R. v. M. T. Date:, 2016 BCPC 243

Citation: R. v. M. T. Date: 20160810 2016 BCPC 0243 File No: 40875-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M. T. REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL BAN ON PUBLICATION s. 486.4(3) CCC Counsel for the Crown: R. Ross Counsel for the Defendant: L. Helps Place of Hearing: Prince George , B.C. Date of Hearing: April 22, 2016

Date of Judgment: August 10, 2016 INTRODUCTION [ 1 ] The Defendant, M. T., is to be sentenced today on Information Number 40875-1, on which the Crown has proceeded summarily, and which he pleaded guilty on May 13, 2015 to the following Counts: 1) Count 1 - from the 12 th day of June 2012 to the 31 st day of January 2013 inclusive, at or near Prince George, in the Province of British Columbia, did access child pornography contrary to section163.1(4.1) of the Criminal Code ; and 2) Count 3 - from the 12 th day of June 2012 to the 31 st day of January 2013 inclusive, at or near Prince George in the Province of British Columbia, did possess child pornography contrary to

section 163.1(4) of the Criminal Code . [ 2 ] The offences attract a minimum sentence of 90 days and a maximum sentence of 18 months imprisonment. [ 3 ] The Crown seeks a sentence of six to nine months imprisonment followed by a three year probation order and the following ancillary orders:

a) forfeiture of a computer seized at the time of Mr. T.’s arrest pursuant to

section 164.2 (1) of the Criminal Code ;

b) an order pursuant to section 161 (1) (a), (b), (c), and (d), of the Criminal Code for a period of five years;

c) a Sex Offender Information Registration Act order pursuant to

section 490.013 (1) and (2.1) of the Criminal Code for life;

d) an order pursuant to

section 487.051 of the Criminal Code that Mr. T. provide a sample of his DNA to the DNA National Databank because the offences are primary designated offences. [ 4 ] Defence counsel seeks the mandatory minimum sentence of 90 days imprisonment, to be served intermittently, followed by some probationary terms and the following ancillary orders:

a) a Sex Offender Information Registration Act order pursuant to

section 490.013 (1) and (2.1) of the Criminal Code for life or for a lesser term;

b) return of the computer seized at the time of Mr. T.’s arrest. [ 5 ] Defence counsel specifically opposes the orders sought by the Crown pursuant to

section 161. DEFENDANT’S CIRCUMSTANCES [ 6 ] Mr. T. has no criminal record. He was born in Turkey. He is the eldest of three brothers. His family immigrated to Canada when he was three and he has lived most of his life in Prince George. [ 7 ] At the time of the offences Mr. T. was 49 years old. He has been in a spousal relationship with F. T. for almost 20 years. She works in the medical field at the [omitted]. They have three children, a 15-year-old son, 12-year-old daughter and a 10-year-old son. Mr.

T. also has two adult children from a previous marriage, a 27-year-old daughter and a 25-year-old son. [ 8 ] The family enjoys a number of activities at home, in the community and in the outdoors. They are a close knit family and both Mr. and Ms. T. are concerned about the impact of his conviction and sentence on their children. [ 9 ] He obtained university degrees in music and education and a Masters of Educational Technology.

He taught in Japan briefly prior to obtaining a teaching position in School District # 57 (Prince George) where he has taught for over two decades in a variety of schools; his last position being as a band teacher in a secondary school. [ 10 ] Given his level of education and his experience, Mr. T. was earning an income at the higher end of the teacher’s salary scale prior to being suspended from his employment after his arrest. [ 11 ] Since leaving teaching, Mr. T. has found sporadic and casual employment in the construction industry.

The loss of his teaching position has put severe strains on the family finances. [ 12 ] Although the criminal charges and the subsequent convictions have put a strain on the spousal relationship, Ms. T. has maintained her support for her husband. However, the family has become distanced from many, but not all, of their friends and social groups. Mr. T. has remained close to his brothers and a few friends. [ 13 ] Mr. T. is an accomplished musician who has played in both the local symphony and community bands for many years. In addition to his school teaching duties, Mr.

