R. v. Smith, 2023 BCPC 188

Citation: R. v. Smith 2023 BCPC 188 Date: 20230627 File No: 74627 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. THOMAS EDWARD SMITH REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: A. Baines Counsel for the Defendant: T. Zipp

Place of Hearing: Prince George , B.C. Date of Hearing: January 3 , February 1, 2023 Date of Judgment: June 27, 2023 INTRODUCTION [ 1 ] On March 26, 2021, Thomas Edward Smith (“Thomas Smith”) was charged under a four-count Information with accessing, possessing, and distributing child pornography and committing an indecent act to a person under the age of 16 years old. On June 23, 2021, Thomas Smith pleaded guilty to Count 2 of Information 74627-2-C which reads: Count 2 Thomas Edward SMITH, from the 2nd day of March, 2020 to the 17th day of May, 2020, inclusive, at or near Prince George, in the Province of British Columbia, did possess child pornography contrary to

Section 163.1(4) of the Criminal Code . [ 2 ] The Crown initially proceeded by indictment, but on June 23, 2021, re-elected to proceed summarily before a Provincial Court Judge. [ 3 ] The sentencing hearing did not proceed until January 3, 2023, and then continued on February 1, 2023. At the conclusion of the hearing, I reserved my reasons for judgment. Given the court and defence counsel’s busy schedules, I was unable to deliver my decision and reasons for judgment until today, June 27, 2023.

CIRCUMSTANCES OF THE OFFENCE [ 4 ] Thomas Smith admits he was in possession of child pornography during the offence period (March 2, 2020 to May 17, 2020). [ 5 ] The Crown alleges that on March 2, 2020 and March 6, 2020, Google reported to the National Centre of Missing and Exploited Children’s Unit (“NCMEC”) that 233 images of child pornography had been uploaded to the Goggle drive infrastructure. Google provided NCMEC with the relevant Internet Protocol (“IP”) address, which was geo-located to Canada. The Internet Service Provider was Telus Communications Inc. (“Telus”).

NCMEC forwarded the information and documentation it received from Google to the RCMP E-Division’s Integrated Child Exploitation Unit (“BC ICE”). [ 6 ] On March 6, 2020, Kristy Zulyniak of BC ICE investigated the incident. Kristy Zulyniak reviewed the impugned images on April 10, 2020, and determined they were in fact child pornography as defined by the Criminal Code of Canada . On April 15, 2020, BC ICE sent the Internet Protocol (“IP”) addresses to Telus, which confirmed it was the Internet Service Provider (“ISP”) and that the IP address was associated with a user account in Prince George.

I gather that the BC ICE sent the file to Prince George RCMP to investigate. [ 7 ] On May 7, 2020, Cst. Anderson reviewed the materials he received from the BC ICE Unit. This included 11 out of 233 images and determined the images to be child pornography. The Crown described the images wherein the camera is focused on the genitalia of young girls or captures adult males involved in sexual activity with girls ranging from five to 13 years old.

One image depicts a female nine to 11 years old squatting on top of a nude adult male who is laying on his back with an erect penis which he is inserting into the child’s vagina; others depict a young Caucasian female eight to 11 years old and an adult male, both of whom are completely nude, and the child is performing fellatio on the adult male, or the adult male is performing fellatio on the child. [ 8 ] BC ICE Unit obtained production orders for the subscriber information associated to the IP address provided by Google. The production orders were issued and served on Telus.

The subscriber information for the IP addresses revealed Thomas Smith as its user. BC ICE forwarded the results of the production orders as well as the information obtained from NCMEC and Google to the Prince George Detachment of the RCMP. [ 9 ] Cst. Anderson used the Police Records Information Environment (“PRIME”) records management system and Canadian Police Information Centre (“CPIC”) to locate Thomas Smith, born March 17, 1993. Cst Anderson attended Thomas Smith’s home address on May 17, 2020, with a search warrant.

The officers located and seized a number of electronic devices, including secure cards (“SD”) and a laptop computer. The Crown asserts there were 9,000 potential still images and 85 videos, which constituted child pornography. The defence agrees there were 2,024 unique still images of children and 46 unique videos that constituted child pornography, but no more. For the purposes of the sentencing hearing, the Crown accedes to the defence’s position.

In the face of this agreement, I did not view Thomas Smith’s collection. [ 10 ] In their execution of the search warrant, the police seized a SD card containing a number of files of child pornography, one of which was a video of an adult male penetrating a non-white female child between nine and 11 years old with his penis. Others depicted non-white 14- to 16-year-old girls having vaginal intercourse with a white male.

There was one video one minute and 13 seconds in length of a very young female, 2 to 5 years old, laying on her back with her legs spread and an adult male kneeling between the child’s legs, penetrating her anus with his penis. The pornographic videos seized from Thomas Smith depict children as young as three years old.

The majority of the videos depict girls between 9 and 11 years old engaged in sexual activity with adult males or with other children the same age and in some instances with an animal. [ 11 ] I conclude the images and videos seized from Thomas Smith’s electronic devices include graphic, explicit and disturbing depictions of young children, predominately girls, engaged in sexual activity with male adults. CIRCUMSTANCES OF THE OFFENDER [ 12 ] Thomas Smith is a 30-year-old Indigenous offender. His personal circumstances are well-documented in: (

a) the Pre-sentence Report authored by Probation Officer Kerstin Poirier, filed September 8, 2021; (

b) the psychological risk assessment report of Dr. Sarah

Farstad, a Registered Psychologist with the Forensic Psychiatric Services Commission, filed September 8, 2021; and (

c) the Gladue Report of Kelly Batke, filed July 15, 2022. [ 13 ] Thomas Smith was born on March 17, 1993, and is the middle of five children born to A.F. and J.S. His mother is a member of the [omitted for publication] and his father, a member of the [omitted for publication]. He had a traumatic childhood, in which he experienced poverty, physical abuse, mental abuse, family and community violence, residential instability, and the normalization of substance abuse.

When he was 8 to 10 years old, Thomas Smith witnessed his father’s sexual assault on his sisters; he was also exposed to pornography at an early age. [ 14 ] Thomas Smith graduated from [omitted for publication] Secondary School in [omitted for publication], BC, and completed two years of a Computer Science Degree at the University of Northern British Columbia, which he hopes to complete someday.

He has been unable to return to university to complete his education since April 16, 2021 because of the prohibition against him having access to any computer network including the Internet or possessing any device capable of accessing the Internet. Thomas Smith has held jobs in various fields of employment, including working at a gas station, in campground maintenance, construction, retail, door-to-door sales, home renovations, and cabinet making. [ 15 ] At the time of his arrest for these offences, Thomas Smith was living in a common-law relationship with D.I.

I understand they now have two children with whom Thomas Smith has limited contact because of these charges. HEALTH AND WELL-BEING [ 16 ] Thomas Smith says he has no physical health concerns or complaints, other than Attention Deficit Hyperactivity Disorder (“ADHD”), a diagnosis he received when he was 21 years old. Thomas Smith is prescribed Dexedrine to manage the symptoms of this disorder. He has no substance-use issues. He did report to Dr. Farstad a history of experiencing depressive symptoms.

