R. v. Martin, 2021 BCPC 195

Citation: R. v. Martin 2021 BCPC 195 Date: 20210819 File No: 67406-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. JOHN ERIC TAAVO MARTIN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. P. HARRIS Counsel for the Crown: J. McPherson Counsel for the Defendant: G. Diamond Place of Hearing: North Vancouver , B.C. Dates of Hearing: November 25, 2020; January 21, February 23, May 31, June 22, 2021 Date of Judgment: August 19, 2021

INTRODUCTION [ 1 ] John Taavo Martin pled guilty to possession of child pornography contrary to

section 163.1 (4) of the Criminal Code . The task for this court is to impose a sentence that is appropriate in all of the circumstances. The Crown argues an appropriate sentence is a custodial sentence in the range of 9-12 months followed by probation for 2 years. In contrast, counsel for Mr. Martin argues all of the facts justifies a finding that Mr. Martin’s circumstances are exceptional and in the result a 12-month conditional term of imprisonment is appropriate. CIRCUMSTANCES OF THE OFFENCE [ 2 ] On April 13, 2019, Mr.

Martin used KIK, a smartphone messaging application, to upload images depicting child pornography. Connected to this upload was the identifier mistertee6969. These actions triggered a report to the British Columbia Integrated Child Exploitation Unit who started an investigation. During the investigation, investigators identified four Internet Protocol addresses used by mistertee6969. [ 3 ] Ultimately, investigators obtained Production Orders for KIK and the internet service providers used by mistertee696. Information received from the internet service providers led the police to Mr.

Martin and they identified mistertee6969 as having accessed Wi-Fi accounts at café in Squamish, a Squamish fire hall, a Squamish search and rescue building, and an account used by Squamish volunteer firefighters. [ 4 ] As for KIK, the Production Order resulted in the police receiving a USB storage device containing data associated to mistertee6969 for the period, March 13, 2019 to April 14, 2019. Of note is, KIK retains data for only 30 days. [ 5 ] On June 27, 2019, the police searched Mr. Martin’s residence and seized a number of devices including an iPhone that linked Mr.

Martin to KIK and to the user name mistertee6969. [ 6 ] A forensic examination of the data received from KIK revealed 2905 images and videos associated to Mr. Martin. Of these images, 372 were category1, 288 were category 2, and 1260 were category 3 images. As for the videos, there were 193 unique videos with 59 being category 1 videos, 2 videos were category 2 and 132 videos being category 3. [ 7 ] The above categories are described as follows: a. Category 1: The most serious and aggravating category. Child Pornography as defined by

Section 163.1 of the Criminal Code . b. Category 2: i. Images of children that are sexual in nature and depict children in various forms of dress including partial or full nudity which do not fit the strict definition of child pornography; ii. Clothed children not engaged in explicit sex acts and images or videos which appear to be of persons under the age of eighteen; iii. Images that certain nudity or pornography wherein the investigator is unable to ascertain the age of the person depicted based solely on a visual inspection of the image. c.

Category 3: All other digital image or video files which were contained on the devices examined. This may include adult pornography, obscene material, banners, etcetera. DESCRIPTION OF THE IMAGES AND VIDEOS [ 8 ] One of the category 1 images possessed by Mr. Martin contained the image of a female child between 10-13 years old with an adult male performing vaginal intercourse.

As for the videos, 23 contained female children between 8 and 13 years old who were masturbating with their hands or sex toys. 18 of the videos involved adult intercourse with female children and adults using their fingers to digitally penetrate the children’s’ vaginas. 18 videos contained female children between 8 and 13 exposing themselves to the camera. Finally, one of the 59 videos showed a female child, age 6-8 years sitting naked on the lap of male. The male’s penis was between the child’s legs. At one point, the male puts his penis into the child’s mouth with the male ejaculating on the child’s face. MR.

MARTIN’S PERSONAL CIRCUMSTANCES [ 9 ] Mr. Martin is 45 and he does not have a criminal record. He was born and raised in Ontario where he completed high school and thereafter he attended academies dedicated to the training of paramedics and fire fighters. [ 10 ] Mr. Martin has a strong work history. In his youth, he held a variety of jobs including at a summer camp, at a grocery store, at a bakery, and at a graphic design company. As Mr. Martin matured, his work interests transitioned to the outdoors and in this regard, he worked as a ski-patrol, as a forest fire fighter, and for municipal fire and rescue.

