R. v. Redekopp, 2020 BCPC 29

Citation: R. v. Redekopp 2020 BCPC 29 Date: 20200127 File No: 24158-1 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DUANE DENIS REDEKOPP REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.D. MORGAN Counsel for the Crown: A. Buchanan; L. Ruzicka Counsel for the Defendant: I. McTavish Place of Hearing: Salmon Arm , B.C. Date of Hearing: December 3, 2019 Date of Judgment: January 27, 2020 A Corrigendum was released by the Court on February 26, 2020. The corrections have been made to the text and the Corrigendum is appended to this document.

[ 1 ] Duane Redekopp has pled guilty to one count of possessing child pornography contrary to s. 163.1(4) of the Criminal Code . The Crown proceeded by

summary conviction. The Circumstances of the Offence: [ 2 ] The British Columbia Integrated Child Exploitation Unit (ICE) received a report from the National Center for Missing and Exploited Children (NCMEC) that a Google user who turned out to be Mr. Redekopp had uploaded 9 images of suspected child pornography on October 7, 2017, 10 images on October 31, 2017, another 3 images on December 4, 2017, and the further 8 images on December 6, 2017. [ 3 ] While executing a search warrant at the accused's residence, a police officer witnessed Mr.

Redekopp take a thumb drive from his computer and throw it onto the top shelf of his closet. The police retrieved the thumb drive and 22 other exhibits from the residence. [ 4 ] Mr. Redekopp was in possession of 791 images of child pornography and 19 videos of child pornography. The vast majority of the images had creation, modification and access dates ranging between 2017 and 2018. Only 16 images predated 2011. All of the videos had creation, modification and access dates ranging between 2017 and 2018. [ 5 ] Mr. Redekopp was in possession of 791 images of child pornography and 19 videos of child pornography.

The vast majority of the images had creation, modification and access dates ranging between 2017 and 2018. Only 16 images predated 2011. All of the videos had creation, modification and access dates ranging between 2017 and 2018. [ 6 ] Although the images and videos vary to some degree, they are significantly focused on male children between the ages of 10 to 14 years engaged in sexual acts with adults, or having as a dominant characteristic the child's penis or anal region.

Circumstances of the Offender: [ 7 ] The court was assisted with a Pre-Sentence Report and a Pre-Sentence Psychological Assessment. [ 8 ] Mr. Redekopp is 46 years old and reports to the author of the Pre-Sentence Psychological Assessment as having obtained a grade 12 equivalent education. However, the author of the Pre-Sentence Report states he last completed grade 8. Nothing turns on the discrepancy. [ 9 ] Mr. Redekopp reports that as a youth he was subject to both physical and mental abuse from his father and then his stepfather.

His stepfather has since passed away and he has no contact with his father, or his sister, who is his only sibling. [ 10 ] The author of the Pre-Sentence Report states that when he requested permission to contact Mr. Redekopp’s mother, Mr. Redekopp said he was no longer in contact with his mother. However, Mr. Redekopp states in court that he has contact with his mother twice a month. [ 11 ] Mr. Redekopp has been married to his current spouse since 2009. They have no children. They were both drug users but early in their relationship they both stopped using crack-cocaine.

He describes their relationship as loving and affectionate. [ 12 ] They live in a 55+ community in a home owned by his spouse’s elderly mother, who is now in a care home. They qualify to live in this community because his spouse is 15 years his senior. [ 13 ] Mr. Redekopp has been designated a Person With Disabilities since 2013, and has not had any significant employment for over the past 10 years. He owes court ordered restitution to the Ministry of Social Development for a 2011 fraud conviction. He is making payments by way of automatic deductions from his social assistance. [ 14 ] Mr.