Thomas Smith’s counsellor, Olga Morrow, believes Thomas Smith presents as autistic and suffers from undiagnosed developmental disabilities. RISK OF REOFFENDING [ 17 ] Dr. Sarah Farstad prepared a psychological risk assessment of Thomas Smith on September 3, 2021. She opines that Thomas Smith presents as a moderate risk of engaging in future child-pornography offences and moderate risk of having sexual communications with underage females. She states, “If he were to reoffend, I believe [Thomas Smith] would be more likely to commit child pornography offenses than contact sexual offences. However, if Mr.

Smith reached out to an underage female who was willing to reciprocate his interest by sending sexual text messages or nude pictures, it is possible that the sexual communications could escalate to sexual behaviour with a minor.” [ 18 ] Dr. Farstad goes on to make the following recommendations to manage Thomas Smith’s risk of reoffending: a. Thomas Smith participate sex in offender treatment in order to develop a self-management plan to reduce his risk of future sexual offending; b. Thomas Smith receive treatment for his history of trauma; c.

Thomas Smith engage in counselling to help him learn helpful coping strategies and stress management techniques; d. Thomas Smith not have unsupervised access to the Internet as he has repeatedly used it to view child pornography. However, his Internet usage may be monitored in a way that allows him to attend school and/or obtain employment; e. Thomas Smith not have unsupervised contact with underage females; f. Thomas Smith be required to inform future partners of his criminal history if they have custody of underage females; and g.

Thomas Smith’s attendance at and compliance with such treatment programs be monitored by his probation officer once he completes his custodial sentence. [ 19 ] The defence takes issue with Dr. Farstad’s risk assessment, because it appears to be based on the presumption Thomas Smith admitted to and was convicted of all the offences alleged in Information 74627-2-C and the Report to Crown Counsel. Thomas Smith only pleaded guilty to possession of child pornography. It is not clear to me whether Dr.

Farstad’s opinion is based primarily on her interview with Thomas Smith or if she accepted as true the accusations set out in the Report to Crown Counsel. VICTM IMPACT [ 20 ] The Crown adduced no victim impact statements from the children depicted in the pornographic images and video. The children are unidentified, but this is not a victimless crime. In R. v.

S.D.M ., 2015 BCPC 112 , at para. 49 , Judge Hicks describes the inherent harm caused by the possession of child pornography: [49] Children are victimized in the most brutal and intrusive way at every stage of the child pornography continuum; from the grooming to the undressing, to the posturing, to the exposure, to the forceful intrusion into their most private places, to the physical force and restraint of the child, to threats and physical violence, and to the emotional struggle many of these children will endure over a lifetime.

There is a concern that this offending against children is increasing and that the easy ability to circulate this material over the internet is encouraging that growth. Once these images are introduced to the internet, there is no ability to control where they appear, what use is made of them, how often they are re-sent and viewed. Those who possess, view, chat about and exchange child pornography provide the encouragement and the audience for those who would abuse children in order to produce that content.

Thus the emphasis on deterrence and denunciation as the primary sentencing objectives in cases involving those who possess and circulate this material.

Cited in R. v. Neasloss, 2020 BCPC 161 , at para. 24. [21] In R. v. Alexander, 2019 BCCA 100 , MacKenzie, J.A. for the BC Court of Appeal cited with the approval the followingpassage from R. v. Inksetter, 2018 ONCA 474 : [22] Child pornography is a pervasive social problem that affects the global community and its children. . . . "possession of childpornography is itself child sexual abuse". The children depicted in pornographic images are re-victimized each time the images areviewed. In amassing, viewing and making available his vast and terrible collection to others, the respondent participated in the abuse ofthousands of children. LEGISLATIVE FRAMEWORK [22]

Section 163.1(4) sets out the penalty for possession of child pornography as follows: Possession of child pornography

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

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment ofimprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to aminimum punishment of imprisonment for a term of six months. [23] In R. v. Swaby, 2018 BCCA 416 (leave to appeal to SCC refused [2019] S.C.C.A. No. 17) the British Columbia Court of Appealfound the 90-day mandatory minimum sentence under 163.1(4)(

b) unconstitutional. A year later, in R. v. Hamlin, 2019 BCSC 2266, Justice Winteringham struck down as unconstitutional the one-year mandatory minimum sentence under 163.1(4)(a). PRINCIPLES AND PURPOSES OF SENTENCING [24]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, which is to contribute, along with crime-prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions, to haveone or more of the following objectives: (

a) denunciation; (

b) deterrence; (

c) protection of the public; (

d) rehabilitation of the offender;(

e) reparation to victims; and (

f) promotion of a sense of responsibility in the offender. [25]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the moral blameworthiness of the offender. The goal in sentencing is a fair, fit and principled sanction andproportionality is the organizing principle in reaching this goal: Parranto, 2021 SCC 46 , para. 10. It is grounded in elementalnotions of justice, fairness, and indispensable to the public’s confidence in the justice system: R. v. Safarzadeh-Markhali, 2016 SCC 14,at paras. 70-71; Lacasse, paras. 3-6. [26]

Section 718.01 of the Criminal Code states that “when a court imposes a sentence for an offence that involved the abuse of aperson under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of suchconduct.” [27]

Section 718.2 (

a) states that a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances relating to the offence or the offender, one of which is: Other sentencing principles 718.2 . . . (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years . . . [28] Other important but secondary sentencing considerations are set out in s. 718.2, which state in relevant part: 1. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [the“parity principle”.

The parity principle means that any disparity between sanctions for different offenders needs to be justified: Ipeelee, atpara. 79]; 2. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [s. 718.2(

d) and718.2(

e) of the Criminal Code (the “restraint principle”). The sentencing judge should treat imprisonment as a sanction of last resort andlimit any custodial period imposed to the lightest term reasonable in the circumstances: R. v. Bosco, 2016 BCCA 55 , para. 35.] DETERMINING A PROPORTIONATE SENTENCE [29] In Parranto, the Supreme Court of Canada stated [citations omitted]: [113] In order to produce proportionate sentences, sentencing must be a “highly individualized exercise” . . . Sentencing judges mustdecide a profoundly contextual issue: “. . .

For this offence, committed by this offender, harming this victim, in this community, what isthe appropriate sanction under the Criminal Code?” . . . They must determine which objectives of sentencing merit greater weight andevaluate the importance of mitigating or aggravating factors, to best reflect the circumstances of each case . . . [Emphasis in original.]

ASSESSING THE OBJECTIVE GRAVITY OF THE OFFENCE [30] In R. v. Sharma, 2022 SCC 39 , the Supreme Court of Canada emphasized (at para. 108) the gravity or seriousness of theoffence is not to be confused with an offender’s circumstances, which may serve to attenuate his moral blameworthiness. The personalcircumstances of an offender do not serve to make the offence any less serious: R. v. Ellis, 2022 BCCA 278 . The gravity of theoffence refers to what the offender did wrong. It includes two components: (

a) the harm or likely harm to the victim; and (

b) the harm orlikely harm to society and its values: Lacasse, para. 130. The maximum sentence for an offence is a reflection of, and a proxy for, itsseriousness: Sharma, paras. 4, 105. Possessing child pornography contrary to s. 163.1(4)(

a) attracts a maximum jail sentence of tenyears’ imprisonment when prosecuted by indictment and two years less a day when prosecuted summarily. It is a serious offence: R. v.Swaby, 2018 BCCA 35 , para. 17; R. v. Swaby, 2018 BCCA 416 , paras. 47, 67; R. v. Bisson, 2020 BCSC 1778, para. 23. [31] The appellate courts have repeatedly held that primary sentencing goals for possessing child pornography offences are deterrenceand denunciation: R. v. Friesen, 2020 SCC 9, para. 95; R. v. Allen, 2012 BCCA 377; R. v. R.L.W., 2013 BCCA 50; R. v. Hagen, 2021BCCA 208; R. v. Swaby, 2018 BCCA 416 ; R. v.