T. was, for many years, a teacher and mentor to many other musicians in Prince George.

Since he was charged with these offences many of those opportunities are no longer available to him. [ 14 ] Mr. T. does not use drugs and rarely consumes alcohol. He is healthy, both physically and mentally. OFFENCE CIRCUMSTANCES [ 15 ] On November 27, 2012, a member of the Integrated Child Exploitation Unit (ICE) established a peer to peer connection with a computer with an IP address registered to Ms. T. [ 16 ] During the download, 17 files were shown to be available, some with references suggesting child pornography.

In addition, one video was downloaded and reviewed. [ 17 ] Of the items identified as child pornography, the video clips were largely of the actions of seven to twelve year-olds with older males and without any genital penetration. [ 18 ] On January 31, 2013, a Search Warrant was executed at Mr. and Ms. T.’s residence. Two computers were seized along with other peripheral devices. It was later determined that only one computer stored child pornography. [ 19 ] In a statement to the RCMP, Ms. T. acknowledged that she was aware Mr.

T. was viewing pornography, but not child pornography, and that he was the only one who used that computer. That information was corroborated by Mr. T. In a statement to the RCMP, Mr. T. acknowledged that he used peer-to-peer connections such as LimeWire and Bit Torrent to download pornography and music. [ 20 ] Mr. T. told the RCMP that he used terms such as “MILF” and “Teen and Preteen” during his searches.

He explained that he expected to view people older than the term searched for so that when searching for a term like “Preteen” he expected to see 18 to 19 year olds. [ 21 ] According to the subsequent analysis of the computer, four files in the download area of the computer contained child pornography. One file was created on December 5, 2012 and three were created on November 22, 2012 with the heading “PTHC” which is meant to stand for Pre-Teen Hard Core. Three of the four files were viewed; the last occurrence being on January 19, 2013. None of those files were deleted.

The analysis also located many artifacts on the computer suggesting child pornography. Several files were found in the video player, seven on QuickTime, seven on VLC and nine on Windows media but none were accessible for analysis. [ 22 ] Defence counsel noted that there were six video clips with adults only and four involving children. Of those involving children, the sexual acts mostly included an adult male masturbating on to the child and in one case the child performing oral sex on an adult male. [ 23 ] On February 1, 2013, Mr. T. approached Cpl.

Wilson of the RCMP and inquired whether or not that member could “make it all go away” but was advised that it would not occur. Mr. T. then advised Cpl. Wilson that he had no thoughts of having sex with children but that he viewed the clips for their shock value. REPORTS [ 24 ] A Presentence Report was prepared by Probation Officer Koopmans. The important commentary and recommendations from that Report can be summarized as follows:

a) Mr. T. explained his accessing of child pornography as seeking shock value, similar to watching television shows like CSI or Dexter, as opposed to seeking sexual gratification or harming any children;

b) although he had regularly viewed pornography since he was a teen he has not accessed any pornography since his arrest;

c) he is concerned about the continuing consequences his offending will have for him and his family;

d) having a sex offender designation is contrary to who he is;

e) he has expressed remorse for his actions particularly because he never considered how his actions facilitated the production, distribution and viewing of child pornography and the exploitation of the children depicted;

f) he doesn’t see himself as an offender and he wondered about the expense to society resulting in his investigation, charges, conviction, sentence, incarceration, supervision, counselling and treatment;

g) once he is released into the community, Mr. T. should serve a period of probation including that he participate in the Forensic Sex Offender and Maintenance Programs and be prohibited from attending locations frequented by young people. [ 25 ] A Psychological Report with risk assessment was prepared by Dr. Lopes, Registered Psychologist. The interview, testing,

summary, opinions and recommendations in that report can be summarized as follows:

a) aside from these matters, Mr. T. has lived an unremarkable and otherwise, very prosocial life, having contributed to the community in general;

b) Mr. T. acknowledged that he had very poor insight into his actions, particularly because he is an educated person with a background in education. Despite his actions he feels, to some extent, that the consequences he faces are more than what is required;

c) he feels sorrow for the people he has affected directly or indirectly by his actions, particularly his family;

