R. v. B.J.M., 2019 BCPC 303

Citation: R. v. B.J.M. 2019 BCPC 303 Date: 20191205 File No: 52500 C-3 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.J.M. BAN ON PUBLICATION –

SECTION 486.4.3 C.C.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: M. Cissell Counsel for the Defendant: N. Jacob Place of Hearing: [Omitted for publication], B.C. Date of Hearing: November 4, 2019 Date of Judgment: December 5, 2019 [ 1 ] Mr. M. has entered guilty pleas to the following indictable offences:

Count 2: From the 1 st day of March 1, 2014, to the 31 st day of October, 2017, inclusive, did possess child pornography contrary to

Section 163.1(4) of the Criminal Code . Count 5: Between the 30 th day of August, 2017, and the 8 th day of September, 2017, inclusive, did transmit, make available, distribute, sell, advertise, import or export child pornography, contrary to

Section 163.1(3) of the Criminal Code . [ 2 ] The Crown submits the appropriate sentence would be 12 to 18 months’ jail on each charge served concurrently, followed by three years’ probation. [ 3 ] The defence says the appropriate sentence would be 90 days’ jail served on weekends, followed by probation.

Circumstances of the Offences : [ 4 ] After receiving a report from the Integrated Child Exploitation Unit (ICE) that seven images of child pornography were uploaded to a particular IP address, the RCMP obtained a search warrant that resulted in the seizure of the offender's home computer and cell phone. [ 5 ] The search of these items resulted in the determination that the following usernames were associated with Mr.

M: • [omitted for publication]; • [omitted for publication]; • [omitted for publication]; • [omitted for publication]; • [omitted for publication]. [ 6 ] Although the offender lived in a residence shared with his wife and three children, all of the above usernames were associated with the offender and not with his wife or children. [ 7 ] The search resulted in 55 images found on a photo-sharing option under Yahoo! Messenger. The images were of young females aged 10 to 18 years. The dominant features of the photos were of the young girls’ genital areas.

Some of the photos were of adult males performing sexual acts on five different children. One photo was of a young girl performing fellatio on a young boy aged 6 to 9 years. [ 8 ] Also discovered were text conversations which included a conversation that occurred on or about the first week of September 2017, that referenced two particular young girls. Mr. M. was the two young girls’ [omitted for publication]. In the text conversation he said he was “sharing friend’s daughters pics.” [ 9 ] Mr. M. had obtained the girls’ photos from their Facebook pages.

He “photo-shopped” the pictures of the two girls to depict his penis inserted into their mouths. He then shared this picture with others over the internet. The two girls, who considered the offender a pseudo-father figure, were aged 10 and 11. [ 10 ] Also on or about the first week of September 2017, Mr. M. uploaded seven child-porn photos. Four were of young females aged from 5 to 13 years, with the dominant feature of the photographs being of the victims’ vagina and anal regions. Three photos were of young males aged from 7 to15 years, with the dominant feature of the photos being of the victims’ penises.

One of those photos depicted a young male, 7 to 9 years old, and another young male, 14 to 15 years old, performing fellatio on each other. Impact on the Victims : [ 11 ] The two young girls whose photos Mr. M. photo-shopped to depict his penis in their mouths before putting the photos on the internet, wrote the following Victim Impact Statements: Victim 1: The offence has made me feel a number of negative emotions. Anger, confusion, violation, anxiety. At times I feel like I've learned how to deal with it, and as soon as it is brought up my mind goes to a very dark place. This was a person I trusted.

How will I be able to trust adults around my kids? (When I have kids.) It is so hard to put my feelings into words. My mental health has been at its worst lately with having to even think about writing this statement. Victim 2: This offence has made me question men. I will now be affected in the future when I want to put my children into sports. This has made me question my behaviour in the sense of my personality and how I present myself. I am upset that there are photo-shopped photos of myself out there, that strangers have a hypothetical idea of what I look like. Circumstances of the Offender : [ 12 ] Mr.