Redekopp has a criminal record consisting of the following convictions: • 1991 break and enter; • 1992 attempted break and enter; • 1994 mischief under; • 2006 theft under; and • 2011 fraud over. [ 15 ] He has done well during his periods of community supervision and received mental health and addiction services. [ 16 ] Mr. Redekopp was sexually abused by a male neighbour when he was approximately 6 years old. [ 17 ] Mr. Redekopp has a history of complaints of chronic pain. Dr. De Wet in 2011 was of the opinion Mr. Redekopp’s pain was associated with his experience of stress and anxiety.

The Psychological Assessment references several prior assessments that were inconclusive. For example, it is noted that a diagnosis of major depressive disorder could not be substantiated in 2006. However, it was also noted that he may have met the diagnostic criteria for social anxiety, and several facets of a mixed personality disorder were also noted. However, during the interview for the most recent Psychological Assessment, Dr. Joneja stated there was no evidence of disorganized thought or reality distortion. [ 18 ] Cognitive testing was in the below average range. Mr.

Redekopp was assessed at a low to moderate risk of sexual re-offending. Dr. Joneja recommends a period of restricted/supervised use of the internet, and programming that will create opportunities to increase his sense of productivity and personal success, to reduce the risk of recidivism.

[19] I accept the evidence regarding Mr. Redekopp’s spouse having terminal lung cancer, even though the evidence is limited to avery brief Doctor’s note. This information is a very tragic development from Ms. Tezt’s self-report in July of 2018 to the author of thePre-Sentence Report that she believed she was cancer free. [20] I also accept that Mr. Redekopp provides Ms. Tezt with significant assistance in her day to day care.

Sentencing Position of the Crown: [21] Crown counsel Bill Hilderman emphasizes the case law establishes the need for denunciatory and deterrent sentencing forpersons convicted of the charge of possession of child pornography. [22] Crown submits that given the size of the accused's pornography collection, and his personal circumstances, and the absence ofwhat could be considered “exceptional circumstances”, the appropriate range of sentence in this case is between 6 to 12 months’incarceration followed by 2 years’ probation and the required ancillary orders.

Sentencing position of the Defence: [23] Defence counsel Ian McTavish says the background personal circumstances of the accused, and his present circumstanceswhich specifically include that he is caring for his ailing wife who has terminal cancer, constitute exceptional circumstances that would,absent the mandatory minimum sentence of 6 months, make a conditional sentence order the appropriate sentence. [24] He argues that the mandatory minimum sentence should be found to be unconstitutional on the facts of this case, or, in thealternative, on the facts of a reasonably hypothetical case, and that a conditional sentence order should be imposed.

The Law: [25] Sections 718 to 718.2 of the Criminal Code govern this sentencing proceeding.

Section 718.1 of the Criminal Code directs thatit is a fundamental principle of sentencing that a sentence be proportionate to the gravity of the offence and the degree of responsibilityof the offender. [26]

Section 718.01 directs that in cases involving the abuse of children, the court imposing sentence must give primaryconsideration to the objectives of denunciation and deterrence of such conduct. [27]

Section 718.2 directs in part that a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances, and that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances. [28] In the 2019 decision in R. v. Alexander, 2019 BCCA 100, the British Columbia Court of Appeal upheld the eight months’ jailsentence for the 25 year old offender who had pled guilty to a single count of possession of a large collection of child pornography.

Theoffender had no prior criminal record, had a good childhood, had graduated high school, and had a good work history. Mackenzie J.A.,for the court, said the following starting at para. 40: [40] In R.L.W. this Court explained that over the years, courts have developed a greater appreciation of the harm caused to children bythe manufacturing, distribution and possession of child pornography. The courts have thus placed greater emphasis on denunciation anddeterrence, causing sentences to increase: at para. 49. [41] R. v.

Inksetter, 2018 ONCA 474 held a custodial sentence was necessary to emphasize denunciation and deterrence incases of child pornography: [22] Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrotein R. v. Andrukonis, 2012 ABCA 148 , at para. 29, “possession of child pornography is itself child sexual abuse.” The childrendepicted in pornographic images are re- victimized each time the images are viewed.

