Wright, 2012 ONCJ 698; R. v. Ahmed, 2012 ONCJ 71; R. v. S.D.M.,2015 BCPC 112; R. v. Johnston, 2011 NLCA 56; R. v. B.C.M., 2008 BCCA 2012; R. v. Hopps, 2010 BCSC 1875; and R. v. Dumais,2011 ONSC 276. [51] Mr.

Swaby provided two cases involving possession of child pornography offences committed prior to the time this offencebecame subject to a mandatory minimum sentence, in both of which suspended sentences with probation were found to have beenappropriate. Those cases are R. v. Aylesworth, 2008 ONCJ 68 and R. v. J.J.B., 2004 BCPC 7 , 2004 BCPC 0007. [52] In Aylesworth, the 36 year old offender had been buying child pornography for years and was found in possession of a largenumber of images, none of which appear to have been in the more egregious categories.

He had no criminal record; had co-operated withthe police; was not a paedophile and was a low risk to reoffend. He was well-educated and successful in his field and did not havemental health issues other than low self-esteem and a predisposition to depression. [53] In J.J.B., the immature, intellectually delayed 18 year old offender resided in a facility for adolescents undergoing treatment forsexually deviant behaviour and was found masturbating to pornographic pictures of young girls.

He had exhibited sexually intrusivebehaviour from an early age and at age 16, he had been convicted under the Young Offenders Act, of sexual assault of two girls, aged 5and 7. He was a paedophile and at high risk to re-offend without treatment. [54] Given that I must initially determine what would be an appropriate sentence for Mr. Swaby if there were no mandatoryminimum sentence, I am satisfied that a suspended sentence would have been within the range of appropriate sentences but for themandatory minimum. AGGRAVATING AND MITIGATING FACTORS [55] A helpful

summary of what various courts have considered to be aggravating and mitigating factors in possession of childpornography cases is found at paragraph 7 in Kwok and can be summarized as follows: Aggravating Factors - a criminal record for similar or related offences;

- whether there was also production or distribution of child pornography; - the size of the collection; - the nature of the collection, including the age of the children and the relative depravity and violence depicted; - whether the offender is a pedophile or otherwise seen as a danger to children; and - whether the offender contributed to the sexual victimization of children for profit by purchasing the pornography rather than merely downloading it from the internet.

Mitigating Factors - the youthful age of the offender; - the otherwise good character of the offender; - the extent to which the offender has shown insight into his problem; - genuine remorse; - willingness to engage in counselling or treatment; - the entry of a guilty plea; and - the extent to which the offender has already suffered for his crime. [ 56 ] The aggravating factors in the case at bar are the quantity of child pornography videos possessed, which was described by Crown Counsel as mid-range but significant; the fact that they were collected over a lengthy period of time during which Mr.

Swaby would sometimes delete and subsequently re-download child pornography videos; and the egregious nature of a number of the videos, particularly those which involve very young children involved in sexual acts while they are bound or held and struggle to resist. [ 57 ] The mitigating factors pertaining to Mr.

Swaby are numerous: a. his relative youth and lack of social network at the time of the offence; b. his mental health issues; c. his intellectual or cognitive issues; d. his pro-social personality and otherwise good character, commented on by all of the report writers and reflected by his lack of criminal record or prior involvement with the criminal justice system; e. his immediate co-operation with the authorities; f. his immediate expression of remorse and acknowledgement of responsibility, resulting in an early guilty plea; g. his willingness to submit to assessment and any treatment that may be ordered; h. the fact he is not a pedophile and is considered to be a relatively low risk to reoffend; and i. his compliance with bail conditions which required him to move out of the family home and away from his mother who is his primary support.

APPROPRIATE SENTENCE [ 58 ] The mere existence of child pornography is inherently harmful to children and to society in general. This was made explicitly clear by the Supreme Court of Canada in R. v.

Sharpe , 2001 SCC 2 , where throughout the decision it is recognized that the trauma suffered by children being used as sexual objects and often abused in the process, has life-long and extremely serious consequences which undermine their Charter rights and those of other members of society. [ 59 ] The principles of sentencing are set out in ss. 718 through 718.2 of the Criminal Code and with particular reference to s. 718.01 , for the offence of possession of child pornography, the primary objectives must be denunciation and deterrence.

