R. v. Partanen, 2021 BCPC 245

Citation: R. v. Partanen 2021 BCPC 245 Date: 20210727 File No: 239669-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. DILLON CALEB MATTHEW PARTANEN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. DUNCAN Counsel for the Crown: M. Stacey Counsel for the Accused: J. Krueger Place of Hearing: Surrey , B.C. Dates of Hearing: June 24, 2021 Date of Sentence: July 27, 2021 [ 1 ] Dillon Partanen is before the court on Information 239669, having pled guilty on April 7th, 2021, to possessing child pornography, contrary to s. 163.1(4) of the Criminal Code .

[ 2 ] I heard submissions from both counsel and I heard from Mr. Partanen himself on June 24th, 2021. [ 3 ] The Crown has proceeded by indictment. The maximum sentence is 10 years. The one year mandatory minimum found within s. 163.1(4) (

a) has been declared inoperative in British Columbia. [ 4 ] Both parties agree that a sentence of conventional imprisonment followed by three years of probation, along with certain ancillary orders is appropriate. They disagree on certain conditions of probation and aspects of an order under s. 161, but the sharpest difference is on the appropriate length of a jail sentence. The Crown seeks a 12-month sentence and the accused a six-month sentence. Facts [ 5 ] There is an Agreed Statement of Facts which Mr. Partanen has signed and fully accepted. Mr.

Partanen came to the attention of law enforcement when social networking services alerted police to online activity that appeared to be connected to child pornography offences. [ 6 ] Pursuant to a search warrant executed at Mr. Partanen's home, police seized and later analyzed numerous electronic devices. The devices contained encryption software and an active virtual private network. Investigators located 6,774 images and 617 videos which meet the definition of child pornography.

There were duplicates within this collection and I am told that there were 3,817 unique images and 453 unique videos. [ 7 ] There is a growing recognition within the legal community and the courts that what is commonly referred to as child pornography might better be described as child sexual exploitation materials. In R. v. Large , 2020 BCPC 216 , Koturbash, PCJ explained at paragraph 19 that: The phrase “child pornography” dilutes the true meaning of what these images and videos represent to some degree.

The term “pornography” reinforces the perception that what is occurring is consensual and a mutual experience between the viewer and the actor. These are not actors. It is not consensual.

These are images and videos of child sexual abuse. [ 8 ] I agree with those observations as I do with those that Judge Koturbash made at paragraphs 20 through 23 regarding the pervasive and pressing problems these materials pose for both our local community and the global one, the difficulty that law enforcement has in interdicting these offences, the fact that the volume of material is growing and its content becoming more extreme and violent, and the primary purposes of certain sentencing objectives.

In these reasons I will refer to the material as child pornography, not because I disagree with any of this but because that is the term that Parliament has chosen to use in the Criminal Code . [ 9 ] Mr. Partanen stored his child pornography separate from adult pornography. At least some of the child pornography was organized and sorted by series and subjects so that images and videos relating to particular victims were collected and stored together.

Many of the files were explicitly and descriptively named so that it is not necessary to open the media to know what it depicts. [ 10 ] Police investigators compiled a sampling of seven videos and five images and provided detailed descriptions of them. There is authority that when sentencing an offender for child pornography offences the sentencing judge should view the material or the representative sampling so as to properly grasp the sickening horror of what is depicted.

However, where a graphic description of the image is adequate to enable the court to determine a fit sentence, then the sentencing judge may weigh the probative value of viewing the material against its prejudicial effect ( R. v. Swaby , 2017 BCSC 2020 at paras. 108 through 111). [ 11 ] The prejudicial effect consists in the fact that every single replaying of a video, or displaying of an image which meets the definition of child pornography is itself a harmful event.

Notwithstanding the fact that the material is being shown to a judge in a legal proceeding, doing so necessarily engages the dignity, privacy and equality of the children depicted. [ 12 ] In the case at bar, Crown counsel viewed the material and confirmed that the descriptions police provided were accurate. She proposed that it would be unnecessary to display any of the material on defence counsel's assurance that the descriptions were accurate and his agreement that, in this case, some of the material in Mr.

Partanen's possession was a particularly aggravating factor. [ 13 ] The accused made no effort to minimize the seriousness of the material, nor any effort to situate it as being relatively less aggravated than other forms of child pornography. Indeed, Mr. Krueger characterized the offending as grievous and grave, and I agree with him. [ 14 ] In the circumstances, I considered it unnecessary to view any of the material. I am satisfied that the descriptions the parties have agreed upon are adequate to appreciate and grapple with the appalling subject matter in this case.