In amassing, viewing, and making available his vastand terrible collection to others, the respondent participated in the abuse of thousands of children. [23] Over the past decade, Parliament has increased the legislated range of sentence for child pornography related offences. Mostrecently, in 2015, it amended the Criminal Code to increase the minimum sentence for possession of child pornography to 1 year and themaximum sentence to 10 years, in all cases where the Crown proceeds by indictment.

At the same time, the maximum sentence for[making] child pornography available was increased to 14 years. (The minimum sentence remains at one year.) … [25] As Feldman J.A. wrote in [R. v. D.G.F., 2010 ONCA 27 ], at para. 21, “[o]ver the last two decades, courts have been on alearning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet andto address the problem appropriately”. Even before these amendments, this court signalled that more significant sentences for childpornography-related offences were appropriate: R. v.

H.(R.), 2012 ONCA 593 , [2012] O.J. No. 4230; R. v. Saliba, 2013 ONCA660 , [2013] O.J. No. 6002. [42] Swaby expressed the same principles, stating, “[e]xcept in exceptional cases, those who possess child pornography will beincarcerated”, even in cases where the Crown proceeds summarily: at paras. 66-67. [Emphasis added.] [43] In the result, I conclude the sentence of eight-months’ imprisonment followed by 18-months’ probation was within the appropriaterange and is a fit sentence.

[29] Regarding the appropriate range for a first time offender for the charge of possession of child pornography, the BCCA inAlexander emphasized the following statement made by the trial judge, at para 23: [23] The judge then drew these conclusions: [57] I find that the particular circumstances of Mr. Swaby are quite different from that of Mr. Alexander. Furthermore, I do not find thatthe principles of denunciation and deterrence would be given adequate voice by way of a CSO for Mr. Alexander. Based on my reviewof the case law I agree with the statement of Mr.

Justice Marchand in [Swaby BCSC] that the appropriate range for a first time offenderwith a collection of pornography similar to that of Mr. Swaby's would be a jail sentence of 6 to 15 months. I do not find anything in theparticular circumstances of Mr.

Alexander or the circumstances of his offence which would reduce his moral blameworthiness belowthat range. [Emphasis added by the BCCA.] [30] Starting at para. 37 in Alexander, the Court of Appeal made the following additional comments about the appropriatesentencing range: [37] I agree with the Crown that the judge’s review of recent and relevant sentencing authorities, including Swaby BCSC, was extensive.It properly reflected society’s evolving understanding of the harmfulness of child pornography. The judge carefully considered allrelevant mitigating and aggravating factors on sentence.

He concluded the appropriate range for a first-time offender would be a jailsentence of six to 15 months. The appellant has not provided any submissions or authorities challenging this range, nor has heestablished, in my view, that the sentence imposed was demonstrably unfit. [38] Moreover, the range identified by the sentencing judge is not materially different from the broad sentencing range of four months totwo years’ imprisonment provided in R. v.

R.L.W., 2013 BCCA 50 at paras. 21 and 49. [39] At sentencing, the appellant asserted a CSO was a fit sentence for him as the facts of this case are analogous to those in SwabyBCSC. However, the judge accurately distinguished Mr. Swaby’s circumstances from those of the appellant. Moreover, recentauthorities say incarceration will be necessary in all cases of possession of child pornography, except in exceptional cases, toappropriately emphasize the principles of denunciation and deterrence. I do not consider the present case to be exceptional. [Emphasis added.] Decision: [31] The aggravating circumstances in Mr.

Redkopp’s case are his - albeit unrelated - criminal record, the large quantity of offendingmaterial, his minimization of his responsibility by the fiction that he did not download any material but that it was all on the thumb-drivehe stole in 2004 notwithstanding the incontrovertible evidence to the contrary, and also his minimization of his moral blameworthinessby maintaining the unbelievable explanation that he was possessing the material, and even uploading it, for the presumably altruisticreason of outing on-line paedophiles. [32] The mitigating circumstances are his guilty plea, his proven ability to better himself by overcoming his past crack-cocaineaddiction, the ongoing support from his long time spouse, and his willingness to attend any court-ordered programming and counselling.I also remain cognizant of his albeit somewhat unclear physical health challenges, and his diagnosed condition of social anxiety.

I findhis difficult childhood and that he was himself a victim of childhood sexual abuse to be mitigating. [33] The Crown proceeded summarily and therefore the Code directs Mr. Redekopp is liable to a six month mandatory minimumsentence (MMS). The Crown acknowledges that in the light of R. v. Swaby, 2018 BCCA 416, and R. v. Alexander, 2019 BCCA 100, thesix month mandatory minimum cannot be defended. [34] However, there has not been a formal declaration that the six month MMS when the Crown proceeds summarily isunconstitutional. Consequently, if a fit and proportionate sentence for Mr.

Redekopp is determined to be below the 6 month MMS, aconstitutional analysis would be required. [35] If the case is not exceptional, and the proportionate sentence does not fall below six months, the court has the discretion todecline to consider the constitutionality of the MMS; see R. v. Lloyd, 2016 SCC 13, at paras. 4, 18, 20; R. v. Alexander, at paras. 50, 52,56. [36] Unfortunately for Mr.

Redekopp, his is not an exceptional case that would justify a sentence having a reduced focus ondenunciation and deterrence such that the appropriate sentence would be below the mandatory minimum of six months’ incarceration.Furthermore, to borrow a phrase from the trial judge in Alexander, a CSO would not, in this case, give adequate voice to the principles ofdenunciation and deterrence. [37] I decline to consider the constitutionality of the six month MMS given it would, in this case, be moot. [38] I accept that Mr. Redekopp is a significant help to Ms.

Tetz in her day to day living, just as she assists him by doing all of thedriving. However, sympathetic circumstances are not exceptional circumstances that lower Mr. Redekopp’s degree of responsibility, hismoral blameworthiness, or the gravity of the offence. [39] In R. v. B.J.M., 2019 BCPC 303, where Mr. M. was charged by indictment with one count of possession of child pornography,and one count of making available child pornography, I stated the following: [60] I agree that Mr. M., being the current sole provider for his family, creates a sympathetic circumstance for his family.

However,sympathetic circumstances are not exceptional circumstances. Mr. M.’s incarceration will have a financial impact that will presumably

fall to his spouse to address. The information in the PSR is that she is educated, and, as a past [omitted for publication], has provenmarketable skills. I do not lose sight of Mr. M.’s concern about some barriers to her success in maintaining employment that he believesexist. [61] However, it is the sympathetic circumstances of victims of child pornography that, through deterrent sentencing, the courts aretrying to prevent.

It is the lifelong psychological and possible physical injuries, and the possible lifelong suffering of the thousands ofchild victims, that judges are trying to prevent through deterrent sentencing. It will take a very compelling set of offender circumstancesto justify a sentence with a lesser deterrent effect. [62] Unfortunately for Mr. M., those compelling and exceptional circumstances are not present. [63] The fact that the mandatory minimum sentences for the two offences Mr. M. has pled guilty to have been struck down as beingunconstitutional does not automatically lower the sentencing bar.

The finding of unconstitutionality was based on actual or hypotheticalcases where unusual circumstances resulted in the mandatory minimum sentences being grossly disproportionate to the gravity of theoffence and/or the moral blameworthiness of the offender. In the usual case where there were no exceptional or unusual circumstances,Parliament’s determination of appropriate minimum sentences did not offend the Charter and were often exceeded. [64] In Inksetter, at para. 24, Associate Chief Judge Hoy said the following: [24] I am aware that there is an appeal pending in this court in R. v.

Cristoferi–Paolucci, 2017 ONSC 4246 , [2017] O.J. No.4341, challenging the constitutionality of the mandatory minimums for possession of, and making available, child pornography.However, even if the mandatory minimums are declared of no force and effect, Parliament's legislative initiatives signal Canadians’concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewedwith some caution. [40] The offender in R. v.

