R. v. C.W.C.L., 2022 BCPC 54

Citation: R. v. C.W.C.L. 2022 BCPC 54 Date: 20220330 File No: 68240 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. C.W.C.L. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: A. Ward Counsel for the Defendant: M. Smith Place of Hearing: North Vancouver , B.C. Date of Hearing: November 17, 2021 Date of Judgment: March 30, 2022 [ 1 ] C. L. (C.W.C.L.) pleaded guilty to one count of possession of images of children being sexually assaulted and exploited (child

pornography) contrary to s. 163.1(4) of the Criminal Code . The offence occurred between March 7 th and June 30 th 2020 in (omitted for publication). [ 2 ] He entered his plea on June 16 th 2021. The sentencing hearing proceeded in Indigenous Court on November 17 th 2021. A pre- sentence report with a psychological component and a Gladue report were prepared. POSITIONS OF COUNSEL [ 3 ] The Crown and Defence agree that there are exceptional circumstances which support the imposition of a conditional sentence. Crown submits a period of 6 to 8 months would be appropriate and should be followed by a probation order.

Defence counsel asked the Court to consider a sentence of 6 months duration. CIRCUMSTANCES OF THE OFFENCE [ 4 ] On March 7 th of 2020 a video image of children being sexually assaulted and exploited was uploaded by the offender to his “Moose is Loose” Instagram account and sent on to another account with the name “Maya Wright”. A second video with similar content was uploaded to “ChiefPoundrHard”, a different Instagram account held by the offender, and sent on to “Maya Wright”. [ 5 ] Instagram reported this activity to the authorities.

An investigation followed which identified the offender as the holder of the accounts in question. A search warrant was executed on June 30 th at his residence. Various devices were located in his bedroom which contained a collection of images and videos of children being sexually assaulted and exploited. [ 6 ] An examination of the offender’s devices showed he was involved in on line chat groups which discussed images of children being sexually assaulted and exploited. He had also been communicating with another person in a chat room about trading such images.

The offender had been using three apps to access “exclusive” content, facilitate the downloading of complex files and to obscure the use of sexually explicit language. [ 7 ] The offender possessed 1375 images (of which 492 were duplicates) and 107 videos (of which 13 were duplicates). The police initially randomly sampled 3 images and 2 videos which all depicted images which meet the legal definition of “child pornography”. [ 8 ] Further information with respect to the nature of the images was provided by an officer who had reviewed 466 images.

Approximately half of these depicted the exploitation of children being nude children or children posed in a sexualized manner including children touching their own genitalia or nipples. The other half depicted children being sexually assaulted by being subjected to sexual touching or oral, anal or vaginal sexual penetration by an adult. [ 9 ] The offender was interviewed and admitted to his involvement. He had been collecting images of children being sexually assaulted or exploited for approximately 6 years dating back to when he got his first iPad at age 21.

He described that he was drawn into the trading of images and did so to try and impress the people he was communicating with. One such person wanted images showing younger and younger children being sexually assaulted. The offender felt pressured to provide the images as he was afraid he would be exposed and bring shame to his family. He searched the internet and forwarded such images on. The offender was engaged in similar activity with at least two other persons. BACKGROUND OF THE OFFENDER [ 10 ] The offender has been socially isolated over his teen years and up to the time of the investigation.

He was emotionally and physically bullied by an older brother when he was a child which led to chronic low self esteem. [ 11 ] He suffers from a heart condition which could be life threatening however has not yet had the surgery needed to treat it. He is obese and has asthma. There are no substance misuse concerns. [ 12 ] These circumstances led to his mother being over protective and holding him back from engaging with people his own age or activities outside the home and resulted in him becoming dependant on on-line social interactions and activities.

He has few close friends and has never had a romantic relationship. [ 13 ] His bedroom was observed by the police to be in an unsanitary condition with old food and dirty clothes strewn about. Insects were found under some items. [ 14 ] He has some cognitive limitations and mental health challenges. He is also naïve and lacks the life skills or experiences which would normally be expected for a 27 year old person. He has not been able to properly access assistance due to his isolation. However, he is now taking medication and began seeing a counsellor with the Nation prior to the sentencing hearing.

One to one counselling is recommended for him. [ 15 ] He graduated from high school but had difficulties as a student and repeated Grade 11. His family has a security company for construction sites and he worked for them until the pandemic limited their contracts. He intends to return to that work. [ 16 ] He has not had any prior involvement with the police or criminal justice system. I infer he would be extremely vulnerable to abuse in a correctional institution. [ 17 ] His family are members of the (omitted for publication) who have been impacted but the assimilation policies and residential school system.

He has been negatively impacted by the intergenerational trauma which resulted. His mother remarried when he was 18 months old and he was raised as the youngest child in a blended family. His step father has been a very positive influence for him. His mother and siblings remain supportive. [ 18 ] Over his life the offender has shown an interest in and been involved in cultural activities and in particular drumming and

singing. He has participated in a lengthy canoe journey. He also has artistic inclinations. [ 19 ] He enjoys the support of the (omitted for publication) Nation and their Member Services representative, K. N., spoke to the Court expressing his knowledge of and personal support for him. [ 20 ] The offender is described as a warm, kind, big hearted person. Despite his mental health issues he generally presents as optimistic and easy going. [ 21 ] There are positive prospects for his rehabilitation as he is now connected with resources and supports.

He is willing to pursue programming and to follow the advice of the doctors or counsellors he will be dealing with. He is relieved to have been detected as it has resulted in positive changes in his life circumstances. He has also felt the shame his conduct has brought to his family and community. [ 22 ] He has been compliant with his terms of release including limitations on his access to the internet. He was not found to have a pedophilic disorder but due to some of the materials he has taken in interest in he may have some pedophilic interests and should participate in sexual offender treatment.

He presents with a relatively low risk for future sexual violence. Any risk to reoffend by possessing images of children being sexually assaulted or exploited would arise if he were again socially isolated and not addressing his depression and anxiety. AGGRAVATING AND MITIGATING FACTORS [ 23 ] The aggravating factors are the length of time the offender was involved in possessing, viewing and sharing images of sexual assaults and exploitation of children.

His collection was substantial and contained many images of penetrative sexual assaults between children and adults. [ 24 ] The mitigating factors are the offender’s early guilty plea and his sincere remorse. He has had no prior involvement with the criminal justice system. He has expressed limited insight but this is likely due to his cognitive and other challenges. He is prepared to attend treatment and programming to address his rehabilitation. Given that he continues to take steps to improve his mental and physical health, he will remain a low risk to reoffend.

INPUT OF THE ELDERS [ 25 ] The elders who sit with us in Indigenous Court share their wisdom with and offer emotional support to the people who are before the Court. They are the face of indigenous peoples in Canada in a setting where there is otherwise little recognition of the proper place of indigenous views and values in our legal system or society. They assist in developing healing plans and directing the Court to resources in their Nations and the community at large.

They are models of the hope which every offender should have for their future as a healthy, whole and contributing members of their community. [ 26 ] From time to time the proceedings trigger strong emotions in many participants. It is commonplace for people to be brought to tears and this includes the judge, counsel, the elders and other participants. From time to time the nature of the offences also evoke reactions such as anger or abhorrence.

During this hearing there was very strong condemnation of this offender’s conduct expressed. [ 27 ] As such, I find it important for me to remind everyone involved that, in my role as a judge endeavouring to craft an appropriate sentence, I must disabuse myself of the views of the participants in the proceedings where they may be seen to be prejudicial or overly favourable. At the end of the day I must impose a sentence which takes into account only the relevant circumstances of the offence and the offender, the principles of sentence and the application of those principles of sentence.

THE LAW [ 28 ] The principles of sentence are set out in ss. 718 to 718.2 of the Criminal Code . [ 29 ] Under s. 718, the fundamental purpose of sentencing is to protect society and promote respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

The objectives of such sanctions include denouncing unlawful conduct, deterring offenders and others from committing crimes, separating offenders from society where necessary, rehabilitating offenders, providing reparations for harm done to victims or to the community, and promoting a sense of responsibility in offenders. [ 30 ]

Section 718.1 sets out the fundamental principle of sentencing. Under s. 718.1, a sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. [ 31 ]

Section 718.2 sets out a number of other sentencing principles. Under s. 718.2(a), sentences are to be increased or reduced to account for any aggravating or mitigating circumstances.

Section 718.2(

b) sets out that sentences should be similar for similar offences committed by similar offenders in similar circumstances. Finally, ss. 718.2(

c) to (

e) promote restraint in sentencing. [ 32 ] Under s. 718.2(c), the combined effect of consecutive sentences should not be unduly long or harsh. Under s. 718.2(d), offenders should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. [ 33 ] Under s. 718.2(

e) restraint is to be given particular attention when dealing with indigenous offenders. [ 34 ] Pursuant to s. 718.01 the primary factors to be addressed in determining a fit sentence for offences involving the abuse of children are denunciation and general deterrence. [ 35 ] In R. v. Large , 2020 BCPC 216 my colleague set out the objectives of sentence: [19] The phrase “child pornography” dilutes the true meaning of what these images and videos represent to some degree. The term “pornography” reinforces the perception that what is occurring is consensual and a mutual experience between the viewer and the actor.

These are not actors. It is not consensual. These are images and videos of child sexual abuse.

[20] The downloading, sharing and production of these images and videos is a pervasive social problem that affects the global community and its children. Each time an image is viewed, the child is victimized. [21] The problem is so pervasive that police are required to triage and pursue only those with extensive collections or those involved in dissemination. One judge describes it as a virtual firehose spewing depraved and disturbing images across the internet.

In addition to the ever-increasing supply, changes in technology make fighting its growth increasingly challenging. [22] The images themselves are becoming more aggressive, to whet the depraved appetite of those that view them - the fresher and more extreme, the better. Mr Large, himself, acknowledged how over time it got to the point where the images were not even arousing him anymore. [23] Because of the harm to children, the repulsiveness of the crime, and the challenges in detecting and prosecuting these matters, the primary objectives of sentencing are denunciation and general and specific deterrence.

When these objectives are paramount, the primary focus must be on the offence or the offender’s conduct, rather than on the offender. Although factors personal to the accused and rehabilitation remain essential, they necessarily take on a secondary role in the analysis. [ 36 ] In R. v. S.L.G. 2019 BCPC 149 the court was dealing with a quite different factual matrix. However, at paragraphs 35 and 36 the court set out a helpful

summary of some of the aggravating and mitigating factors which may come into play in the determination of an appropriate disposition for similar offences: [34] The Crown has submitted numerous case authorities addressing the applicable sentencing ranges for offences involving the making or possession of child pornography which reflect the unique aggravating and mitigating factors of each case. In R. v. Pommer , 2008 BCSC 737 at par. 60 , adopting par. 4 of R. v. Warn , 2007 ONCJ 417 , the Court identified some of those factors.

Aggravating factors relate to: 1) any criminal record for similar or related offences; 2) circumstances where there is also production or distribution of the material; 3) the size of the collection; 4) the nature of the collection, including the age of the children involved and the relative depravity and violence depicted. With respect to this factor, the English Court of Appeal in R. v. Oliver , [2002] E.W.J. No. 5441 recognized 5 categories of child pornography of increasing degrees of seriousness:

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; and

e) sadism or bestiality; 5) the extent to which the offender is seen as a danger to children; and 6) whether the offender has purchased child pornography and contributed to the sexual victimization of children for profit. [35] Recognized mitigating factors include: 1. the youthful age of the offender; 2. his or her otherwise good character; 3. the extent to which the offender has shown insight into his or her problem; 4. whether he or she has demonstrated genuine remorse; 5. whether he or she is willing to submit to treatment or counselling or has taken treatment; 6. the existence of a guilty plea; and 7. the extent to which the offender has already suffered for his or her crime (in his or her family, career or community).

See also R. v Kwok (unreported) February 9 th 2007 Ontario Superior Court File No. P134/06. [ 37 ] The Crown submits that although the mandatory minimum sentence of one year imprisonment for the offence before the Court has been found to be unconstitutional, it nevertheless signalled Parliament’s intent that such offences are to be treated as serious and should guide the courts in determining fit and proper sentences; R. v.