Inksetter, 2018 ONCA 474, at para. 16; R. v. McCrimmon, 2022 YKCA 1. [32] In R. v. Sharpe, 2001 SCC 2 , wherein Chief Justice McLachlin, writing for the majority, states at para. 28: [28] . . . Just as no one denies the importance of free expression, so no one denies that child pornography involves the exploitation ofchildren. The links between possession of child pornography and harm to children are arguably more attenuated than are the linksbetween the manufacture and distribution of child pornography and harm to children.

However, possession of child pornographycontributes to the market for child pornography, a market which in turn drives production involving the exploitation of children.Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potentialoffences. . . . [Emphasis in original.] [33] The minority in Sharpe (L’Heureux-Dubé, Gonthier and Bastarache JJ) state: 158 The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children andto society.

This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of thepornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography isinherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rightsof children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children.

Itpreys on pre-existing inequalities. [Emphasis in original.] PARITY: SENTENCING RANGES [34] The principle of parity requires the sentencing judge to consider sentences imposed on similarly-situated offenders who havecommitted similar offences in similar circumstances. In Parranto, the Supreme Court of Canada considered the role of ranges insentencing. Sentencing ranges are one of the tools at a sentencing judge’s disposal in an effort to apply the principle of parity. Sentencingranges inform the objective seriousness of the offence.

In Ellis (at para. 126), Justice DeWitt-Van Oosten identified the followingprinciples that emerge from the majority judgment in Parranto: [126] . . . • Sentencing ranges reflect “judicial consensus on the gravity of the offence” (at paras. 20, 44, emphasis added). • They provide judges with a “place to start” in crafting a fit sentence (at para. 16). • Sentencing ranges are established based on “strictly offence-based considerations” (at para. 47, emphasis added). • Ranges do not factor in the characteristics of the offender (at para. 47). [35] In R. v.

Hagen, 2021 BCCA 208, the British Columbia Court of Appeal noted the generally accepted range of sentences forpossession of child pornography as four months to two years’ imprisonment. In McCrimmon, Justice DeWitt-Van Oosten noted (at para.30) this range of sentence was “pre-Friesen”. She states at para. 70 that the principles espoused in Friesen, including the call forincreased sentences, apply to child pornography offences. Also see: R. v. Adams, 2022 BCSC 2289, at para. 36.

ASSESSING THE SUBJECTIVE GRAVITY OF THIS OFFENCE [36] The subjective gravity of the offence requires an assessment of the circumstances of the offence and its commission. In Hagen,Justice DeWitt-Van Oosten states (at para. 43): [43] . . . factors that attenuate moral culpability always require meaningful consideration at sentencing, even in the context of a graveoffence.

This will include, but is not limited to, cognitive impairment or mental health issues shown to affect an offender’s capacity tocontrol their impulses or appreciate the seriousness of their conduct or its risk; mental illness; addiction; traumatic personal events thatmay contribute to their offending behaviour; or Gladue factors. [37] Many of those factors cited by the Court of Appeal in Hagen apply to Thomas Smith in varying degrees and are applicable inassessing his moral blameworthiness in committing the offence of possession of child pornography.

MITIGATING, AGGRAVATING AND NEUTRAL FACTORS AND COLLATERAL CONSEQUENCES [38] As set out above, the proportionality analysis requires the sentencing judge to weigh all of the aggravating and mitigatingcircumstances and collateral consequences. An aggravating factor will tend to increase the severity of the sentence; a mitigating factorwill weigh in favour of a more lenient sentence. The Crown must prove all disputed aggravating factors beyond a reasonable doubt: R. v.Gardiner, (SCC). The offender must prove all disputed mitigating factors on a balance of probabilities: s. 724(3)(

d) ofthe Code; R. v. Dreger, 2014 BCCA 54 . [39] The court recognizes the particular aggravating and mitigating factors which may come into play in the determination of anappropriate disposition for an offender convicted of possessing child pornography: R. v. Goodell, 2021 BCSC 735 (paras. 65-69); R. v.S.L.G., 2019 BCPC 149, citing R. v. Kwok, (ONSC); and R. v. Hamlin, 2019 BCSC 2266, at para. 39. I haveconsidered those factors below.

Aggravating circumstances [40] Statutorily aggravating factor: I agree with Judge Korturbash’s analysis in Large that the abuse of children under 18 years old(s. 718.2(ii)) is aggravating. This view is shared by Justice MacDonald in Adams at para. 40. Although an offence’s essential elementswould not ordinarily be a further aggravating factor, they are when the child is very young: R. v. Perry, 2022 BCPC 251 , atpara. 3.

Thomas Smith’s collection included pornographic material of children as young as two and three years old, and many withprepubescent females between 9 and 11 years old. [41] In the circumstances of this case, I have also considered the presence or absence of a number of factors which are typicallyaggravating: a. Any criminal record for similar or related offences: Thomas Smith has no criminal record. b. Circumstances where there is also production or distribution of the material: There is no evidence before me indicating ThomasSmith was involved in the production or distribution of child pornography. c.

The size of the pornography collection: Thomas Smith’s collection of child pornography was significant (2,024 unique still imagesand 45 unique videos). I am mindful of the Ontario Court of Appeal’s comments in R. v. Walker, 2021 ONCA 863: [8] . . . Sentencing for child pornography offences is not done by means of a strict mathematical formula tied solely to the quantity ofpornographic materials without regard to other factors. Such an approach overlooks the importance of the content of the materials andother relevant considerations. . . . d.

The nature of the collection, including the age of the children involved and the relative depravity and violence depicted: Withrespect to this factor, the English Court of Appeal in R. v. Oliver, [2002] E.W.J. No. 5441 (cited in R. v.

Pommer, 2008 BCSC 737, andGoodell, at para. 68) recognized five categories of child pornography of increasing degrees of seriousness: i. images depicting erotic posing with no sexual activity; ii. sexual activity between children, or solo masturbation by a child; iii. non-penetrative sexual activity between adults and children; iv. penetrative sexual activity between children and adults; and v. sadism or bestiality. see: R. v. S.L.G., para. 34; R. v. Missions, 2005 NSCA 82, at para 14; McCrimmon (YKCA), at para. 75.

In this case, Thomas Smith’scollection included images and videos, “traversed the spectrum of depravity, some high degrees of violence and explicit sexual acts”: seeR. v. Krock, 2020 BCSC 1858, para. 20. e. The duration of possession and frequency of examination of the images: Thomas Smith is charged with possessing childpornography between the 2nd day of March 2020, to the 17th day of May 2020. I note, however, in his interview with Dr. Farstad,Thomas Smith says he began accessing pornography on the dark web “a few years ago”.