B.J.M., who had no criminal record, received a jail sentence of 8 months for possession of childpornography and 12 months concurrent for making available child pornography. [41] In the case of R. v. R.W.P., 2019 BCPC 133, relied on by the defence, the Honourable Judge Gouge was tasked with sentencinga 40 year old family man with no criminal history who had plead guilty to one count of possession of child pornography. [42] After referencing R. v. Inksetter, R. v. Swaby and R. v. Alexander, Judge Gouge said the following at para. 7: 7.

Accordingly, I must impose a jail sentence in this case unless sufficient “exceptional circumstances” exist to justify a non-custodialsentence. I do not find a definition of “exceptional circumstances” in any of Inksetter, Swaby or Alexander. However, the phrase wasused by the Court of Appeal in a similar context in R. v. Voong 2015 BCCA 285; [2015] BCJ No. 1335. In that case, the court held thatcustodial sentences must be imposed in drug trafficking cases unless “exceptional circumstances” justify a non-custodial sentence. Atparagraph 59 of the judgment, Justice Bennett said: 59.

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towardsrehabilitation for the drug addict, gainful employment, remorse and acknowledgment of the harm done to society as a result of theoffences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, theremust be circumstances that are above and beyond the norm to justify a noncustodial sentence.

There must be something that would leada sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public wassubsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this typeof offence, has concluded that CSO sentences are not available.

Thus it will be a rare case where the standard of exceptionalcircumstances is met. [43] Judge Gouge guided himself by the above definition of exceptional circumstances and noted that two phrases from the passagestood out: objectively identifiable steps towards rehabilitation, and something which would lead a sentencing judge to conclude that theoffender had truly turned his or her life around. Judge Gouge also noted that in Swaby it was determined that Mr.

Swaby's pre-existingintellectual limitations and mental health challenges were found to be sufficiently exceptional circumstances. [44] Judge Gouge determined that the offender’s unfortunate personal history, which included depression, suicidal ideation, andchildhood sexual abuse, may provide an explanation for his offence, but did not amount to exceptional circumstances.

He concluded thatif individual psychological scars constitute exceptional circumstances then incarceration will be the exception rather than the rule: [para.15]. [45] Judge Gouge sentenced the offender before him to 6 months’ jail followed by 2 years’ probation. The Crown had proceeded bysummary conviction. [46] In Mr. Redekopp’s case it does cause me deep concern that Mr. Redekopp’s actions are going to have a negative impact on hisspouse’s care and that she will have to arrange for an alternate caregiver while he is serving his sentence. I also remain acutely aware thatit is Mr.

Redkopp’s understanding his wife’s illness is terminal. [47] This sentencing was delayed to, in part, allow for care arrangements to be made, and Mr. Redekopp will recall I told him onDecember 3 he had to prepare himself for a likely custodial sentence. [48] I find that the negative impact Mr. Redekopp’s offending behaviour will have on his spouse, cannot amount to “exceptionalcircumstances.” Nor does his difficult childhood, childhood sexual abuse, or the fact that he has done well on bail, amount to exceptionalcircumstances justifying a non-custodial sentence. [49] Mr. Redekopp, please stand.

The Crown’s sentencing range was 6 to 12 months. Taking into consideration all of thecircumstances, specifically including the health circumstances of your spouse, I find the very low end of the range suggested by the

Crown is appropriate. I sentence you to 6 months’ jail followed by 24 months’ probation. [ 50 ] The terms of the probation are: 1. You must keep the peace and be of good behaviour. 2. You must appear before the court when required to do so by the court. 3. You must notify the court or the probation officer of any change of name or address or of any change of employment or occupation. 4.

You must report in person to a probation officer in Salmon Arm, BC, within two business days after your release from custody unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere. After that you must report as directed by the probation officer. 5. You must reside at a residence approved in advance by your probation officer. You must provide your phone number to the probation officer and you must not change your residence or your phone number without the written permission from your probation officer. 6.

You must not go to any public park, public swimming area or community centre where persons under the age of 16 years are present, or can reasonably be expected to be present, or a day-care centre, school ground or playground. The exceptions to this are: a. With the written permission of your probation officer. b. In the immediate presence of another adult only after he or she has been provided with a copy of this order. 7. You must have no contact or communication directly or indirectly with, or be alone in the presence of any person you know to be, or who reasonably appears to be, under the age of 16 years.

The exceptions to this are: a. If you have the written permission of your probation officer. b. Incidental contact while attending a business premise, a common area in a building, and while on public transit. 8. You must attend, participate in, and successfully complete, any intake assessment, counselling, or program as directed by your probation officer, which may include, but is not limited to, the forensic sex offender program. 9. You must not own, possess or use any device capable of accessing the internet, except as permitted in this order.

While owning, possessing, or using any device capable of accessing any computer network, including the internet: a. You must not delete your browsing history without the permission of your probation officer. b. You must not access, directly or indirectly, any social media sites, social networks, internet discussion forums or chat rooms, or maintain a personal profile on any such service, including Facebook, Tinder, Instagram, LinkedIn or any similar service. c.

You must not communicate or attempt to communicate with any person you know to be, or who reasonably appears or represents themselves to be under the age of 16 years through a social networking website, instant messaging service, or chat room program. d. Having consented, you must sign a release of information form as will enable your probation officer to monitor your compliance with this term. Any information obtained by the probation officer can be given to a peace officer. e.

Having consented, you must provide the device and any password used to lock the device to your probation officer upon their request, in order for him or her to monitor your compliance with this order. 10. You must not possess either personally or through another person any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in

section 2 the Criminal Code or any related authorizations, licenses or registration certificates. [ 51 ] This is a primary designated offence for purposes of DNA registration. I order you to provide a sample, or samples, of your bodily substances for purposes of registration in the national DNA databank.

The samples will be taken from you while in custody. [ 52 ] Pursuant to s. 490.012 of the Criminal Code , I am required to order, and so order, you to comply with the requirements of the Sexual Offender Information Registration Act for 20 years. [ 53 ] Pursuant to s. 161 of the Criminal Code , you are prohibited for five years from: 1.

Attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day-care centre, school ground, playground or community centre, unless you are accompanied by another adult who is aware of this order; 2. Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. _____________________________

The Honourable Judge R.D. Morgan Provincial Court of British Columbia CORRIGENDUM – Released February 26, 2020 [1] Page 1, paragraph 2 should read: The British Columbia Integrated Child Exploitation Unit (ICE) received a report from the National Center for Missing and Exploited Children (NCMEC) that a Google user who turned out to be Mr. Redekopp had uploaded 9 images of suspected child pornography on October 7, 2017, 10 images on October 31, 2017, another 3 images on December 4, 2017, and the further 8 images on December 6, 2017. [2] Page 1, paragraph 5 should read: Mr.

Redekopp was in possession of 791 images of child pornography and 19 videos of child pornography. The vast majority of the images had creation, modification and access dates ranging between 2017 and 2018. Only 16 images predated 2011. All of the videos had creation, modification and access dates ranging between 2017 and 2018. [3] Page 2, paragraph 10 should read: The author of the Pre-Sentence Report states that when he requested permission to contact Mr. Redekopp’s mother, Mr. Redekopp said he was no longer in contact with his mother. However, Mr.

Redekopp states in court that he has contact with his mother twice a month. [4] Page 10, paragraph 47 should read: This sentencing was delayed to, in part, allow for care arrangements to be made, and Mr. Redekopp will recall I told him on December 3 he had to prepare himself for a likely custodial sentence. [5] My Reasons for Judgment is amended accordingly. _____________________________ The Honourable Judge R.D. Morgan Provincial Court of British Columbia