R v. NEIL Date:, 2014 BCPC 175

Citation: R v. NEIL Date: 20140506 2014 BCPC 0175 File No: 57796-B3 Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER PAUL NEIL RULING ON APPLICATION OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: G. Nelson Counsel for the Defendant: M. Thompson Place of Hearing: Richmond , B.C. Date of Hearing: May 6, 2014

Date of Judgment: May 6, 2014 [ 1 ] THE COURT : Mr. Neil has been charged with a breach of his 810.1 recognizance, in particular the condition of that recognizance that he was not to possess or access any computer, cellular phones or other devices capable of accessing the Internet. That recognizance was imposed in October 2012 for a period of 18 months. [ 2 ] The allegation, which was found and accepted at that time, was that there was a fear that Mr. Neil would commit a sexual offence in respect of a person under 14, contrary to s. 810.1(1) of the Criminal Code .

That came about after he had been arrested on his return from Thailand where he had completed a portion of a sentence for abduction and commission of an indecent act. (DISCUSSION) [ 3 ] In any event, on the pre-sentence report it is described as a conviction for abduction of a minor and a conviction for an indecent act committed on a minor of the age of 14 years. The accused is now submitting that that may not have been an offence in Canada at that time, as the age of consent was 14 and the other party was 14.

Whether or not that would have been an offence, of course, would depend on the conditions and the circumstances under which that happened. There are apparently two counts that he was convicted of there, one was abduction and one was an indecent act. If it was an indecent act after an abduction, it could still have been an offence. [ 4 ] However, in my view, that is not even the central issue. Mr. Neil was arrested after he had attained some international notoriety as a result of posting photographs of children and of assaults on children, on the Internet with his face altered by software to disguise his face.

Somehow authorities were able to unswirl his face and that is how Mr. Neil was identified as the perpetrator. He came to the attention of the Canadian authorities when it was determined that he was Canadian. [ 5 ] As a result of that, this 810.1 recognizance was imposed. As Crown has pointed out in her submissions, and as is clear from the case law, breaches of 810.1 orders are serious. The recognizance is not a conviction but it is an order from the court that is designed to prevent future offending.

The recognizance reflects a concern that there is a risk to the safety of the public, because of the substantial risk of future offending. As I related, that arises from those circumstances that occurred in Thailand and from the accused’s posting of the photographs. [ 6 ] Four devices were discovered in the possession of the accused in August of 2013. Those were an HP laptop computer, a Kindle, a slide-type cellular phone and a Nokia cellular phone. [ 7 ] Defence counsel has submitted, and I believe it is now confirmed, that he did have permission to possess the old Nokia cellular phone.

However, there are still three other items capable of accessing the internet that he did not have permission for. It would appear that he knew, according to the agreed statement of facts, and was aware, that he was not allowed to access the Internet. However, he felt that he needed to access the Internet for the purpose of writing a book -- a story of his life that he felt compelled to write. He purposely acquired these items and did access the Internet from his laptop. [ 8 ] No offending material was found on any of these devices. In fact, the only device, I understand, that accessed the Internet was his laptop.

Nonetheless, it is concerning to me, that he was also in possession of software that enabled him to erase data from entire hard drives, and encryption software that would enable him to create an anonymous e-mail address. I do not know why he needed to do that. [ 9 ] Those things are concerning. He accessed a website for creating anonymous e-mail accounts called hidemyass.com that would enable him to hide or mask an e-mail account.

He also accessed truecrypt.org, a website offering encryption software for Windows, Mac and WideX operating systems, and as I said, a program for security erasing files from entire hard drives. [ 10 ] In my view these breaches are serious, and it is not clear that there is a full understanding of how serious these breaches are. His pre-sentence report does say that the accused regrets his offending behaviour and indicated that he should have waited until he was no longer bound by the order.

He denied accessing or viewing child pornography on his computer. [ 11 ] A number of cases have been presented to me that show a wide range of sentencing options. Some of the cases involve accused persons with more serious records, and more serious breaches, than in the case at bar. [ 12 ] The accused has spent 42 days already in pre-sentence custody on this charge. I agree that where there is a breach of an 810.1 recognizance, the principal considerations are denunciation and deterrence, both specific and general. It is my view that a suspended sentence would not adequately address those principles.

What we are concerned with here is the prevention of criminal behaviour with the goal of protecting society. [ 13 ] Is a conditional sentence available for this offence? [ 14 ] MR. THOMPSON: For the offence, but it's not practical, of course, because he is detained on another charge. [ 15 ] THE COURT: Oh, yes, he is. I am going to impose a sentence then. I was going to consider a conditional sentence. It is my view that a custodial sentence is required, but I think that adequate denunciation and deterrence can be satisfied by a three-month sentence.

That will, of course, be the sentence that would be imposed prior to his credit for the time he already has served. Considering three months as 90 days, less credit for 42 days time served, leaves another 48 days left to be served in a Provincial correctional institution. [ 16 ] I am prepared to impose the probation order that is sought by the Crown. [ 17 ] Defence counsel has raised a concern that he may not be able to find employment without being able to access the Internet in some way. However, at this point, no one can suggest any safe, monitored way that he can access the Internet for that purpose.

Accordingly, I am going to impose the probation that is described in the Crown's sentencing material that has been provided in writing, which is a three-year probation order.

I will not require him to carry a copy of the order on his person at all times, but he must inform any peace officer who makes any inquiry of him that he is bound by the terms of this probation order and will provide it to that peace officer within a reasonable time upon request. [ 18 ] If the accused can think of any way that he can access the Internet that would afford sufficient safeguards against his accessing the Internet improperly, or for an improper purpose, I am prepared to hear that at some future date, but at this time it will be the probation order that has been submitted in writing. [ 19 ] Do I need to read all of those? [ 20 ] MS.

NELSON: I think if Your Honour is saying, and I suppose we could file it as an exhibit if that helps, file it as Exhibit 2. The one thing that I haven't amended on the Exhibit 2, unless Madam Registrar has done it, is my arithmetic error, but in terms of the conditions, is Your Honour saying conditions 1 -- [ 21 ] THE COURT: Through 16, 16 would be amended. [ 22 ] MS. NELSON: -- so 1 through 15 as set out in the Crown's typed version. [ 23 ] THE COURT: Yes. [ 24 ] MS. NELSON: And 16 not as the Crown wrote it but as Your Honour has just articulated it. [ 25 ] THE COURT: Yes. [ 26 ] MR.

THOMPSON: The victim surcharges pre-dates the changes and he is going to be in jail for a time, so -- [ 27 ] THE COURT: Oh, so I have the discretion to waive it? [ 28 ] MR. THOMPSON: Yes. [ 29 ] THE COURT: I will waive it. [ 30 ] MR. THOMPSON: Thank you. (REASONS FOR SENTENCE CONCLUDED)