He said most of the child pornography he hadon his electronic devices was from a website download. He says at the time he was arrested, he was in the throes of removing thepornography. In Attorney General of Quebec v.

Terroux, 2023 QCCA 731 [citations omitted], the appellate court stated: [192] In the digital age, I do not believe that the circumstances of the offense of possession of child pornography are necessarily more orless serious depending on whether the accused downloads 30, 300, 3,000 or 30,000 files, an operation which can take place very quickly,in a few clicks . . . or even depending on whether he had the files for 1 month, 1 year or 10 years before being caught. [193] What this offense seeks to prevent is harm to children.

Accessing and possessing material of this nature is, in itself, highlydamaging, regardless of the number of photos or videos, and regardless of the duration of possession. . . [194] While the number of files, the systematic nature of their acquisition, the duration of the offense and the duration of possession maybe relevant circumstances, the approach to sentencing for the offense of possession of child pornography remains global andcontextualized to take into account all relevant penological objectives and factors . . . Such an exercise does not square with theapplication of mathematical formulas. f.

The extent to which the offender is seen as a danger to children: Dr. Farstad assessed Thomas Smith presents a moderate risk ofengaging in future child pornography offences and moderate risk of having sexual communications with underage females. It is not clearto me if it is based on the assumption that Thomas Smith was admitting to the offences charged beyond possession of child pornography.

Moreover, Dr. Farstad states: It is also important to appreciate that risk is evaluated within a context and over a discreet period. The above risk assessment shouldonly be considered valid for a period of six months to a year after the date of this report. If within this period, there is anysubstantial change to Mr. Smith's clinical presentation or circumstances, risk must be reassessed. . . [Emphasis in original.] Dr. Farstad interviewed Thomas Smith for a psychological risk assessment on August 23, 2021, and wrote her report on September 3,2021. Her assessment is almost two years old; g.

Whether the offender has purchased child pornography and contributed to the sexual victimization of children for profit:There is no evidence Thomas Smith purchased or sold child pornography. Mitigating factors [42] I find the following factors mitigating: a. The otherwise good character of the offender: Thomas Smith has no criminal record. This is often the case in offences forpossession of child pornography.

But for this offence before the court, I have no evidence that he was not otherwise of “good character”.To the contrary, the evidence indicates Thomas Smith has been a productive and contributing member of society for much of his life.This is significant in light of his disadvantaged background; b. The existence of a guilty plea: Thomas Smith was charged on March 26, 2021, for offences which occurred between March 2, 2020to May 17, 2020, inclusive. His first appearance was on May 29, 2021. Thomas Smith pled guilty to the offence on June 23, 2021, withinthree months of being charged.

I accept he has entered a very early guilty plea; c. Whether the offender has demonstrated genuine remorse: Thomas Smith confessed to the offence shortly after he was charged.He says he is eager to attend treatment and sexual offender programming to address both the circumstances which led to his offendingbehaviour (i.e. downloading and storing child pornography) and the trauma of his childhood. Thomas Smith finds the pornographicmaterial he possessed disturbing and feels remorse and disgust for his offence. He told PO Poirier he needed to know the answers as towhy he was broken so he could fix himself.

PO Poirier states in her Pre-sentence Report under the heading of “Attitude andUnderstanding Regarding the Offence”: The subject displayed remorse for his actions and offence. He indicated he is actively trying to figure out why he downloaded and stored.The subject takes responsibility for his actions and continued to ask during the pre-sentence report interview when he would be gettinghelp to address both the trauma he experienced and the behaviours around the offence.

He stated though he did not feel attraction or aphysical response from the images he believes "there is something wrong with [him]." The subject's version of evens [sic] around hiscurrent conviction are similar to the report submitted to Crown Counsel. In her psychological risk assessment, Dr. Farstad stated: [Thomas Smith] expressed a desire to receive treatment to address his history of trauma (i.e., especially overhearing his sisters beingsexually abused), the link between his childhood experiences and offending behaviors, and his dependence on pornography.

I believethese are critical factors to address in treatment. He was open and honest about his sexual interests/preferences, which may be a goodprognostic sign. I accept Thomas Smith’s expression of remorse for his offence is genuine; d. The extent to which the offender has shown insight into their problem: Thomas Smith understands the victims of childpornography are the children in the images. He expressed to Dr. Farstad his concern about how this experience affected the children’slives.

He recognized in viewing the images he increases the demand for child pornography, which leads to the creation of new material.He also recognizes that viewing child pornography is abhorrent and the urge to do so demands treatment. e. Whether the offender is willing to submit to treatment or counselling or has taken treatment: Thomas Smith fully participatedin the preparation of the three sentencing reports now before the court. He admits that he had been exposed to the normalization ofpornography at a young age.

Thomas Smith actively engaged in counselling services with Olga Morrow, a registered clinical counsellor.She is helping him work through his traumatic childhood and to gain insight into why he committed the offence. She says that ThomasSmith is “trying to be self-aware and self-reflective. . .” I conclude that Thomas Smith has already embarked on his rehabilitativejourney; f. Indigeneity: Thomas Smith is an Indigenous offender and there are significant Gladue factors at play; g.

Mental Illness: The BC Court of Appeal recognizes that a mental disorder, which has caused or contributed to the commission of anoffence, may be a mitigating factor that reduces an offender’s moral culpability and thereby warrants a reduction in sentence: R. v.Badhesa, 2019 BCCA 70, para. 42; R. v. Penttila, 2020 BCCA 63at paras. 68–69. In R. v.

Nystrom, 2023 BCCA 232 , MadamJustice Fisher, for the appellate court, states at para. 22 [citations omitted]: [22] Sentencing judges must consider evidence of the nature and magnitude of the disorder, determine its overall role in the offendingconduct, and be satisfied on a balance of probabilities that the disorder caused or contributed to the commission of the offence. Detailedand specific medical evidence is necessary to properly understand the relationship between the disorder and the offending conduct;generalized evidence is not sufficient: . . .

Thomas Smith suffers from Attention Deficit Hyperactivity Disorder, although to what degree this condition contributed to hiscommission of the offence, I cannot say. Although he excelled academically, Thomas Smith does say that as a result of his ADHD, hehas a hard time processing emotion or feeling. His counsellor Olga Morrow believes that Thomas Smith may be on the Autism spectrum.

She states, “He is above average IQ, very bright, but not so much with common sense or maturity. To me that feels like autism. Hedoesn't think about the consequences." Olga Morrow elaborated: "For example, he didn't make car payments, but was confused andsurprised “when the car got repossessed”. Still, in this case, I have insufficient evidence to find Thomas Smith suffered from any mentaldisorder that contributed to the commission of this offence of possession of child pornography; h.

The extent to which the offender has already suffered for their crime in their family, career or community: Thomas Smith hasbeen on highly restrictive bail conditions since April 18, 2021, including: i. Conditions prohibiting his contact with persons under the age of 16; ii. Having virtually no contact with his own children; iii. Prohibiting him from accessing any computer network or Internet. This meant Thomas Smith could not continuewith his Bachelor of Computer Science degree at UNBC, nor could he work in a position requiring him to access the Internet; iv.