Inksetter 2018 ONCA 474 at pp 22 to 25. [ 38 ] The range of sentence established in the case law for similar offences and similar offenders is a period of incarceration from 4 months to 2 years: R. v. Swaby 2018 BCCA 416 at paragraphs 66 to 68 . [ 39 ] Furthermore, in R. v. Friesen 2020 SCC 9 at paragraphs 1 , 5, 44, 48, 51, 95 and 105 the court made clear that the intent of

Parliament in raising the maximum sentences for offences involving the abuse of children, including images of sexual abuse of children, was in response to the pressing need for denunciation and deterrence due to the significant and lasting harm caused by such offences: see also R. v. Hagen 2021 BCCA 208 at paragraphs 37 to 43 ; R. v. Prince 2018 BCSC 987 at paragraphs 58 to 61 and R. v.

Andrukonis 20212 ABCA 148. [ 40 ] The legal pre conditions to a conditional sentence order are present in this matter as the range of sentence is less than two years and this offender can safely serve any sentence in the community. [ 41 ] The authorities make clear that the court must give consideration to a conditional sentence in all cases where the statutory prerequisites have been satisfied. The gravity of the offence is one of many factors to be considered and should not trump other considerations.

A conditional sentence can be significantly punitive in nature and address the need for deterrence and denunciation even in cases involving violence. The reformation and rehabilitation of a first time offender must also be a principle element for consideration: R. v. Proulx 2000 SCC 5 ; R. v. Hall 2001 BCCA 74 ; R. v. Lacasse 2015 SCC 64 ; R. v. Lakatos 2010 ONSC 2140 ; R. v.

Ali 2016 ONCJ 658 . [ 42 ] Reduced moral culpability mitigates in favour of the imposition of a conditional sentence given that all the other pre-conditions are met including that the such a disposition will meet the fundamental purpose and principles of sentencing. [ 43 ] In R. v. Pentilla 2020 BCCA 63 the court was dealing with the issue of whether a gambling disorder which led to the commission of a fraud should reduce the moral culpability of the offender.

The court found: [68 ] The attachment of a medical label to an identified cluster of behaviours for diagnostic and treatment purposes does not, however, mean that the diagnosis will always be mitigating. But it is important for sentencing judges to consider whether an offender has a medically recognized disorder and, if so, whether that disorder caused or contributed to the commission of an offence.

In cases of this kind, sentencing judges should, as one aspect of the analysis, consider the evidence addressing the nature and magnitude of the disorder and determine the overall role it played in the commission of the offence: R. v. Badhesa 2019 BCCA 70 at paras. 40 , 42 – 44. [69] A medically recognized disorder, shown to have caused or contributed to the commission of the offence, may be regarded as a mitigating factor warranting a reduction in sentence on the grounds that the offender’s moral culpability is attenuated.

In addition, general deterrence and denunciation, which ordinarily figure prominently in sentencing offenders for thefts and frauds involving a breach of trust, may be entitled to less weight where the offender’s behaviour is attributable to an underlying pathology. [70] Where the disorder is found to have contributed to the commission of the offence, the weight it should be given as a mitigating factor will necessarily be fact-driven and context-dependent.

In cases like the one at bar, where the offending conduct occurs over a lengthy period and involves the repeated unlawful taking of funds, sentencing judges must be particularly attentive to whether the evidence justifies a conclusion that a gambling disorder impaired the offender’s decision-making processes. A sentencing judge’s decision about the weight to be given to a behavioural disorder shown to have played a contributing role in the commission of an offence will, of course, attract a deferential standard of review. [72] … a more nuanced and flexible approach is required.

In my view, this is the inevitable consequence of an individualized sentencing process. To measure and properly reflect the moral culpability of an offender, sentencing judges must take into account the existence of disorders that are capable of impairing judgment. I understand this to be the cornerstone of this Court’s judgment in Badhesa . [74} …. In a case where a dispute exists about whether the offending behaviour was caused by a gambling disorder, detailed and specific evidence, including medical evidence, will generally be required.

That evidence should set out the diagnosis, the factual foundation upon which the diagnosis rests, whether the disorder was operative at the time of the commission of the offence and, to the extent it can be determined, whether the disorder caused or contributed to the offending behaviour. Ideally, it should also canvass the offender’s prospects for rehabilitation with appropriate treatment. Such an assessment will usually involve canvassing collateral sources of information. [ 44 ] In R. v.

Milne 2021 BCCA 166 at paragraphs 46 to 49 the court reiterated the need for cogent evidence that mental health or substance abuse issues played a contributing role in the offence. [ 45 ] In R. v. Alexander 2019 BCCA 100 at paragraphs 37 to 43 the court found that the imposition of an eight month period of incarceration was a fit and proper sentence for a similar charge, circumstances and offender. At paragraph 23 the court found the range of sentence was from 6 to 15 months. The court also found that no error was made in declining to impose a conditional sentence: see also R. v. C. H. 2020 BCSC 323 , R. v.

Booth 2019 BCPC 160 , R. v. R.W.P. 2019 BCPC 133 and R. v. Martin 2021 BCPC 195 . [ 46 ] The following authorities support the imposition of a CSO: R. v. Goodell 2021 BCSC 735 , R. v. Vandermeer 2021 BCPC 94 , R. v Humphreys 2020 BCPC, R. v. Bisson 2020 BCSC 1778 , R. v. Neasloss 2020 BCPC 161 , R. v. Quested 2019 BCPC 95 . [ 47 ] In Goodell the offence was causally related to diagnosed depression.

The offender was obese and at significant risk for complications from COVID which was prevalent in the sentence institutions at that time. [ 48 ] In Vandermeer the offender was 78 years old and in very poor health. [ 49 ] In Humphreys there was evidence that casually connected the offence with PTSD which was the result of several tours of military duty in combat zones. The offender also suffered from a serious heart condition. [ 50 ] In Bisson t he offender was diagnosed with severe depression and an anxiety disorder which were causally connected to the offence.

He was 55 years of age and also suffered from chronic back pain. A CSO of 18 months followed by a three year probation order was imposed.

[ 51 ] In Neasloss the court acceded to a joint submission for a 10 month CSO to be followed by 3 years of probation. The offender was indigenous and had limited cognitive capacity. In Neasloss the court provided a thorough canvass of numerous authorities with respect to the application of the principles of sentence and range for offences relating to child pornography. [ 52 ] In Quested the offender was elderly and suffered from a serious medical condition.

ANALYSIS AND CONCLUSION [ 53 ] I agree with counsel that the circumstances of this offender are exceptional and support the imposition of a conditional sentence. [ 54 ] As is made clear by s. 781.01 and the authorities referred to above, the nature of the offence is one which cries out for denunciation. The children who suffered in the making of such abhorrent images deserve retribution.

The strongest message possible must be sent that those who victimize children by viewing such images and thereby encourage the further victimization of those and other children will face severe consequences. [ 55 ] However, the need to give the greatest weight to the principles of general deterrence and denunciation must be balanced against and tempered by the particular circumstances of this offender. [ 56 ] There is a body of cogent evidence before the Court which establishes that the cause of this offender’s criminal conduct is the result of his poor mental and physical health.

This serves to reduce his moral culpability. [ 57 ] As a baby he was exposed to violence and alcohol abuse in the home. His older siblings were exposed for many more years. His older brother was impacted and developed an early addiction to alcohol. He then victimized the offender both physically and mentally during his developmental years causing lasting emotional harm. These circumstances are the direct result of the assimilation policies, residential school system and intergenerational trauma.

This offender’s moral culpability is reduced as a result of his experience of the Gladue factors. [ 58 ] His physical health concerns, cognitive limitations, mental health challenges and naiveté would result in a period of incarceration in an institution being an overly harsh disposition which would doubtless prove to be disproportionate in all the circumstances. [ 59 ] The offender does not present a risk to the safety of the community. His rehabilitation is already under way. He has proven himself to be able to comply with any conditions imposed by the Court.

It is in the interests of society and this offender’s interest that he be given the assistance he needs to overcome his challenges and achieve proper mental and physical health. He is a much loved and highly regarded person who has a great deal to offer his Nation and the community at large. [ 60 ] I find a conditional sentence of eight months is appropriate. It should be recognized that it represents a markedly lenient disposition. There will be a period of probation to follow for three years to follow. _____________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia