R. v. M.C.H., 2020 BCPC 293

Citation: R. v. M.C.H. 2020 BCPC 293 Date: 20201120 File No: 29937-3, 29937-4-A Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.C.H. Section 16(4) Sex Offender Information and Registration Act (“SOIRA”): This

section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W.F.M. JACKSON Counsel for the Crown: D. Brennan Counsel for the Defendant: K.W. Anderson Place of Hearing: [omitted for publication] , B.C.

Date of Hearing: November 20, 2020 Date of Judgment: November 20, 2020 [ 1 ] THE COURT: M.C.H. appears before the court on [omitted for publication] Information 29937-3 that is a charge of possession of child pornography between November the 1st, 2017, and November the 17th, 2018. As well, he appears on [omitted for publication] File 29937-A-4 which is the charge of breach of bail by accessing the Internet on November the 22nd, 2018, contrary to s. 145(5.1) of the Code . He pled guilty to both charges on October the 16th, 2019. A presentence report and a psychiatric assessment were ordered.

These were filed on February the 28th, 2020. Because of the COVID-19, the sentencing was adjourned to today's date.

[ 2 ] The circumstances are that M.C.H. uploaded a seven-second video of child pornography on November the 3rd, 2017. This was detected by the Internet carrier and the police monitoring the Internet. Search warrants were obtained. On November the 17th, 2018, M.C.H.'s cellphone was seized along with other electronic data storage equipment. A total of 605 images including many duplicates were discovered. These included 85 videos of child pornography and 139 deleted videos of child pornography.

The images were of both males and females between the ages of four and 15. [ 3 ] M.C.H. admitted the possession of child pornography upon his arrest. He was released on an undertaking on November the 18th, 2018. There was a condition to not access the Internet. On November the 22nd, 2018, he sent emails to a friend, A.M. about what had happened and that he was suicidal. At this hearing, M.C.H. added that he was at that time engaged in shutting down his Facebook account. [ 4 ] The Crown suggests as per R. v. Alexander , 2019 BCCA 100 , the range of sentence is six to 15 months' incarceration.

The Crown suggests physical incarceration in Ford Mountain provincial Correctional Centre. The Crown also suggested in addition three years of probation and other ancillary orders. The Crown referred the court to the fact that the psychiatrist doing the assessment was unable to give a risk assessment because M.C.H. did not cooperate in that assessment. [ 5 ] The defence submitted that a conditional sentence would be appropriate. Defence also noted that M.C.H. is 36. He was sexually abused himself as a child by two different neighbours.

The defence submitted that M.C.H. was traumatized by the death of his 18-month- old son. M.C.H. is a member of the [omitted for publication] First Nation and M.C.H.'s father attended residential school so R. v. Gladue and R. v. Ipeelee certainly apply. The defence referred to the presentence report which noted that M.C.H. has had panic attacks about the possibility of jail and has been depressed because his identity and charges were made public in the local paper. [ 6 ] M.C.H. on his own started counselling in December of 2017. Ms.

Scott, M.C.H.'s mental clinician, reported her belief that M.C.H. had indicated to her that he did not masturbate to the images, but that he was "in a way" searching for himself. That is mentioned on page 6 of the presentence report. In court, M.C.H. was emotional when telling the court that he was charged two years ago and has been without Internet since then which has ruined his business.

He added that his girlfriend may be pregnant and he wants to be there for the pregnancy. [ 7 ] The psychiatric assessment on page 5 of 6 diagnosed M.C.H. as follows, and I quote verbatim: 1. adjustment disorder with mixed anxiety and depressive features in remission on medication; 2. cannabis use; 3. rule out paedophilic disorder least likely as not acted on it versus paedophilic sexual interest; and, 4. learning disability. [ 8 ] The defence referred to R. v. Neasloss , 2020 BCPC 161 , and R. v. Ernest Hill , [omitted for publication] File 26596-1, which is unreported and was not provided to the court.