Potential offenders must be discouraged from contributing to the exploitation and abuse of children and sentences imposed must affirm our societal values as to the abhorrent nature of this crime. [ 60 ] That being said, the individualized nature of the sentencing process requires some recognition of the other sentencing objectives to achieve a sentence which is proportionate to both the gravity of the offence and the degree of responsibility of the offender.

The offence is unquestionably grave but it is important to note that it involves simple possession, which although it contributes to the abuse of children, does not involve direct physical or psychological abuse of children such as that inflicted by actual perpetrators of sexual assaults on children.

[61] I do not agree with the submission of Crown Counsel that Mr. Swaby’s degree of responsibility or moral culpability is high. The evidence satisfies me that his moral culpability is significantly attenuated by his personal circumstances, particularly his mentalhealth and intellectual issues, and this must be taken into account with all other aggravating and mitigating circumstances to arrive at anappropriate sentence. I am satisfied on the evidence before me that Mr.

Swaby’s lower intellectual functioning combined with thepresence of severe depression and probable psychotic disorder would have impacted his decision-making and judgment and that itcontributed to his commission of the offence. He knew it was wrong to download and watch child pornography to the extent that he iscriminally responsible for that conduct but in my view, he did not realize how wrong it was. It clearly is far more wrong than repeatedlywatching a video of someone breaking their leg. [62] Given the relatively low risk that Mr.

Swaby will re-offend, personal deterrence is not a significant sentencing objective but tothe extent that it should be addressed, both psychologists were of the view that it should be by management of Mr. Swaby’s mentalhealth needs and limits on his internet access.

Separating him from society is not necessary to protect the public and in the circumstancesof this case it would be contrary to the restraint principle to do so, particularly as he is a first offender who is unlikely to offend again. [63] In my view, the stigma that attaches to a conviction and the requirement to comply with the Sex Offender InformationRegistration Act are significant consequences which will hopefully deter people from accessing or possessing child pornography and Iam confident that properly-informed members of society will recognize them as such in the circumstances that pertain to Mr.

Swaby. [64] In all of the circumstances, I am confident that allowing Mr.

Swaby to serve his sentence in the community would not endangerthe safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss.718 to718.2; however, by virtue of s.742.1(b), a conditional sentence is not available where the offence is punishable by a minimum term ofimprisonment. [65] I am also in agreement with the observation at paragraph 52 in Aylesworth, where the issue was whether the offender shouldreceive a conditional sentence, a suspended sentence or a discharge, that a suspended sentence with probation for 3 years wasmeaningfully strict and it emphasized deterrence and denunciation that symbolically and practically reinforced society’s abhorrence forpossession of child pornography. [66] But for the mandatory minimum sentence, I would consider the appropriate sentence for Mr.

Swaby to be either a conditionalsentence of imprisonment, followed by probation or a suspended sentence with probation for 3 years. In either case there would beconditions to assist him in managing his mental health as recommended by the psychologists as well as conditions to limit hisunsupervised use of devices capable of accessing the internet and any other suggested conditions which might be appropriate.

SECTION 12 OF THE CHARTER [67]

Section 12 of the Charter of Rights and Freedoms provides a guarantee against cruel and unusual punishment. In order toestablish that a particular sentencing provision gives rise to cruel and unusual punishment, the punishment must be shown to be “grosslydisproportionate” rather than merely excessive. It must be “so excessive as to outrage standards of decency” and disproportionate to theextent that Canadians would find it “abhorrent or intolerable”: R. v.

Ferguson, 2008 SCC 6, at paragraph 14. [68] The onus is on the applicant to establish the alleged s.12 violation on a balance of probabilities: Canadian Foundation forChildren, Youth and the Law v.

Canada (Attorney General), 2004 SCC 4 , [2004] 1 S.C.R. 76, at paragraph 3. [69] The court must examine all relevant contextual factors which have been identified in the jurisprudence as the gravity of theoffence, the personal characteristics of the offender, the particular circumstances of the case, the actual effect of the punishment on theindividual, the penological goals and sentencing principles reflected in the challenged provision, the existence of valid effectivealternatives to the mandatory minimum and a comparison of punishments imposed for other similar crimes.