In 2016, the Squamish Search and Rescue hired Mr. Martin, however, he resigned from this position within months of being charged with the instant offence. Mr. Martin now works as a

stonemason and a letter filed at the sentencing hearing confirms that Mr. Martin’s prospects with his employer are good and that his employer is aware of Mr. Martin’s offence. [ 11 ] In addition to his work, Mr. Martin has a strong history of volunteering in his community. He spent 6 years volunteering with the Squamish Search and Rescue, however because of the instant charges, he no longer volunteers in this capacity. [ 12 ] Prior to Mr. Martin’s arrest, he had been in a 6-year common law relationship and the couple have a young child. After the birth of their child, the relationship between Mr.

Martin and his common law spouse deteriorated in that there was little communication and no physical intimacy for 4 years leading up to Mr. Martin’s arrest. According to Mr. Martin, the couple were living as roommates who were raising a child. [ 13 ] Since Mr. Martin’s arrest, the couple no longer live together. Mr. Martin has access to the child but the Ministry of Children and Family Development has actively supervised this. There is no evidence that Mr. Martin has ever acted improperly toward his child. [ 14 ] In terms of Mr. Martin’s offence, the author of Mr.

Martin’s pre-sentence report, Nicolle Binnie, outlined Mr. Martin’s reporting of what led to his offending. In this regard, Mr. Martin reported that he had been watching pornography for several hours per day and that his obsession disrupted his sleep, his responsibilities and his daily life. It is Mr. Martin’s perspective that he developed an addiction to pornography and that this triggered his offence. [ 15 ] As for his use of pornography, Mr. Martin cites a lack of intimacy, and a sense of loneliness/isolation as contributing factors.

He stated he used pornography to cope and escape and that his failing to deal with emotions combined with work stress of being as well as his life experiences contributed to him using pornography. [ 16 ] The Crown challenges Mr. Martin’s accounting of how consuming his use of pornography was. In this regard, the Crown points out that Mr. Martin was working full-time, that he was an active volunteer and an engaged father. In support, the Crown filed material showing that Mr.

Martin had an active life involving, training, social gatherings, and work related activities including barbeques. [ 17 ] Letters were filed speaking to Mr. Martin’s character. All of the writers express that Mr. Martin is an honest caring person who gives to his community and to those who are close to him. The writers also expressed noticing changes in Mr. Martin’s personality since his arrest. In this regard, it was noted that he is more insightful and that he freely shares his thoughts and emotions. All have noted Mr. Martin’s remorse and his shame.

Some have observed that he is no longer superficial and most have expressed a desire to support Mr. Martin. POST CHARGE ACTIVITIES – COUNSELLING [ 18 ] Immediately after his arrest, Mr. Martin accessed counselling services through his employee benefits program. After his employee benefits were terminated, Mr. Martin accessed Squamish Mental Health and Addictions. With respect to this counselling, Ms.

Binnie stated in the presentence report: … He states he initially accessed counselling through his employee benefits program and started attending Squamish Mental Health and Addictions in November of 2019 once his benefits were terminated. Taavo states that most recently he was seeing Sarah Jane Thompson, however Ms. Thompson has now left for private practice. Taavo describes his counselling sessions to have included Dialectical Behaviour Therapy and Cognitive Behavioural Therapy and to have focused on learning about addiction, exploring urges and triggers and mindfulness.

He adds that he also completed the Facing the Shadow workbook on sexual addiction. Taavo states he feels he benefited from his counselling sessions. Taavo states he has had one appointment with his new counsellor since Ms. Thomson’s departure from Squamish Mental Health and Addictions in March of 2021. He advises that he is not sure if he will continue to attend for counselling explaining that he feels he is at a stage in his recovery where he no longer needs the same level of support. [ 19 ] In addition to the above, Mr.

Martin has been attending addiction recovery groups These groups include, Self-Management and Recovery Training (SMART), Sex Addicts Anonymous (S.A.A.) and an eight step Buddhist recovery program. From these, Mr. Martin has gained a sense of community and support while learning relapse prevention strategies. According to Mr. Martin he feels strong in his recovery. PRE-SENTENCE PSYCHOLOGICAL ASSESSMENT [ 20 ] A psychological assessment conducted with the intention of evaluating Mr. Martin’s risk for sexual violence and re-offending concluded that Mr.

Martin has a low-to-moderate risk case prioritization and that the risk for continued access to child pornography was low. Further, that there was a relatively low risk for a contact sexual offence. [ 21 ] In terms of Mr. Martin’s explanation for accessing child pornography, he informed the writer of the assessment that he had no sexual interest in prepubescent girls and that he found the novelty of the materials exciting. He compared his interest in child pornography as being similar to other unusual categories. Mr.

Martin maintained that the categories were not arousing; rather, the novelty was stimulating in the context of pornographic media. [ 22 ] It is noteworthy that the assessment fails to reach a conclusion on whether Mr. Martin has paedophilic interests. In this regard, Dr. Gatner wrote at page 6 of his evaluation: He denied on multiple occasions any direct sexual interests in children explaining that viewing child pornography materials was a small subset of a larger problematic pattern of masturbating to novel forms of pornography. It is possible Mr.

Martin’s elevated sexual drive, sexual preoccupation, and problematic coping. Nevertheless, he did repeatedly access and view child pornography materials including graphic images of prepubescent children, and Mr. Martin endorsed masturbating to these materials. In balancing these considerations, it is our opinion that Mr. Martin has possible non-exclusive hebephiliac (i.e., sexual interest in pubescent children) and or pedophilic interests, which at least disinhibited his ability to refrain from accessing child pornography.

[23] Dr. Gatner made general observations regarding Mr. Martin and noted, Mr. Martin had adequate insight into his mental healthand problematic sexual behavior. He also observed that with the aid of a community mental health team and other programs that Mr.Martin has made progress. With these factors in mind, Dr. Gatner recommended that Mr. Martin stay connected with a mental healthteam, that he attend the Forensic Sex Offending Program, that vocational counselling be considered and if he serves a portion of hissentence in the community that Mr. Martin’s access to the internet be monitored.

POSITION OF THE PARTIES [24] The Crown argues that a fit and proportional sentence is a custodial sentence in the range of 9-12 months followed by probation.In support, the Crown highlights the serious sexual violence contained in the material possessed by Mr. Martin and to Mr. Martin’s highlevel of moral blameworthiness. The Crown opposes a community-based sentence on the grounds that Mr. Martin’s circumstances arenot exceptional nor are there any factors that reduce his moral culpability. The Crown relies on the following: R. v. Friesen, 2020 SCC 9,R. v. Inksetter, 2018 ONCA 474, R. v. Swaby, [2018] B.C.J.

No. 3603, R. v. Alexander, 2019 BCCA 100, R. v. Kodimyala, 2020 BCCA275, R. v. Padda, 2019 BCCA 351, R. v. Milne, 2021 BCCA 166, R. v. Capewell, 2021 BCSC 904, R. v. C. H., 2020 BCSC 323, R. v.Pope (Unreported), BCPC 63464 (North Vancouver) and R. v. L. S. N., 2020 BCCA 109. [25] Counsel for Mr. Martin recognizes that a custodial term is appropriate but argues that the circumstances justify a finding that thesentence can be served conditionally in the community. In support, counsel submits Mr.

Martin’s reduced moral responsibility combinedwith his rehabilitative efforts justifies a finding of exceptional circumstances. Counsel relies on: R. v. Pommer, 2008 BCSC 737, R. v.Bisson, 2020 BCSC 1778, R. v. Humphreys, 2020 BCPC 136, R. v. Quested, [2019] B.C.J. No. 875, R. v. Vandermeer, 2021 BCPC 94,R. v. Goodell, 2021 BCSC 735, R. v. T. J. R. M., 2016 BCPC 177, R. v. M. T., 2016 BCPC 243, R. v. Booth, 2019 BCPC 160 and R. v.Suter, 2018 SCC 34. PURPOSE AND PRINCIPLES OF SENTENCING [26] Sections 718 – 718.2 of the Code sets out the purpose and principles of sentencing. As such, Mr.

Martin’s sentence must bedirected toward specific sentencing objective(

s) and it must be proportional. Further, any sentence imposed must consider the aggravatingand mitigating factors, Mr. Martin’s unique circumstances, the circumstances of Mr. Martin’s offence, and other sentences that havebeen imposed for similar offences.

SECTION 718 – THE PURPOSE OF SENTENCING [27]

Section 718 of the Code states: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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. [28]

Section 718.01 of the Code, directs that denunciation and deterrence are the primary sentencing objectives for offences involvingthe abuse of children. [29] The requisite degree of denunciation and deterrence demanded in cases involving the possession of child pornography,necessarily warrants a custodial sentence except those cases involving exceptional circumstances. Support for this perspective is R. v.Swaby, 2018 BCCA 416 at paragraph 66 and R. v.

Alexander, 2019 BCCA 100, where Justice Mackenzie commented at paragraph 39: [39] … Moreover, recent authorities say incarceration will be necessary in all cases of possession of child pornography, except inexceptional cases, to appropriately emphasize the principles of denunciation and deterrence. [30] I am also of the view that a further but lesser sentencing objective for Mr. Martin is his continued rehabilitation. My perspectiveis driven by; Mr. Martin’s background, his rehabilitative steps, the circumstances of the offence and Dr. Gatner’s assessment.Accordingly, any sentence imposed should support Mr.

Martin’s rehabilitation.

SECTION 718.1 – PROPORTIONALIT - FUNDAMENTAL PRINCIPLE OF SENTENCE [31] A cardinal principle of sentencing requires that any sentence imposed must be proportionate to the seriousness of the offence andthe offender’s degree of responsibility. In R. v. Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089, Justice Wagner C.J., commentedon the application of proportionality.

At paragraph 12 Justice Wagner C.J. stated: The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moralblameworthiness of the offender. [32] When applying the proportionality principle in the context of sex offences against a child, a judge needs to take into account thewrongfulness and harmfulness of the offence with the understanding that these considerations influence the gravity of the offence and the

offender’s degree of responsibility: Friesen , at paragraph 75 . [ 33 ] Turning to the wrongfulness of child pornography, the acquisition of child pornography not only endorses and approves of violence being perpetrated against children, it also serves to create a demand that is only fulfilled by the creation of additional child pornography and this necessarily involves further violence being committed against children. The sexual nature of this violence is particularly aggravating.

This is because, sexual violence interferes with a child’s sexual integrity and bodily integrity and as observed in Friesen , a child’s bodily integrity “lies at the core of human dignity and autonomy.” (paragraph 77) [ 34 ] In terms of the harm caused by child pornography, child pornography necessitates sexual violence and this has the potential to cause numerous forms of harm to a child. Obviously, the harm will very, nevertheless, children can experience psychological harm and physical harm lasting throughout their childhood.

In this regard, the Court at paragraph 80 of Friesen observed: These forms of harm can be so profound that children are “robbed of their youth and innocence” ( D. (D.) , at paragraph 10 ).

The following list of recognized forms of harm that manifest themselves during childhood makes this clear: These effects include overly compliant behaviour and an intense need to please; self-destructive behaviour, such as suicide, self- mutilation, chemical abuse, and prostitution; loss of patience and frequent temper tantrums; acting out aggressive behaviour and frustration; sexually aggressive behaviour; an inability to make friends and non-participation in school activities; guilty feelings and shame; a lack of trust, particularly with significant others; low self-esteem; an inability to concentrate in school and a sudden drop in school performance; an extraordinary fear of males; running away from home; sleep disturbances and nightmares; regressive behaviours, such as bedwetting, clinging behaviour, thumb sucking, and baby talk; anxiety and extreme levels of fear; and depression. (Bauman, at pp. 354-55) [ 35 ] Further troubling is the harm suffered by children can carry into their adult lives.

Notably, relationship challenges, a propensity to sexual violence, substance abuse, mental illness, post-traumatic stress, eating disorders, suicidal ideation, self-harm, anxiety, depression, sleep disturbance, anger, hostility and poor self-esteem: Friesen , at paragraph 81 . [ 36 ] The specific harm related to child pornography is recognized in R. v. Sharpe, 2001 SCC 2 , where the Court commented at paragraph 92: 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 caught by the law. Production of child pornography is fuelled by the market for it, and the market in turn is fuelled 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. [ 37 ] I acknowledge that Mr. Martin did not directly commit sexual violence against a child, despite this, Mr.

Martin’s consumption of child pornography contributed to sexual violence against children wherein the potential and actual harm (to children) is significant, accordingly, I find the gravity of Mr. Martin’s offence to be high. [ 38 ] I also find that Mr. Martin’s has a high degree of responsibility.

He intentionally consumed child pornography and he did so in circumstances where the profound physical, psychological and emotional harm associated with the production of child pornography was obvious and well known, and yet, he deliberately chose to place his sexual gratification and desires ahead of children. [ 39 ] In considering Mr. Martin’s level of responsibility, I have considered submissions by Mr. Martin’s counsel and I do not view Mr. Martin’s personal circumstances such as his “self-diagnosis” of being addicted to pornography or the stress he was under as attenuating his moral responsibility.

This is because there is no reliable evidence showing that he lost control and that he was truly addicted. In fact, and to the contrary, there is ample evidence showing he was in control. In this regard, he was fulfilling the daily rigors of working as a fire fighter, he was volunteering in a demanding setting, he was caring for his child and he was attending to social engagements.

SECTION 718.2 – ADDITIONAL PRINCIPLES [ 40 ]

Section 718.2 sets out additional principles that a court must consider when imposing sentence. Below are the relevant sections: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,.. shall be deemed to be aggravating circumstances: (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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. AGGRAVATING AND MITIGATING FACTORS [ 41 ] In considering the instant matter, I find the following to be aggravating factors: the volume of pornography possessed and the nature of the material. Also aggravating is, Mr. Martin’s shared the material and he breached his employer’s trust by using the fire department’s Wi-Fi addresses as a tool in his offending.

Lastly, and statutorily aggravating, is that the images involve the abuse of persons under the age of 18 years. [ 42 ] As for mitigation, I note Mr. Martin’s guilty plea, his genuine remorse, his community support, his lack of criminal record, and the rehabilitative steps that he has taken. [ 43 ] Despite the able submissions of counsel, I do not see Mr. Martin’s resignation from his employment or the attendant media attention as mitigating.

In this regard, I would expect any first responder whose duties include assisting and interacting with children, to appreciate that the loss of their employment would be a natural consequence of engaging in criminal behavior harmful to children. [ 44 ] As for the media attention, counsel has not produced any evidence suggesting the media misconducted themselves, rather, counsel argues that Mr.

Martin’s community profile combined with the smallness of his community results in him receiving greater attention than would occur in a large urban centre. [ 45 ] In considering counsel’s submissions, the societal benefits derived from responsible crime reporting must not be ignored. Specifically, the reporting assists in maintaining the public’s confidence in the administration of justice while simultaneously operating to deter others by reminding those who are inclined to commit similar offences that enforcement occurs and consequences follow. [ 46 ] As for the argument that Mr.

Martin’s community profile and the size of his community resulted in a disproportionate impact on him, in my view, the argument fails for a number of reasons. First, there is no evidence to support that the media attention had a greater impact on Mr. Martin than someone in another community. [ 47 ] Second, Mr. Martin chose to work as a public servant and as such, he was likely aware that his position and profile frequently attracted the attention of the media.

This media attention is often positive, however, when a public servant commits a criminal act, the very fact that the media reports the crime is not surprising particularly where the offender enjoys a position of community admiration. [ 48 ] Third, those who commit crime do so knowing that a natural consequence of their conduct is that details regarding the crime and their person are likely going to be reported, accordingly, when Mr. Martin decided to commit a serious offence he assumed the risk that details regarding himself and his crime would be reported in “his” community. Simply, Mr.

Martin knew or ought to have known, that there was a risk that the media would report on the matter, yet and despite this obvious risk, he committed a serious offence. SIMILAR SENTENCES [ 49 ] Counsel have submitted several authorities highlighting sentences imposed for the possession of child pornography. The decisions provide some guidance; however, I approach the pre- Friesen decisions with some caution. This is because of the guidance found in Friesen at paragraph 107 , suggests that there be an “upward” departure from prior sentencing ranges.

In this regard the court comment: [107] We are determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:

(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and,

(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child. [ 50 ] With the above in mind, I recognize that Friesen relates to a sentence appeal involving the offence of sexual interference with a child, nevertheless, the decision is helpful as it highlights sentencing considerations for all offences involving sexual violence against children [ 51 ] Turning to the authorities, pre- Friesen, courts have imposed intermittent sentences, conditional sentences and in the case of Booth , a 3 month custodial sentence for the possession of child pornography [ 52 ] As for the cases post Friesen, I note: [ 53 ] In Bisson , the offender had a large collection and his offending occurred over 10 years.

The offence the offender possessing in excess of 7500 images and 193 videos. The offender was 55 years old, he did not have a criminal record, he was employed, he had back issues and he had a history of depression and anxiety. Unlike Mr.

Martin, there was an external opinion linking the offender’s mental health challenges to his offending, as such, the justice concluded that the offender’s mental health played a central role in his offence and therefore his circumstances were exceptional and imposed an 18-month conditional sentence order. [ 54 ] In Humphreys , the offender was sentenced to an 18-month conditional sentence order. The offender was 60 years old, he was in the military for 30 years, he suffered from PTSD and he had a serious and debilitating heart condition that would make serving a sentence in a correctional facility difficult.

The sentencing judge was satisfied that the PTSD was the central trigger for the offending behavior and found exceptional circumstances had been made out. Of note is, the sentencing judge relied on R. v. Mollon, 2019 BCSC

423 , a pre- Friesen decision, in identifying an appropriate range of 6 to 10 month . [ 55 ] In Vandermeer , the offender received a 10-month conditional sentence order. The offender was 78 years old, he had serious medical issues such that incarceration would seriously risk his physical health, he did not have a criminal record, and he was a retired school principal. As for his offence, the offender possessed 91 images as being consistence with the lowest level of child pornography.

The sentencing judge was satisfied that there were exceptional circumstances. [ 56 ] In Goodell , the offender was sentenced to a 10-month conditional sentence order. The offender was 73 years old, without criminal record, he had several health problems (morbidly obese, back pain, sleep obstruction, arthritis, insomnia, hypertension), and he had been diagnosed with a major depressive disorder and anxiety. The sentencing justice found that the offender’s mental illness reduced his moral culpability and was satisfied there were exceptional circumstances.

As for the offence, a search of the offender’s laptop located 19 images and 1,100 images in the deleted files. [ 57 ] In Capewell , the offender received an 8-month custodial sentence followed by probation. The offender was 71, he was a first time offender and he was the primary care giver for his wife who had mental health issues. As for the offence, the offender used child pornography as a means to escape his anxiety and depression. Found on the offender’s computer were 3,019 images and 17 videos.

The download directory contained 2 500 images and 250 images were found in the recycle bin. [ 58 ] In C.H., the offender received a 6-month jail sentence followed by probation for 24 months. The offender was 54, he did not have a criminal record and he had a history of depression. He was charged after a search of his laptop resulted in the police locating 6 videos. In discussing the offence with a psychologist, the offender reported that his offence occurred in the context of a major depressive episode wherein he felt apathetic, depressed, hopeless and self-destructive.

When imposing sentence, Justice Forth concluded that the offender’s circumstances were not exceptional and recognized that the offender possessed the ability to have understood the wrongfulness of his conduct. [ 59 ] In Pope, the offender received a 6-month jail sentence followed by probation for 24 months. A search of the offender’s computer located a video in a deleted file and also located on a USB were 2 deleted videos. The computer also contained several cleaner-type programs that wiped data and files such that recovery would not be possible.

The offender was 74, married, he did not have a criminal record, he was retired, he had an extensive background in IT and he had taken counselling prior to sentencing. EXCEPTIONAL CIRCUMSTANCES [ 60 ] Counsel for Mr. Martin argues Mr. Martin’s rehabilitative steps are exceptional and demonstrate that he has turned his life around to such a degree that protection of the public is best served by a non-custodial sentence. [ 61 ] In R. v. Voong, 2015 BCCA 285 Justice Bennett identified some factors suggestive of exceptional circumstances.

At paragraph 59 Justice Bennett commented: [59] … Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. [ 62 ] I have considered all of the circumstances and I am unable to conclude that Mr. Martin’s circumstances are exceptional. Specifically, the information provided fails to provide a reliable base-line from which to measure if Mr. Martin has turned his life around or rather, because of his arrest, that he is no longer accesses child pornography.

In fact, and as previously mentioned, the evidence suggests that Mr. Martin was not so consumed with pornography that he was incapable of functioning or appreciating the wrongfulness of his actions. Essentially, there is an absence of objectively verifiable evidence that his mental health caused him to lose all control. Lastly, and although he has attended counselling, there is little information regarding the frequency, the specific topics covered or the qualifications of some of the service providers. CONCLUSION [ 63 ] Over a period of 30 days, Mr. Martin searched, accessed and possessed child pornography.

At times, he used the internet services of the fire department, the local search and rescue and a local café. He chose to possess material that is not only inherently wrong but material that is also extremely harmful to children and that this harm is frequently lifelong. At the time of his offence, Mr. Martin was a high functioning and admired member of his community who chose to conduct himself criminally. In

summary, Mr. Martin committed a serious offence and he has a high degree of culpability. [ 64 ] As for his circumstances, Mr. Martin’s circumstances are not exceptional and incarceration is necessary to achieve the requisite degree of denunciation and deterrence. Were it not for the mitigating factors I would be inclined to impose a sentence in the upper end of the range suggested by the Crown. As such, and after careful consideration, I am satisfied that a custodial sentence of 10 months followed by probation for 12 months is proportionate and fit.

In my view, the sentence addresses the objectives of denunciation, deterrence and rehabilitation, while accounting for the aggravating and mitigating factors and balancing the seriousness of the offence and Mr. Martin’s degree of responsibility. [ 65 ] I am mindful that the offender in Capewell , received an 8 month sentence and that he possessed much more material than Mr. Martin, however the sentence imposed in that case was arrived at by relying on sentences imposed wherein Friesen had not been considered. PROBATION ORDER

[ 66 ] The duration of the order is 12 months during which Mr. Martin will be required to comply with the following terms and conditions: You must keep the peace and be of good behavior. You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation.

Within 72 hours of your release from custody you must report in person to a probation officer at Squamish Community Corrections and after that, you must report as directed by your probation officer. You must live at an address approved in advance by your probation officer and provide them with your phone number. You must not change your address or phone number without prior written permission from your officer. You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer.

This may include counselling or programing for, mental health, or sexual offence prevention.

You must not possess or use any device capable of accessing any computer network including the internet, unless : 1. you do not delete the history of the internet use from the device; 2. the device you use retains and displays the history of internet use; 3. you do not install or have any applications or platforms on the device that automatically deletes messages, videos, or photos viewed from the device; permits incognito internet browsing; or allows data to be deleted from the device remotely; 4. you do not access, directly or indirectly, or maintain any personal profile on any social media sites, social networks, internet discussion forums or chat rooms; 5. you do not communicate or attempt to communicate with any person you know to be or who reasonably appears or represents themselves to be under the age of 18 years through any electronic means, including, but not limited to, telephones and computers, unless they are members of your family.

You must not possess, access or view any form of pornographic material. You must provide to your probation officer all password(

s) that you use for all electronic devices and email accounts that you control or regularly use. ANCILLORY ORDERS DNA [ 67 ] Pursuant to

section 487.04 of the Criminal Code Mr. Martin’s offence is a primary designated offence and in the result I order that a sample of his DNA be taken. SEXUAL OFFENDER INFORMATION REGISTRATION [ 68 ] Pursuant to

section 490.012 of the Criminal Code Mr. Martin must comply with the requirements of the Sexual Offender Information Registration Act for a period of 10 years. FORFEITURE ORDER [ 69 ] Pursuant to

section 164.2 (4) of the Criminal Code , I order that the cellphones and laptop that were seized be forfeited. VICTIM FINE SURCHARGE [ 70 ] Given Mr. Martin will be in custody, I find that a fine would present a hardship and it is waived. _____________________________ The Honourable Judge R. P. Harris Provincial Court of British Columbia