M. is [omitted for publication] years old with no criminal record. He grew up on a farm in [omitted for publication] with two older sisters. He and his siblings describe their upbringing as positive, and say they felt loved, properly cared for, and were not subject to any abuse. However, Mr. M. believes he suffered socially given the nearest neighbours were eight miles away. [ 13 ] Mr.

M. graduated high school in [omitted for publication] and after an unsuccessful first year at university, he took a year off then returned to university and completed a Bachelor of Arts in Physical Education in 1994, and a Bachelor of Management in 1997.

[ 14 ] He worked on the family farm and other entry-level jobs during high school and worked in the oil industry during some of his university years. After obtaining his second degree he worked as an office manager for a trailer company. [ 15 ] He and his current spouse married in 1997 and relocated to a small community where his wife secured employment as a [omitted for publication] with [omitted for publication] and he worked as his wife’s [omitted for publication]. [ 16 ] From 2000 to 2005 he was a nanny for the [omitted for publication] children and a stay-at-home parent for his own.

He and his wife have three children aged [omitted for publication]. [ 17 ] In 2005 the family relocated to [omitted for publication] and Mr. M. worked for a rental company while his wife stayed home with the children. They then moved to [omitted for publication] and Mr. M. obtained employment with an equipment company where he remains as a valued employee earning $53,700 per year. [ 18 ] The President and General Manager of the company where Mr. M. works says Mr. M. was up-front with him regarding the charges. He also says Mr.

M. fills a very key role as Inventory Manager for both the [omitted for publication] and [omitted for publication] business locations, and that he is doing a great job. He says that he made accommodations for Mr. M. to address some of his co-workers’ reactions to the charges and media coverage. He also says accessing the internet is a component of the Inventory Manager’s job, but that he can supervise Mr. M.’s computer use. He is also supportive of varying Mr. M.’s work

schedule to accommodate reporting and program attendance. [ 19 ] Mr. M. is the primary income earner for the family. He tells the author of the Pre-Sentence Report that since the birth of their third child his wife has struggled with depression and has found it difficult to secure and maintain steady employment. His primary concern if incarcerated is the welfare of his family. [ 20 ] Mr. M. reports he has experienced three “dark” periods in his life.

The first occurred at age [omitted for publication] when, after his unsuccessful first year at university and the breakup of a relationship he was in, he attempted suicide. [ 21 ] The next was in 2011 when he and his wife separated after his wife discovered he was having an affair that she believes started online. It was during the period of 2011 to 2012 that Mr. M. says he began consuming alcohol to excess and accessing internet chat rooms where he was first exposed to child porn. He kept his drinking hidden from others in his life, including his then estranged spouse.

To his credit, in September 2012 he enrolled himself in a self-help improvement program that he says had a positive effect. [ 22 ] During their separation, Mr. and Mrs. M. made their children’s well-being a priority and spent much time together, and reunited in January of 2016. However, they have been living in separate residences since January 2018 due to the present charges and the involvement of the Ministry of Children and Families. [ 23 ] Mr.

M.’s third self-described “dark” period occurred in August 2017 when one of his children became very ill with life threatening blood clots that required several surgeries in a two-week period. It was during this period, when his wife was in Vancouver at Children’s Hospital with their child, that Mr. M. says he relapsed and began heavily consuming alcohol. This is the time period for his offending behaviour relating to the creation and distribution of the photo-shopped photos of the two girls he [omitted for publication], and his uploading of the last seven child pornography photos. [ 24 ] Mr. M. told Dr.

Kreklewetz, the author of the Pre-Sentence Psychological and Psychiatric Assessment, that he had no memory of the offences due to his alcohol consumption. He denies being sexually attracted to minors and says seeing scantily-clad minors repulses him. He says his offending behaviour is directly related to his excessive periodic alcohol consumption. However, the court notes, as did Dr. Kreklewetz, that Mr. M. also says he was not drinking from September 2015 to January 2016, and the offending behaviour of possession did occur during this time-period. [ 25 ] Dr. Kreklewetz expressly noted that Mr.

M. accepted blame for the offences only in very general terms, saying it was “probably” him who was responsible. In the last paragraph of page 7, Dr. Kreklewetz says the following: … Of note, while Mr. M. accepted blame for the offences in very general terms, at the same time, he also raised the possibility that his son was potentially responsible. He remarked, “Was it [offences] me? Probably. My oldest was in grade [omitted for publication]. They teach sex ed. He used my computer. He told my wife and I one night that he had been looking at porn.[“] He stated that “I am disappointed in myself.

Do I admit responsibility? Yes, but it disturbs me somewhat that my eldest may have been responsible for the initial [police] investigation.” [ 26 ] The results of the Risk for Sexual Violence Protocol places Mr. M. at a low to low-moderate risk for sexual violence, but that alcohol use and interpersonal stressors are factors that increase Mr. M.’s level of risk. Dr. Kreklewetz’s DSM-five diagnostic formulation is: Alcohol Use Disorder in sustained remission; Query Pedophilia, non-exclusive type. Sentencing Submissions of the Crown : [ 27 ] Ms.

Cissell for the Crown emphasizes that the primary sentencing principles for child pornography cases are denunciation and deterrence and that the sentence must be proportionate to the gravity of the offences. [ 28 ] Ms. Cissell says that the offender’s creation and distribution of the photos of the two young victims was pre-meditated, deliberate, and callous as to the effect on the young girls, who looked to the offender, who was their [omitted for publication], as a second dad.

She submits that the gravity of the offences is high, as is the degree of the offender’s responsibility, and consequently, a sentence of 12 to 18 months’ jail followed by lengthy probation is called for. [ 29 ] The Crown relies on the following case law: • R. v. Alexander , 2019 BCCA 100 ;

• R. v. Swaby, 2018 BCCA 416; • R. v. Watson, 2018 BCCA 329; • R. v. Inksetter, 2018 ONCA 474; • R. v. Mollon, 2019 BCSC 423; • R. v. Prince, 2018 BCSC 987 Sentencing Submissions of the Defence: [30] Mr. Jacob, counsel for the offender, emphasizes Mr. M.’s lack of a criminal record, his strong support from his wife andemployer, and that Mr. M. says during the offending time-period he was suffering from depression and was seriously abusing alcohol. [31] Mr.

Jacob also says the photo-shopped photos depicting the offender’s penis in the young girls’ mouths were such that no oneseeing the photos would believe they were an accurate depiction. [32] Mr. Jacob says given those facts, coupled with the determination that Mr. M. is at a low to low-moderate risk to reoffend and isthe sole income earner for his family, the court should be particularly guided by sections 718.2 (

d) and (

e) of the Criminal Code, thatdirect less restrictive sanctions appropriate in the circumstances be considered. Mr. Jacob says in the particular circumstances of thiscase, the appropriate sentence is 90 days’ jail, to be served intermittently, followed by probation. [33] In addition to the decisions in R. v. Alexander, R. v. Swaby, and R. v. Molen, set out above, the defence relies on the followingcase law: • R. v. Quested, 2019 BCPC 95; • R. v. Booth, 2019 BCPC 160; • R. v. Odenbach, Sept. 30, 2019, Vernon Registry No. 51014-2 Decision: [34] Sections 718 to 718.2 of the Criminal Code govern this sentencing proceeding.

Section 718.1 of the Criminal Code directs thatit is a fundamental principle of sentencing that a sentence be proportionate to the gravity of the offence and the degree of responsibilityof the offender. [35]

Section 718.01 directs that in cases involving the abuse of children, the court imposing sentence must give primaryconsideration to the objectives of denunciation and deterrence of such conduct. [36]

Section 718.2 directs in part that a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances, and that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances. [37] The harm of child pornography was discussed by Madam Justice Ker in the 2018 British Columbia Supreme Court decision inR. v. Prince (above). Mr. Prince was between 26 and 27 years old during the offence dates.

He was an aboriginal offender with a verytroubled background that included himself being a victim of childhood sexual assault. He had a substance abuse history and an unrelatedcriminal record. His troubled background was related to the presence of significant Gladue factors. [38] Before sentencing Mr.

Prince to an equivalent sentence of one year for possession of child pornography, three years forpossession for the purpose of distributing child pornography, and three years for making available and/or distributing child pornography,all to be served concurrently, Madam Justice Ker made the following observations, starting at paragraph 57: [57] While no specific victim is identified in this case, the fact of the matter remains that vulnerable children were abused in the makingof the child pornography that Mr. Prince accessed, possessed, and made available to others.

The jurisprudence is replete with referencesto the extremely serious nature of this violent, reprehensible form of offending. The Supreme Court of Canada and all other levels ofcourt of this country have repeatedly recognized the harm of child pornography and the need to eradicate it at every level. [58] In R. v. John, 2017 ONSC 810 , Madam Justice Woollcombe summarized the harms that the jurisprudence recognizes childpornography causes: [17] … More than fifteen years ago in R. v.

Sharpe, 2001 SCC 2 , [2001] 1 S.C.R. 45, McLachlin J., as she then was, set out theharms caused by the possession of child pornography at paras. 86-94. She accepted that the evidence establishes several connectionsbetween the possession of child pornography and harm to children: (1) child pornography promotes cognitive distortions; (2) it fuelsfantasies that incite offenders to offend; (3) it is used for grooming and seducing victims; and (4) children are abused in the production ofchild pornography involving real children. She then concluded: 94. Possession of child pornography increases the risk of child abuse.

It introduces risk, moreover, that cannot be entirely targeted bylaws prohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution of childpornography cannot catch the private viewing of child pornography, yet private viewing may induce attitudes and arousals that increasethe risk of offence. Nor do such laws catch the use of pornography to groom and seduce children.

Only by extending the law to privatepossession can these harms be squarely attacked… [18] More recently, Fish J. underscored the serious nature of offences involving child pornography in R. v. Morelli, [2010] S.C.R. 253 at

para. 8 when he stated: To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerablechildren, both economically and morally. Understandably, offences of this sort evoke a strong emotional response. They generatewidespread condemnation and intense feelings of disapprobation, if not revulsion. [19] Over many years, both the Court of Appeal for Ontario and judges of the Ontario Superior Court of Justice have emphasized thegravity of the offence of possession of child pornography.

The jurisprudence makes clear that the primary principles in sentencing thoseconvicted of possession of child pornography are denunciation and general deterrence: R. v. E.O., (ON CA), O.J. No,563 at para 7 (C.A.); R. v. Stroempl, (ON CA), [1995] O.J. No. 2772 (C.A.) at para. 9; [Further citations omitted.] [39] In the 2019 decision in R. v. Alexander (above) the British Columbia Court of Appeal upheld the eight months’ jail sentence forthe 25-year-old offender who had pled guilty to a single count of possession of a large collection of child pornography.

The offender hadno prior criminal record, had a good childhood, had graduated high school, and had a good work history. Mackenzie J.A., for the court,said the following starting at para. 40: [40] In R.L.W. this Court explained that over the years, courts have developed a greater appreciation of the harm caused to children bythe manufacturing, distribution and possession of child pornography. The courts have thus placed greater emphasis on denunciation anddeterrence, causing sentences to increase: at para. 49. [41] R. v.

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

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

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

H.(R.), 2012 ONCA 593 , [2012] O.J. No. 4230; R. v. Saliba, 2013 ONCA660 , [2013] O.J.

No. 6002. [42] Swaby expressed the same principles, stating, “[e]xcept in exceptional cases, those who possess child pornography will beincarcerated”, even in cases where the Crown proceeds summarily: at paras. 66-67. [Emphasis added.] [43] In the result, I conclude the sentence of eight-months’ imprisonment followed by 18-months’ probation was within the appropriaterange and is a fit sentence. [40] Regarding the appropriate range for a first time offender for the charge of possession of child pornography, the BCCA inAlexander emphasized the following statement made by the trial judge, at para 23: [23] The judge then drew these conclusions: [57] I find that the particular circumstances of Mr.

Swaby are quite different from that of Mr. Alexander. Furthermore, I do not find thatthe principles of denunciation and deterrence would be given adequate voice by way of a CSO for Mr. Alexander. Based on my reviewof the case law I agree with the statement of Mr. Justice Marchand in [Swaby BCSC] that the appropriate range for a first time offenderwith a collection of pornography similar to that of Mr. Swaby's would be a jail sentence of 6 to 15 months. I do not find anything in theparticular circumstances of Mr.

Alexander or the circumstances of his offence which would reduce his moral blameworthiness belowthat range. [Emphasis added by the BCCA.] [41] Starting at para. 37 in Alexander, the Court of Appeal made the following additional comments about the appropriatesentencing range: [37] I agree with the Crown that the judge’s review of recent and relevant sentencing authorities, including Swaby BCSC, was extensive.It properly reflected society’s evolving understanding of the harmfulness of child pornography. The judge carefully considered allrelevant mitigating and aggravating factors on sentence.

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

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 in SwabyBCSC. However, the judge accurately distinguished Mr. Swaby’s circumstances from those of the appellant. Moreover, recentauthorities say incarceration will be necessary in all cases of possession of child pornography, except in exceptional cases, toappropriately emphasize the principles of denunciation and deterrence.

I do not consider the present case to be exceptional. [Emphasis added.] [42] The charge of making child pornography available is a more serious charge than possessing child pornography, as is evidencedby a maximum sentence of 14 years for the former and 10 years for the latter when the Crown proceeds by indictment. [43] This is also consistent with the Ontario Court of Appeal's 2018 decision in R. v. Inksetter (above). In circumstances moreegregious than in Mr.

M.’s case, the Inksetter trial judge’s sentence of two years less a day for possession, and one year concurrent formaking available child pornography, was varied by the Court of Appeal to a sentence of three years for the possession charge, and threeand a half years for the making available child pornography charge. [44] The 14 year maximum sentence for transmitting and/or making available child pornography also makes a Conditional SentenceOrder statutorily unavailable pursuant to s. 742.1(c). [45] The above case law makes clear the serious gravity of the offence of possessing child pornography, and the even more graveoffence of transmitting, making available, or distributing child pornography. [46] Sentencing is an individualized process and a sentencing judge is not restricted from determining the appropriate sentence maybe one above or below the usual range.

The question is whether Mr. M.’s personal circumstances and the particular circumstances of theoffences make this one of those exceptional cases that would make a sentence in the usual range disproportionate to the gravity of theoffence and the degree of Mr. M.’s responsibility. [47] The defence has provided the decisions of Quested, Booth and Odenbach (above), in support of the argument that this is a casejustifying a sentence below the usual range. A review of those decisions shows they are clearly distinguishable from Mr.

M.’scircumstances. [48] In Quested, the offender was at the time of sentencing a 73-year-old professional accountant with no criminal record. He wascharged summarily with accessing child pornography contrary to s. 163 (4.1) of the Code. The Crown sentencing position was sixmonths’ jail. Higginbotham J. found that Mr. Quested had been, throughout his life, a highly respected member of the community, aloving parent and a doting grandfather, with a wife of nearly 50 years who continued to support him. Judge Higginbotham was alsostruck by the esteem in which Mr. Quested was held by others, and noted that Mr.

Quested had generously served his community bysupporting charitable causes, both financially and by taking on leadership roles. [49] After concluding Mr. Quested's offending behaviour of accessing child pornography was a result of Mr.

Quested having burnedhimself out as a caregiver to his elderly mother and turning to alcohol and child pornography as a means to relieve the oppression he felt,and that the offending behaviour was an aberration in an otherwise long and productive life, Judge Higginbotham determined that theappropriate sentence was a Conditional Sentence Order of 12 months followed by probation for 12 months. Judge Higginbotham notedthat Mr. Quested had immediately commenced counselling after being arrested and that there were two assessments that determined hewas not a risk to any child or prone to any form of recidivism.

Judge Higginbotham also said it was important to remember that Mr.Quested had a significant, and potentially deadly, medical condition and would not do well if confined to prison. [50] I agree with Judge Higginbotham’s comments set out at para. 24 of Quested where he says: [24] Based upon a review of the authorities I have no doubt that, absent compelling circumstances, a jail sentence is warranted. Suchcases offer no reason to look in any depth beyond the principles of denunciation and deterrence. However in this case I find the personalcircumstances of Mr.

Quested compel me to give considerable weight to the provisions of

section 718.2 (

d) and (

e) and consider whethera non-custodial sentence would serve to provide a fit and proportionate sentence. [Emphasis added.] [51] I also note the issue in sentencing Mr. Quested was whether it should be jail or by way of a CSO. A conditional sentence orderis not an available sentence for Mr. M. [52] In the Odenbach decision, the offender pled guilty to a single count of possession of child pornography. The Crown hadproceeded by

summary conviction. The Crown position was six months’ jail. The defence sought a CSO or, in the alternative, a 90-daysentence to be served intermittently. Judge Guild noted Mr. Odebach’s offending behaviour appeared to be related to his social isolationand deep-seated low sense of self-worth. Mr. Odenbach was 23 at the time of the offence, had been bullied throughout his life and livedwith his mother, rarely going out. He had one friend who was 26 years old but was described as being developmentally equivalent to a 12year old. Mr.

Odenbach had never been employed, or even tried to get a job, and was on a disability pension for anxiety, depression andPTSD. [53] In sentencing Mr. Odenbach, who was a first-time offender, to a 90-day intermittent sentence, Judge Guild took intoconsideration the recommendations of the reviewing psychologist that he characterized as being primarily geared toward supporting Mr.Odenbach to become more independent and socially connected.

The judgment as a whole makes very clear Judge Guild felt compelled totake a very individualized approach, and after noting the Crown was seeking six months and the low end of the range was four months,Judge Guild felt a reduction of 30 days to allow an intermittent sentence would strike the balance between deterrence and rehabilitation. [54] In Booth, as in Quested and Odenbach, the Crown proceeded summarily, and sought a six-month jail sentence. The defence

sought a CSO. Judge McQuillan, after providing a helpful review of the case law, determined a CSO was not appropriate, and sentencedMr.

Booth to three months’ jail, after finding the mitigating circumstances included: an early guilty plea; lack of a criminal record;expressions of remorse both in court and to the author of the PSR; an otherwise exemplary life; relatively advanced age (71) with somehealth problems; the support of wife and family; engagement in pre-sentence counselling; and the passive way in which he obtained thematerials (sent by individuals with whom he believed he was sexting with online); and was at a minimal risk to re-offend. [55] I find that all of these decisions are distinguishable from Mr.

M.’s circumstances, both on how the Crown proceeded, and onthe differing personal circumstances of the offenders. [56] The mitigating circumstances in Mr. M.’s case are as follows: • His early guilty plea; • The support of his spouse; • His education (two degrees); • His long-term employment and the support of his employer; • His absence of a criminal conviction history; • His involvement in the community. [57] There can be found reference in the case law to smaller collections of child pornography being considered a mitigating factor.

Icertainly agree that very large collections are aggravating, but this cannot make smaller collections mitigating. In Mr. M.’s case, he hadapproximately 60 images of child pornography.

Given each shared photo re-victimizes the child, and that possession is, in itself, abuse ofa child, I cannot find that the re-victimizing and abuse of at least 60 children is a factor that in any way could in itself justify a sentencebelow the usual range. [58] The aggravating circumstances are: • The breach of trust regarding the two young girls he [omitted for publication], who, according to Crown’s uncontestedsubmission, viewed Mr.

M. as a sort of “second dad”; • The breach of trust regarding the parent or parents of the children whose photos he referred to as “friend’s daughters pics”; • The graphic nature of some of the photos that included photos of children having sexual acts performed on them by adults,and children performing sexual acts on each other. • The planning and pre-meditation involved in finding the young girls’ Facebook pages, accessing their photos, photo-shopping them, then sharing them on the internet. [59] There is nothing in the personal circumstances of Mr. M. that reduces his degree of responsibility.

Someone with his educationand abilities is certainly able to understand that possession of child pornography fuels the demand for child pornography, and therebyfurthers the production of child pornography and the resultant inestimable harm to the child victims. [60] I agree that Mr. M., being the current sole provider for his family, creates a sympathetic circumstance for his family. However,sympathetic circumstances are not exceptional circumstances. Mr. M.’s incarceration will have a financial impact that will 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 Mr. M.’s concern about some barriers to her success in maintaining employment that he believesexist. [61] However, it is the sympathetic circumstances of victims of child pornography that, through deterrent sentencing, the courts aretrying to prevent. It is the lifelong psychological and possible physical injuries, and the possible lifelong suffering of the thousands ofchild victims, that judges are trying to prevent through deterrent sentencing.

It will take a very compelling set of offender circumstancesto justify a sentence with a lesser deterrent effect. [62] Unfortunately for Mr. M., those compelling circumstances do not exist. [63] The fact that the mandatory minimum sentences for the two offences Mr. M. has pled guilty to have been struck down as beingunconstitutional does not automatically lower the sentencing bar.

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

Cristoferi–Paolucci, 2017 ONSC 4246 , [2017] O.J. No.4341, challenging the constitutionality of the mandatory minimums for possession of, and making available, child pornography.However, even if the mandatory minimums are declared of no force and effect, Parliament's legislative initiatives signal Canadians’concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewedwith some caution. [65] Mr. M., you should stand at this point. For the possession charge set out in Count 2, I sentence you to 8 months in jail.

[ 66 ] For the more serious charge of transmitting/making available child pornography charge set out in Count 5, I sentence you to 12 months’ jail to be served concurrently. [ 67 ] Following your jail sentence, you will be on probation for 24 months. The terms of the probation are: 1. You must keep the peace and be of good behaviour. 2. You must appear before the court when required to do so by the court. 3. You must notify the court or the probation officer of any change of name or address or of any change of employment or occupation. 4.

You must not have any contact or communication, either directly or indirectly, with J. C., or J. C. I pause here to note that the complainants’ names will be written out in full on the probation order. 5. You must not go to, or be within 100 metres of any residence, school or workplace of J. C. or J. C. An exception is if you are in a moving motor vehicle on a public highway on your way to some other place. 6.

You must report in person to a probation officer in [omitted for publication] BC within two business days after your release from custody unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere. After that you must report as directed by the probation officer. 7. You must reside at a residence approved in advance by your probation officer. You must provide your phone number to the probation officer and you must not change your residence or your phone number without the written permission from your probation officer. 8.

You must not go to any public park, public swimming area or community centre where persons under the age of 16 years are present, or can reasonably be expected to be present, or a day-care centre, school ground or playground. The exceptions to this are: a. With the written permission of your probation officer. b. In the immediate presence of another adult only after he or she has been provided with a copy of this order. 9. You must have no contact or communication directly or indirectly with, or be alone in the presence of any person you know to be, or who reasonably appears to be, under the age of 16 years.

The exceptions to this are: a. If they are your children. b. If you have the written permission of your probation officer. c. Incidental contact while attending a business premise, a common area in a building, and while on public transit. 10. You must not consume any alcohol or intoxicating drugs except in accordance with a prescription. 11. You must attend, participate in, and successfully complete, any intake assessment, counselling, or program as directed by your probation officer, which may include, but is not limited to, the forensic sex offender program. 12.

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

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

Having consented, you must provide the device and any password used to lock the device to your probation officer upon their request, in order for him or her to monitor your compliance with this order. 13. You must not possess either personally or through another person any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in

section 2 the Criminal Code or any related authorizations, licenses or registration certificates. [ 68 ] These are primary designated offences for purposes of DNA registration. I order you to provide a sample, or samples, of your bodily substances for purposes of registration in the national DNA databank. The samples will be taken from you while in custody. [ 69 ] Pursuant to s. 490.012 of the Criminal Code , I am required to order, and so order, you to comply with the requirements of the Sexual Offender Information Registration Act for 20 years. [ 70 ] Pursuant to s. 161 of the Criminal Code , you are prohibited for five years from:

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