When I considered what viewing the material would add to the analysis versus the harm that additional viewings would create, I concluded that it was not necessary to go beyond the descriptions. In that way, I can arrive at a fit sentence without negatively affecting the dignity, privacy and equality of the children depicted. [ 15 ] From the admitted descriptions, I find that they are recordings of grotesque assaults of the most heinous and depraved sort perpetrated against the most vulnerable, defenseless and innocent victims one can imagine exist.

They depict degrading, humiliating, forceful, painful and dangerous sexual assaults. They include diverse forms of violence including vaginal and anal rapes of very young children, forced oral sex, object insertion and digital penetration, and the bondage of very young children. Boys and girls are directly victimized, and in at least one video a 13 to 15-year-old boy is recorded sexually assaulting and raping a six to eight year old little girl. In more than one video, children are restrained and subjected to gratuitous violence over and above the horrendous sexual violations to which they are subjected.

This subset of Mr. Partanen's collection demonstrates that he assembled and curated a sickening collection of outrageous torture against the youngest of victims. [ 16 ] An additional troubling feature in this case is that police identified a message that Mr. Partanen uploaded to an online message board in which he claimed to have had sexual contact with two 14-year-old girls and one 11-year-old girl. He told the author of the psychological report that these posts were not true and that he fabricated them so as to participate in discussions on that particular

message board. The Law [ 17 ] The fundamental purposes of sentencing are set out in s. 718 of the Criminal Code . They are to denounce unlawful conduct, deter the offender and other persons from committing the offence, separate offenders from society where necessary, assist in rehabilitating offenders, provide reparations for harm done to the victims or the community, and promote a sense of responsibility in the offender and an acknowledgment of the harm done. [ 18 ] The fundamental principle of sentencing found in s. 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 19 ]

Section 718.01 to s. 718.2 set out a series of relevant purposes and principles including deterrence, denunciation, rehabilitation and restraint. In this case, s. 718.01 requires me to elevate to a primary consideration denunciation and deterrence in this case which involves the abuse of a child. [ 20 ]

Section 718.2 requires the sentence to be increased or reduced to account for aggravating or mitigating circumstances relating to the offence. Any sentence imposed should be similar to other sentences of a similar nature. [ 21 ] In R. v. Friesen , 2020 SCC 9 , the court spoke in forceful terms about the vital role that courts play in protecting children from sexual exploitation and abuse, which is the overarching objective of this part of the Code .

At paragraph 5 the court confirmed the importance of sending: ...a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender...

The court went on to say: …Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [ 22 ] The court addressed many of the discrete ways that emerging and developing technologies can put children at risk while also dramatically extending the harm of sexual violence.

It recognized at paragraph 48 that: ... online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time. [ 23 ] The court reiterated at paragraph 51 that sexual violence traumatizes children and violates their autonomy, dignity and equality, causing harm that might stay with them for their lifetime. [ 24 ] In R. v.

Jenkins , 2021 ONSC 2963 at paragraph 31 , the court connected the conduct of those who possess child pornography to those who produce it and, by extension, to the underlying original sexual assaults themselves: What is clear from the law is that denunciation and deterrence are the paramount sentencing objectives to be considered when sentencing persons who have possessed child pornography. It is those persons who enable its production. This contributes to the ongoing abuse, exploitation and degradation of the children involved.

The innocent children depicted in these images and videos are re-victimized each time the images and videos are viewed. [ 25 ] In R. v. Sheffield , 2020 BCSC 1807 , decided after Friesen , the 74-year-old widowed accused pled guilty. He had maintained a collection of between 1600 and 2600 images which contained diverse victims and depicted diverse forms of sexual abuse. Although Mr. Sheffield demonstrated very limited insight into the wrongfulness of his conduct, his risk was considered to be relatively low in relation to a contact offence and moderate in relation to accessing child pornography.

Madam Justice Gropper found the range of sentence to be between six and 15 months and found the aggravating factors to have include the size and nature of the collection which included relatively depraved content, at paragraph 29. [ 26 ] Madam Justice Gropper compared Mr. Sheffield's case to that of R. v. Alexander , 2019 BCCA 100 , in which the accused was sentenced to eight months. She noted that Mr. Sheffield's risk was higher: moderate, as opposed to low, and his collection was larger and more aggravated. She imposed a sentence of 10 months. [ 27 ] In Hagen , the Court of Appeal upheld a 10-month sentence.