d) one psychological test was unable to be conducted because it is not an appropriate for child pornography offenders. Another risk assessment that was employed resulted in a score consistent with Mr. T. being at low risk to reoffend;

e) once he is released into the community, Mr. T. should participate in the Forensic Sex Offender and Maintenance Programs, report to a community supervisor as required and reside in an approved residence. CHARACTER REFERENCES [ 26 ] Defence counsel submitted five letters from individuals in support of Mr. T., including his brother, who is a member of the RCMP, and several long-time friends including a doctor. In those letters Mr. T. is described by the authors as:

a) a trustworthy person of high moral character;

b) a helpful, kind, supportive and dedicated friend;

c) a nurturing and loving spouse and parent;

d) an inspiring and talented teacher and mentor;

e) an active community member and contributor;

f) a passionate musician who shares his gift to enrich the lives of others;

g) a generally law abiding and a valuable asset to the community;

h) a person who has taken responsibility for a horrible mistake. THE LAW Criminal Code [ 27 ] The following sections of the Criminal Code have application in this case: a) 161

(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under

section 730 , of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) having any contact including communicating by any means with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or (

d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

(2) The prohibition may be for life or for any shorter duration that the court considers desirable and, in the case of a prohibition that is not for life, the prohibition begins on the later of (

a) the date on which the order is made; and (

b) where the offender is sentenced to a term of imprisonment. The date on which the offender is released from imprisonment for the offence, including release on parole, mandatory supervision or statutory release b) 163

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

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. c) 163.1

(4.1) Every person who accesses any child pornography is guilty of (

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. d) 490.012

(1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (

e) of the definition designated offence in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in

section 490.013 . e) 490.013

(1) An order made under

section 490.012 begins on the day on which it is made.

(2) An order made under subsection 490.012(1) or (2) (

a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years; (

b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and (

c) applies for life if the maximum term of imprisonment for the offence is life. ( 2.1) An order made under subsection 490.012(1) applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (

e) of the definition designated offence in subsection 490.011(1) . f) 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. g) 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. h) 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. i) 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

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. j) 732

(1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order (

a) that the sentence be served intermittently at such times as are specified in the order; and (

b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence. Case Law [ 28 ] The Crown provided the following cases in support of its submissions:

a) R. v. Sharpe 2001 SCC 2 ;

b) R. v. Allen 2012 BCCA 377;

c) R. v. B.C.M. 2008 BCCA 365;

d) R. v. Veinotte 2016 BCCA 21;

e) R. v. Roberts 2015 BCPC 266;

f) R. v. Ingvaldson 2012 BCPC 437;

g) R. v. Crone 2009 BCPC 429;

h) R. v. Gardiner 2009 BCPC 358;

i) R. v. Caprica 2009 YKTC 95 , 2009 YK TC 95;

j) R. v. Bowers 2013 BCPC 383; and

k) R. v C.F.W. 2009 BCPC 85. [29] Defence counsel provided the case of R. v. Lloyd 2014 BCCA 224, in support of her submissions and sought to distinguishmany of the cases presented by the Crown. SUBMISSIONS Crown [30] The Crown’s submissions on the aggravating or mitigating factors in this case can be summarized as follows: Aggravating Factors

a) Mr. T. is a teacher which is not a statutorily aggravating factor but the community expects more from individuals in such positions;

b) he shows lack of insight concerning the offences having expressed disbelief and questioning why the community engages in theinvestigation and prosecution of such matters and the severe consequences arising from them;

c) the child pornography found on Mr. T.’s computer falls into the middle range of such activities by involving non-penetrative sex actswith no violence;

d) pursuant to

section 718.01 of the Criminal Code the primary sentencing principles for offences against children are denunciation anddeterrence. Mitigating Factors

a) Mr. T. has no criminal record;

b) he entered a very early guilty plea;

c) his library of child pornography was relatively small in relation to other cases;

d) he was relatively cooperative with the RCMP during their investigation, although he did tend to minimize some of his activities;

e) he is, according to the expert, at low risk to reoffend. [31] The Crown also reviewed for the Court the various cases in its casebook comparing and contrasting the facts in those cases andthe resulting sentences to the case before the Court. [32] The Crown also spent some time describing the case law with regard to the increasing of minimum sentences over time, oftenreferred to in the cases as the “inflationary floor principle” and its overall effect on sentencing.

In describing those cases and theamendments to the Criminal Code that have increased the minimum mandatory sentences for such offences, the Crown submitted thatParliament is requiring sentencing Judges to consider very serious consequences for even the least egregious of offences of the kindbefore the Court. [33] Based on those cases, the Crown submitted that the circumstances of this case and the circumstances of Mr.

T. require asentence greater than the minimum mandatory sentence. [34] In reviewing the provisions of the Criminal Code and the case law provided to the Court, the Crown noted that in casesinvolving the abuse of children the objectives of denunciation and deterrence are paramount considerations. [35] The Crown made no submissions on why the computer containing the child pornography that was seized from Mr. T.’s

residence should be forfeited to Her Majesty. Defence [ 36 ] Defence counsel’s submissions on what would be an appropriate sentence in this case can be summarized as follows:

a) the principles of denunciation and deterrence can be served by the minimum sentence available, imposed intermittently, followed by probation. Such a sentence would benefit Mr. T. by permitting him to continue to be employed and meet the financial obligations of his family who are innocent of any wrongdoing and would be of benefit to the community as employment is generally considered a prosocial activity;

b) even the minimum jail sentence places Mr. T. in jeopardy given that it is well known in the community that his brother is a long serving member of the RCMP;

c) in this case rehabilitation is also an important factor in light of Mr. T.’s lack of any criminal record, his low risk to reoffend and the contents of the Presentence Report and the Psychological report;

d) Mr. T. does accept responsibility for his actions and understands that child pornography is a major societal ill that has to be treated seriously. His disbelief had more to do with a shocking thing coming home to roost rather than him contending that he had done nothing wrong;

e) in addition to the criminal sanctions, Mr. T. has suffered a great deal including the loss of his life as a devoted music teacher, the loss of his teaching career and its generous income, the loss of many of his friends and being investigated by the Teacher Regulation Branch;

f) throughout the investigation and prosecution of this matter he has been cooperative with the authorities and accepted full responsibility early on thereby avoiding the expense for the Crown in having to prepare the necessary expert reports and witnesses for trial;

g) although he initially was naïve with regard to the seriousness of such offences, they have now been brought clearly into focus for him and he recognizes that the children depicted in the videos are sex trade victims;

h) the

section 161 order sought by the Crown is overreaching and unnecessary for Mr. T. given his prosocial history and his careers in music and in teaching. He is no risk to children in the community. [ 37 ] Defence counsel made no submissions on why the computer containing the child pornography that was seized from Mr. T.'s residence should be returned to him. DISCUSSION Child Pornography [ 38 ] There was some disagreement between counsel concerning Mr. T.’s understanding and acceptance of the harms of child pornography.

If he was at all confused on the point, he should pay particular attention to the direction provided to sentencing Judges by the Supreme Court of Canada in Sharpe , why conduct related to child pornography including its production, distribution, and possession requires strong statements of denunciation and deterrence. The Court described five basis on which prohibiting possession of child pornography contributes to reducing sexual abuse of children as follows:

a) child pornography promotes cognitive distortions such that repeated exposure may cause terrible abuse of children to appear normal and acceptable to viewers;

b) it may fuel fantasies that incite certain offenders to commit further offences;

c) making possession an offence aids in the prosecution of those who produce or distribute child pornography;

d) considering possession of child pornography to be a crime likely helps to reduce further criminality against children such as grooming and seduction; and

e) children are often violently used and abused in the production of such pornography. [ 39 ] On the latter point, Chief Justice McLachlin said the following at paragraph 92 of Sharpe : 92. The fifth and final harm-the abuse of children in the production of pornography is equally conclusive. Children are used and abused in the making of much of the child pornography, by the law. Production of child pornography is fueled by the market for it, and the market in turn is fueled by those who seek to possess it.

Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade.

Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone.

