R. v. B.H., 2022 BCPC 284

Citation: R. v. B.H. 2022 BCPC 284 Date: 20221110 File No: 244002-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. B.H. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. JETTÉ Counsel for the Crown: J. Sandhu Counsel for the Accused: C. Paquette Place of Hearing: Surrey , B.C. Date of Hearing: October 4, 2022 Date of Judgment: November 10, 2022

[ 1 ] These are oral reasons. [ 2 ] B.H. has entered a guilty plea to one count of possessing child pornography, contrary to s. 163.1(4) of the Criminal Code . [ 3 ] The offence was committed between the 1st of January and the 26th of March 2020. [ 4 ] The Crown is proceeding summarily. The maximum penalty is two years' jail. The six-month mandatory minimum jail sentence for this offence was struck down in R. v.

Alexander , 2019 BCCA 100 . [ 5 ] The Crown asks that I impose a jail sentence in the range of 18 to 21 months followed by two years' probation. [ 6 ] The defence seeks a conditional sentence order in the same range of 18 to 21 months. [ 7 ] I have had the benefit of a Pre-Sentence Report and a Psychological Risk Assessment, as well as a letter from B.H.’s counsellor, Paul Bains. [ 8 ] I will review the circumstances. [ 9 ] The investigation began in January of 2020 when a police officer in Milwaukee posing as a 34-year-old female on a KIKS messenger app participated in a group chat called Teeny Tiny Tots and Baby Pixsll.

These groups were used by members to share child pornography. A user who went by the name of HarderStyles118 was active in both groups and was the administrator of Baby Pixsll. The administrator would receive child images from a prospective participant, verify that the images were child pornography and then admit that person into the chat. HarderStyles118 received these messages on a number of occasions when acting in the role of administrator.

After further investigation, it was determined that B.H. was HarderStyles118. [ 10 ] During a chat posted on 26 March, B.H. told the Milwaukee police officer that he had five daughters and would be seeing his kids the next day. In the chat, B.H. was asked if he had ever been sexually active with his own daughters. He replied that he was "new to this" and realized he liked "young stuff" and had been told by people that "playing" was fun and he should try it. He also said he has a four-month-old daughter and was worried that her mother might see him playing.

He asked the undercover officer if she wanted to see him playing, if he tried it, and cautioned that she would have to keep them, and I assume that is a reference to the images, to herself. This exchange caused police to be concerned that B.H.'s child may be in danger and next steps in the investigation were expedited. [ 11 ] On the 27th of March 2020, police executed a search warrant in B.H.'s residence and seized his laptop. B.H. was arrested on the 28th of March and his mobile phone was seized incident to that arrest. [ 12 ] B.H. gave a warned statement.

In that statement, B.H. provided the password for his phone and gave the FBI authority to take over his KIKS account as part of their ongoing investigation of these chat groups. B.H. told police that he had been talking online with a 15-year-old female for about a year, had viewed and downloaded child pornography on the KIKS app and sent some of those images to others. Chats with the 15-year-old were located on B.H.'s laptop. The messaging was sexually explicit and B.H. asked for and received sexually explicit photos from the 15-year-old. B.H. said he liked girls ages 18 and under.

He also told police that he usually went online to view child pornography when he was using crack cocaine. [ 13 ] Police located text messages on B.H.'s phone, which were relevant to the investigation. In some of those messages, B.H. expressed violent sexual fantasies about having access to children he could abuse from birth. In addition to his messaging with the 15- year-old female, an analysis of B.H.'s laptop identified various chats, including one where he was asked if he had "fucked any littles" to which he replied, "not yet, I wish". He added that his age preference was eight to 17 years.

In another chat, B.H. said he likes toddlers and was interested in pursuing that further. [ 14 ] When police analyzed the iPhone, they found 9,405 images and 83 videos which met the definition of child pornography. A sampling of the images were described to me as follows: one image of a prepubescent female five to seven years old performing fellatio on an adult male. The female was naked from the waist up and was smaller in stature; another image of a female approximately two to four years old laying naked on her back and her body was visible from shoulders to knees.

An adult male penis was on top of her vaginal area. There were other images of prepubescent females aged three to five, who were naked from the waist down. An adult male can be seen performing digital vaginal penetration. [ 15 ] I have been told that most of the penetrative acts involved prepubescent children and depicted both penile vaginal penetration and digital penetration by adults. [ 16 ] I will turn to B.H.'s personal circumstances. [ 17 ] He is 32 years old. He was born and raised in Vancouver.

Both of his parents had children with prior partners and he has a number of half and step siblings. [ 18 ] When he was five years old, he moved with his mother to [omitted for publication] where she developed a drug addiction and worked in the sex trade. He then lived with his father. He reports a fairly normal upbringing from that point forward. He did not reconnect with his mother for some 17 years. [ 19 ] B.H. left home when he was 17 years old. He married his high school girlfriend when he was 19 and they have a daughter aged 14.

He separated from his wife some years ago and he has not seen her or his daughter for some time. [ 20 ] B.H. has had three other children with two subsequent partners. His two youngest children are daughters, ages two and four. He

says he lived with the children and their mother in [omitted for publication]. He relocated to the Lower Mainland for a better job. He had trouble gaining employment and started regular use of crack cocaine. He says he has not had contact with any of them, the others in his family, for about two years. [ 21 ] B.H. is paying child support for his eldest daughter and has recently paid down accumulated arrears. He is not supporting his two subsequent partners or their children. [ 22 ] B.H. has been living with his mother and stepfather for the past two years. He pays a nominal sum for rent.

He hopes to move into his own residence once these matters have concluded. He says he does not have any close friends. He has been employed as a cook or chef for most of his working life and he had been working at a Denny's restaurant for about a year following these charges. He accepted a similar position at another restaurant in November of 2021. [ 23 ] B.H. has struggled with a crack cocaine addiction over the last several years. He told the PSR writer that he had used crack cocaine about three weeks before the interview and had been drinking up to four times a week since these charges were sworn.

Up to the point of that interview, he had not participated in any addictions-based counselling or treatment. He said that his crack addiction ruined his life and that he was using when these offences were committed. He says that because he was using at the time, he has no memory of his conversations with the undercover officer on the KIKS app but he admitted he was sexually aroused when he viewed child pornography online. [ 24 ] B.H. was assessed by Dr. Sarah Farstad at BC Mental Health in December of 2021. He told Dr.

Farstad that he had used crack cocaine as recently as several days prior to attending for a testing appointment at Forensics. While acknowledging the problems in his life caused by his drug use, he was not prepared to attend for residential drug treatment; he felt he could get clean on his own. [ 25 ] Dr. Farstad did not find that B.H. was suffering from a major mental illness but she did conclude that he met the diagnostic criteria for Severe Stimulant Use Disorder Crack Cocaine and Severe Alcohol Use Disorder.

She noted that he had experienced a major depressive disorder beginning after his arrest for these charges. Psychological testing indicated pedophilic-hebephilic interests. Despite this, Dr. Farstad offered the opinion that B.H. likely represents a low to moderate risk of engaging in future child pornography offences or having sexual communications with underage females. She also noted that he displayed limited awareness of how his substance use contributed to his offending. Dr.

Farstad added a caveat that B.H.'s risk of re-offending may increase if he continues using substances and does not gain insight into the other factors that contributed to his conduct "especially because substance use has a disinhibiting effect on behaviour". [ 26 ] Dr.

Farstad made a series of recommendations including follow-up treatment for B.H.'s drug and alcohol use disorders and that he participate in a Forensics sex offender program and related group or individual counselling. [ 27 ] B.H. began to meet with Paul Bains, a registered clinical counsellor, in the spring of this year and he has completed seven sessions thus far. It is apparent from the reporting letter prepared by Mr. Bains that those sessions have not dealt specifically with B.H.'s sexual offending and there is nothing in the letter to indicate that Mr. Bains has any particular expertise in that field.

There is also nothing in the letter about past or planned treatment for B.H.'s addiction to alcohol and crack cocaine, although B.H. reports through counsel that he has discussed his history of drug and alcohol use with Mr. Bains. [ 28 ] I will turn to the principles of sentencing. [ 29 ] I have reviewed and applied the purposes and principles of sentencing in the Criminal Code , s. 718 and 718.2 . [ 30 ] Denunciation and deterrence are the primary principles when sentencing an offender for offences related to child pornography or other forms of sexual offending against children: R. v.

R.L.W. , 2013 BCCA 50 , R. v. Hagen , 2021 BCCA 208 , R. v. Gerbrandt , 2021 ABCA 346 , and R. v. McCrimmon , 2022 YKCA 1 . [ 31 ] This approach is apparent in the jurisprudence and has been codified in s. 718.01, which reads as follows : When a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 32 ] In R. v. Parranto , 2021 SCC 46 , the Supreme Court of Canada reminded sentencing judges that: The goal in every case is a fair, fit and principled sanction.

Proportionality is the organizing principle in reaching this goal... [ 33 ] This means that courts at first instance must strive to ensure that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender: Parranto at para. 10 and R. v. Nur , 2015 SCC 15 , at para. 43 . [ 34 ] In carrying out that delicate balancing act, the court must not fail to consider as well that "one of the main objectives of Canadian criminal law is the rehabilitation of offenders", which assists the court to impose a sentence in any given case which is just and appropriate: R. v.

Lacasse , 2015 SCC 64 , paragraph 4 , and Schneider in our Court of Appeal, 2019 BCCA 310 , at paras. 10 to 11 . [ 35 ] Finally, I must take into account and apply the principle of restraint, best expressed in s. 718.1(

d) and (e). [ 36 ] I will turn to the range of sentence. [ 37 ] Before the Supreme Court of Canada released its decision in Friesen , the usual range of sentence for possession of child pornography was four to 24 months' jail: see R. v. R.L.W. , R. v. Hagen and R. v. McCrimmon . [ 38 ] In Friesen , the Supreme Court of Canada placed a renewed emphasis on the protection of children from sexual exploitation and abuse and instructed trial judges that sentences must increase to better 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".

While the court did not set a range for theparticular offence that I am dealing with here, the message is clear and the jurisprudence to date is clear: (1) the Friesen principles applyto the offence of possession of child pornography; and, (2) there is nothing that would cause a judge to treat two years' jail as the top endof the range for a first-time offender: McCrimmon at paragraphs 70 and 72. [39] It is important to note as well that a sentencing range established for an offence or category of offences is a guideline and not astraightjacket, an observation made by the court in Smith, most recently in Parranto, and also in Friesen. [40] A suggested range does not preclude lesser or greater sentences, if warranted.

Sentencing is an inherently individualized process.No two offenders are identically situated. There is no such thing as a uniform sentence for a particular crime. A sentence outside theusual range can be imposed so long as it is in accordance with the principles and objectives of sentencing: R. v. M.(C.A.), (SCC), [1996] 1 SCR 500, R. v. Lacasse, R. v. Smith, R. v. Williams, 2019 BCCA 295, R. v.

Padda, 2019 BCCA 351, and Friesen. [41] I have considered the aggravating and mitigating factors in this case. [42] The aggravating factors include the number of images and videos and the images contained therein, including penetrative sexualconduct between very young children and adults, B.H.'s participation in two chat groups dedicated to the sharing of child pornographicimages and his role as the administrator for one of them. As administrator, it was his job to receive images of child pornography and hedistributed some of those images to others.

I also consider his admission that he was engaged in a year-long sexualized chat with a 15-year-old female which was corroborated by data located on his phone and laptop and that he asked for and obtained intimate images fromthat young person. I take into account his comments about "playing" which, in the context of the text messages quoted to me, was clearlya reference to the possibility that B.H. might engage in sexual activity with children, possibly even his own four-year-old daughter. [43] There are also important mitigating factors not least of which is his guilty plea before trial dates were set.

He was cooperativewith police at the outset. He has taken accountability and has expressed some understanding that there is a direct link between hisviewing of child pornographic images and the harm done to children who are exploited in the most horrific way in order to create thisonline content. I accept that his expressions of remorse are genuine. [44] I have been told that B.H.'s father has suffered a stroke and will need to move to the Lower Mainland in a care facility of somesort.

It is apparent from what I have been told that while B.H.'s emotional support would likely assist his father, his complex care needswill require professional assistance. His inability to help his father in the event of a jail sentence is a collateral consequence I am entitledto take into account but I do not give it much weight in determining a fit sentence in this case. [45] B.H. has made some efforts to get help, although that help has not been specifically directed to known risk factors for re-offending in a similar way.

In particular, he has not participated in counselling or received treatment with respect to his deviant sexualconduct or his addiction to alcohol and crack cocaine. It seems that there is little doubt that B.H.'s substance abuse issues, in particularhis addiction to crack cocaine, was a substantial contributing cause of his offending. Dr. Farstad has offered the opinion that his risk ofre-offending falls into the low to moderate range but tempers her opinion with the observation that B.H. lacks awareness of howsubstance use contributed to his offending.

It is a concern that B.H. has not directly tackled these issues in his sessions with Mr. Bains. [46] Crown and defence counsel have filed a number of sentencing precedents. I will not refer to all of them in these reasons but Ihave taken all of them into account. [47] The sentences in these cases range from a low of eight months to a high of 20 months' imprisonment. In all of these cases, the jailsentences are followed by periods of probation.

That type of sentencing combination, punitive in one aspect and encouraging efforts atrehabilitation in the other, is typical for these offences. [48] The highest sentence in this group is the 20 months' jail followed by two years' probation imposed by the trial judge and upheldby the Yukon Court of Appeal in McCrimmon. There are aggravating circumstances in that case which are not present here. The offenderin that case had compiled a vast digital library of 33,605 images and 4,696 videos over a 10-year period.

The images capture the entirespectrum of sexual activity between children, and also between adults and children. Some of the images depicted bondage, sadism andbestiality. The sentencing judge found that the offender had been viewing these materials over approximately a decade. [49] The other cases submitted by Crown counsel, both pre and post Friesen, fall into a range of eight to 13 months. [50] B.H.'s moral culpability is high but it is also offset to some extent by the struggles he was experiencing in his life, which werefollowed by a descent into drug and alcohol abuse.

His crack cocaine addiction, in particular, was a major contributing cause of his driftinto the world of child pornography where he remained for a period of some eight months. [51] While I agree that a jail sentence is required in this case, I find that the range of 18 to 21 months suggested by Crown counsel istoo high. Having said that, a jail sentence of some type and duration is required. Defence counsel asks that I consider imposing a CSOrather than institutional jail.

Because I have found that the appropriate range is less than two years' jail, I am obliged to consider thatsubmission. [52] The statutory preconditions for imposing a CSO are found in s. 742.1 of the Criminal Code. The jail sentence imposed must befor less than two years and the court must be satisfied that service of the sentence in the community would not endanger the safety of thecommunity and would be consistent with the fundamental purpose and principles of sentencing set out in 718 to 718.2 of the Code. [53] In R. v.

Proulx, 2000 SCC 5, the Supreme Court of Canada distinguished a CSO from probationary measures and observed thatParliament intended conditional sentences to include both punitive and rehabilitative aspects. The court suggested that, for this reason, aCSO should generally include punitive conditions that are restrictive of the offender's liberty.

The court also found that a CSO fashionedin this way can provide significant denunciation and deterrence while at the same time achieving a restorative object of rehabilitation. [54] Defence counsel has provided two cases where CSOs were imposed for possessing child pornography. I find that both are

distinguishable. In R. v. Bisson , 2020 BCSC 1778 , the court imposed an 18-month CSO followed by three years of probation. While the accused in that case possessed a large collection of child pornography featuring content which was somewhat more aggravated than what I am dealing with here, the sentencing judge accepted expert opinion evidence that the offender was suffering from major depressive and generalized anxiety disorders, which were directly linked to his offending. That circumstance, in particular, tipped the balance to a CSO. [ 55 ] In R. v.

Mitchell , 2021 BCPC 246 , the sentence imposed was an 18-month CSO followed by 12 months' probation. The child pornography in this case was a comparatively smaller collection of 600 to 700 images, much of which was animated. The content was described by the Crown as "not being of a terribly egregious nature" and the court accepted that characterization. The offender in this case had been exposed to explicit child pornography by a much older man when he was only 15 years old. He was attending counselling in an effort to come to grips with the trauma caused by that exploitative relationship.

The collateral consequences for Mr.

Mitchell included the loss of his career as a teacher. [ 56 ] Taking into account B.H.'s level of moral blameworthiness, the size and nature of his collection of child pornography and the clear direction in Friesen that increased sentences are necessary for offences involving the sexual exploitation of children, I have concluded that a CSO in this case would not be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Criminal Code . [ 57 ] B.H., please stand. [ 58 ] I find that a fit sentence in this case is 12 months' jail to be followed by 18 months' probation. [ 59 ] The terms of the probation order are as follows, and please listen.

There are compulsory conditions. [ 60 ] You must keep the peace and be of good behaviour. [ 61 ] You must appear before the court when required to do so by the court and you must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation. [ 62 ] You must report in person to a probation officer, and please insert South Surrey Community Corrections' address and phone number, within two business days after your release from custody unless you have obtained before your release from custody written permission from a probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by your probation officer. [ 63 ] When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number, if you have one. You must not change them without prior written permission from your probation officer. [ 64 ] You must attend, participate in and complete any intake, assessment, counselling or education program as directed by your probation officer.

This may include counselling or programming for alcohol or drug addiction, mental health and sexual offence prevention. [ 65 ] Having consented in court, you must attend for a psychiatric intake assessment or treatment program through Forensic Psychiatric Services, as directed by your probation officer.

I understood that was consented to at the sentence proceeding. [ 66 ] You must not possess or consume alcohol, illegal drugs, any other intoxicating substances, or marijuana except in accordance with a medical prescription. [ 67 ] You must not enter into or continue any dating relationship, common-law relationship or marriage with any person who has children under the age of 15 years or who has the care of or access to children under that age.

The exception is if you have identified to your probation officer the person with whom you are in or propose to enter a relationship and your probation officer has informed that person of this order and your criminal record. [ 68 ] You must not have any contact or communication directly or indirectly or be in the presence of any person under the age of 16 years.

It should be 16 on the previous condition as well, Madam Registrar, not 15, sorry. [ 69 ] You must not go to any public park, public swimming area, daycare centre, schoolground, playground, community centre, theatre or other such location where persons under the age of 16 years are known by you to be present or can reasonably be expected to be present. [ 70 ] There were discussions and some submissions that I heard with respect to internet restrictions.

I am going to impose an order. [ 71 ] You must not access any computer network, including the internet, or possess any device capable of accessing the internet with the following exceptions: you are using the device to access the internet for the sole purpose of attending your virtual court appearances, paying bills, banking, searching or applying for employment, searching for books at a public library or communicating with a government agency, or when using the device solely for your employment.

You must provide a copy of this order to your employer and tell your employer they must confirm with your probation officer that they reviewed the order before you can use a device and access the internet. [ 72 ] You must not use any computer network, including the internet, to access any social media sites, social networks, internet discussion forums or chat rooms or maintain a personal profile on any such device and communicate or attempt to communicate with anyone you know to be or who reasonably appears or represents themselves to be under the age of 16 years unless they are members of your family. [ 73 ] There are ancillary orders to consider with respect to DNA.

The offence of possessing child pornography 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. [ 74 ] Turning to SOIRA , there has been a recent decision on SOIRA , but I understand the invalidity has been suspended for a year so it still applies now, as I understand it. [ 75 ] CNSL J. SANDHU: Yes, Your Honour. [ 76 ] THE COURT: Pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for a period of 10 years. [ 77 ] I am required to consider an order of prohibition under s. 161 of the Criminal Code .

Crown counsel does not seek this order and I agree it is not required. [ 78 ] I am waiving the victim fine surcharge. [ 79 ] Sir, I have explained the probationary terms to you. You are going to get them in writing. Do you understand, sir, that in the event of breaching the terms of the probation order, there are consequences? [ 80 ] THE ACCUSED: Yes. [ 81 ] THE COURT: You could be arrested with or without warrant and brought before the court to face a new charge of breaching the terms of the order.

In some cases, depending on the situation that you are in and the terms of the breach, you might be held in custody and denied bail until all matters are dealt with. If you are found guilty of breaching a probation order, that is a separate criminal offence and a separate penalty or sentence would be applied. Do you understand all of those things? [ 82 ] THE ACCUSED: I do. [ 83 ] THE COURT: I will waive the requirement that he sign the order in person. As I said, you will get a copy in person and you will be speaking to a probation officer about that in due course. [ 84 ] CNSL C. PAQUETTE: Sorry, Your Honour.

With respect to the no contact with anybody under the age of 16, I'm wondering if Your Honour would consider an exception for his family. He is hoping to reconnect with his children. [ 85 ] THE COURT: For his children. If it is your child and you are in the immediate presence of another guardian of the child. (ORAL REASONS FOR SENTENCE CONCLUDED)