Mr. Hagen's collection of 605 images, 224 of which were videos, was smaller than Mr. Partanen's. Mr. Hagen was a survivor of child sexual abuse and was Indigenous. Like Mr. Partanen, Mr. Hagen had voluntarily started counselling, seemed to be developing insight and had demonstrated genuine remorse, although the court was still concerned about specific deterrence. Mr. Hagen had experienced hardship as a result of his arrest, including loss of his employment, like Mr. Partanen.

The sentencing judge described his collection of images as moderate and noted that it did not involve the infliction of bodily harm or grievous violence. [ 28 ] In R. v. Capewell , 2021 BCSC 904 , decided after Friesen , the 71-year-old accused, with no criminal record, pled guilty to possessing a large collection of child pornography which had more than 5,000 images and videos. He had experienced an abusive upbringing and appeared to use child pornography as a coping mechanism. He demonstrated some insight into the abusive nature of the material and demonstrated genuine shame.

There was evidence that he was at low risk for committing another child pornography offence and he was receptive to more counselling. Madam Justice Gerow rejected a conditional sentence and imposed a sentence of eight months, followed by 12 months probation.

[ 29 ] In Large , the accused had a large collection of child pornography which included more than 26,000 images and more than 400 videos which displayed various degrees of child sexual abuse some of which, like in the case at bar, were highly aggravating either in terms of the nature of the abuse, the very young age of the children, or both. [ 30 ] The accused was addicted to child pornography and was himself a survivor of child sexual abuse.

He had engaged in some limited counselling and was assessed as a low to moderate risk for sexual recidivism. [ 31 ] Despite there being no evidence that the accused had ever committed a contact sexual offence, the court in Large was concerned that there was, nevertheless, a risk of such an offence, at least until he completed a course of treatment. The accused in that case received an 18-month sentence with three years of probation. [ 32 ] In R. v. Neasloss , 2020 BCPC 161 , the accused possessed at least 35 images and one video of child pornography.

Crown and defence jointly proposed a 10-month conditional sentence. The court did not have very much independently verified information about the accused but accepted that he was an Indigenous man with a variety of personal challenges. [ 33 ] In surveying recent cases within this area, Doulis PCJ demonstrated that the range of sentences imposed for this offence varies widely and has recently included a number of CSOs.

She indicated that but for the joint submission she would have imposed a different sentence and decided that although the joint submission seemed inconsistent with the principles of parity and proportionality, it nevertheless met the very deferential test in R. v. Anthony-Cook . [ 34 ] In my view, the single most important factor driving the result in Neasloss was the joint submission. [ 35 ] In R. v. Redekopp , 2020 BCPC 305 , the Crown proceeded summarily. The accused pled guilty to the possession of almost 800 images and 19 videos of child pornography.

The subject matter of the material included a focus on children's penises and anal regions. There is no indication of further additional gratuitous violence. The court found that the accused's circumstances were not unusual enough to justify a noncustodial sentence and sentenced him to six months, which was the low end of the range the Crown sought. [ 36 ] In R. v. R.W.P. , 2019 BCPC 133 , police located seven images of child pornography on the accused's computer. The images included children posing erotically, non-penetrative sexual activity between adults and children, and sadism and bestiality.

PCJ Gouge rejected a noncustodial sentence and focusing on the content of the images, but also acknowledging how small the collection was, imposed a six-month sentence followed by two years of probation. Victim Impact [ 37 ] A review of similar sentencing decisions quickly demonstrates that many offenders choose to regard the offence to be victimless. To be clear, Mr. Partanen does not appear to be of that view now; however, a few words about the impact are, nevertheless, vital. [ 38 ] Among the many thousands of odious images and videos Mr.

Partanen kept on his devices was a series of videos he collected and stored together under the name Vicky. Vicky is a woman who, between the ages of nine and 11, was subjected to appalling sexual abuse by her father which he recorded and disseminated and which has now been on the internet for many years. That woman has been identified and she provided a video recorded victim impact statement under the pseudonym Lily which I listened to and watched. A transcript of Lily's statement was entered as an exhibit. [ 39 ] Lily is now a full grown adult and she has children of her own.

In vivid and straightforward terms she described the impact on her life of the fact that these degrading recordings of horrendous abuse are and always will be circulated in well-populated, dark corners of the internet. It is impossible to fully capture the multiple layers of damage and harm that the continued existence of this material has had and continues to have on Lily. She is powerless to control the dissemination of the material and she often feels that she is being raped over and over again.