[40] Parliament has made it clear over time through the various provisions of the Criminal Code and the many amendmentsincreasing the penalties for such offences that child pornography is to be dealt with as a very serious category of offence by a sentencingjudge. [41] However, there are recognized levels of seriousness with regard to nature of the depictions of children in pornography. In R. v.Missions 2005 NSCA 82, five categories from the least to most serious depictions, were described and have become widely used by thecourts. They include:

a) images depicting erotic posing with no sexual activity;

b) sexual activity between children, or solo masturbation by a child;

c) non-penetrative sexual activity between adults and children;

d) penetrative sexual activity between children and adults;

e) sadism or bestiality. [42] The child pornography seized from Mr. T.'s computer fell into the third of the five categories. [43] The courts have also considered, as part of the sentencing process, the volume or "library” the offender has in determining anappropriate sentence. In all of the cases provided by the Crown, the child pornography held by those offenders was in quantum amountsmore when compared to what Mr. T. had in his possession. Despite that, the Crown here seeks a term of imprisonment considerablygreater than many of those other offenders.

Inflationary Floor Principle [44] The impact of increasing minimum mandatory sentences for a particular offence, when it applies to the sentencing of a specificindividual, has been a matter of some discussion in the case law. [45] It is generally agreed that the decision of Arbour J. in R. v. Morrisey 2000 SCC 39, is worthy of strong consideration by anysentencing judge. At paragraphs 75 and 76 of Morrisey she says the following: 75.

To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed,in particular, in ss. 718, 718.1 and 718.2 of the Criminal Code; Wust (SCC), 2000 SCC 18 , [2000] 1 S.C.R. 455, at para. 22. By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence,Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(

b) that a sentenceshould be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, in myview, the mandatory minimum sentences for firearms related offences must act as an inflationary floor, setting a new minimumpunishment applicable to the so-called “best" offender whose conduct is caught by these provisions. The mandatory minimum must notbecome the standard sentence imposed on all but the very worst offender who has committed the offence in the very worstcircumstances.

The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but alsooffend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance thepurposes of imposing criminal sanctions. 76.

The proper approach to the determination of the constitutional validity of mandatory minimum sentences, under the guidance of thejurisprudence of this Court, is, in my view, to give effect to this inflationary scheme, except when the statutory impossibility of goingbelow the minimum is offensive to s. 12 of the Charter where the mandatory minimum requires the imposition of a sentence that would be not merely unfit, which is constitutionally permissible, but rather one that is grossly disproportionate to what the appropriatepunishment should be.

The search for the appropriate punishment is not an abstract exercise. It is very much guided by the types ofsentences that have been imposed in the past on similarly situated offenders, and because of that, it changes over time, and may come toreflect the inflationary consequences of the proper application of mandatory minimum sentences for particular types of offences. [46] The Court of Appeal in B.C.M. confirmed that Arbour J’.s decision in Morrisey was not binding on sentencing judges when itsaid at paragraphs 31 and 32: 31.

While the views of Arbour J. are not precedentially authoritative, the sentencing Judge was entitled to adopt them as a logical andappropriate statement of the interaction between minimum sentences and the traditional sentencing principles, notably proportionality,which requires that similar offenders receive similar sentences. A minimum sentence does not oust that fundamental principle. Thesearch for a fit sentence is still guided by similar sentences imposed in the past on similarly situated offenders.

Nevertheless, amandatory minimum sentence introduces a higher starting point and therefore a narrower range within which that principle will operate. The notion of a fit sentence must be adjusted accordingly the principle of proportionality is to remain operative. 32. For example, in this case, the introduction of the mandatory minimum sentence of one year for making child pornographysignificantly shrinks the range of sentencing options. It excludes consideration of a suspended sentence and probation under s. 731, orconditional sentence under s. 742.1, of the Code.

The only remaining sentencing options are terms of imprisonment between thestatutory minimum of one year and the statutory maximum of ten years. Thus, the least culpable offender in the least seriouscircumstances, who might've received a more lenient sentence prior to Bill C-2, will now be sentenced to one year in prison. It would be

inconsistent, with proportionality, if worse offenders in more serious circumstances, who might have received a one year sentence prior to Bill C- 2, continue to be sentenced to one year under the new regime.

