R. v. M.O.C. Date:, 2016 BCPC 273

Citation: R. v. M.O.C. Date: 20160316 2016 BCPC 0273 File No: 24024-C-2 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.O.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: C. Morgan Counsel for the Defendant: K. McGee Places of Hearing: Castlegar and Nelson , B.C. Dates of Hearing: January 19, April 20, September 30, 2015; February 22, 2016 Date of Judgment: March 16, 2016

Introduction [ 1 ] M.O.C. was charged with making available child pornography and possessing child pornography between March 14, 2014 and April 17, 2014, contrary to sections 163.1(3) and 163.1 (4) of the Criminal Code . The Crown proceeded by indictment. [ 2 ] The trial commenced in January, 2015. M.O.C. applied under the Canadian Charter of Rights and Freedoms for an order excluding evidence. I dismissed that application, and I ruled that the evidence was admissible. M.O.C. then admitted all of the elements of the offence of possessing child pornography, and I found him guilty.

The Crown entered a stay of proceedings on the count of making available child pornography. The trial was adjourned for the preparation of certain reports. [ 3 ] Today is the sentence hearing. I will begin by reviewing the sentence positions of Crown and defence, before summarizing M.O.C.’s background, the circumstances of the offence, the law that applies in these circumstances, and finally the particular factors that lead me to the sentence that must be imposed.

Positions of Crown and Defence [ 4 ] The Crown is seeking a sentence of 12 months in jail, followed by probation for three years. [ 5 ] M.O.C. has submitted that the appropriate sentence is six months in jail, to be followed by probation. [ 6 ] The statutory range of sentence has changed several times within the last several years. In 2005, Parliament amended the Criminal Code to add a minimum sentence to the offence of possessing child pornography. The minimum sentence, at that time, was 45 days incarceration.

In 2012, Parliament amended the Criminal Code again, and increased the minimum sentence for possession of child pornography to six months incarceration. That was the minimum sentence in March and April 2014, when M.O.C. committed this offence. That is the minimum sentence that applies on this sentence hearing. [ 7 ] In 2015, after M.O.C.'s offence had been committed, the minimum sentence was increased again. Anyone convicted of possession of child pornography today would face a minimum sentence of one year in jail, if the Crown proceeded by indictment. M.O.C.’s Circumstances [ 8 ] M.O.C. is 70 years old.

He was born in Portugal, and enjoyed a normal, healthy childhood. He left school at the age of 12 to work on the family farm. At the age of 22, after completing three years compulsory military service, M.O.C. married a young lady that he had been courting for several years. [ 9 ] He and his wife have been married for 50 years. Shortly after they were married, M.O.C. and his wife emigrated from Portugal to Canada. They have lived in Castlegar, B.C. ever since. [ 10 ] M.O.C. and his wife have two daughters. The C. family is close knit, supportive and loving. Mrs.

C. and both of the offender's daughters are aware of this conviction. They characterize his crime as a mistake. [ 11 ] M.O.C. worked for 37 years at a lumber mill in Castlegar. He retired about 10 years ago. M.O.C. and his wife are financially secure, and plan to stay in Castlegar. [ 12 ] M.O.C. suffers from diabetes, high blood pressure and polymyalgia. Polymyalgia is a syndrome involving pain or stiffness in the neck, shoulders, upper arms and hips. He takes medication for all of these ailments. [ 13 ] Following the submissions of counsel, M.O.C. was asked if he would like to say anything.

He said, "I would like to apologize, if I did something wrong without knowing." The Offence [ 14 ] On March 14, 2014 a member of the RCMP's Behavioural Sciences Group, Integrated Child Exploitation Unit was conducting an investigation into the sharing of child pornography through peer-to-peer file sharing computer software.

By using a monitoring tool, she determined that a user of a computer using a file sharing program with a specific Globally Unique Identifier was in possession of computer files that contained child pornography. [ 15 ] File sharing is the practice of making computer files available to others for download over the Internet. Peer-to-peer file sharing means that the files are stored on and served by the personal computers of the users. [ 16 ] The file sharing program was a program called Shareaza, which users can download for free from the Internet.

The monitoring tool was a related program called Shareaza LE, which has been enhanced for law enforcement. Shareaza LE enables law enforcement agencies to log all activity and transactions that occur while the law enforcement computer is connected to the target computer. [ 17 ] Through further investigation, the RCMP member identified the Internet subscriber as M.O.C. Further general Internet searches produced information about his property, family and connections in the community. [ 18 ] Shortly after noon on April 17, 2014, the Castlegar RCMP executed a search warrant at M.O.C.'s residence.

They seized a black tower computer and an external hard drive from M.O.C.'s office. They also seized handwritten notes detailing the names of websites and search terms. [ 19 ] M.O.C. was arrested. While he was in custody at the RCMP detachment, M.O.C. said, "I didn’t know that I could get in trouble for looking at stuff on the Internet." He later made a statement acknowledging that he knew that possession of child pornography was

wrong. [20] The RCMP examined the tower and hard drive. They discovered 58 different videos and one image that constituted childpornography, within the meaning of the Criminal Code. The court viewed a representative sample of the videos seized from M.O.C., andwas referred to a spreadsheet and other notes summarizing the content of each video. [21] The ages of the children generally ranged from about five to about eleven years old, although some children were younger thanfive. About 11 of the videos depicted sexual activity between children, or solo masturbation by a child.

About 14 videos, and the singleimage, depicted non-penetrative sexual activity between adults and children, including cunnilingus by adults on young girls. 33 videosdepicted anal, vaginal or oral penetration of children by adults, or less frequently of adults by children. [22] No victim impact statements were obtained. That does not mean there were no victims. The children in these videos areanonymous. As I said in R. v. R., (June 11, 2015) Rossland Registry No. 20892-2-C (BCPC), I may not know their names, but I am surethey each have one. They exist somewhere in the world.

They know, or will know when they are older, that strangers who enjoy theirsuffering possess images of their abuse. Child pornography is not a victimless crime. [23] Crown and defence filed psychiatric, psychological and pre-sentence reports. The psychiatric and psychological reports reliedheavily on information provided to the authors by M.O.C.

The authors of the psychiatric and psychological reports generally agreed thatthe risk of M.O.C. reoffending was low. [24] The authors of all three reports noted that M.O.C. explained his behaviour by saying he did not know that downloading andpossessing child pornography was illegal. [25] Counsel for M.O.C. submitted that a significant number of people in our community do not consider accessing childpornography on the Internet as a crime.

He said that these people are of the view that accessing child pornography must be legal,otherwise the government would stop it. [26] On M.O.C.'s behalf, his counsel filed five character letters from members of M.O.C.'s family and friends in the community.Three of the letters refer to the possession of child pornography as a "mistake". [27] I do not accept that M.O.C. did not know it was wrong to possess child pornography, or that he downloaded it merely out ofcuriosity. I cannot accept those assertions for several reasons. M.O.C. deleted some child pornography, but saved other files.

The fileswere saved in a variety of locations, over several years, but almost all the files appeared to been accessed within five months of his arrest.Although he shared adult pornography with his wife, he did not share child pornography with her. Finally, following his arrest, M.O.C.made a statement to the police in which he admitted that he knew that possessing child pornography was wrong. Applicable Law [28] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence, and to the degreeof responsibility of the offender.

The purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peacefuland safe society by imposing just sanctions that are directed at specific objectives. Given his age and low risk of reoffending, theobjectives that are important in M.O.C.'s case are denunciation and general deterrence. [29] The Supreme Court of Canada explained in R. v.

Sharpe, 2001 SCC 2 , [2001] SCJ No. 3 why strong statements ofdenunciation and deterrence were required when dealing with conduct involving child pornography, including production, distributionand possession. [30] The legal prohibition on the possession of child pornography contributes to a reduction in the sexual abuse of children in fiveways: 1. Children are abused in the production of child pornography. 2. Child pornography promotes cognitive distortions. Repeated exposure may cause the abuse of children to appear normal andacceptable to viewers. 3.

Child pornography may fuel fantasies that incite certain offenders to commit further offences. 4. The offence of possession aids prosecution of those who produce and distribute child pornography, and in that way is a positive sideeffect of the law. 5. Criminalization of possession of child pornography is likely to help reduce the grooming and seduction of children. See R. v.

Bowers, 2013 BCPC 383 , 2013 BCPC 0383 at para. 39. [31] In M. (C.A.), (SCC), [1996] 1 S.C.R. 500, Lamer C.J.C. discussed the objectives of a denunciatory sentence.He said: [81] … The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particularoffender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender'sconduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. AsLord Justice Lawton stated in R. v.

Sargeant (1974), 60 Cr. App. R. 74, at p. 77: “society, through the courts, must show its

abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass” . The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [Bold emphasis added; underline emphasis in the original.] [ 32 ] I have noted the reaction of some people to this offender's crime.

They have described M.O.C.'s conduct as a mistake, or suggested that there is confusion about whether possession of child pornography is illegal. [ 33 ] In my view, if there is any confusion among individuals in our community about whether possession of child pornography is unlawful, the sentence imposed on M.O.C. must permit an expression of the community’s abhorrence of the sort of conduct he engaged in. Particular Factors in Sentencing [ 34 ] Every offence and every offender are different.

As a result, I will consider the specific aggravating and mitigating factors in this case. [ 35 ] The aggravating factors include the nature of the sexual abuse depicted in the videos, and the lack of insight shown by M.O.C. [ 36 ] The mitigating factors include M.O.C.'s age, his poor health and the absence of any record of criminal convictions. Ancillary Orders [ 37 ] I will make a number of orders that are ancillary to the sentence to be imposed. [ 38 ] Possession of child pornography is a primary designated offence for the purposes of the DNA database.

I order that M.O.C. attend within the correctional centre in which he will be in custody by March 25 at 4:00 PM and thereafter as may be necessary in order for a sample or samples of his bodily substances to be taken for purposes of registration in the national DNA databank.

This order is valid until executed. [ 39 ] The computer equipment used in this offence is forfeited to Her Majesty to be disposed of as the Attorney General directs. [ 40 ] The victim surcharge will be payable to the Clerk of the Court two months following the date on which his warrant of committal will expire, in accordance with the provincial regulations. [ 41 ] Pursuant to

section 490.012 of the Criminal Code , M.O.C. will be required to comply with the Sex Offender Information Registration Act for a period of 10 years. [ 42 ] Pursuant to

section 161 of the Criminal Code , M.O.C. will be prohibited from using any device capable of accessing the Internet, unless it has the capacity to retain and display the history of the Internet use, and M.O.C. consents to inspection of the device by a peace officer or probation officer. M.O.C. will be prohibited from deleting the history of the Internet use from the device. Finally, M.O.C. will be prohibited from possessing any device capable of storing digital images, unless he consents to inspection of the storage device by a police officer. The term of the

section 161 order will be for life. [ 43 ] I have considered the balance of the prohibitions available under

section 161, and have determined that they are not required given the nature of M.O.C.'s conduct and circumstances. Probation Order [ 44 ] Before I deal with the sentence of incarceration, there will be a probation order. M.O.C. must comply with the conditions of a probation order for a term of three years.

The conditions of the order are that he keep the peace and be of good behaviour, appear before the court when required to do so by the court, and notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 45 ] M.O.C. must report in person to the probation officer at the Castlegar Community Corrections Office at 1472 Columbia Avenue, Castlegar B.C. within two business days after the completion of his jail sentence. After that, he must report as directed by the probation officer.

When first reporting to the probation officer, M.O.C. must inform him or her of his residential address and phone number. He must not change his residence or phone number without written permission from his probation officer. [ 46 ] M.O.C. must not possess any pornographic materials and he must not access any pornographic materials by electronic means. [ 47 ] M.O.C. must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer.

Without limiting the general nature of this condition, the intakes, assessments, counselling or programs may relate to sexual offence prevention. Incarceration [ 48 ] Finally, I must impose a term of incarceration. Having considered all of the circumstances and the applicable law, I have concluded that a just sentence to impose upon you is a term of imprisonment for ten months.

______________________________ The Honourable Judge R. Hewson