She constantly wonders if men she sees in every walk of life have traded, viewed, and taken perverse pleasure in her trauma. Strange men have found her through the internet and contacted her, suggesting that she make pornography with them. Some have demonstrated that they know exactly where she lives, which has caused her to move and to shut down every aspect of her online life. Doing so has diminished her social world and reduced her ability to maintain contact with friends and loved ones. [ 40 ] I infer that, given her age, this abuse took place many years ago yet, for Lily, sleep remains elusive.

She is exhausted and has not learned, as she put it, "The trick to put my mind to sleep." When she does sleep she has vividly distressing dreams which affect her very ability to function during the day. She has suffered chronically from a very serious form of dissociation. [ 41 ] Lily suffered outrageous, almost unbearable sexual violence at the hands of her father. He is now in jail and that trauma is fading for her. She deserves to be able to move on but her father's decision to record and circulate those crimes, and the decision by Mr.

Partanen and others to fuel demand by accessing and possessing this material continues to cause Lily daily pervasive, relentless and haunting pain. Lily is just one of probably hundreds if not thousands of people that Mr. Partanen has victimized in this way. [ 42 ] Within his collection, police located child pornography relating to at least two victims who were traumatized within less than 18 months of his arrest, one of whom was living in this city. Mr. Partanen's conduct is something that our community abhors and this court must denounce it. Mr. Partanen's Background [ 43 ] Mr. Partanen is 29 years old.

He had a very troubled childhood which included shocking neglect at the hands of his mother who was drug addicted and pursued a lifestyle that exposed by Mr. Partanen to harm and neglect. [ 44 ] When he went to live with his father, that neglect gave way to abuse, physical and psychological both. He reports that when he was about five or six years old an older cousin sexually abused him. He believes that he has suffered significant depression and anxiety over many years of his life.

[ 45 ] Despite these significant challenges, Mr. Partanen is a very intelligent, well-educated and, in my ways, high-functioning man. He has postsecondary education from Douglas College and a baccalaureate degree in literature and philosophy from the University of Wales. At the time of these charges he was employed as a professional with a well-known and well-respected food company and was in charge of their training. He was looking forward to a long and prosperous career with them. [ 46 ] Mr. Partanen was very forthcoming in his interviews with the authors of the pre-sentence and psychological reports.

He told them that he first encountered child pornography at about the age of 11 and was immediately interested in it. He viewed and used child pornography for about five years and then stopped for about three years, until he started using it again and did so continuously from 2011 until his arrest. He estimates that child pornography accounted for approximately 80 percent of his consumption of pornography. [ 47 ] Mr. Partanen has also been candid in admitting that he is sexually aroused by child pornography but he maintains that he would draw the line before a contact offence.

In one sense, this acknowledgement is to be commended insofar as in many cases of this sort offenders maintain a stance that they have no deviant sexual interests which, in those cases, frankly flies in the face of the offending. To that extent, his acknowledgement is to his credit. That said, the acknowledgement is, nevertheless, troubling to the extent that it does point to such an interest that is so dangerous to children. [ 48 ] Mr. Partanen points to his very troubled and often traumatic upbringing and asks the court to find that it is causally connected to his offending. Mr.

Krueger argues that very early abandonment and neglect from Mr. Partanen's mother, along with emotional and physical abuse by his father, left Mr. Partanen without the fundamental building blocks of care, support and intimacy that children deserve from their parents. Mr. Krueger points to Mr. Partanen's own self-report relating to suffering sexual abuse when he was about six years old and asks the court to recognize that as an important background factor. Despite these challenges, Mr. Krueger points out that Mr.

Partanen has succeeded in becoming very well-educated and a man who is able to commence a successful, satisfying career with a well-established local company. [ 49 ] Mr. Partanen's history is largely the result of self-reporting. The authors of both the PSR and the psychological assessment caution that their reports must be considered with that as a backdrop. Despite those cautions, I note that both authors found Mr. Partanen to be forthcoming and open. He did not appear to the reviewing psychologist to be engaging in image management, or to be trying to frustrate the process. [ 50 ] Mr.

Partanen's report of suffering sexual abuse at a young age also carries with it the ring of sincerity. In describing it to the reviewing psychologist, Mr. Partanen indicated that for years he was not sure if he had been abused or if he had imagined it. He recounted then overhearing a relative discussing his abuser and has come to conclude that his recollections are genuine. All of this increases my confidence in the sincerity of Mr. Partanen's history. [ 51 ] Mr. Partanen struggles with depression and suicidal thinking. He has, in the past, taken some preparatory steps towards serious self-harm.

His arrest and the charges prompted the onset of such thinking and this is something that clearly concerned the reviewing psychologist, as did Mr. Partanen's mental health when an important relationship in his life recently broke down. [ 52 ] Starting about two weeks after he was arrested, Mr. Partanen initiated a therapeutic relationship with a clinical counsellor and pursued that for approximately one year. During that time he attended 21 sessions either weekly or bi-weekly, until financial constraints required those sessions to drop down to monthly frequency. With his counsellor, Mr.

Partanen has worked through a number of important topics, many of which are likely relevant to both his offending and his rehabilitation. Mr. Partanen's counsellor described him as an "active participant in learning and applying therapeutic techniques and methods. He has demonstrated openness, engagement and insight into his history and current legal situation." [ 53 ] It should be noted, however, that Mr.

Partanen's counsellor, who has experience in forensic mental health as a social worker and who appears to be very experienced is, nevertheless, not trained to specifically treat sexual attraction to children, so that is a topic that Mr. Partanen has not yet addressed in any serious or rigorous way. [ 54 ] Mr. Partanen told the reviewing psychologist that on a couple of occasions in the past, before the arrest, he did try to broach the topic of his interest in child pornography with other therapists in recognition that he needed to stop and needed help doing so.

Unfortunately, he encountered strong resistance from those professionals, and they did not assist him. [ 55 ] There is evidence that Mr. Partanen has begun to develop deeper insight into his offending. He has recognized his own psychic need for emotional attachment. He has been working on reframing child pornography in his own mind as child abuse pictures in an effort to decondition his interest in such material. He displayed honesty in discussing his history of using this sort of material. I accept all of that as genuine. [ 56 ] That said, Mr. Partanen clearly has a ways to go.

He told the author of the pre-sentence report that his preference is nonviolent material involving female children aged 10 to 14. He also claimed that he does not enjoy seeing children in pain or resisting the acts but does also enjoy watching what he considers to be consensual penetration between female children and other children or adults. Of course, any such material is profoundly violent and extremely deviant. There is no such thing as nonviolent or consensual child pornography and this is something that Mr. Partanen must fully internalize. [ 57 ] I am optimistic that Mr.

Partanen is capable of this sort of progress. The reviewing psychologist's opinion is that Mr. Partanen's testing indicates that he acknowledges major difficulties in his functioning and that he also perceives an acute need for help in dealing with his problems. In other words, Mr. Partanen has significant insight into his offending. He appears to fully recognize that he urgently needs help, and he appears to genuinely want to get it.

All of this bodes well. [ 58 ] Where an offender suffers from underlying conditions that affect his ability to control his impulses or to appreciate the seriousness of his conduct or its risk, the court should factor that into an assessment of his moral blameworthiness. These circumstances can include traumatic personal events and the presence of cognitive distortions. Even when considering grave offences, underlying conditions or experiences "always require meaningful consideration at sentencing" ( Hagen para. 43).

[ 59 ] The reviewing psychologist assessed Mr. Partanen's risk for the next six to 12 months if he were to remain in the community. In relation to further child pornography possession, Mr. Partanen poses a "moderate risk of again accessing or possessing this sort of material." This means that he requires some special strategies to manage risk. However, that requirement is not urgent. The reviewing psychologist considers Mr. Partanen's risk of other offences, including a contact offence, to be low. [ 60 ] Mr.

Partanen's claims as to having committed a direct contact offence with 14 and 11 year old girls is a concern. While there is no independent evidence contradicting his claims that these were fictionalized they, nevertheless, strengthen the inference that the thought of direct sexual contact with children sexually arouses him. Moreover, I agree with Crown counsel that sharing such stories, even if fictional, promotes cognitive distortions and feeds fantasies that could incite people to commit crimes. As she argued, it legitimizes and normalizes the sexual abuse of children. Indeed, Mr.

Partanen candidly told the reviewing psychologist that reading messages on that chat board in which people claimed to have enjoyed being sexually engaged as children is something that helped to ease some of the shame he had been feeling about his attraction to child pornography. [ 61 ] Mr. Partanen addressed the court and I found him to be straightforward and accountable. From that allocution and in conjunction with a handwritten letter he submitted, it is clear to me that he has spent a great deal of time thinking about his involvement in this offence.

He recognizes that he has harmed the victims who are the subject matter of the material he possessed and that the harm consists not only in playing his role in the creation of demand, but also the harm that inheres to each viewing and display of this material. [ 62 ] It is also clear that Mr. Partanen has been spending time examining himself and his own personality and motivations as they connect with this offending. I agree with Mr. Krueger that these insights and this approach augur well for rehabilitation. [ 63 ] I also have a letter from Mr.

Partanen's close friend, Dillon Vaughn, which speaks to many redeeming qualities that Mr. Partanen has. Mr. Vaughn advises the court that he will continue to support Mr. Partanen throughout this experience. [ 64 ] There is no indication that Mr. Partanen had any difficulties while on bail and that is also a mitigating factor, particularly on the issue of specific deterrence. [ 65 ] Mr. Partanen has shown initiative in seeking out and obtaining therapeutic counselling.

It is not clear to me how effective this counselling has been in relation to the underlying forensic issues, but I accept that he would and will eagerly accept the sort of programming that can be provided through the correctional system both in and out of custody. Mitigating and Aggravating Circumstances [ 66 ] As I noted above, I must adjust the sentence based on any relevant mitigating or aggravating factors. There are a number of mitigating factors. [ 67 ] Mr. Partanen is 29 years old and has no criminal record.

He has pleaded guilty and I am told that he indicated this very early on so that I may, and in this case I do, treat it as an early guilty plea. In doing so, Mr. Partanen has made it unnecessary for the Crown to mount a trial and the public expenditure that would require. More importantly, he has demonstrated in a concrete way that he accepts responsibility and wishes to be accountable for this offence. [ 68 ] Mr. Partanen has experienced some collateral consequences that are either directly or partially related to these charges. He lost his job which he says was a result of the charges.

He has not been able to find replacement employment. He is experiencing financial insecurity and anxiety as a result. [ 69 ] When he was charged with these offences, Mr. Partanen was in the process of rekindling a relationship with his first serious girlfriend. That relationship initially survived the charges and they eventually began cohabitating and she became pregnant. In December 2020 she miscarried. Earlier this year that woman ended the relationship because of the charges. Mr.

Partanen was clearly highly distressed and the reviewing psychologist assessed his risk for self-harm or suicide as being elevated. [ 70 ] There are significant aggravating circumstances as well. [ 71 ] Lily's victim impact statement is, as I noted above, a vivid demonstration of the catastrophic consequences of child pornography for the victims of the abuse. I accept that Mr. Partanen has harmed her by collecting and possessing videos of these deeply traumatic experiences.

Furthermore, I accept that Lily's experiences are likely very representative of the many children whose violent sexual assaults were recorded and which Mr. Partanen collected. [ 72 ] The cases provided to the court satisfy me that Mr. Partanen's collection should be characterized as a large one. While it is not as large as some, particularly those in the cases of Jenkins and the case called Large , it dwarfed those in two of the three cases that Mr. Krueger submitted for my consideration, Neasloss and R.W.P.

It was much bigger than the collection in the third case, Redekopp , as well as being considerably larger than those in some cases which the Crown submitted including Hagen and Sheffield . The closest comparator in size for the collection is Capewell which had 5,000 images. [ 73 ] In addition to being a large collection, Mr. Partanen's is organized and has been built over a long period of time.

As noted above, some of the content was created very recently, suggesting a continuous effort to collect and suggesting a collecting behaviour that led up very shortly to the search of his residence. [ 74 ] The nature of Mr. Partanen's collection is also aggravated. He collected images and videos of children being abused, who ranged in age from infancy to prepubescent children.

They included gravely serious and dangerous sexual assaults, including those of the highest order of intrusiveness in which children were exposed to greater risk of injury and disease, in addition to the devastating impact of the sexual violations themselves. His videos included subjecting children to additional acts of gratuitous violence. In many of the images or videos the children are visibly distressed. In at least one video the victim is seen to never move, which I infer is indicative of this child suffering profound harm.

[ 75 ] In Hagen , the Court of Appeal recently confirmed that the generally accepted range of sentences for possession of child pornography is four months to two years imprisonment at paragraph 69. Mr. Krueger acknowledges that Mr. Partanen's six-month sentence proposal is situated at the low end of the range. [ 76 ] I accept and recognize that Mr. Partanen is further along in his insight and rehabilitation than many who come before the courts. That being said, a six-month sentence manifestly fails to recognize the size and very aggravated nature of Mr. Partanen's collection. [ 77 ] Mr.

Partanen's case is most similar to those of Sheffield , which was a 10-month sentence for a smaller collection and moderate risk of reoffence; Hagen , a 10-month sentence for a smaller, less aggravated collection kept by a lower functioning Indigenous accused who showed remorse; and Capewell , an eight-month sentence for a somewhat larger collection, arguably less aggravated, and who posed a low risk to reoffend and who, like Mr. Partanen, was open to counselling. [ 78 ] No two cases are ever identical and sentencing is the epitome of an individualized process. Mr.

Partanen's insight and remorse is at least as strong and promising as any of the accused in the cases that I have reviewed. However, his collection was large and particularly aggravated making this a grave offence. He represents an ongoing risk, albeit one for which there is reason to be optimistic that it may be managed. [ 79 ] Denunciation and deterrence, both personal and general, are the most important principles and purposes in this sentencing but rehabilitation and restraint are also important in the mix. [ 80 ] Mr.

Partanen, would you stand up, please. [ 81 ] Having considered the evidence, the various principles and purposes of sentencing, the aggravating and mitigating circumstances, the gravity of your offending, as well as the degree of your responsibility, I find that an appropriate sentence is one of nine months. You may sit down. [ 82 ] I am going to turn to the question of probation. [ 83 ] The parties agree that a three-year probation order is appropriate. They agree on all terms except the Crown's proposal that Mr. Partanen be prevented from going to any public park during his probation. Mr.

Krueger points out that some parks, for instance Stanley Park, are enormous and there are bound to be many places that Mr. Partanen could go where he would not encounter any children. The Crown points to the ongoing risk that Mr. Partanen poses and says that it is appropriate to prevent him from going to parks for the first three years after he is released from custody and then through the s. 161 order, permit him to do so if he is with an adult. The Crown's proposed wording gives Mr. Partanen the option of obtaining his probation officer's written approval should he wish to go to a park.

In my view, this is a prudent condition and should allow him to attend any organized events. [ 84 ] You must comply with a probation order for a term of three years. The conditions are as follows: 1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3. You must report in person to a probation officer at suite 102, 14245 - 56 Avenue, Surrey, B.C., within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different timeframe.

After that you must report as directed by your probation officer. 4. When first reporting to your probation officer you must provide them with the address where you live and your phone number. You must not change your address or phone number without notifying your officer, in writing, at least seven days in advance of any such change. 5.

You must not be alone in the immediate presence of any persons known by you to be under the age of 16 years unless: (1) you have the advance written permission of your probation officer; (2) the person under 16 years of age is your child; or (3) there is another adult over the age of 18 years who is also in the immediate presence of a person under 16 years and they are aware of the terms of your probation order.

When you have the written permission of your probation officer to be alone in the immediate presence of a person under the age of 16 years, you must carry a copy of that permission with you which may be in electronic format. 6. You must attend, participate in and complete any intake, assessment, counselling, or educational program as directed by your probation officer. This may include counselling or programming for sexual offence prevention. 7.

You must not go to any public park, 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, schoolground or playground, except with prior written permission from the probation officer. 8. You must not seek, obtain, or continue with any volunteer position or employment, whether or not the employment or position is remunerated, that involves being in a position of trust or authority towards persons under the age of 16 years. 9.

You must not possess or use any electronic device capable of accessing any computer network including the internet unless: (1) you do not delete the history of the internet use from the device; (2) the device you use keeps and displays the history of internet use; (3) you do not install or have any applications or platforms on the device that automatically delete messages, videos or photos viewed from the device, permits incognito internet browsing, or allows data to be deleted from the device remotely; (4) you do not install or have an Onion Router (TOR) application. 10.

You must not access any computer network, including the internet to: (1) access any content that violates the law; (2) access directly or indirectly or maintain a personal profile on any social media sites, social network internet, discussion forums or chatrooms, unless for

purposes directly and immediately related to your employment; or (3) communicate electronically or attempt to communicate electronically, directly or indirectly, with any person you know to be or who reasonably appears to be under the age of 16 years unless they are your children. [ 85 ] Pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for 20 years. [ 86 ] The offence to which you have been sentenced is a primary designated offence.

Pursuant to s. 487.051(1) of the Criminal Code , I authorize the taking of samples of bodily substances from you. The samples will be taken from you while you are in custody and you must submit to the taking of the samples. Mr. Partanen, they will take a swab from inside your cheek, or a pinprick of blood, or hair by the root and they will analyze that for a DNA profile which will then be placed into a databank. [ 87 ] The final two issues are the s. 161 order and the victim fine charge.

Starting first with the 161. [ 88 ] In Hagen , the court confirmed at paragraph 52 that an order under s. 161: ... may only be imposed “when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk”… [ 89 ] The focus should be on the specific risk Mr.

Partanen poses and what conditions are reasonably necessary to minimize the risk in the circumstances of this case. [ 90 ] The court noted that: …The duration [of the order] should [also] take into account the length of the sentence, the age of the offender upon release into the community, and the prospects for rehabilitation. Hagen at paragraph 53. [ 91 ] Mr. Partanen has clearly started down the path toward rehabilitation. He is keenly interested in programming which he is likely to receive in custody and while on probation.

However, his risk of recidivism in relation to another accessing and possession offence remains moderate. His admitted long-standing attraction to visual and video depictions of child sexual abuse, and the blog postings satisfy me that he poses a risk to children. I find that the protections that s. 161 offers are prudent and mandated. Mr. Partanen does not disagree and he accepts that a 10-year order is appropriate. [ 92 ] Once again, Mr. Partanen agrees with the conditions that Crown proposes with one exception. The Crown seeks a condition that Mr.

Partanen be prohibited from accessing any social media sites, social network forums or chatrooms, or maintaining any personal profiles within these environments unless he does so for a reason directly and immediately related to his employment. The Crown has sought an identical prohibition within the probation order, which Mr. Partanen does not oppose. [ 93 ] In relation to the 10-years 161 order, however, Mr.

Partanen observes that social media has become ubiquitous and an important form of social engagement, and he argues that the three-year prohibition captured in the probation order which will commence upon his release from custody is adequate. [ 94 ] The Crown is strongly opposed to leaving this condition out of the s. 161 order pointing out that, in this case, Mr. Partanen actually used social media to upload unlawful content and to promote and endorse child sexual assaults. As such, she says Mr. Partanen continues to pose a risk of using social media to engage in sexually exploitive behaviour.

The Crown observes that Mr. Partanen himself has acknowledged that overcoming his deviant interest in this material and behaviour might be a lifelong struggle. The Crown has not asked for a condition that Mr. Partanen submit to computer device searches but argues that because the internet offers unlimited opportunities to fall back into dark behaviour, this sort of condition is well supported. [ 95 ] In recent years, Parliament has made s. 161 significantly more robust in its ability to extend the protection of the law to very vulnerable individuals in an effort to prevent harm that is profoundly catastrophic.

In that regard, s. 161 has an overarching protective function ( R. v. J.(K.R.) 2016 SCC 31 at para. 44 ). When there is an evidentiary basis to conclude that the accused poses a risk to children, the court should impose conditions that are carefully tailored to address the nature and degree of that risk so as to reasonably minimize it. That is at paragraphs 47 and 48 of that case. [ 96 ] In this case, the risk of reoffence is supported within the psychological report and also as a reasonable inference from all of the evidence, particularly the duration of Mr.

Partanen's offending despite his previous efforts to discontinue and address this pathology. As such, I agree with Crown counsel's position in this regard. I note that the Crown proposes language regarding social media usage which the Court of Appeal very recently used in Hagen , which was also a child pornography case. Finally, I observe that by s. 161(3) it remains open to Mr.

Partanen to return to the court after he has completed some or all of his programming to apply for a variation of the order, for instance, to change or delete this particular prohibition. [ 97 ] As a result, I consider the proposed condition a reasonable and necessary one in the conditions. [ 98 ] Pursuant to s. 161 of the Criminal Code , you are prohibited for 10 years, commencing on the date that you are released from prison from the following: [ 99 ] You must not go to any public park, public swimming area, daycare centre, schoolground, playground, theatre, or community centre where persons under the age of 16 years are known by you to be present or can reasonably be expected to be present, unless you are in the immediate presence of another adult over the age of 18 years. [ 100 ] You are prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or

becoming or being a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years. [ 101 ] You are prohibited from being alone in the immediate presence of any person known by you to be under the age of 16 years unless that person is your child or there is another adult over the age of 18 years who is also in the immediate presence of the person under the age of 16. [ 102 ] You must not access any computer network including the internet to: (1) access any content that violates the law; (2) access directly or indirectly or maintain a personal profile on any social media sites, social network, internet, discussion forums or chatrooms unless for purposes directly and immediately related to your employment; or (3) communicate electronically or attempt to communicate electronically, directly or indirectly, with any person you know to be or who reasonably appears to be under the age of 16 years unless they are your own children. (DISCUSSION) [ 103 ] THE COURT: Pursuant to s. 737(2.1) of the Criminal Code , I am satisfied that because of your precarious financial circumstances the surcharge would cause an undue hardship to you and I order you to pay no surcharge. (DISCUSSION) [ 104 ] THE COURT: Mr.

Partanen, this is a difficult day for you, I recognize that. I do believe that you are going to be able to put this behind you. Your progress since your arrest has been very impressive, and I hope that you continue to work each day mindfully towards building both your insight and your future behaviour. I wish you the best of luck. (REASONS FOR SENTENCE CONCLUDED)