Thomas Smith lost his job of five years at Princess Auto when he was placed on bail conditions that he “notaccess any computer network including the Internet or possess any device capable of accessing the Internet.” As a result of losing his job,Thomas Smith could not pay his bills and amassed a sizeable debt; v. Because he kept in touch with his friends and family online, Thomas Smith was unable to maintain theserelationships as he had in the past, leaving him extremely isolated; and vi.

Because he could not continue to reside with D.I. and their daughter, Thomas Smith ended up homeless and had tolive in a homeless shelter for some time. In her Pre-sentence Report, PO Poirier advises the court that according to his community corrections file, Thomas Smith has beencompliant with his community supervision orders and has never been convicted of any breaches. Generally, compliance with releaseconditions is a neural factor: R. v. G.T.A., 2021 BCCA 425 , para. 60. If they are onerous and restrictive, they can be mitigating:R. v. T.A.P., 2023 BCSC 316, at para. 152, citing R. v.

Cuthbert, 2007 BCCA 585, and R. v. Nghiem, 2009 BCCA 170. Also seeR. v. L.I., 2017 BCCA 444, at paras. 11–13. In my view, the isolating and punitive impact of Thomas Smith’s bail conditions have gone some distance towards accomplishing thesentencing objectives of deterrence and denunciation. Accordingly, I consider Thomas Smith’s compliance with these restrictive bailconditions mitigating and if not mitigating, then a collateral consequence; i. Normalization child abuse: As a child, Thomas Smith was aware of his father’s sexual violence against his sisters.

He alsoexperienced the normalization of pornography from a young age. He believes these childhood experiences may have contributed to hisoffending and I cannot say otherwise. In any event, both Dr. Farstad and Thomas Smith recognize the importance of Thomas Smithengaging in treatment. [43] It bears reiteration the absence of an aggravating factor does not equate to a mitigating factor or vice versa: see R. v. Prince, 2018BCSC 987, para. 72.

Indigenous heritage: Gladue factors [44] Thomas Smith asserts an Indigenous ancestry through his mother’s affiliation with [omitted for publication] in [omitted forpublication], BC, and his father’s affiliation with the [omitted for publication]. Kelly Batke’s July 15, 2022 Gladue Report providesimportant background information to both of these Indigenous peoples as well as to Thomas Smith personally. [45] Because of Thomas Smith’s Indigeneity, the court must apply the principles espoused in 718.2(

e) of the CriminalCode, as interpreted by the Supreme Court of Canada in R. v. Gladue, , and R. v. Ipeelee, 2012 SCC 13. As thesentencing judge, I have a statutory duty imposed by s. 718.2(

e) to consider the unique systemic and background factors that may haveplayed a

part in bringing the particular offender before the court and the types of sentencing procedures and sanctions that may beappropriate because of the offender’s particular Indigenous heritage. The offender is not required to establish a causal link betweenbackground factors and the commission of the offence before being entitled to have those factors considered by the sentence judge.Judges may take judicial notice of the broad systemic and background factors affecting Indigenous people generally and case-specificinformation from the offender and the Pre-sentence Reports. [46] In R. v.

Mero, 2021 BCCA 399 (at para. 111), Marchand J.A. emphasized the duty of a sentencing judge to consider s. 718.2(e)of the Criminal Code, given the “worsening crisis of overrepresentation of Indigenous people in jails”. Justice Marchand states at para.69: [69] Indigenous offenders are different from other offenders because, in the words of the Supreme Court of Canada, they “are victims ofsystemic and direct discrimination”: Gladue at para. 68. As a result, and to help address the crisis ofover-representation, Gladue changed the way Indigenous offenders are sentenced, though not necessarily the result.

In sentencing anIndigenous offender, a sentencing judge must consider two factors: 1. The unique systemic or background factors that may have played a

part in bringing the particular offender before the courts; and 2. The types of sentencing procedures and sanctions that may be appropriate in the circumstances. . . . [47] The BC Court of Appeal in Mero reminds sentencing judges (at para. 70) that when sentencing an Indigenous offender, the court

must take into account all of the surrounding circumstances and “display sensitivity and understanding to the ‘difficulties aboriginalpeople have faced with both the criminal justice system and society at large’”: Mero, at para. 70. Justice Marchand states: [73] While restorative sentences may be more appropriate for Indigenous offenders, an application of Gladue principles will notnecessarily lead to a reduced sentence. There is no automatic heritage-based discount.

Generally, the more serious or violent the crime,the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for an Indigenous and a non-Indigenousoffender: Gladue at para. 33; R. v. Wells, 2000 SCC 10at paras. 42–44; Ipeelee at paras. 84–85. [74] That said, no offence is so serious that it negates the need for a sentencing judge to consider s. 718.2(

e) of the Code and Gladueprinciples. In fact, sentencing judges have a duty to do so and a failure to do so constitutes an error in principle: Ipeelee at para. 87 . . . [48] In this case, Thomas Smith told the Gladue writer that he is disconnected from his Indigenous heritage. In R. v. Kehoe, 2023BCCA 2, Justice Marchand explains how a court is to view this disconnection: [55] As a consequence of Canada’s colonial history and assimilationist policies, many Indigenous people have become disconnectedfrom their ancestral communities, cultures, and associated positive social structures.

This disconnection has contributed to the social andeconomic marginalization of Indigenous people in Canada, including their disproportionate interactions with the criminal justice system. [56] Disconnection is one of the very harms associated with Canada’s colonial history and assimilationist policiesthat Gladue and Ipeelee seek to address. . . . [49] I accept that Thomas Smith, like many Indigenous offenders who come before this Court, has been disproportionately affected bythe history of colonialism and the subsequent intergenerational trauma experienced by Indigenous persons.

I accept that Thomas Smithsuffered multiple disadvantages in his life that arise from his Indigeneity. I am satisfied that those factors, both systemic within societyand specific to Thomas Smith, may have played a role in his criminal behaviour and must be taken into account to arrive at aproportionate sentence. Collateral consequences [50] The judge must also consider any collateral consequences arising from the commission of an offence, the conviction for anoffence, or the sentence imposed for an offence that impacts the offender: R. v. Pham, 2013 SCC 15 , and R. v. Suter, 2018 SCC34.

The collateral consequences are not necessarily aggravating or mitigating factors under

section 718.2(

a) of the Code, as they do notrelate to the gravity of the offence or the level of responsibility of the offender; nevertheless, they do speak to the personal circumstancesof the offender. The consequences can flow from the function of legislation, or social, personal or occupational implications. Theysometimes result in disqualification from benefits or activities or other burdens and hardships that flow from a conviction.

Collateralconsequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moralblameworthiness of the offender: Suter. [51] I have considered Thomas Smith’s restrictive bail conditions a mitigating factor. If I am wrong in this regard, then I find theyconstitute a collateral consequence: T.A.P., para. 42. Thomas Smith’s restricted access to computers and the Internet, which is ongoing,essentially prohibits him from working in his area of interest and expertise: see R. v. B.H., 2022 BCPC 284, citing R. v. Mitchell, 2021BCPC 246.