Both imposed conditional sentences. I note that in paragraph 3 of R. v. Neasloss , the sentencing judge stated: …Upon canvassing extensive authorities binding on or persuasive to this Court, I questioned whether a non-custodial sentence is appropriate in the circumstances of this offence and this offender. I am not convinced a [conditional sentence order] gives proper effect to the sentencing principles of parity and proportionality… [ 9 ] Despite those misgivings, she adopted the joint submission as per the test laid out by the Supreme Court of Canada in R. v. Anthony-Cook , 2016 SCC 43 . It is clear since R. v.

Swaby , 2018 BCCA 416 , and R. v. Hamlin , 2019 BCSC 2266 , that a conditional sentence order is available despite the minimum jail sentence stated in s. 164.1(4) as the minimum itself has been struck down. The Crown suggested a sentence between 6 and 15 months plus three years of probation. The defence has suggested a conditional sentence between 8 and 10 months plus two years of probation. [ 10 ] All sentences must be tailored to meet general sentencing principles and the particular circumstances of the case and the offender.

The general principles are laid out in ss. 718 , 718.01 , 718.1 , and 718.2 of the Criminal Code .

Section 718 reads: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 11 ]

Section 718.01 reads: When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[ 12 ]

Section 718.1 reads: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 13 ]

Section 718.2 reads: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing … (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years … (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances … shall be deemed an aggravating circumstance. (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [which M.C.H. is] [ 14 ] In the decision of R. v. R.L.W. , 2013 BCCA 50 , was cited in both the Swaby decision and in the Alexander case I have already cited. There, the Indigenous offender, R.L.W., was convicted after trial of sexual assault and possession of pornography.

He was almost 28 at the time of the offence and 30 at the time of the sentencing. R.L.W. had no criminal record. The sentencing judge had the benefit of a presentence report and psychiatric assessment. R.L.W. had strong Gladue factors including being sexually victimized when he was young. The trial judge sentenced R.L.W. to five years' incarceration for sexual assault causing bodily harm and 18 months consecutive for possession of child pornography, which the B.C. Court of Appeal upheld.

Justice Harris confirmed the range of possession for child pornography at that time as between four months and two years. [ 15 ] In R. v. Inksetter , 2018 ONCA 474 , which is also cited in the Alexander decision at paragraph 41 , the offender was 51 with no criminal record and otherwise of good character. He pled guilty at the earliest opportunity and was convicted of possessing and making available a vast collection of child pornography. Mr. Inksetter took responsibility, showed real remorse, and sought counselling. The court had two reports from psychologists indicating Mr.

Inksetter presented at a very low risk to commit further violent offences, commit sexual offences or child pornography offences. The sentencing judge imposed a custodial sentence of two years less a day followed by three years of probation. [ 16 ] The Ontario Court of Appeal allowed the Crown appeal and imposed a global sentence of three-and-a-half years' incarceration. The appellate court found the sentencing judge erred in prioritizing probation at the expense of denunciation and deterrence.

Associate Chief Justice Hoy remarked at paragraph 22 that child pornography is a "pervasive social problem that affects the global community and its children," Justice Hoy cites the Supreme Court of Canada decision, R. v. Sharpe , describing how possession of child pornography harms children. He further cites a decision of Chief Justice Fraser of the Alberta Court of Appeal: … “possession of child pornography is itself child sexual abuse.” The children depicted in pornographic images are re-victimized each time the images are viewed.

In amassing, viewing, and making available [which is not applicable here] his vast and terrible collection to others, the respondent participated in the abuse of thousands of children. [ 17 ] R. v. Swaby , started in the Provincial Court of British Columbia and was reviewed in the Court of Appeal at 2018 BCCA 416 . Leave to the Supreme Court of Canada was denied. There the offender pled guilty to one count of possessing child pornography. He was found to possess 400 video files meeting the definition of "child pornography" including videos of penetrative sexual activity between adults and very young children. Mr.

Swaby was 23 years old at the time of the offence and 28 at the time of his appeal. He had no criminal record. He cooperated with the authorities and expressed remorse and his willingness to be assessed and treated. He had serious cognitive impairments and overriding mental health issues which contributed to the commission of the offence. [ 18 ] Based on the two psychological assessments before him, the Provincial Court Judge determined imprisonment would have been extremely hard on Mr. Swaby due to his intellectual deficits. Mr.

Swaby presented a low risk of committing future sexual contact or child pornography offences. He received a four-month conditional sentence with two years of probation, a sentence upheld on appeal in the Supreme Court by Mr. Justice Marchand who concluded that the mandatory minimum sentence in force at the time was contrary to Mr. Swaby's Charter rights, and Mr.

Justice Marchand stated in paragraph 159 of the Swaby decision: Despite my finding that this mandatory minimum sentence is unconstitutional, the message to those who would contribute to the abuse of children through their possession of child pornography should be clear. If found guilty of the offence, they should expect to go to jail. Mr. Swaby has escaped this outcome only because of his unique circumstances and, in particular, his highly reduced moral blameworthiness.

[19] As well, in R. v. Mollon, 2019 BCSC 423, Mr. Justice Crossin wrote in paragraph 69: At the root of all child pornography offences is the hands-on sexual abuse and sexual exploitation of children by those who producechild pornography. That abuse is itself a criminal offence that is extremely serious and one that strikes at the core values of any rightthinking member of society. Child pornography captures this sexual abuse of children in electronic image, creates a record of that abuse,and permits the perpetrator to share that abuse with others.

Those who wish to possess child pornography encourage the sexual abuse ofchildren and encourage the recording of this abuse by providing a market for those who produce child pornography. Therefore, evensimple possession of child pornography must be treated as a very serious offence... [20] To individualize the sentence, mitigating circumstances or factors, aggravating circumstances, and neutral circumstances, as wellas collateral consequences must be considered. R. v. Kwok, , which is the Ontario Supreme Court, identifiedaggravating circumstances: (

a) A criminal record for related offences, here there is none. (

b) Circumstances where there is also production or distribution of child pornography, here there is none. (

c) The size of the collection, M.C.H. had a "moderate" collection of 605 images including 85 videos and 139 deleted videos. (

d) The nature of the collection including age of children and relative depravity and violence, M.C.H.'s collection included personsbetween the ages of four and 15, both male and female; there is no violence alleged. (

e) The extent the offender is seen as a danger to children, the psychiatric report is incomplete due to M.C.H.'s lack of cooperation.He did, however, admit the offence on page 5 of the psychiatric report. The report suggests M.C.H. might have paedophilic sexualorientation or interest, but it cannot be confirmed. [21] Mitigating circumstances as identified by Justice Malfair in R. v. S.L.G., 2019 BCPC 149, in paragraph 35: (

a) The youthful age of the offender: here M.C.H. was 35 years of age and thus not youthful. (

b) The extent the accused has shown insight: M.C.H. admitted the offence upon arrest. He undertook counselling in Decemberfollowing his arrest, on his own. He refused to cooperate with the forensic assessment citing Charter rights. He told his probationinterviewer that he was agreeable to take treatment and counselling. (

c) Whether the offender has demonstrated genuine remorse: M.C.H. has indicated in the presentence report that he has real remorse.Ms. Scott, his mental health clinician, believes he has genuine remorse. In his remarks to this court, he emphasized the impact of thecharges have had on him: the loss of his business from the two-year lack of Internet, and his fear of jail as it would separate him from hisgirlfriend who may be pregnant. In short, he stressed the impact of sentence on him, not his remorse for the offence. (

d) Whether the offender is willing to submit to treatment or has already taken treatment: M.C.H. indicates he is willing to taketreatment and has taken some treatment. (

e) The extent to which the offender has already suffered for the crime (in his family, his career, or in the community): M.C.H. hassuffered consequences of the loss of his business, the loss of his job as a caretaker, and the public shaming because his offence andidentity were revealed in the local media. [22] Considering all of those factors, I conclude that M.C.H.'s circumstances and that of the offence are not so unusual as to require aconditional sentence. Therefore, I sentence M.C.H. on the possession of child pornography to jail for 10 months and for one monthconcurrent for the breach of bail.