The principle that similar offenders should receive similar sentences requires acknowledgment that a minimum sentence has a proportionate inflationary effect on the balance of the sentencing range. [ 47 ] The Inflationary Floor Principle was most recently discussed on by the Court of Appeal in Veinotte where the Court confirmed that the concept that a minimum sentence should be reserved only for the "best offender" is not sustainable at law in much the same way as the Supreme Court of Canada determined that the maximum sentence should not be reserved for "the worst offender and the worst offence.” ( R. v.

L.M. 2008 SCC 31 ). As such, a mandatory minimum sentence can still be imposed in circumstances where the offender is not the “best” and the offence is not the “least” so long as the Court properly applies the principles set out in ss. 718 through 718.2 of the Code . [ 48 ] In many cases, the effect of a mandatory minimum sentence pre-empts a sentence that the Court might otherwise deem to be appropriate in the circumstances where it determines that a penalty less than the mandatory minimum is required. That results in a clustering of sentences at, or near, the mandatory minimum prescribed by Parliament.

Just and Appropriate Sentence [ 49 ] In determining the proper sentence in any case, it is beneficial to review and consider other cases of similar nature, in order to be properly informed as to the "range" of sentences of both available to and implemented by other courts. [ 50 ] With regard to the topic of the appropriate range of sentences for child pornography offences, Ryan J.A., in paragraphs 57 and 58 of Allen said: 57. While a range may not be detectable from these cases they do reveal the escalation in recent years and severity of sentences imposed where children are the victims of sex offences. 58.

In my view, then, there is little guidance for this Court to be taken from the case law as to the appropriate sentence. We must therefore look to the principles, which govern sentencing to determine the proper sentence in this case. [ 51 ] Having reviewed the cases provided by the Crown, the one most similar to the case at bar, and which provides the most direct comparators, is Ingvaldson. [ 52 ] Mr. Ingvaldson pleaded guilty to one count of accessing and one count of possessing child pornography. He was involved in a Facebook group that appeared to be involved in possessing and sharing child pornography.

When contacted by an undercover police investigator from Australia, he made available to that person, 41 child pornography images. Further investigation indicated that he was using two different computers; one at his home and one at his place of work. When the images were reviewed they were determined to be at the high end of the scale, involving sexual penetration, being the fourth of the five levels described in Missions . It was also determined that he had been in possession of the images for at least one year. [ 53 ] At the time of the offences, Mr.

Ingvaldson was employed as a teacher but lost that position when he was arrested. Subsequently, he took on employment as a painter and construction worker. He was also married at the time of the offences but separated and divorced from his spouse. He was in a new spousal relationship at the time of sentencing. [ 54 ] Mr. Ingvaldson attended residential treatment and was receiving further counselling, as well as treatment from both a psychologist and a psychiatrist.

He was reported to be compliant with his treatment and had developed insight on how his negative decisions and behavioural patterns affected more than just himself. [ 55 ] At the time, the minimum mandatory sentence for possession of child pornography was 45 days imprisonment with a maximum five years imprisonment. The Crown sought a sentence of six months imprisonment with probation and ancillary orders, while the Defence sought the minimum mandatory sentence of 45 days with probation and the other ancillary orders. [ 56 ] The Court recognized that the consequences to Mr.

Ingvaldson in the public realm were much greater than it might be for other offenders, given his position as a school teacher. The Court noted that he would never again be able to practice the profession he had worked so hard to enter and practiced diligently for many years. [ 57 ] However, the Court determined that the minimum mandatory sentence was not appropriate in the circumstances and imposed a sentence of three months’ imprisonment with a two year probation order and ancillary orders for the following reasons:

a) although small in number, the images were extremely serious in content;

b) Mr. Ingvaldson provided them for others to access on the Internet and knew that was being done;

c) he held a special position in society as a teacher and his behaviour was particularly upsetting to his colleagues and students. [ 58 ] Mr. T.’s personal circumstances are quite similar to Mr. Ingvaldson. However, his offending behaviour was less egregious in four ways:

a) he had less child pornography in his possession;

b) the pornography was less serious;

c) he had it in his possession for a shorter period of time; and

d) he was not actively offering it for distribution. [ 59 ] Mr. T. did suffer some similar losses to Mr. Ingvaldson, including loss of his profession, his place in the community, his friends and associates, and a reduction of income. [ 60 ] In addition, Mr.

T. will have a challenging time serving his imprisonment given his brother’s senior status with the RCMP and their unique name. [ 61 ] At the end of the analysis, sentencing is an individualized process meant to impose a just and appropriate sentence on the offender after taking into account their personal circumstances, the offence circumstances, the statute and case law, and the submissions of counsel. [ 62 ] In the circumstances of this case, both as it pertains to Mr.

T. and the crimes he committed, but for the mandatory minimum sentence required, a sentence of even less than that being sought by Defence counsel would be worthy of careful consideration. Mr. T. has already been denounced in light of his loss of career and standing in the community. He has been deterred from any future activity of similar nature by this very public process and his upcoming imprisonment. [ 63 ] Upon weighing all those factors, a just and appropriate sentence for Mr. T. is the minimum mandatory term of imprisonment, ninety (90) days, followed by a Probation Order for three (3) years.

The term of imprisonment suggested by the Crown exceeds what is necessary to meet the sentencing objectives set out in the Criminal Code and applied by the case law. Ancillary Orders [ 64 ] Neither counsel made any submissions concerning the application of

section 164.2 of the Criminal Code as it pertains to the computer seized from Mr. T.'s residence. Based on the wording of that section, it is clear that the computer was used in the commission of the offence of possessing child pornography. There was no suggestion made that it belonged to anybody other than Mr. T. since he was the only one who accessed and used it. [ 65 ] In the circumstances of this case the Crown has met the onus, on a balance of probabilities, that the computer should be forfeited. [ 66 ] The Counts on the Information are primary designated DNA offences.

Defence counsel made no submissions as to when such DNA sampling should occur. SOIRA Order [ 67 ] Although each of the Counts Mr. T. has pled guilty to attracts a 10 year SOIRA order pursuant to

section 490.013 (2), the fact that he has pled guilty to two offences would require imposition of a lifetime order pursuant to

section 490.013 (2.1) if he was to be convicted of both Counts. [ 68 ] The Crown initially submitted that a lifetime SOIRA order was appropriate, but in its reply suggested that if one of the Counts was conditionally stayed then an order of lesser length would be available. [ 69 ] Neither the Crown, nor Defence counsel, asked the Court to conditionally stay one of the Counts. Upon review of the factual and legal matrix of each of the Counts it is clear in this case that the only way Mr.

T. came to possess child pornography on his computer was by using his computer to access the pornography. [ 70 ] It is not lost on the Court that it could be a very disproportionate result in circumstances where Mr. T. is receiving a relatively modest sentence that he should be faced with a lifetime of being on the Sex Offender Registry, but that is the clear wording of the sections if convictions on both Counts are maintained. [ 71 ] One way to avoid what would be a very harsh result in one part of the sentence relative to the remainder of the sentence would be to conditionally stay one of the Counts.

In this case, the accessing of child pornography is effectively subsumed by its possession, as such, it is appropriate as part of reaching a just and fit sentence to conditionally stay Count 1 of the Information. [ 72 ] There also the possibility that Mr. T. could apply for a termination order as described in

section 490.015, if he takes the necessary steps required to make such application. DECISION Ancillary Orders [ 73 ] There will be a SOIRA Order as requested by the Crown. Given the nature of the offences to which the Mr. T. has pleaded guilty, that Order is required unless he can convince the Court otherwise. Defence counsel did not address reasons why such an Order should not be granted. [ 74 ] Crown counsel submitted that the SOIRA Order should be for life and given the two convictions against Mr. T., an Order of such length would be required. However, given the conditional stay entered on Count 1, the resulting SOIRA Order will be for ten (10) years.

[ 75 ] Therefore, there will be an Order in Form 52 requiring M. T. to comply with the Sex Offender Information Registry Act for ten (10) years and to sign any necessary documentation required by that Act. [ 76 ] Both Counts on the Information are primary designated DNA offences. Pursuant to s. 487.051(1) of the Criminal Code , I make an Order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from M.

T. by September 30, 2016. That sampling can be done while Mr. T. is imprisoned. [ 77 ] There was no suggestion that Mr. T. interacted directly with any children in any way in the commission of these offences. In light of the circumstances of the offences, including the brief period of his offending, the very small amount of child pornography in his possession and the Risk Assessment Report, there is little likelihood of any children being endangered by Mr. T. if he was permitted to have contact with them in the circumstances contemplated as being prohibited by

section 161. In exercising the discretion permitted by the section, the prohibitions sought by the Crown will not be ordered, but some similar terms will be included in the Probation Order. [ 78 ] The Crown has demonstrated that it is appropriate for the computer containing the child pornography be forfeited to Her Majesty for disposal as the Attorney General directs pursuant to

section 164.2 of the Criminal Code . [ 79 ] There will also be an Order that upon the expiration of the time for any appeal of this decision, the pornographic materials marked as an exhibit in this matter will be destroyed. Sentence [ 80 ] Mr. T. will be sentenced to ninety (90) days imprisonment on Count 3 of Information 40875-1.

That imprisonment will be served on an intermittent basis. [ 81 ] The sentence of 90 days of imprisonment will be served intermittently from 5 PM on Friday to 5 PM on Sunday, on consecutive weeks, starting on August 19, 2016, at the Prince George Regional Correctional Centre in Prince George, BC., except that you will not be required to serve a portion of the sentence on the weekends of December 23 to 25, 2016 and December 30, 2016 to January 1, 2017. [ 82 ] At all times when you are not in custody under this Order and until your jail sentence has been served in full, you will be on probationary terms as described below. [ 83 ] You will be on a Probation Order for a period of three (3) years.

The terms of your probation order will be as follows:

a) You shall keep the peace and be of good behaviour.

b) You shall appear before the court when required to do so by the court.

c) You shall notify the court or the Probation Officer in advance of any change of name, or address, and promptly notify the court or the Probation Officer of any change of employment or occupation.

d) You shall report in person to the Probation Officer no later than 4:00 pm, August 10, 2016 at the Probation Office located at #101-250 George Street, Prince George, B.C., and after that you shall report as and when directed by the Probation Officer.

e) On each occasion when a part of the intermittent jail sentence is to be served, you shall arrive at the place where the sentence is to be served on time and in an entirely sober condition and not under the influence of any controlled substance within the meaning of the Control Drugs and Substances Act.

e) After your first reporting to the Probation Officer further reporting may include reporting by telephone, at the discretion of the Probation Officer .

f) When first reporting to the Probation Officer, you shall inform him/her of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the Probation Officer.

g) You shall not possess any pornographic materials of any kind in any form, printed or on electronic media nor have any pornographic materials at your home or stored in any electronic storage devices in any location.

h) You are prohibited from accessing for utilizing any computer that has peer -to-peer software capabilities installed on it including, but not limited to, LimeWire, Shareza or Bit Torrent.

i) You are prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 12 years.

j) You are prohibited from utilizing a computer or accessing the Internet or other digital network for the purposes of communicating with any person under the age of 12 years except for members of your family.

k) You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the Probation Officer. Without limiting the general nature of this condition, such assessment, counselling or program may include and relate to sex offender treatment and maintenance and you shall comply with all the rules and regulations of any such assessment, counselling or program.

l) You shall make reasonable efforts to seek and maintain employment approved by the Probation Officer. If on any occasion that

you report to the Probation Officer and you are not actually employed you shall provide the Probation Officer with a report describing the effort you have made to find employment since your last report. Such report may be verbal or written in the discretion of the Probation Officer.

m) Under the direction and supervision of the Probation Officer you shall successfully complete 75 hours of community work.

i) which shall be performed at a rate of no fewer than 5 hours per month commencing on the 1 st day of the month after the intermittent sentence has been served. __________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC