R. v. Neasloss, 2020 BCPC 161

Citation: R. v. Neasloss 2020 BCPC 161 Date: 20200819 File No: 25114-1 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Omitted for Publication REGINA v. TYLER EUGENE NEASLOSS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. DOULIS Counsel for the Crown: L. Feinberg Counsel for the Defendant: J. McCarthy Place of Hearing: Hazelton , B.C. Date of Hearing: August 19, 2020 Date of Sentence: August 19, 2020 INTRODUCTION

[1] On December 15, 2018, Tyler Eugene Neasloss (“Mr. Neasloss”) was charged indictably under Information 25114-1, with onecount of distributing child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) and one count ofpossessing child pornography contrary to s. 163.1(4) of the Code. The offences were alleged to have occurred from September 1, 2018, toSeptember 30, 2018, at or near Kispiox, British Columbia. On August 19, 2020, the Crown amended Count 2 of Information 25114-1 toextend the offence date from September 1, 2018, to December 14, 2018, and Mr.

Neasloss entered a guilty plea to the amended Count 2. [2] At the time of the offence charged under Count 2 (as amended), s. 163.1(4) of the Code required the court to impose uponconviction a mandatory term of imprisonment, whether the Crown prosecuted the offences summarily (s. 163.1(4)(

b) or by indictment(163.1(4)(a)). In R. v. Swaby, 2018 BCCA 416 (leave to appeal to SCC refused [2019] S.C.C.A. No. 17) the BC Court of Appeal foundthe 90 day mandatory minimum sentence under 163.1(4)(

b) unconstitutional. A year later, in R. v Hamlin, 2019 BCSC 2266 ,the BC Supreme Court struck down as unconstitutional the one-year mandatory minimum sentence under 163.1(4)(a). As a result ofthese decisions a conditional sentence is now available to qualified offenders convicted under s. 163.1(4) of the Code. [3] At the sentencing hearing the Crown and defence jointly proposed a sentence comprising of a ten-month conditional sentence(“CSO”), three years’ probation and four ancillary orders.

Upon canvassing extensive authorities binding on or persuasive to this Court, Iquestioned whether a non-custodial sentence is appropriate in the circumstances of this offence and this offender. I am not convinced aCSO gives proper effect to the sentencing principles of parity and proportionality. Despite these misgivings, I am bound by the SupremeCourt of Canada’s directive that trial judges are to follow joint submissions in all but the rarest of cases. The question is whether this issuch a case.

For the reasons set out below, I have determined this is not a rare case and I will endorse the joint proposal as to sentencing. ISSUES: [4] The salient issues is whether the court ought to impose the non-custodial jail sentence counsel jointly propose. [5] The sentencing hearing proceeded before me on August 19, 2020, in the Hazelton Provincial Court. I heard submissions ofcounsel and received into evidence an Agreed Statement of Facts. I also received from the Crown the following authorities: (

a) R. v.Alexander, 2019 BCCA 100; (

b) R. v. Hamlin, 2019 BCSC 2266; (

c) R. v. Mollon, 2019 BCSC 423; (

d) R. v. Quested, 2019 BCPC 95;and (

e) R. v. Swaby, 2018 BCCA 416. I reviewed these cases and the appellate authorities they reference: (i.e. R. v. Inksetter, 2018ONCA 474, R. v. R.L.W., 2013 BCCA 50; R. v. Watson, 2018 BCCA 329; R. v. John, 2018 ONCA 702)). In addition, I canvassed anumber of recent lower court sentencing decisions with respect to s. 163.1(4) of the Code, including: (

a) R. v. C.H., 2020 BCSC 323; (b)R. v. Prince, 2018 BCSC 987; (

c) R. v. B.J.M., 2019 BCPC 303; (

d) R. v. Booth, 2019 BCPC 160; (

e) R. v. Humphreys, 2020 BCPC 136;(

f) R. v. Redekopp, 2020 BCPC 29; (

g) R. v. S.D.M, 2015 BCPC 112 , 2015 BCPC 0112; (

h) R. v. S.L.G., 2019 BCPC 149; and(

i) R. v. W.M.P., Terrace Docket 32030-1 (March 25, 2019). CIRCUMSTANCES OF THE OFFENCE [6] The circumstances of the offence are set out in an Agreed Statement of Facts which Mr. Neasloss admitted pursuant s. 724 ofthe Code for the purposes of his guilty plea. The Crown read into the record the Agreed Statement of Facts and they were marked asExhibit 1 in this sentencing hearing. [7] On September 25, 2018, Facebook, Inc. (“Facebook”), a United States social media corporation, reported the transmission ofsuspected child pornography to the National Centre for Missing and Exploited Children (NCMEC).

The following day, NCMECreported the transmission to the BC Integrated Child Exploitation (ICE) Unit of the Royal Canadian Mounted Police (RCMP). [8] The BC-ICE Unit determined that two images sent on September 24, 2018 by Facebook user “Stephanie Colace” to Facebookuser “Mark Jr.” met the definition of child pornography and forwarded a report to the New Hazelton RCMP detachment on October 3,2018.

The Facebook user, “Stephanie Colace” had used an identifying IP address registered with City West Cable and TelephoneCorporation (“City West”) and associated with a residence in Kispiox, BC. [9] On October 18, 2018, the RCMP obtained a Production Order directing City West to provide them with the name and addressof the subscriber associated with the IP address.

On October 24, 2018, City West informed the RCMP the IP address was registered toT.J. of [omitted for publication], Kispiox, BC. [10] On December 12, 2018, the RCMP obtained a search warrant for [omitted for publication] Street, Kispiox, BC, and onDecember 14, 2018, they executed the warrant. That same day, T.J. gave a warned statement to RCMP, denying any personalinvolvement with child pornography.

She informed the RCMP that from August 2018 until November 2018, the accused, Tyler EugeneNeasloss and his father P.P., resided at [omitted for publication] Street, Kispiox, BC and had access to her Wi-Fi internet service. [11] By December 2018, Mr. Neasloss and P.P. had relocated to a residence at [omitted for publication] Drive in Kispiox, BC. OnDecember 14, 2018, RCMP obtained and executed a search warrant at that residence, at which time they arrested Mr.

Neasloss. [12] The RCMP seized several items at [omitted for publication] Drive in Kispiox, BC, including a Samsung cell phone, a Samsungtablet, a USB flash drive, and a security digital card (“SD card”) from Mr. Neasloss’ bedroom. The SD card was located inside the SDport of the Samsung tablet. [13] At 20:30 on December 14, 2018, Mr. Neasloss gave a warned statement to RCMP Constable Dart, in which he confessed topossessing child pornography from September to October 2018. He admitted viewing images of pre-pubescent boys and girls performingvarious sexual acts.

He admitted to using a Facebook profile under the name “Stephanie Colace” and sending two images to a Facebookuser named “Mark Jr.” Mr. Neasloss denied ever touching a child sexually. He expressed shame and wrote a written apology to hisfamily for what he has done. [14] Mr. Neasloss was detained in custody until he was released on a Recognizance of Bail by Judge Bakan in the early morning ofDecember 15, 2018.

[15] On February 16, 2019, Constable Nicholas Evelyn prepared a Digital Field Technician Observation Report (the “Report”) withrespect to the seized devices. He found no data on the USB flash drive and no data on the Samsung cell phone that met the definition ofchild pornography as set out in s. 163.1 of the Code. Constable Evelyn was unable to extract any data from the Samsung Tablet becausethe device was password protected. The SD Card, however, contained 35 images that met the definition of child pornography (whichincluded several duplicate images) and one video that met the definition of child pornography.