The presence or absence ofa factor is not determinative of the question of gross disproportionality and not all of the factors will necessarily be relevant in aparticular case: R. v. Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90, at paragraphs 27 and 28; R. v. Stewart, 2010 BCCA 153, atparagraphs 20 and 21. [70] The s.12 analysis often involves a two-step inquiry. The “particularized inquiry” focuses on the individual circumstances of theoffender.

Where a mandatory minimum sentence is grossly disproportionate for an individual offender, then a prima facie violation ofs.12 is established and the court should go on to consider whether the infringement can be justified under s.1 of the Charter. The secondinquiry arises when the mandatory minimum is not grossly disproportionate for that offender. The court may then consider whether itwould be grossly disproportionate in “reasonable hypothetical circumstances”: R. v.

Latimer, 2001 SCC 1, at paragraph 78. [71] If a mandatory minimum sentence is found to violate s.12 and cannot be saved under s.1 of the Charter, a provincial court judgemay refuse to apply it in that particular case. The finding does not render the law of no force and effect under s.52 of the ConstitutionAct, 1982. It is open for judges in subsequent cases to decline to apply the law but it remains in full force and effect until a court ofinherent jurisdiction makes a formal declaration of invalidity: R. v. Lloyd, 2016 SCC 13, at paragraph 19. ANALYSIS OF

SECTION 12 FACTORS [72] As noted above, the offence of possession of child pornography is unquestionably grave in nature. This is reflected in theapproach taken toward it by Parliament. The mandatory minimum sentences in s.163.1 came into force and effect on November 1,2005.

At that time, the mandatory minimum sentence for possession of child pornography prosecuted summarily was 14 days, but onAugust 9, 2012, it was increased to 90 days and on July 17, 2015, it was increased to 6 months. [73] This legislative history suggests that possession of child pornography is one of the most serious of the possession offencesknown to our law.

However, by their very nature, possession offences do not involve the direct infliction of harm on others and in myview, this should be taken into account in considering the moral culpability of a mentally and intellectually challenged offender. [74] An analysis of the gravity of an offence requires a consideration of both the character of the offender’s actions and the

consequences of those actions: Morrisey at paragraph 35. The consequences of possessing child pornography involve indirectcontribution to the abuse of children and are unquestionably serious. On the other hand, the character of Mr. Swaby’s actions are far lessserious. He downloaded and watched child pornography available for free on the internet. Parliament has not set a very high thresholdthat must be met to attract criminal liability as was the case in Morrisey. It is the nature of the material Mr. Swaby downloaded more sothan his actions that results in the characterization of the offence as grave.

In my view, both considerations are also relevant to thedegree of moral culpability that should be attributed to him. [75] At the time he committed this offence, Mr. Swaby was spending large periods of time alone in his room on his computer. Heplayed video games and downloaded all sorts of material.

He understood to a degree, that watching child pornography was wrong so hispossession of a large amount of it is morally blameworthy but his moral culpability is significantly reduced by the state of his mentalhealth and his intellectual functioning which contributed to the character of his actions. [76] I accept the submission of Crown Counsel that Parliament was responding to a pressing problem when it amended s.163.1 toprovide for mandatory minimum sentences.

The objective of protecting children from abuse by imposing strict penal sanctions on thosewho would contribute to that abuse by possessing child pornography is rational and purposive. Further, on the evidence before me Icannot question that by increasing the mandatory minimum from 14 days to the 90 days at issue in this case or to the current minimum of6 months, Parliament was again responding to the same or a similar pressing problem. In addition, I must assume that in doing soParliament took into account recognized sentencing principles as discussed at paragraphs 43 and 44 in Morrisey.

The question iswhether a minimum 90 day jail sentence for all offenders is grossly disproportionate to these legitimate penological goals and sentencingprinciples. [77] General deterrence and denunciation are laudable objectives which alone can support a severe sentence for a grave crimeprovided the sentence is not cruel and unusual.

In Morrisey, a mandatory minimum sentence of 4 years for criminal negligence causingdeath with a firearm was found not to amount to cruel and unusual punishment where it was held to reflect a valid penological goal thatserved the sentencing objectives of general deterrence, denunciation and retributive justice.

The latter was said, at paragraph 48, torepresent “the fundamental requirement that a sentence imposed be just and appropriate under the circumstances”, which in that casereflected that wanton or reckless disregard for the life and safety of others was simply not acceptable. [78] Retributive justice is inextricably linked to the fundamental principle expressed in s.718.1 that a sentence must be proportionateto the gravity of the offence and the degree of responsibility of the offender. In my view, where the moral culpability of the offender issignificantly reduced, as I have found with respect to Mr.

Swaby, retributive justice will not necessarily result in a proportionatesentence. [79] I agree with the submission of Crown Counsel that without more, “compassionate grounds are not a valid basis for declaring asentence mandated by

an Act of Parliament to be cruel and unusual punishment”: R. v. Wust (1998) (BC CA), 125C.C.C. (3d) 43, at paragraph 59. However, in my view, compassionate grounds as exist in relation to Mr. Swaby must be taken intoaccount in determining gross disproportionality.

They are part of the personal characteristics of the offender and it must be kept in mindthat the issue is whether the mandatory minimum sentence is grossly disproportionate for him. [80] The only evidence before me as to the actual effect of the mandatory minimum sentence of 90 days imprisonment on Mr.Swaby is the opinion of both psychologists that they have significant concerns about his ability to tolerate incarceration and his potentialheightened suicide risk. Dr. Mordell also stated that Mr.

Swaby’s low risk to re-offend would likely increase if he were to lose his job,become socially isolated, experience moderate stress or return to spending much of his time online. Dr. Bartel opined that Mr. Swaby’slow risk to reoffend would best be managed through the mental health system rather than the criminal justice system. [81] Crown Counsel acknowledges that a mandatory minimum sentence of 90 days will have some impact on Mr. Swaby, butsubmits that an intermittent sentence would considerably alleviate any potential effects of incarceration.

There is little evidence beforeme in this regard and to me, notwithstanding that Mr. Swaby would be able to continue working, it seems just as likely that having torepeatedly report to a correctional facility and being processed each time may negatively exacerbate the effect of incarceration on Mr.Swaby. MANDATORY MINIMUM SENTENCES IN SIMILAR CASES [82] In R. v. Joslin (March 4, 2011) Abbotsford Registry No. 70267-1 (B.C.P.C.), it was held that the 14 day mandatory minimumsentence then in effect for accessing child pornography did not constitute cruel and unusual punishment.

Although the circumstances ofthe offence appear to be less serious than those in the case at bar, in that there were fewer images and many of them were anime asopposed to depictions of children, there also appear to be some similarities with respect to the circumstances of the respective offenders. Mr. Joslin, apparently a relatively young man of average intelligence, had been diagnosed with Asperger syndrome and he also sufferedfrom depression and anxiety. It was accepted that he would not cope well in a prison setting, but as set out at paragraphs 50 through 55,the judge felt Mr.

Joslin would be able to manage and that his personal circumstances did not make the 14 day sentence grosslydisproportionate or even excessive. At paragraph 56, the judge said he was satisfied jail is an appropriate penalty for these types ofoffences and that the mandatory minimum merely provided the floor for judges to exercise their discretion. [83] In the result, the judge determined that Mr. Joslin should receive 7 to 1 credit for both the day he was arrested and the daysentence was imposed and accordingly, although he was sentenced to 14 days, he was not actually incarcerated.

Further, and in my viewsomewhat incongruously, the judge concluded he would not order that Mr. Joslin provide a DNA sample or comply with the SexOffender Information Registration Act as that would be grossly disproportionate to his privacy and security of the person. [84] The examination of contextual factors in Joslin appears to be restricted to the effect of imprisonment on the offender and thereis no reference to any case law.

It may be that the Reasons for Judgment were well considered but that is not apparent from reading themand it is noteworthy that at paragraph 57 the judge stated that the case could not and should not be used as a precedent by anybody. I didnot find this case to be persuasive or helpful. [85] In R. v. LeCourtois, 2016 ONSC 190, the court very briefly considered whether the applicable 45 day mandatory minimum for

possession of child pornography constituted cruel and unusual punishment based on two reasonable hypothetical scenarios whichfocussed on circumstances of the offence at the low end of the scale of seriousness. It was held, at paragraph 14, that although somemembers of the judiciary might impose non-custodial sentences in the hypothetical situations, a brief period of incarceration was notoutside the appropriate range, particularly when it could be served intermittently.

It was concluded, at paragraph 19, that the mandatoryminimum was not grossly disproportionate given the nature of the charge and the evil that was sought to be prevented. The analysis inthis case did not take into account the circumstances of the offender and accordingly, is not of significant assistance where, as in the caseat bar, those circumstances underpin the application. [86] In R. v.

Schultz, 2008 ABQB 679, the court considered the constitutionality of the 1 year mandatory minimum sentence fortransmitting child pornography in s.163.1(3) of the Criminal Code and held it did not violate s.12 either for the offender in question orfor a hypothetical offender who on a single occasion, impulsively but acting out of vindictiveness, showed his friends nude photographsof his 16 year old girlfriend after they broke up.

There were very few mitigating personal circumstances in relation to the actualoffender, other than the fact he was only 20 years old at the time of the offence; he had no criminal record and had pleaded guilty. Theappropriate sentence for him was determined to coincide with the mandatory minimum with a further 2 years of probation andaccordingly the mandatory minimum was not at all disproportionate.

With respect to the reasonable hypothetical, it was acknowledged,at paragraph 126, that a one year sentence would be somewhat excessive but not so excessive as to outrage standards of decency to thepoint that Canadians would find the punishment abhorrent and intolerable. [87] In Schultz, the court certainly engages in a contextual analysis of the salient factors but in the context of a pornography offenceinvolving deliberate actions directed at a particular individual and intended to cause harm to that individual, which in my view, is moreserious or grave than a possession of pornography offence. [88] I was provided with several cases (R. v.

Lonegren, 2009 BCSC 1678 and 2010 BCSC 960; R. v. Craig, 2013 BCSC 2098; R. v.Cyr (November 19, 2013) Port Alberni Registry No. 35120-1 (B.C.P.C.); and R. v. Hayes (September 10, 2015) Surrey RegistryNo.203783-2-C), involving consideration of mandatory minimum sentences for offences of sexual interference or touching or sexualassault, all of which have been helpful but which are distinguishable by reason that they all involve the direct infliction of harm to a childas opposed to possession of child pornography which indirectly contributes to the abuse of children.

CONCLUSION [89] I agree with the submission of Crown Counsel that the test under s.12 is stringent and demanding and as noted at paragraph 80,in Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385 “[i]t will only be on rare and unique occasions that acourt will find a sentence so grossly disproportionate that it violates the provisions of s.12 of the Charter.” [90] In my view, the contextual analysis of the relevant factors leads to the conclusion that this is one of those rare and uniqueoccasions, primarily because Mr.

Swaby’s personal circumstances significantly reduce his moral blameworthiness in respect to anoffence that does not involve a direct infliction of harm and also because of the significant concerns from the mental health professionalswho have dealt with him as to his ability to tolerate incarceration and the negative effect it would likely have on his risk to reoffend.

Protection of the public is better served in the circumstances of this case by a community based sentence. [91] Notwithstanding the legitimate penal objectives which support a mandatory minimum sentence of 90 days for the seriousoffence of possession of child pornography, I am satisfied well beyond a balance of probabilities that such a sentence is grosslydisproportionate to the community based sentence that would be otherwise be appropriate.

I am confident that as much as Canadians findchild pornography abhorrent and intolerable they would find it even more abhorrent and intolerable to imprison, for any length of time,an intellectually challenged young man with significant overriding mental health issues which contributed to his commission of theoffence. The length of the mandatory minimum sentence, even after consideration of remission, only contributes to the degree to whichit is excessive for Mr. Swaby. [92] I find that s.163.1(4) is unconstitutional in that it prescribes a cruel and unusual punishment for Mr.

Swaby, contrary to hisrights pursuant to s.12 of the Charter. [93] Given the conclusion I have come to, it is not necessary to consider reasonable hypothetical scenarios including the one putforward as such, of a person inadvertently downloading child pornography and immediately deleting it upon becoming aware of what itwas. [94] I will hear submissions with respect to s.1 of the Charter and as to the appropriate type of community-based sentence and theconditions which should attach to it, in the event s. 163.1(4) is found not to be “saved” as a reasonable limit demonstrably justified in afree and democratic society.

The Honourable Judge J. Galati Provincial Court of British Columbia