In addition, there will be three years of probation to follow. [23] The terms of which will be, 2001, that he keeps the peace and is of good -- [24] THE CLERK: Sorry, Your Honour, you are going a bit quick here for me. How long was it, three years? [25] THE COURT: How long was what? [26] THE CLERK: I got it here. [27] THE COURT: Thank you. [28] He must keep the peace and be of good behaviour. Appear before the court when the court requires him to do so. Notify the courtor his probation officer in advance of any change of name, address, or occupation. [29] MR.

ANDERSON: [Indiscernible/videoconference]. [30] THE ACCUSED (via videoconference): [Indiscernible/videoconference] -- [31] THE COURT: If he -- [32] THE ACCUSED: -- [indiscernible]. [33] THE CLERK: Would you like me to put it on mute? [34] THE COURT: Oh, I think they may remain quiet now.

[ 35 ] He must report to his probation officer within four business days of his release from custody upon completion of the sentence. [ 36 ] When he first reports to his probation officer, he must provide them with his address and phone number and must not change the address or phone number without notifying his probation officer in writing at least two days in advance of any change. [ 37 ] He must obey a curfew by being inside his residence between 11:00 p.m. and 6:00 a.m. daily.

He must present himself at the door of his residence immediately or answer the phone when any peace officer or probation officer attends or calls to check on him during the curfew. He may be away from his residence during the curfew with the prior written permission of his probation officer. Such permission is to be given only for employment or other compelling reasons, and he must carry the permission with him when he is outside his residence.

He may also be away during the curfew hours while at, going directly to, or returning directly from a healthcare facility because of a medical emergency and, if asked, he must provide his probation officer with proof of his attendance at the facility; or in the immediate presence of a person for which he has the prior written permission of his probation officer. [ 38 ] He must not go to any public park, public swimming area, community centre, or theatre where persons under the age of 16 years are present or can reasonably be expected to be, or a daycare centre, school or playground. [ 39 ] He must not have any contact or communicate directly or indirectly or be in the presence of any person under the age of 16 years, except with the prior written permission of his probation officer.

Such permission is to be given only for compelling reasons, and he must carry the permission, which can be in electronic format, when he is in their presence.

The other exceptions are if they are his children. [ 40 ] Or in the course of a legitimate employment, but only in the immediate presence of an adult who had knowledge of this order or when contact is necessary incidental to the employment. [ 41 ] He must not engage in volunteer work or employment that would bring him into contact with persons under the age of 16 years without the prior written permission of his probation officer, and he must carry this permission, which may be in electronic format, when he is engaged in the activity. [ 42 ] He must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by his probation officer which may include sexual offence prevention. [ 43 ] He must not possess or use any device capable of accessing any computer network or including the Internet, unless: you do not delete the history of the Internet use from the device; the device you use remains and displays the history of Internet use; you do not install or have any application or a platform on the device that automatically deletes messages, videos, photos viewed from the device and permits -- or permits incognito Internet browsing or allows data to be deleted from the device remotely; you do not access directly or indirectly or maintain any personal profile on any social media sites, social networks, Internet discussion forums or chatrooms; you do 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 any electronic means, including, but not limited to, telephones and computers, unless they are members of your family; and the important one, six, upon the request of a peace officer, you must give them access to any device in your possession that is capable of accessing the Internet or any computer network so they can verify compliance with this condition. [ 44 ] All right, and then I will make an order that he is be transported to the -- is it called the Ford Mountain Correctional Centre, Mr.

Brennan? [ 45 ] MR. BRENNAN: Yes, Your Honour. [ 46 ] THE COURT: All right, to the Ford Mountain Correctional Centre. [ 47 ] THE ACCUSED: [Indiscernible/videoconference] my kid. I am going to miss the birth of my kid. [ 48 ] MR. ANDERSON: I know. [ 49 ] THE ACCUSED: Like I do not know what to say. [ 50 ] THE COURT: All right. Then these are the ancillary orders, Madam Clerk. [ 51 ] THE CLERK: Yes, Your Honour. [ 52 ] THE COURT: On Count 1 of Information Sequence 3, it is a primary designated offence.

Pursuant to s. 487.051 of the Criminal Code , I authorize the taking of bodily substances from him for DNA assessment.

The samples will be taken from him while he is in custody and he must submit to the taking of the samples. [ 53 ] Pursuant to section 164(4), I am satisfied on the balance of probabilities that many of the materials seized, pursuant to s. 164.1, were child pornography and I order them forfeited to Her Majesty in the Right of British Columbia to be disposed of at the direction of the Attorney General with the exception of any disks that have no child pornography on them, a PlayStation 3, and a Nintendo. [ 54 ] Then, pursuant to s. 161 of the Criminal Code , he is prohibited for 20 years from: (

a) attending any public park or public swimming area where persons under the age of 16 years are present or can be reasonably expected to be present, or any daycare centre, school ground, playground, or community centre. Pursuant to subsection (b), he is also prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves a position of trust or authority towards persons under the age of 16 years. Pursuant to subsection (

c) he is prohibited from having contact or communication by any means with a person who is under the age of 16 years unless they are a member of your family. [ 55 ] Pursuant to subsection (d), he is prohibited from using the Internet or other digital networks. There are exceptions, however. The exceptions are in the presence of a person approved of by your probation officer or your parole officer.

[ 56 ] THE CLERK: Sorry, I have to actually handwrite that out because we do not have room for that. [ 57 ] THE COURT: Well, I will give these to you, as well, but it in the ancillary orders that we have. [ 58 ] Or the person to whom you are reporting under the Sex Offender Information Registration Act , and you must carry a copy of the written permission with you, during lawful employment with the nature of your employment being approved in advance in writing by your probation or your parole officer or the person to whom you are reporting under the Sex Offender Information Registration Act .

You must carry a copy of that written permission with you; as approved in advance by your probation officer, your parole officer, any person to whom you are reporting under the Sex Offender Information Registration Act , and you must carry a copy of the written permission with you. Four when you have access to the Internet, you must not access any illegal content or communicate with persons under the age of 16 years other than immediate family members or access any social media.

Five, you may access the Internet, but not any content that violates the law or access directly or indirectly any social media site, social network, Internet discussion forums or chatrooms or maintain a personal profile on any such service. [ 59 ] THE CLERK: Did you say three months for the breach? [ 60 ] THE COURT: I said 30 days. [ 61 ] THE CLERK: Thirty days, thank you. [ 62 ] THE COURT: Well, I think that is it. Oh, and the victim of crime surcharges are both waived as he is going to be incarcerated. [ 63 ] Did I not do SOIRA ? [ 64 ] THE CLERK: No. [ 65 ] THE COURT: Hmm.

All right. [ 66 ] THE ACCUSED: I am going to miss the birth of my child. I have already missed one child. [ 67 ] THE COURT: Yes, you may. Now, be quiet, please. [ 68 ] THE ACCUSED: Sorry, sorry. [ 69 ] THE COURT: Pursuant to s. 490.012 of the Criminal Code , you are required to comply with the Sex Offender Information Registration Act for 20 years. [ 70 ] All right, anything else, Mr. Brennan? [ 71 ] MR. BRENNAN: Just the DNA order, Your Honour, I may have missed that? [ 72 ] THE CLERK: It was. [ 73 ] THE COURT: Yes, I did the DNA order. [ 74 ] MR. BRENNAN: Thank you.

No, that is everything, Your Honour. [ 75 ] THE COURT: All right, thank you. Anything else, Mr. Anderson? [ 76 ] MR. ANDERSON: Your Honour, just with respect to the items that he had asked not to be forfeited, is that -- have you addressed that? [ 77 ] THE COURT: Yes, I have. [ 78 ] MR. ANDERSON: Okay, I will go through my notes. [ 79 ] THE COURT: All right, thank you. (REASONS FOR SENTENCE CONCLUDED)