There were also several deleted videos onthe SD card that had names associated with child pornography but those could not be restored. [16] The images and video on the SD card depict boys and girls between the ages of 5 to 10 years old engaged in explicit sexualactivity. Seventeen of the images are particularized in para. 19 of Exhibit 1; the video is described in para. 20. Mr. Neasloss admits hepossessed the images and video found on the SD card and agrees these images and video meet the definition of child pornography. [17] In R. v.

Swaby, 2017 BCSC 2020 at para. 109, Justice Marchand noted that ordinarily a sentencing judge should view theimages of child pornography that depict the crime. In this case, the Crown and defence counsel submit the Agreed Statement of Factsaccurately sets out the activities depicted in the images and video and I did not view the images. CIRCUMSTANCES OF THE OFFENDER [18] Mr. Neasloss was born on June 26, 1988. He was 30 years old at the time of the offence and 32 at the time of sentencing. Hehas no criminal record. [19] From August 2018 until November 2018, Mr.

Neasloss resided with T.J. and his father, P.P., at [omitted for publication],Kispiox, BC. In December 2018, Mr. Neasloss and P.P. moved to a residence located at [omitted for publication] Drive in Kispiox, BC,where they currently reside. [20] Typically, before imposing sentence on an offender convicted of possessing child pornography, the trial judge has the benefit ofa pre-sentence report and a psychiatric and psychological risk assessment. When the offender is Indigenous, the court often receives aGladue report, In this case, the court has no such reports. [21] Mr. Neasloss is a member of the Gitxsan Nation.

He was born in Terrace B.C., where he went to school. In Grade 8, whileattending Skeena Junior Secondary School, Mr. Neasloss left school, never to return. Mr. Neasloss lives a narrow, lonely and solitarylife. Essentially, Mr. Neasloss lives with his father, stays home and watches television and is not otherwise socially engaged. Mr.Neasloss does not drink or smoke or use drugs. His father does not drink alcohol and prohibits its consumption in his home. Mr. Neaslosshas no friends or intimate partners, past or present; he has no children; he does not work and has a negligible work history. Mr.

Neaslosslives on social assistance and although he might qualify for a disability pension, he is unable to navigate the application process.Mr. Neasloss says “I kinda have no interests, don’t do anything, sometimes it’s a struggle just to get out of bed.” [22] Defence counsel submits, Mr. Neasloss manifestly presents with cognitive deficits, anxiety and depression. He also struggleswith suicidal ideation. The defence has not provided any medical records of Mr. Neasloss having been assessed for or diagnosed withany mental health or developmental issues. Mr.

Neasloss only assessment occurred in 2011 when his father took him to the Quesnelhospital for a voluntary psychiatric evaluation. He remained there for a week or two, after which he was discharged with medication, thenature of which is unknown. It appears Mr. Neasloss did not receive any ongoing treatment as a result of this intervention. [23] Defence counsel submits there are no medical records because Mr. Neasloss was abandon by society. Although the Court couldnow order a psychological assessment, it would likely engender further delays, particularly at this time when the COVID-19 pandemic isongoing.

VICTIM IMPACT STATEMENT [24] The Crown adduced no victim impact statements from the children depicted in the pornographic images and video. They areunknown. In R. v.

S.D.M., 2015 BCPC 112 at para. 49, Judge Hicks describes the inherent harm caused by the possession of childpornography: [49] Children are victimized in the most brutal and intrusive way at every stage of the child pornography continuum; from thegrooming to the undressing, to the posturing, to the exposure, to the forceful intrusion into their most private places, to the physical forceand restraint of the child, to threats and physical violence, and to the emotional struggle many of these children will endure over alifetime.

There is a concern that this offending against children is increasing and that the easy ability to circulate this material over theinternet is encouraging that growth. Once these images are introduced to the internet, there is no ability to control where they appear,what use is made of them, how often they are re-sent and viewed. Those who possess, view, chat about and exchange child pornographyprovide the encouragement and the audience for those who would abuse children in order to produce that content.

Thus the emphasis ondeterrence and denunciation as the primary sentencing objectives in cases involving those who possess and circulate this material. (Cited with approval in Swaby BCSC and R. v C. H., 2020 BCSC 323 ). POSITION OF THE PARTIES [25] The Crown and defence jointly submit a sentence for Mr.

Neasloss consisting of the following six components: a. pursuant to s. 742 of the Code, a ten-month term of jail in the community (a CSO) under strict conditions, followed by; b. three years’ probation (s. 731 of the Code) on conditions which are either rehabilitative or intended to protect the public, orboth; c. an order under s.161 of the Code for ten years which restricts his use of the internet or other digital network;

d. as possession of child pornography charged under s. 163.1(4) is a primary designated offence, pursuant to s. 487.051(1) of the Code , Mr. Neasloss will submit to the taking of samples of bodily substances for the purpose for DNA analysis; e. pursuant to s. 490.013(2) (

b) of the Code , Mr. Neasloss will comply with the Sex Offender Information Registration Act ( SOIRA ) for 20 years; and f. pursuant to s. 164.2(1) of the Code , forfeiture of the Tablet and SD card the RCMP seized in the investigation of the offence for which Mr. Neasloss has been convicted pursuant to s. 164.2(1) . LEGISLATIVE FRAMEWORK [ 26 ]

Section 163.1(4) sets out the penalty for possession of child pornography as follows:

(4) Every person who possesses any child pornography is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. [ 27 ] I have set out the relevant sentencing provisions of the Code below. Purpose 718 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. Objectives — offences against children 718.01 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. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 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, including their health and financial situation, shall be deemed to be aggravating circumstances; (

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.

Proportionality [28] Proportionality (s. 718.1) is the fundamental principle of sentencing which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. Itincludes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values: R. v.Lacasse, 2015 SCC 64 , at para. 130. Proportionality is determined both on an individual basis and by comparing the casebefore the court with similar cases, while taking into account the sentencing objectives set out in sections 718 and 718.2 of the Code:Lacasse at paras. 53-54. A sentence will be demonstrably unfit if it is disproportionate to the conduct underlying the offence andconstitutes a marked departure from sentences imposed for similar conduct.

Denunciation and Deterrence [29] Appellant courts have repeatedly held the paramount sentencing objectives for possession of child pornography aredenunciation and deterrence: R. v. Allen, 2012 BCCA 377, R.L.W., Inksetter, Watson, Swaby BCCA and Alexander. Denunciationcommunicates society’s condemnation of the impugned conduct: R. v. Proulx, 2000 SCC 5 , at para. 102 citing R. v. M. (CA), (SCC). Deterrence "refers to the imposition of a sanction for the purpose of discouraging the offender and others fromengaging in criminal conduct”: R. v. B.WP.; R. v. B.V.N., 2006 SCC 27 .

Where the principles of denunciation and deterrencehave priority, the focus of the sentencing judge is more on the offence committed (the conduct) than on the offender. While factorspersonal to the offender remain important, they necessarily take on a reduced role: R. v. Friesen, 2020 SCC 9, paras. 104-105; R. v.B.C.M., 2008 BCCA 365 , para. 35.

This priority focus on conduct reflects the gravity and wrongfulness of the conduct and theserious harm it causes. [30] In Lacasse, Wagner J. (as he then was), stated: [6] While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases ... in all cases in whichgeneral or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment formeeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society. [31] In Proulx, the Supreme Court of Canada held that where objectives such as denunciation and deterrence are particularlypressing, incarceration will generally be the preferable sanction.

Rehabilitation [32] Although denunciation and deterrence have priority for the offence for which Mr. Neasloss is being sentenced, I must still giveweight to rehabilitation set out in s. 718(d). As the Supreme Court has pointed out in Lacasse, at para. 4: One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moralvalues that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentencesthat are just and appropriate. Parity [33]

Section 718.2(

b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle . . . means that any disparitybetween sanctions for different offenders needs to be justified.” A sentence includes not only the period of incarceration, but alsoprobation and ancillary orders. [34] Assessing parity requires me to determine the appropriate sentencing range for the offence on which Mr. Neasloss standsconvicted. Court of Appeal [35] In R. v.

R.L.W., 2013 BCCA 50 (cited in Swaby BCCA at para. 66 and in Alexander at paras. 38 and 40), the Indigenousoffender, R.L.W., was convicted after a trial of sexual assault and possession of pornography. He was almost 28 at the time of theoffence, and 30 at the time of sentencing. R.L.W. had no criminal record. The sentencing judge had the benefit of a pre-sentence reportand psychiatric assessment. R.L.W. had strong Gladue factors resulting in him being sexually victimized when he was young.

The trialjudge sentenced R.L.W. to five years’ incarceration for sexual assault causing bodily harm and 18 months’ consecutive for possession ofchild pornography, which the BC Court of Appeal upheld. Harris J.A. confirmed the range for possession of child pornography at thattime was between four months and two years. [36] In R. v. Inksetter, 2018 ONCA 474 (cited in Alexander, at para. 41), the offender was 51 with no criminal record and otherwiseof good character. He pled guilty at the earliest opportunity and was convicted of possessing and making available a vast collection ofchild pornography. Mr.

Inksetter took responsibility, showed real remorse and sought counselling. The court had two reports frompsychologists indicating Mr. Inksetter presented a very low risk to commit a future violent offence, contact sexual offence, or childpornography offence. The sentencing judge imposed a custodial sentence of two years less a day, followed by three years’ probation. TheOntario Court of Appeal allowed the Crown appeal and imposed a global sentence of three and a half years’ incarceration. The appellatecourt found the sentencing judge erred in prioritizing probation at the expense of denunciation and deterrence.

Associate Chief JudgeHoy remarked at para. 22: 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 (S.C.C.), the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrotein R. v. Andrukonis, 2012 ABCA 148(Alta. C.A.), at para. 29, “possession of child pornography is itself child sexual abuse.” Thechildren depicted in pornographic images are re-victimized each time the images are viewed.

In amassing, viewing, and making availablehis vast and terrible collection to others, the respondent participated in the abuse of thousands of children.

[37] In R. v. John, 2018 ONCA 702 (cited in Swaby BCCA at para. 90 and in Alexander, at para. 51), the Ontario Court of Appealheld the six month mandatory minimum sentence for possession of child pornography in force at the time of the offence violated s. 12 ofthe Charter. Mr. John was convicted after a trial of possession of child pornography and sentenced to 10 months’ incarceration less 60days’ credit to reflect conditions of house arrest and 24 days post-conviction detention. On appeal, Mr. John sought a 90-day sentence oftime served. The Court found Mr.

John in possession of 89 unique videos and 50 unique images of child pornography. His collectionincluded images of children as young as four years old, and perhaps younger, subjected to anal and vaginal penetration with sex toys andadult penises. Mr. John was 29 years old at the time of the offence and 31 at sentencing. He has suffered from serious mental healthproblems for which he was inadequately treated, although he continued counselling. He was employed and remorseful, and no riskfactors had been identified requiring further treatment.

The sentencing judge had the benefit of a PSR and medical opinions from Mr.John’s treating physician. In allowing the constitutional challenge, Ontario Court of Appeal in John stated, at para. 41: [41] The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation anddeterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable forsuch offences involving child pornography: R. v. Inksetter, 2018 ONCA 474, at para. 16. In another recent decision, R. v.

J.S., 2018ONCA 675, this court upheld a sentence of 18 years for sexual abuse of young children, making child pornography depicting that abuse,and distribution of that material. In refusing to reduce Mr. John’s sentence, G. Pardu J.A., commented, “But for the appellant’s very considerable efforts at rehabilitation,the sentence imposed could have been much higher.” [38] In R. v.

Watson, 2018 BCCA 329 (cited in Swaby at para. 66 and in Alexander at para. 47) the offender was convicted after atrial (in July 2016) of possessing an extensive collection of child pornography and sentenced to one year incarceration and three years’probation. The Crown proceeded by indictment. At that time of the offence (January 2015), a s. 163.1(4) offence prescribed a mandatoryminimum punishment of six months in custody. Mr. Watson was a 72-year-old retired aircraft mechanic with no prior criminal record.He led a pro-social life and had strong family support.

The sentencing judge had a pre-sentence report and psychiatric assessment. Thejudge imposed a sentence of one year incarceration followed by three years’ probation, which Mr. Watson appealed. The appellate courtcommented (at para. 25) that “sentences imposed in cases of child pornography will vary significantly depending on the nature of theoffence and the offender’s personal circumstances.” The appellate court held (at para. 26) the sentence imposed by the sentencing judgewas not only fit “it is on the lighter side of what might have been imposed.” [39] In R. v. Swaby, 2017 BCPC 478, upheld in R. v.

Swaby, 2017 BCSC 2020, aff’d 2018 BCCA 416, leave to appeal to the SCCref’d 2019 S.C.C.A No. 19, the offender pled guilty to one count of possessing child pornography. He was found to possess 400 videofiles 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 withthe authorities and expressed remorse and his willingness to be assessed and treated.

He had serious cognitive impairments andoverriding mental health issues which contributed to the commission of the offence. Based on the two psychological assessments beforehim, PCJ Galati determined imprisonment would have been extremely hard on Mr. Swaby due to his intellectual deficits. Mr. Swabypresented a low risk of committing a future sexual contact or child pornography offence. He received a four-month CSO with two years’probation—a sentence upheld on appeal. In Swaby BCSC, Justice Marchand concluded the mandatory minimum sentence provided bys. 163.1(4) in force at the time of Mr.

Swaby’s offence was contrary to s. 12 of the Charter and of no force and effect. He states at para.159: [159] Despite my finding that this mandatory minimum sentence is unconstitutional, the message to those who would contribute to theabuse of children through their possession of child pornography should be clear. If found guilty of the offence, they should expect to goto jail. Mr.

Swaby has escaped this outcome only because of his unique circumstances and, in particular, his highly reduced moralblameworthiness. [40] In Swaby BCCA, Bennett J.A., noted (at para. 65) that while incarceration is almost always the inevitable sentence forpornography offences, prior to the establishment of the mandatory minimum sentence, non-carceral sentences, such as discharges,suspended sentences and CSOs, were sometimes imposed for possession of pornography. Justice Bennett states at para. 97: [97] The offence of possession of child pornography is extremely broad.

It captures not only actual photos and videos, but alsodrawings and cartoons. It is broad enough to capture conduct that, while morally blameworthy, does not justify a prison term. As withother broadly framed offences (e.g., Lloyd SCC at paras. 30 and 35), a mandatory minimum sentence of incarceration will be susceptibleto challenge. In Lloyd, at paras. 35-36, the Court found that where offences may be committed in a broad array of circumstances, and by awide range of people, they “will almost inevitably include an acceptable reasonable hypothetical”, and be found unconstitutional.

TheCourt once again recommended that the law be amended to permit a residual judicial discretion to exempt the outliers from a mandatoryminimum sentence. [41] In R. v. Alexander, 2019 BCCA 100 , the BC Court of Appeal declared the mandatory six-month minimum term ofimprisonment under s. 163.1(4)(a) (in force from August 9, 2012 to July 16, 2015) of no force and effect. Nevertheless, the appellatecourt upheld the lower court’s eight months’ jail sentence and dismissed Mr. Alexander’s appeal for a CSO. Mr. Alexander was a 25year old at the time of the offence and 28 at the time of sentence.

He had no criminal record and pled guilty to a single count ofpossession of a large collection of child pornography. The sentencing judge had the benefit of a pre-sentence report and psychologicalrisk assessment. The Court noted that unlike the offender in Swaby, Mr. Alexander did not suffer from any diminished cognitive abilitiesor mental health issues beyond depression. Mackenzie J.A., for the court, discussed (in paras. 37 to 39) the appropriate range: [37] I agree with the Crown that the judge’s review of recent and relevant sentencing authorities, including Swaby BCSC, wasextensive.

It properly reflected society’s evolving understanding of the harmfulness of child pornography. The judge carefullyconsidered all relevant mitigating and aggravating factors on sentence. He concluded the appropriate range for a first-time offenderwould be a jail sentence of six to 15 months. The appellant has not provided any submissions or authorities challenging this range, norhas he established, 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 monthsto two 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 inSwaby BCSC. 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. B.C. Supreme Court [42] In R. v. Prince, 2018 BCSC 987 (cited in Mollon, at para. 72), the offender was convicted after trial of four child pornography-related offences. Between 330-350 images and six to eight videos were recovered, including of young children under the age of 12 andtoddlers engaged in sexual acts with adults. Mr.

Prince was 26-27 years old at the time of the offences, and 35 years old at the time ofsentencing. He was an Indigenous offender who suffered a traumatic childhood which included sexual abuse. He had an unrelatedcriminal record. The Court had no psychological risk assessment because Mr. Prince continued to deny the offences.

After noting theabsence of many mitigating factors, Justice Ker stated (at para. 72), the “absence of mitigating factors is just that; their absence does nottranslate to the presence of aggravating factors.” Before credit for pre-sentence custody was applied, Justice Ker found an appropriatesentence would have been 12 months incarceration for the possession charge, three years for possession for the purpose of distributing,and three years for making available or distributing, to be served concurrently, followed by three years’ probation. [43] In R. v.

Hamlin, 2019 BCSC 2266, Justice Winteringham declared the one-year mandatory minimum punishment under s.163.1(4) and (4.1) of the Code was unconstitutional and of no force and effect. Mr. Hamlin pleaded guilty to possessing and accessingchild pornography. His laptop was found to contain a pornographic image of a one to three year old female child and five pornographicvideo compilations depicting sexual acts by adults on the children. These acts included adult males having vaginal and anal intercoursewith these young children. Mr.

Hamlin was a 56-year-old self-employed carpenter with positive character references, and had a dated butrelated criminal record as it included a 2004 conviction for child sexual assault. He was remorseful and cooperative with the police. Thecourt had the benefit of a current presentence report and forensic psychological report. Dr. Joneja assessed Mr. Hamlin as a high risk toreoffend. Justice Winteringham found a fit sentence was eight months’ incarceration followed by three years’ probation.

In reaching thisconclusion, Justice Winteringham considered those factors enumerated in para. 32 of his decision: [32] Regardless of the constitutionality of the mandatory minimum in this case, I agree with the Crown that when determining aproportionate sentence in cases involving child pornography, there are a number of factors that the court must nonetheless bear in mind: (

a) the gravity of offences involving child pornography, as reflected by Parliament's choice to impose a mandatory minimum sentence,cannot be ignored. See, for example, the Ontario Court of Appeal's remarks about child pornography as a pervasive social problem inR. v. Inksetter, 2018 ONCA 474 at paras. 23-25; (

b) except in exceptional cases, the sentencing range for possession of child pornography starts with incarceration: see Swaby, atparas. 66-67; and, Alexander, at paras, 40-42; and (

c) BC courts have indicated a broad sentencing range of four months to two years for possession of child pornography: see Alexander, atparas. 37-39. [44] In R. v. Mollon, 2019 BCSC 423, Justice Crossin convicted Mr. Mollon of possessing and making available a “significantcache” of child pornography which included 1600 accessible still images and 70 videos. He received 15 months’ incarceration forpossessing child pornography over a number of years.

Justice Crossin describes (at para. 32) the material as traversing “a spectrum ofdepravity” all of which “triggers a certain visceral horror.” At the time of sentencing, Mr. Mollon was 50 years old with no criminalrecord. A solitary man, Mr. Mollon had a “difficult, dysfunctional and debilitating childhood.” He suffered from mild cerebral palsy. TheCourt had the benefit of two psychological assessments, but no pre-sentence report due to Mr. Mollon’s lack of participation in itspreparation. Mr. Mollon showed little regard for the consequence of his conduct (para. 82). Justice Crossin states in para. 77: [77] Mr.

Mollon has not exhibited remorse or any empathy for the victims. This does not aggravate matters but it blunts any findingthat he has commenced on any fundamental path to rehabilitation. In addition there is little if any evidence or information before thecourt that Mr. Mollon has any insight into the harm these offences cause to children. Mr.

Mollon seems completely oblivious to thecollateral damage the symbiotic relationship between producer and consumer causes throughout the lives of these children; damage,perhaps irreparable and in perpetuity. [45] After canvassing a number of authorities Justin Crossin comments (at para. 73) that sentences ranges for child pornographyoffences have increased with the court’s enhanced appreciation of its enduring harm.

Citing Swaby, Justice Crossin states (at para. 70),that, “Given the seriousness of child pornography offences, a conviction for possession calls for a period of incarceration, absentexceptional circumstances. . .” At para. 69, Justice Crossin justifies these custodial sentences: [69] At the root of all child pornography offences is the hands-on sexual abuse and sexual exploitation of children by those whoproduce child pornography. That abuse is itself a criminal offence that is extremely serious and one that strikes at the core values of anyright thinking member of society.

Child pornography captures this sexual abuse of children in electronic image, creates a record of thatabuse, and permits the perpetrator to share that abuse with others. Those who wish to possess child pornography encourage the sexualabuse of children and encourage the recording of this abuse by providing a market for those who produce child pornography. Therefore,even simple possession of child pornography must be treated as a very serious offence.

Further, the offence of making available childpornography is incrementally more serious than simple possession since the distribution of child pornography creates a broader marketand puts more images in circulation. [46] In R. v C. H., 2020 BCSC 323 , the offender was 54 years old. He had no criminal record, he pled guilty, he was acontributing member of society, and he presented a low risk to reoffend. C.H. also suffered from some physical and mental healthproblems (major depression). Justice Forth was not convinced the evidence established C.H.’s mental health issues were solely causative

of the offences committed, however he did accept they were mitigating. Justice Forth considered and rejected a CSO given the nature ofthe offence, the need for deterrence and denunciation, and the lack of exceptional circumstances. He found a fit sentence was in thelower end of the range set out by the Court of Appeal in Alexander and imposed six months’ incarceration followed by 24 months’probation and ancillary orders. Provincial Court [47] R. v. Humphreys, 2020 BCPC 136, is a recent sentencing decision of Judge D. M. McKimm. Mr.

Humphreys pled guilty to onecount of possessing child pornography between February 11 and April 19, 2017. His electronic devices contained 881 images admitted tobe child pornography. The victim of was the five year old child of Mr. Humphrey’s intimate partner and co-accused. The two accusedexchanged texts in which they discussed sodomizing and fellating the child and teaching the child to fellate Mr. Humphreys. There wasno evidence Mr. Humphreys every touched the child or acted on his sexually explicit ideation.

Judge McKimm describes it (at para. 13)as a “relatively brief foray into this dark and evil area of sexual fantasy.” [48] Mr. Humphreys was 60 years old. He suffered from PTSD as a result of his service in the military and from a serious anddebilitating heart condition which would make serving a sentence in a correctional facility particularly difficult. Judge McKimm foundthere to be exceptional circumstances meriting the imposition of an 18-month CSO rather than incarceration. He also ordered two years’probation, a 20-year s. 161(1) order and a 20-year SOIRA order. [49] R. v.

W.M.P., Terrace Docket 32030-1 (March 25, 2019) is a sentencing decision of Judge Jackson of this court. W.M.P. wasconvicted of possessing child pornography (s. 163.1(4)) on December 15, 2015. The Crown proceeded summarily. W.M.P. was found tohave possessed six videos of child pornography. Judge Jackson consider the oft-cited factors set out in Regina v. Kwok, (ON SC). W.M.P. had no related criminal record.

He was not involved in the purchase or production or distribution of pornography.The six videos depicted children ranging from four to 14 years old, engaged in sexual posing, masturbating, fellatio with an adult and inone instance, anal intercourse of a ten year old child. Although W.M.P. declined to participate in a psychiatric risk assessment, the courtdid have the benefit of a pre-sentence report. There was nothing outside his child pornography collection raising a suspicion W.M.P.posed a risk to children. He was 43 years old and otherwise of good character.

Nevertheless, W.M.P. showed little genuine remorse orinsight into the harm caused by possessing child pornography. In the 22-month period between the time he was charged and sentenced,he had not sought counselling. As a result of the charges, W.M.P. was separated from his family and lost his home and business. Unlikethe offender in Swaby, W.M.P.’s moral culpability was not significantly reduced by his cognitive impairment. Judge Jackson ordered sixmonths’ incarceration with two years’ probation, SOIRA and DNA orders. [50] In R. v.

Quested, 2019 BCPC 95, the offender was found to have over 1000 images meeting the definition of child pornographyon his computer involving children between the ages of two and nine, sometimes with adult men. He pled guilty to accessing childpornography. At the time of sentencing, Mr. Quested was a 73-year-old first offender. He worked as an accountant, had strong familysupport, was a highly respected member of the community, and a loving parent and doting grandfather. After his arrest, Mr. Questedimmediately began counselling with a psychologist with expertise in sex-related criminal conduct. Mr.

Quested complied with strict bailconditions, and showed true insight into and remorse for the harm his actions caused. An independent risk assessment showed Mr.Quested was not a danger to children in his care. Judge Higinbotham found that due to Mr. Quested’s age and a medical condition, prisonwould have been particularly difficult for him. Judge Higinbotham imposed a 12-month CSO followed by 12 months’ probation. Hefound exceptional the fact Mr.

Quested had “truly turned his life around” and suffered from a precarious medical condition which wouldbe exacerbated by a custodial sentence: see paras. 27 and 28. [51] In R. v. R.W.P., 2019 BCPC 133, the 40-year-old first time offender pled guilty to one count of possession of child pornography.The Crown had proceeded summarily. R.W.P. was pro-social, employed as a restaurant cook and had the support of his family. R.W.P.reported to have suffered from depression, suicidal ideation, poor memory, a learning disability and childhood sexual abuse by a familymember.

Judge Gouge noted R.W.P.’s narrative of his personal history was not well-supported by the pre-sentence report orpsychological/psychiatric assessment. Upon canvassing the appellate authorities, including Voong, Inksetter, Swaby and Alexander,Judge Gouge concluded there were no exceptional circumstances to justify a non-custodial sentence. Specifically, he did not findexceptional that R.W.P. was gainfully employed and complied with bail conditions.

As to his personal history, Judge Gouge stated atpara. 15: [15] [R.W.P.’s] unfortunate personal history may provide an explanation for his offence, and so may be said to be relevant to his levelof moral culpability. That was considered to be a decisive factor in Swaby and Quested. I do not consider it to be so in this case becauseof the many indications in the psychological/psychiatric assessment that [R.W.P.’s] self-report is unreliable. I also think it useful to bearin mind that people in good mental health do not access child pornography.

If individual psychological scars constitute “exceptionalcircumstances”, incarceration will be the exception rather than the rule. Judge Gouge sentenced R.W.P. to 6 months’ incarceration followed by 2 years’ probation. [52] R. v. S.L.G., 2019 BCPC 149 is a sentencing decision of Judge Malfair of an offender convicted of making childpornography (s. 163.1(2) of the Code and accessing child pornography (s. 163.1(4.1)) between March 22 and March 28, 2018, S.L.G.was a 48-year old grandmother and educational assistant. From the time of her arrest S.L.G. admitted her wrongdoing and expressedremorse.

She entered guilty pleas and took responsibility for her actions. She had no criminal record, a good work history, and aneagerness to engage in programs intended to address her offending behaviour. Judge Malfair ordered 14 months’ incarceration followedby three years’ probation and four ancillary orders. [53] In R. v. Booth, 2019 BCPC 160, Mr. Booth pleaded guilty to one count of possessing child pornography. He was 71 years oldwith no criminal record and a number of health issues.

He did not suffer from any substance misuse and assessed a low risk to reoffend.Police found five images and one video satisfying the definition of child pornography and the Crown proceeded summarily. JudgeMcQuillan sentenced Mr. Booth to three months’ incarceration followed by 18 months’ probation. [54] In R. v. B.J.M., 2019 BCPC 303, B.J.M. pled guilty to possessing and making available child pornography. The investigating

officers found 55 images of young females, including images B.J.M. had made himself of two girls he knew. The girls provided victimimpact statements. B.J.M. had no criminal record, a university education, the support of his spouse and his employer. Judge Morgansentenced B.J.M. to eight months’ incarceration for possession and 12 months’ for making available child pornography, to be servedconcurrently, followed by 24 months’ probation. Judge Morgan stated: [60] I agree that [B.J.M], being the current sole provider for his family, creates a sympathetic circumstance for his family.

However,sympathetic circumstances are not exceptional circumstances. [B.J.M’s] incarceration will have a financial impact that will presumablyfall 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 [B.J.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 [B.J.M.], those compelling and exceptional circumstances are not present. [63] The fact that the mandatory minimum sentences for the two offences B.J.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. [55] In R. v. Redekopp, 2020 BCPC 29, Mr. Redekopp pled guilty to one count of possessing child pornography contrary to s.163.1(4) of the Code.

He was found in possession of 791 images and 19 videos of child pornography focused on male children betweenthe ages of 10 to 14 years engaged in sexual acts with adults. The Crown proceeded summarily. At sentencing Mr. Redekopp was 46years old with a somewhat dated but unrelated criminal record. He had a difficult childhood and had been sexually abused when he wasapproximately six years old. Mr. Redekopp suffered from both physical and psychological disorders. His wife, 15 years’ his senior, hadterminal lung cancer. At the time of sentencing Mr. Redekopp had rehabilitated himself from a drug addiction.

He was assessed as a lowto moderate risk to reoffend. Judge Morgan did not consider Mr. Redekopp’s case exceptional such that it would justify having a reducedfocus on denunciation and deterrence and ordered six months’ incarceration followed by 24 months’ probation. Judge Morgan furtherdetermined a CSO would not give adequate voice to the principles of denunciation and deterrence. Application of the parity principle in this case [56] In my view, the application of the parity principle militates against a CSO for possession of child pornography offences.

InSwaby BCCA, Bennett JA concluded (at para. 66) that a conviction for possession of child pornography, absent exceptionalcircumstances, will generally require a period of incarceration, even in the absence of a mandatory minimum sentence. In para. 84, shestates: [84] Where a CSO is the fit and proportionate sentence, a period of incarceration can, in the right circumstances, be grosslydisproportionate to that sentence, because a CSO is a sentence of a different kind. Although a CSO is a sentence of imprisonment (Proulxat para. 29), it is not a period of incarceration (R. v. Wu, 2003 SCC 73 at para. 25).

As the Supreme Court recognized in Proulx, there “isa very significant difference between being behind bars and functioning within society” under a CSO (para. 40, quoting R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227 at para. 21). . . . [86] . . . The Court explained clearly in Proulx that a conditional sentence “will usually be a more lenient sentence than a jail term ofequivalent duration” (para. 44). [57] In R. v. Voong, 2015 BCCA 285, Justice Bennett defined exceptional circumstances as follows: [59] . . .

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable stepstowards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result ofthe offences, 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,there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that wouldlead a 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. [58] The exceptional circumstances in Swaby went far beyond his youth, his guilty plea and his lack of criminal record. Mr. Swabysuffered from a combination of cognitive, intellectual and mental health impairments which “highly reduced [his] level of moralculpability”. The Court also accepted expert evidence that Mr.

Swaby’s intellectual deficits made him “a young and vulnerable man” forwhom incarceration would be very detrimental. [59] Although defence counsel asserts Mr. Neasloss suffers from an array of unspecified mental health and cognitive deficits, I haveno medical evidence particularizing these issues. Mitigating, aggravating and neutral factors and collateral consequences [60] Sentencing is a highly individualized process.

The proportionality analysis requires the sentencing judge to go beyondconsidering the circumstances of the offender and the offence and weigh all of the aggravating and mitigating circumstances andcollateral consequences. An aggravating factor will tend to increase the severity of the sentence; a mitigating factor will weigh in favour

of a more lenient sentence. The Crown must prove all disputed aggravating factors beyond a reasonable doubt: R. v. Gardiner, (SCC). The offender must prove all disputed mitigating factors on a balance of probabilities: s. 724(3)(

d) of the Code; R. v.Dreger, 2014 BCCA 54 . [61]

Section 718.2(

a) of the Code states a “sentence should be increased or reduced to account for any relevant aggravating ormitigating circumstances relating to the offence or the offender.” For the most part, aggravating and mitigating factors relate to twocategories: a. the gravity of the offence regarding the culpability of the offender and the consequential harm which was caused; and b. how the offender’s character, past conduct, and post-offence conduct implicate a particular sentencing objective. [62] The judge must also consider any collateral consequences arising from commission of an offence, the conviction for an offence,or the sentence imposed for an offence that impacts the offender: R. v.

Pham, 2013 SCC 15 and R. v. Suter, 2018 SCC 34. The collateralconsequences are not necessarily aggravating or mitigating factors under

section 718.2(

a) of the Code as they do not relate to the gravityof the offence or the level of responsibility of the offender. Nevertheless, they do speak to the personal circumstances of the offender.The consequences can flow from the function of legislation, or social, personal or occupational implications. They sometimes result indisqualification from benefits or activities or other burdens and hardships that flow from a conviction.

Collateral consequences cannot beused to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of theoffender: Suter. [63] In R. v. Kwok, (ONSC), Justice Molloy identified oft-cited aggravating factors which the court must considerin a child pornography possession case. Judge Malfair summarize these factors in S.L.G. (at para. 34), which I have considered to thecircumstances in this case: a. Any criminal record for similar or related offences: Mr. Neasloss has no criminal record; b.

Circumstances where there is also production or distribution of the material: Mr. Neasloss used Facebook to send twopornographic images of children to another Facebook user; c. The size of the collection: Mr. Neasloss’s collection of child pornography was modest; d. The nature of the collection, including the age of the children involved and the relative depravity and violence depicted:There is no dispute the impugned images include very young children (between 5 and 10) and are best described as abhorrent; e.

The extent to which the offender is seen as a danger to children: The Court has no presentence or psychiatric report to assessthis risk. The Crown and the defence submit that Mr. Neasloss’ confession, his lack of criminal record and compliance with strict bailconditions over the past 18 months indicate he does not present a significant risk to the public; f. Whether the offender has purchased child pornography and contributed to the sexual victimization of children forprofit: I have no evidence Mr. Neasloss purchased or sold child pornography. [64] Judge Malfair recognized as mitigating: a.

The youthful age of the offender: Mr. Neasloss was 30 years old at the time of the offence. I would not characterize him as ayouthful offender; b. The extent to which the offender has shown insight into their problem: Mr. Neasloss confessed to the offence immediatelyupon his arrest. He is willing to engage in extensive counselling and treatment as a term of the CSO and probation.

He has not done so todate for a number of reasons: he does not have organizational skills to arrange counselling on his own; he lives in a remote Indigenouscommunity; he has no telephone; the COVID-19 pandemic has made the already scarce resources for treating mental health afflictions inthe north even more inaccessible; c. Whether the offender has demonstrated genuine remorse: Mr. Neasloss has indicated from the inception of theseproceedings his intention to enter a guilty plea.

I accept his guilty plea, his confession, his compliance with his bail conditions and hiswillingness to participate in intensive treatment and adhere to significant restraints on his liberty as indicia of his genuine remorse; d. Whether the offender is willing to submit to treatment or counselling or has taken treatment: Mr. Neasloss has expresseda willingness to take residential treatment and has agreed to a Rogers order condition. Nevertheless, Mr. Neasloss was charged with thisoffence on December 15, 2018, and has not taken any steps towards his rehabilitation; e.

The extent to which the offender has already suffered for their crime in their family, career or community: Mr. Neaslosswas subject to strict bail conditions to which he adhered. Defence counsel submits Mr. Neasloss had been abandoned by society longago; he has no career, no footprint in his community, and no friends to shun him. It seems the most significant impact these charges havehad on Mr. Neasloss arises from his restricted access to the internet. Collateral consequences [65] A collateral consequence of Mr.

Neasloss is the COVID-19 pandemic which has resulted in significant mobility restrictions topersons detained in correctional facilities. In R. v. Stevens, 2020 BCPC 104 , Malfair, J. extensively canvassed the law oncollateral consequences, exceptional circumstances, and detention in the time of COVID-19. These authorities included: Voong, Pham,Suter, R. v. Morgan, 2020 ONCA 279 ; R. v. Lemmen, 2020 BCPC 67; R. v. Dakin, 2020 ONCJ 202; R. v. Hearns, 2020 ONSC 2365 ; R. v. Day, 2020 NLPC 1319A00658; R. v. T.K., 2020 ONSC 1935; R. v. Parasmothy, 2020 ONSC 2314, R. v. Kandhai, 2020ONSC 1611; R. v.

McGrath, 2020 ONCJ 192; R. v. Laurin, [2020] O.J. No. 1266 (ONCJ); R. v. Wilson, 2020 ONCJ 176; R. v. Haynes,

[2020] O.J. No. 1982 (ONCJ); R. v. Myles, 2020 BCCA 105. Judge Malfair concluded (at para. 66), the collateral impact of COVID-19on an offender sentenced to a further period of custody “is not of sufficient force to warrant a significant reduction of custody to maintainproportionality.” [66] In R. v. Lariviere, 2020 ONCA 324, the offender appealed his sentence arguing that the impact of COVID -19 justified reducinghis sentence.

The appeal was dismissed and in dealing with the issue, the court took judicial notice of the pandemic; however, theylimited it to the pandemic generally and not specifically to a prison population. The court then went on to observe that there was nothingunique to the offender's situation that justified reducing an otherwise fit sentence.

At para. 17, the court stated: However, there is nothing about the particular circumstances of the appellant's incarceration, nor any indication of a unique or personalvulnerability, that would justify shortening the fit sentence that was imposed. [67] In this case, the evidence does establish anything unique to Mr. Neasloss’s particular circumstances of incarceration, or personalvulnerability, that would justify shortening an otherwise fit sentence.

The fundamental principle of proportionality prevails andthe indirect consequences of COVID-19 cannot be used to reduce a sentence to the point where it is no longer proportional to theseriousness of the offence or to the moral culpability of the offender. Restraint [68] As the sentencing judge, I am guided by the principle of restraint codified in ss. 718.2(

d) and (

e) of the Code.

Section 718.2(e)provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harmdone to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders.” [69] R. v. Gladue, (SCC) and R. v. Ipeelee, 2012 SCC 13, are the governing cases with respect to how s. 718.2(e)should be applied, and establish the framework for sentencing Indigenous offenders. The judge has a statutory duty imposed by s.718.2(

e) to consider the unique systemic and background factors which may have played a

part in bringing the particular offender beforethe court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s particular Indigenousheritage. The offender is not required to establish a causal link between background factors and the commission of the offence beforebeing entitled to have those factors considered by the sentencing judge.

Judges may take judicial notice of the broad systemic andbackground factors affecting Indigenous people generally and case-specific information from the offender in the presentence reports.Generally, an offender’s Indigenous heritage is considered a special and mitigating factor for sentencing purposes: see Sheck v. Canada(Minister of Justice), 2019 BCCA 364 . [70] I have no Gladue report and only a faint thumbnail sketch of Mr. Neasloss’ personal history; however, I am acutely aware of thechallenges facing Indigenous people in this region.

Accordingly, I accept the systemic and background factors affecting Indigenouspeople in Canadian society have likely impacted Mr. Neasloss’ life in such a way as to diminish his moral culpability. I suspect thosefactors, both systemic within society and specific to Mr. Neasloss’ played a role in his criminal behaviour. [71] In Friesen, the Supreme Court of Canada was asked to consider the appropriateness of a starting point or range in sentencing inthe context of sexual offences against children. The unanimous Court held that sentencing ranges and starting points are guidelines ratherthan hard and fast rules.

The Court emphasized that sexual offences against children are inherently wrongful and “always put children atrisk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from caseto case:” Friesen, para. 76. The Court went on to stress (at para. 91) that proportionality requires sentencing judges consider the personalcircumstances of offenders. For example, offenders who suffer from mental disabilities that impose serious cognitive limitations, canhave a mitigating effect because the accused likely have a diminished moral culpability.

The Court went on to state at para. 92: [92] Likewise, where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexualviolence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing theIndigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73).

Similarly, a different or alternativesanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74). [72] In assessing counsel’s joint submission, I have also considered the Ontario Court of Appeal’s recent decision in R. v. Sharma,2020 ONCA 478. In that case, the 20-year-old Indigenous offender pled guilty to importing cocaine contrary to s. 6(1) of the ControlledDrugs and Substances Act, S.C. 1996. She had no prior criminal record and committed the offence in order to pay her rent and avoidhomelessness for herself and her young daughter.

The sentencing judge characterized Ms. Sharma as “an intergenerational survivor ofthe government’s residential school effort to eradicate the cultural heritage of her people.” Nevertheless, the judge rejected Ms. Sharma’sapplication for a CSO and her constitutional challenge to s. 742.1(

c) which statutorily restricted its availability in that case. Ms. Sharmareceived a custodial sentence of 17 months. [73] On appeal, Ms. Sharma challenged the constitutionality of s. 742.1(c), the provision which restricts the availability of a CSO foroffences prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life, and s. 742.1(e)(ii) of theCode, which restricts the availability of a CSO for offences prosecuted by way of indictment that involved the import, export, traffickingor production of drugs, with a maximum term of imprisonment for 10 years. Ms. Sharma argued that ss. 742.1(

c) and 742.1(e)(ii)infringe s. 7 of the Charter because they are overbroad and arbitrary and s. 15 because of their discriminatory effect on Indigenousoffenders on the basis of race. [74] The Court of Appeal overturned the custodial sentence, agreeing that ss. 742.1(

c) and 742.1(e)(ii) of the Code infringe s. 7 and15 of the Charter and could not be saved by s. 1. The appropriate sentence would have been a CSO of 24 months less a day. Theappellate court reasoned: First, that Parliament enacted s. 742.1 to address the over-incarceration of Indigenous offenders (para. 33). In Gladue, the Supreme Courtof Canada held that s. 742.1 is connected to s. 718.2(

e) of the Criminal Code; and

Second, the impugned provisions may not “create” a distinction, but perpetuate the over-incarceration of Indigenous offenders – which was intended to be alleviated by the remedial conditional sentence option; and Third, Indigenous offenders “face a unique legacy of dislocation cause by government policies of cultural genocide through colonial expansion and residential schools” (at para. 86). [ 75 ] Although they did not find the impugned provisions arbitrary, the majority did find them overbroad because they deny CSOs for offenders convicted of an offence with a high maximum penalty even when the appropriate sentence is less than two years in prison. [ 76 ] Feldman J.A., for the majority, found the impugned provisions were not saved by s. 1 of the Charter .

She states at para. 179: [179] There is also no basis to find that the deleterious effects of the impugned provisions on Aboriginal people are outweighed by the salutary effect of the provisions. The deleterious effects are serious. These provisions as enacted take no account of the special circumstances of Aboriginal offenders and the need to address their disadvantage based on race that has resulted in the over-incarceration of Aboriginal people. The breach of s. 15 is not saved by s. 1. [ 77 ] In the result, the majority declared that ss. 742.1 (

c) and 742.1 (e)(ii) of the Code unjustifiably infringe ss. 7 and 15 of the Charter and are, therefore, of no force or effect. Issue: Should the court follow the Crown and defence’s joint submission on sentence ? [ 78 ] Throughout this sentencing hearing, I expressed my reluctance to impose a non-custodial sentence for Mr. Neasloss, particularly in the absence of presentence reports and a psychological risk assessment. The Crown Counsel acknowledges that ordinarily a conviction for the offence of child pornography attracts a custodial sentence. She submits Mr.

Neasloss is an exceptional case where a CSO is appropriate because: a. although this matter took some time to come before the court for sentencing, Mr. Neasloss confessed his guilt to the police immediately upon his arrest and indicated early in the proceedings his intention to plead guilty; b. Mr. Neasloss’s guilty plea has avoided revictimizing the child victims; c. this is a complex matter, involving forensic reports, expert witnesses and search warrants. Mr. Neasloss’s guilty plea has spared the justice system the time, resources, and expenses of a lengthy trial; d. Mr.

Neasloss has demonstrated remorse and taken responsibility for his actions; e. Mr. Neasloss is an Indigenous person and the Court is required to consider all other available sanctions other than imprisonment. As the result of the decisions of the BC Court of Appeal in Swaby and Alexander , a CSO is now an available option which the Court must consider; f. British Columbia continues to be the throes of the COVID-19 pandemic; g. Mr.

Neasloss has complied with all his bail conditions imposed on December 15, 2018, which included arduous restrictions on his internet use and contact with children; h. there is no suggestion Mr. Neasloss poses a risk to the public; i. the proposed CSO is for 10 months. If Mr. Neasloss were to receive a sentence of incarceration, it would be for a period of four to six months, which is insufficient to afford much protection to the community. If Mr. Neasloss were to breach the CSO, the Crown will likely seek its termination and Mr.

Neasloss could spend the unserved portion of his sentence behind bars; j. the CSO will be followed by a three-year probation order and a ten-year s. 161 order; k. the terms of the Mr. Neasloss’s CSO and probation are stringent and sufficiently robust to protect the community; and l. although denunciation and deterrence are important, because Mr. Neasloss has fallen off the radar of social services, treatment for his mental health issues is urgent and crucial to his rehabilitation for his own sake and that of his community. [ 79 ] Defence counsel submits a CSO is justified for Mr.

Neasloss because of his Indigenous heritage and society has failed in its duty to identify and address his mental health and cognitive issues. The risk to the community is manageable because Mr. Neasloss is not violent, does not misuse substances and resides in a “dry home” with his father. [ 80 ] Both counsel argue that sentencing ought to proceed in the absence of presentence reports or psychological assessments in order to minimize delay and expedite Mr. Neasloss’s access to treatment. [ 81 ] The Crown and defence have presented to the Court a joint submission as to sentence in exchange for Mr.

Neasloss entering a plea of guilty. In Anthony-Cook, the Supreme Court of Canada has recognized the importance of negotiated sentencing positions for the well-being of our criminal justice system. Sentencing judges are to accept a joint submission unless to do so would bring the administration of justice into disrepute.

Justice Moldaver stated (at para. 34) that a joint submission should not be rejected lightly: Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason . . .

[82] Recently in R. v. Wong, 2018 SCC 25 , the Supreme Court of Canada reiterated its direction on joint submission[citations omitted]: [61] Guilty pleas are of central importance to the Canadian criminal justice system. For many years, a substantial majority of criminalconvictions in Canada have resulted from guilty pleas...The guilty plea is one aspect of the plea bargaining process, in which Crown anddefence counsel negotiate a joint submission on sentence and the accused agrees in exchange to plead guilty.

As this Court recentlystated, such agreements are “commonplace and vitally important to the well-being of our criminal justice system, as well as our justicesystem at large” . . . The plea bargaining process is fundamental to the administration of justice: the disposition of cases by means of pleabargains benefits all participants in the justice system, preserves limited resources and introduces certainty into the criminal process. . . [83] Appellate courts have held that while they are not immutable or sacrosanct, joint submissions should only be rejected inexceptional circumstances: R. v.

Dunkers, 2018 BCCA 363 at para. 38 R. v. Cheema, 2019 BCCA 268 , R. v. Manca, 2019BCCA 280 , R. v. White, 2019 BCCA 461 ; Whitfield v. British Columbia (Provincial Court), 2018 BCSC 1065; R. v.Belakziz, 2018 ABCA 370 ; R. v. McKay, 2019 SKCA 129 ; R. v. Fuller, 2020 ONCA 115 ; R. v. Binet, 2019QCCA 669 ; R. v. Mantla, 2020 NWTCA 6 ; R. v McInnis, 2019 PECA 3 , R. v. Kippomee, 2019 NUCA 3.

The public interest test for accepting joint submissions is more stringent than the fitness test or even the demonstrably unfittest, both of which were rejected in Anthony-Cook. [84] The relevance of sentencing precedents is greatly attenuated with joint submissions, because in conventional sentencing, thesystemic benefits derived from joint submissions need not be considered: Mantla, at para. 22, citing Anthony-Cook at para 48; Belakziz atpara 21. [85] Sentencing involves an inherently individualized assessment. As the sentencing judge I must take into account Mr.

Neasloss’spersonal circumstances as well as the circumstances of the offences, which include the aggravating and mitigating factors, and thecollateral consequences. I must consider Mr. Neasloss’ Indigenous heritage and the systemic factors within society itself and thebackground factors unique to Mr. Neasloss that likely played a role in his criminal behaviour. I cannot lose sight of the purposes andprinciples of sentencing set out above.

Having given consideration to all these factors, I am still not persuaded a CSO is appropriate.Specifically, I do not feel comfortable ordering a community-based sentence without a psychological or psychiatric risk assessment orpre-sentence report. [86] I accept the Crown and defence counsel are generally “well placed to arrive at a joint submission that reflects the interests ofboth the public and the accused” because “they will be highly knowledgeable about the circumstances of the offender and the offenceand the strength and weaknesses of their respective positions”: Anthony-Cook, para. 44.

From my perspective, the Crown has a strongcase. Its witnesses are predominantly professional and cooperative and are unlikely to be traumatized by the court proceeding. [87] At this sentencing hearing, the Crown and defence provided the court with comprehensive submissions. Seeking furthersubmissions seems unnecessary. Also, appellate authorities caution sentencing judges against sending counsel away to revise jointsubmissions as to do so risks increasing delay, uncertainty and inefficiencies: R. v. Kippomee, 2019 NUCA 3 , at para. 50; R. v.Fuller, 2020 ONCA 115 ; at para. 21.

In any event, I am not lacking submissions, but rather, (

a) an “accurate, independent andbalanced assessment of [this] offender, his background and his prospects for the future”: R. v. Junkert, 2010 ONCA 549 ,para. 59; and (

b) an expert psychological assessment of the offender’s mental health and cognitive issues. I do not know the nature orseverity of Mr. Neasloss’s asserted psychological, cognitive and social impairments. Apparently, he has the intellectual skills to navigatethe dark web to access child pornography, and the psychological dysfunction to do so. CONCLUSION ON SENTENCING [88] Given the dearth of independent and expert evidence, I cannot say the sentence the Crown and defence propose is one, absent ajoint submission, I would otherwise impose.

The question I must now answer is whether the joint submission is one I should acceptgiven the stringent public interest test for its rejection. I can only depart from a joint submission if it is so unhinged from thecircumstances of the offence and the offender that its acceptance would lead reasonable and informed persons to believe that the properfunctioning of the justice system had broken down: Anthony-Cook, para. 33. [89] In my view a 10-month CSO for possession of child pornography offends the principles of parity and proportionality. TheCrown and defence are experienced counsel.

Clearly they consider the systemic benefits of Mr. Neasloss’s guilty plea justify a non-custodial sentence. They also agree the sentencing ought to proceed today in the absence of a presentence report or Gladue report orpsychiatric or psychological risk assessments. They have crafted a sentence which endeavours to protect the community from the risk ofMr. Neasloss reoffending through a combination of rehabilitative and restrictive conditions contained in various court orders.

I amunable to say their joint proposal would cause a reasonable person to conclude "the proper functioning of the justice system had brokendown." Accordingly, I will endorse the joint submission as advocated by counsel. DISPOSITION [90] Tyler Eugene Neasloss, you pled guilty to Count 2 on Information 25114-1 charging you with possessing child pornographyfrom September 1, 2018 to December 14, 2018, in Kispiox, BC, contrary to s. 163.1(4) of the Code.

I accept your guilty plea to thatoffence and I find you guilty of that offence. [91] I will endorse the joint proposal and impose a 10 month jail sentence to be served in the community followed by three years’probation, both on the terms and conditions agreed to by counsel. You will also be subject to four ancillary orders: (

a) a s. 161 order for10 years; (

b) a SOIRA Order for 20 years duration (490.013(2)(b)); (

c) a DNA Order; and (

d) a forfeiture order under s. 164.2(1) of theTablet and SD card the RCMP seized in their investigation of this matter. CONDITIONAL SENTENCE ORDER [92] You must comply with a conditional sentence order for a term of 10 months. The conditions 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 your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. 4. You must remain in British Columbia unless you have prior written permission from the Court or your conditional sentence supervisor to leave the province. 5.

You must report by telephone to a conditional sentence supervisor at Smithers Community Corrections, #114 - 3793 Alfred Avenue, Smithers, BC, at 250-847-7365 or Toll Free at 1 888 242-3788 by 3:00 p.m. on August 21, 2020. If the office is closed, you must continue calling daily during regular business hours until you have spoken to a supervisor and received further direction to report. After that, you must report as directed by your supervisor. 6. You must live at an address approved in advance by your conditional sentence supervisor and provide your supervisor with your phone number.

You must not change your address or phone number without prior written permission from your supervisor. 7. You must obey house arrest by being inside your residence 24 hours a day, every day. 8. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest. 9. You may be away from your residence during the house arrest with the written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other compelling reasons.

You must carry the permission with you when you are outside your residence. You may also be away from your residence during the house arrest hours: a. while at, or going directly to, or returning directly from a healthcare facility because of a medical emergency. If asked, you must provide your conditional sentence supervisor with proof of your attendance at the facility. b. for employment purposes; c. every Wednesday and Friday between the hours of 2 p.m. and 4 p.m. 10.

You 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 present, or a daycare centre, school ground, or playground. The exceptions are as follows: a. with the prior w ri tten pe r m i s s i on o f your conditional sentence supervisor . Such permission is to be given only for compelling reasons.

You must carry the permission, which can be in electronic format, with you when you are in the prohibited area; b. you must not have any contact or communication, directly or indirectly, or be in the presence of any person under the age of 16, except incidental contact in a public place; c. with the prior written permission of your conditional sentence supervisor. Such permission is to be given only for compelling reasons. You must carry the permission, which can be in electronic format, with you at all times; d. in the immediate presence of the child’s guardian(s)

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