POSITIONS OF THE PARTIES [52] The Crown seeks a custodial sentence of two years less one day followed by three years’ probation, a DNA Order and a Section161 Order. The Crown cites the following authorities: (

a) R. v. Friesen, 2020 SCC 9; (

b) R. v. Hagen, 2021 BCCA 208; (c)R. v. McCrimmon, 2021 YKTC 28; (

d) R. v. McCrimmon, 2022 YKCA 1 ; (

e) R. v. Krock, 2020 BCSC 1858 ; (

f) R. v.Neasloss, 2020 BCPC 161; (

g) R . v. Large, 2020 BCPC 216; (

h) R. v. Partanen, 2021 BCPC 245 ; (

i) R. v. M.C.H., 2020 BCPC293 . [53] The defence seeks a conditional sentence order (“CSO”) and has provided the court with the following authorities: (

a) R. v.Swaby, 2018 BCCA 416; (

b) R. v. Williams, 2020 BCCA 286; (

c) R. v. Cole, 2021 BCSC 293; (

d) R. v. Quested, 2019 BCPC 95; (

e) R.v. Neasloss, 2020 BCPC 161. [54] I have reviewed and considered all these authorities. I note that Swaby, Krock, Large, Quested, M.C.H., either pre-date or did notconsider Friesen. In Friesen, the Supreme Court of Canada (at paras. 5 and 44) directed that sentences for sexual offences againstchildren, including possession of child pornography, were too low, and must be raised to reflect the current societal understanding of thegravity and culpability of these offences. The B.C.

Court of Appeal in Hagen, at paras. 36-39, and in McCrimmon (as the YukonTerritory Court of Appeal), para. 72, makes clear that the principles espoused in Friesen apply to sentencing offenders convicted ofpossession of child pornography. [55] Both Crown and defence have referenced my decision in R. v. Neasloss, 2020 BCPC 161, in which I canvassed a number ofsentencing authorities on child pornography, including Friesen. Most, if not all the authorities I referenced in Neasloss, either predated ordid not discuss Friesen. Ultimately, I acceded to a joint Crown and defence submission for a conditional sentence.

Some of thecircumstances of the offender in Neasloss were similar to the case before me. Mr. Neasloss was a 30-year-old first-time Indigenousoffender from the Gitxsan First Nation. Like Thomas Smith, Mr. Neasloss did not suffer from any substance misuse. Unlike ThomasSmith, Mr. Neasloss suffered from serious cognitive deficits. I acceded to the joint submission pursuant to the Supreme Court of Canadadirective in R. v. Anthony-Cook, 2016 SCC 43.

Although the proposed sentence was not one that, absent a joint submission, I would haveotherwise imposed, I was unable to say it would cause a reasonable person to conclude "the proper functioning of the justice system hadbroken down." I note that in R. v. Bordal, 2022 BCPC 19 , Judge Whonnock reluctantly imposed the suspended sentence withtwo years’ probation for a non-Indigenous first-time offender who pled guilty to possession of a modest collection of child pornography. [56] It is noteworthy that in Anthony-Cook, at para. 34, the Supreme Court of Canada held that a sentence imposed as a result of

a joint submission has little or no precedential value. That is because the sentence is not the result of a judicial analysis.

The sentencing judge’s role in a joint submission is not to assess the fitness of the sentence, but rather, to accept the submission unless the proposed sentence is “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.” CONDITIONAL SENTENCE [ 57 ] Thomas Smith seeks a conditional sentence pursuant to s. 742.1 of the Criminal Code , which the Crown opposes under the aegis of Friesen . [ 58 ]

Section 742.1 of the Criminal Code states: Imposing of conditional sentence 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence under any of the following provisions: (

i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder), (ii)

section 269.1 (torture), or (iii)

section 318 (advocating genocide); and (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more. . . . [ 59 ] R. v. Proulx , 2000 SCC 5 , Lamer C.J.C. said, at para. 50: 50 A literal reading of s. 742.1(

a) suggests that the decision to impose a conditional sentence should be made in two distinct stages. In the first stage, the judge would have to decide the appropriate sentence according to the general purposes and principles of sentencing (now set out in ss. 718 to 718.2). Having found that a term of imprisonment of less than two years is warranted, the judge would then, in a second stage, decide whether this same term should be served in the community pursuant to s. 742.1 . . . . See also R. v. Sharma , 2022 SCC 39 , at para. 13 . [ 60 ] In this case I am satisfied: a. Thomas Smith was not convicted of one of the offences listed at paras. 742.1(

b) and (c) (“exclusionary provisions”); b. The Crown seeks a term of incarceration of two years less one day, which I would not exceed; and c. Despite Dr. Farstad’s risk assessment, taking into consideration all of Thomas Smith’s personal circumstances, I conclude the safety of the community would not be endangered by Thomas Smith serving the sentence in the community. I am mindful of Dr. Farstad’s assessment that Thomas Smith presented a moderate risk to reoffend is now stale-dated. The Gladue Report, filed July 15, 2022 (almost a year after Dr.

Farstad’s risk assessment) provides further information that I find further mitigates Thomas Smith’s risk to the community. Specifically, Thomas Smith was engaged in weekly counselling sessions with Olga Morrow.

Counsel for Thomas Smith advises the court this is an “empathy-type counselling”, which is similar to that provided at Ford Mountain Correctional Centre (“FMCC”) in its sexual offender’s treatment program. [ 61 ] Having concluded that three of the preconditions to a CSO have been satisfied, I must now focus my inquiry as to whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to s. 718.2 of the Criminal Code . [ 62 ] The BC Court of Appeal, even pre- Friesen , has held that “[e]xcept in exceptional cases, those who possess child pornography will be incarcerated”: R. v.

Alexander , 2019 BCCA 100 , citing Swaby , at para. 42. To meet this high threshold, the offender would have no criminal record, was otherwise of good character, whose degree of responsibility was reduced by reason of their limited cognitive functioning or mental illness, which was causally connected to their criminal behaviour. This was the case in R. v. Swaby , 2016 BCPC 478 (November 14, 2016), upheld in R. v. Swaby , 2017 BCSC 2020 , aff’d 2018 BCCA 416 , leave to appeal to the SCC ref’d, 2019 CanLII. No. 55715. Mr.

Swaby pled guilty to one count of possessing a collection of child pornography comprising 400 videos. At the time of the offence, Mr. Swaby was 23 years old; at the time of sentencing, he was 26. He presented a low risk to reoffend. The court found the offender’s lower intellectual functioning, combined with the presence of severe depression and probable psychotic disorder, would have impacted his decision-making and judgment, and that this contributed to his commission of the offence. PCJ Galati imposed a four-month CSO followed by two years’ probation which was upheld on appeal.

[ 63 ] There are, however, cases such as Quested , handed down a year prior to Friesen , where the court considered a conditional sentence appropriate. At the time of sentencing, Mr. Quested was a 73-year-old first-time offender. Judge Higinbotham found aggravating the relatively large size of Mr. Quested’s collection of images and their nature. He found mitigating the fact Mr. Quested: (

a) had no criminal record; (

b) led a productive and prosocial life (he was an accountant) who was a highly respected member of the community, supported by his wife of 50 years, a loving parent, and doting grandfather, (

d) pled guilty; (

e) expressed remorse; (

f) demonstrated insight into the consequential harm of his action; (

g) immediately upon his arrest, commenced counselling with a psychologist with the appropriate expertise; (

h) complied with strict bail conditions over a lengthy period of time; and (

i) suffered from a significant and potentially deadly medical condition (a dangerous, and perhaps fatal, inoperable brain lesion resulting from a brain stem stroke less than two years prior to his sentencing). Judge Higinbotham sentenced Mr. Quested to a 12-month CSO followed by 12 months’ probation. [ 64 ] The Supreme Court of Canada handed down Friesen on April 2, 2020, wherein it sent strong messages to sentencing courts that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities.

Sentences for these crimes must increase. [ 65 ] I have set out below the authorities I considered in roughly chronological order. [ 66 ] In R. v. Bisson , 2020 BCSC 1778 (June 25, 2020), Justice Weatherill imposed an 18-month CSO followed by three years of probation on a first-time 55-year-old offender who pled guilty to one count of being in possession of child pornography. Justice Weatherill found the following circumstances aggravating: (

a) the offender’s collection comprised over 7,000 images and almost 200 videos; (

b) the nature of the collection was “in a word sickening”; (

c) the offending behaviour occurred for 10 years before Mr. Bisson’s arrest; (

d) Mr. Bisson engaged in sharing child pornography and chatting with other users online. Justice Weatherill found mitigating the fact Mr. Bisson: (

a) had no criminal record; (

b) save for his offending behaviour, Mr. Bisson had lived a law-abiding and productive life; (

c) entered an early guilty plea during the COVID-19 epidemic; (

d) accepted responsibility for his offence from the moment of his arrest; (

e) was extremely remorseful for his criminal behaviour; (

f) showed insight and recognized he needed treatment and counselling; (

g) was highly motivated to accept treatment and counselling to address his criminal behaviour. He agreed he needed help and wanted to know what led him down the path towards his offending behaviour; (

h) was assessed as a low risk of recidivism; (

i) Mr. Bisson had complied with strict bail conditions for over a year; and (

j) had been formally diagnosed with generalized anxiety disorder and major depressive disorder, and admits to suffering from an addiction to child pornography. Justice Weatherill accepted these mental-health issues were not only causally connected to the offence, but also played a central role in the commission of the offence. [ 67 ] In R. v.

Williams , 2020 BCCA 286 (October 22, 2020), the trial judge had imposed a 3.5 year sentence for sexual interference committed on the victim M.B., and four years for the same offence committed against the victim N.D., with each being reduced by six months following consideration of the totality principle. The Court of Appeal had reduced the net total sentence to four years (i.e. 1.5 years for the offence involving M.B. and 2.5 years consecutive for the offence involving N.D.).

The Crown appealed to the Supreme Court of Canada which referred the matter back to the British Columbia Court of Appeal “for disposition in accordance with” Friesen . Upon hearing the appeal afresh, the BC Court of Appeal held that the effective custodial sentence of five years imposed on the offender for two counts of sexual interference was fit despite the sentencing judge’s error in failing to consider as mitigating the offender’s mental health and personal circumstances.

Justice Abrioux for the court notes, at para. 33: [33] First, as noted in Badhesa , mental health issues may reduce a sentence because the offender’s moral culpability is attenuated.

But this factor must be considered in light of Friesen , in particular the comments of the Court at para. 75, quoted at para. 27 above. [Emphasis in original.] [ 68 ] However, goes on to say: [37] I would add that an offender’s personal circumstances cannot be used to reduce a sentence to a point where the sentence becomes disproportionate. . . . [ 69 ] In Krock (October 8, 2020), the first time 54-year-old offender pled guilty to one count of possessing child pornography, despite triable issues. Justice Beames found his remorse genuine and mitigating.

He had a high-school education, steady work history and was a low risk to reoffend. Mr. Krock suffered a mild neurocognitive disorder due to a traumatic brain injury sustained in a prior motor vehicle accident. In sentencing, Justice Beames took into consideration that Mr. Krock may have a “somewhat reduced level of moral culpability” given his cognitive impairments and psychological challenges. Justice Beames sentenced Mr. Krock to nine months in prison. She states: [32] While the evidence satisfies me that Mr. Krock is at a low risk to reoffend, that only impacts on the objective of specific deterrence.

I am simply unable to conclude, given the seriousness of this offence, including the duration of the offence, the volume of the images, and the extreme nature of at least some of the acts depicted, that a conditional sentence order, even at the upper range, would meet either of the objectives of general deterrence or denunciation. [33] That a term of imprisonment may affect Mr.

Krock’s ability to keep his home and to find employment in the future, given that I have been told he has just been released from his employment, is unfortunate, but it is not an unusual result of committing an offence and eventually being sentenced, and in any event it is as a result of Mr. Krock’s own doing. [ 70 ] In M.C.H . , (November 20, 2020), the 35-year-old first-time offender pleaded guilty, demonstrated genuine remorse, showed some insight and suffered hardship and loss as a result his charges. M.C.H. possessed a “moderate collection of images and videos”, none of which depicted overt violence.

After considering M.C.H.’s mitigating factors and the absence of aggravating factors, Judge Jackson sentenced M.C.H. to 10 months’ jail, followed by three years’ probation. [ 71 ] In Large (November 9, 2020), Judge Korturbash determined that notwithstanding Mr. Large’s significant mitigating circumstances, the size and nature of his collection of child pornography required a carceral sentence. Judge Korturbash’s reasons are compelling:

[51] To suggest that Mr Large’s circumstances are in any way exceptionally mitigating would conflate the ordinary with extraordinary. [52] I must balance Mr Large’s plea for mercy with

section 718(f), which requires his sentence to acknowledge the harm done to victimsand the community. There is nothing within my power that would redress the damage done to the children in all of these images, but Mr.Large’s sentence can and should to some degree reflect this damage. The only way to adequately acknowledge the harm is to send him tojail. [53] I recognize that Mr. Large did not take the pictures, make the videos, or disseminate them, but there is no market for any of what hewas collecting without people like him.

Justice Molloy said in R v Kwok, (ONSC), at para 52, "It is crucial to deterpeople at the entry level from ever possessing child pornography. Perhaps by killing, or at least diminishing, the market for childpornography, the production side can also be curbed." [54] Mr. Large proposes that he serve his sentence under house arrest in his parents’ home.

His parents’ basement is the same placewhere he spent most of his waking hours downloading and cataloguing disturbing images and videos of young children. [55] Although one should not underestimate the stigma of house arrest, one should also not minimize the potential disrepute broughtupon the administration of justice by imposing a sentence that merely mimics an offender’s reality. [56] Currently - and before his arrest - Mr. Large does not dread spending time in his parents’ basement; however, he does dread going tojail. [57] A conditional sentence which would require Mr.

Large to spend time at home for several months, unless at work or school,exercising or shopping, would not be seen by many deviant personalities as much of a deterrent when weighed against the strength oftheir urges to access these types of depraved images. Hopefully a message that if you are caught, you will go to jail, will resonate withthose who are merely tempted to take a peek. [58] As the Crown points out, there is a time and a case when a conditional sentence is appropriate. This is neither that time nor thatcase. [72] In R. v.

Welsh, 2021 YKTC 44 (January 6, 2021), the 25-year-old Indigenous offender pleaded guilty to possession of childpornography. Crown proceed summarily. Mr. Welsh, (

a) had no criminal record; (

b) cooperated with the police; (

c) pleaded guilty; (d)had a supportive family and spouse; (

e) was otherwise of good character; (

f) had been a productive member of society; (

g) was genuinelyremorseful; (

h) engaged in counselling; and (

i) was himself a victim of sexual abuse as a child. T.C.J. Chisholm stated (at para. 37) thateven though Mr. Welsh grew up in a stable family environment, the court could not discount the fact that the residential school systemhad an impact on his upbringing to some degree, since it deprived him of a connection to his First Nation heritage. T.C.J. Chisholmfound Mr. Welsh’s moral blameworthiness was somewhat attenuated because of his personal circumstances, but nonetheless remainedhigh. Mr.

Welsh’s offending behaviour was not an isolated incident, but encompasses a period of approximately 14 months during whichhe accumulated a significant collection of child pornography. [73] T.C.J. Chisholm could not find a CSO would satisfy the principle of proportionality in light of the predominate weight whichmust be given to denunciation and deterrence. A conditional sentence would not satisfy the principle of proportionality. T.C.J. Chisholmimposed a sentence of eight months’ jail followed by two years’ probation. [74] In R. v.

Cole, 2021 BCSC 293 (February 26, 2021), the Crown had proceeded summarily against a 31-year-old mentally disabledfirst-time offender who entered an early guilty plea to a single charge of possession of child pornography. His collection was relativelysmall (19 unique images). Mr. Cole was born with cerebral palsy and experienced frontal lobe seizures. His intellectual functioning wasat the level of a 10 to 14 year old. He did not have the skills or the cognitive ability to reside on his own in the community because of hisintellectual impairments.

He was in the care of Community Living BC and at the time of the offence was residing in the care of a familyin the community. The Provincial Court Judge imposed a six-month CSO, followed by a two-year probation order, which Mr. Coleappealed. Justice J.W. Williams engaged in a lengthy discussion of Friesen and R. v. Williams, 2020 BCCA 286. Ultimately, JusticeWilliams dismissed Mr. Cole’s appeal from sentence and declared the minimum sentence of six months’ imprisonmentunder s. 163.1(4) (

b) of the Code is of no force and effect. [75] R. v. Gerbrandt, 2021 ABCA 346 (October 15, 2021), was a Crown appeal from a suspended sentence with three years’probation imposed after the offender pled guilty to one count of possession of child pornography and one count of making available childpornography. The Alberta Court of Appeal allowed the appeal and substituted a sentence of two years less one day to run concurrently,followed by two years’ probation.

The appellate court states at para. 96: [96] Reinforcement of the laws criminalizing the abuse of children is certainly a pressing and substantial objective of these laws. Theconsiderations in Sharpe were not only visibly carried forward in Friesen but were elaborated in an unambiguous message about theharms intended to be suppressed, and about the short-term and long-term ramifications for both the victims and society at large. As forthe role of the Courts, Friesen and was equally unambiguous. It is “not sufficient for courts to simply state that sexual offences againstchildren are serious.

The sentence imposed must reflect the normative nature of the offender's actions and the consequential harm tochildren and their families, caregivers, and communities”: Friesen at para. 76 (emphasis added). [76] Post-Friesen, in R. v. M.M., 2022 ONCA 441 (June 6, 2022), the Ontario Court of Appeal allowed a Crown appeal from a 15-month conditional sentence imposed on an offender convicted of possessing and making child pornography. The complainant was 15.She sent him images of her breasts which he admitted to possessing. He sent her images of his penis.

They agreed that when she turned16, they would meet and have sex. She was the foster daughter of his aunt. The Court of Appeal found that a 15-month carceral sentencewould have been appropriate. The appellate court stated: [13] The Crown argues that the trial judge erred in principle and the conditional sentence he imposed was demonstrably unfit in lightof R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1.

[14] We agree. [15] The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase.There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v.Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand thatcarceral sentences will ordinarily follow. [16] Conditional sentences for sexual offences against children will only rarely be appropriate.

Their availability must be limited toexceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could notadequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and wemake no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment shouldhave been imposed. [77] M.M. has been affirmed in: R. v. McCaw, 2023 ONCA 8 ; R. v. Ritchie, 2023 ONCA 53 ; R. v. Rule, 2023ONCA 31 ; R. v. B.M., 2023 ONCA 224 ; R. v.

B.S., 2023 ONCA 6 ; and cited with approval in R. c. Londono,2022 QCCA 1097 ; Attorney General of Quebec v. Terroux, 2023 QCCA 731 . [78] Since Friesen, the courts in British Columbia have typically imposed carceral sentences for the possession of child pornography,even in the presence of significant mitigating factors and an absence of aggravating factors. The sentencing courts generally consider aCSO as inadequate to address the principles of general deterrence and denunciation. There are of course exceptions. [79] In R. v.

Sheffield, 2020 BCSC 1807 (November 13, 2020), cited in Partanen (at para. 25), the 74-year-old first-time offender pledguilty to possession of child pornography. His collection was fairly large (1,600 to 2,600 images) depicting boys and girls from toddlersto teenagers engaged in various sexual acts that fell into the upper levels of the Oliver scale of depravity. The police could not undertakea further search of Mr. Sheffield’s home due to health hazards. Mr. Sheffield was determined to be a low to moderate risk of reoffending.He was willing to undertake therapy if ordered to do so.

Justice Gropper found that although a conditional sentence could satisfy specificdeterrence, it did nothing to address the principles of general deterrence and denunciation. Justice Gropper determined a 10-month jailsentence followed by a two-year period of probation to be the appropriate sentence in this case. [80] R. v. Goodell, 2021 BCSC 735 (March 9, 2021), Justice Warren sentenced a 73-year-old first-time offender after being foundguilty after a trial for possessing child pornography. Mr. Goodell: (

a) had no criminal record; (

b) suffered an unhappy childhood; (

c) wasdiagnosed with ADHD; (

d) completed high school and some university; (

e) had a good work history; (

f) possessed a small collection ofchild pornography, comprising 19 images which fell into the lowest level on the Oliver scale; (

g) was assessed as a low to moderate riskof accessing child pornography; (

h) showed little remorse; (

i) demonstrated some insight into the traumatic impact of child pornographyon its victims (the children); and (

j) expressed a willingness to engage in treatment. Moreover, there was no evidence Mr. Goodellpurchased the child pornography or was involved in its production or distribution. Justice Warren was satisfied by cogent medicalevidence that Mr. Goodell’s serious depression was causally related to his offending. She also accepted that as a result of his severeobesity and limited mobility, Mr. Goodell had a significantly heightened risk of a serious illness from COVID-19, and that a jail sentencewould be significantly harsher on him than if he were healthy.

Justice Warren concluded, “with some reluctance . . . this is anexceptional case such that a CSO, with restrictive and punitive terms, is an appropriate sentence for Mr. Goodell”. [81] In R. v. Capewell, 2021 BCSC 904 (April 13, 2021), the 71-year-old first-time offender pled guilty to possessing a fairly largecollection of child pornography. Mr. Capewell’s mitigating factors included his: (

a) guilty plea; (

b) lack of a criminal record; (

c) strongwork history; (

d) insight, insofar as he recognized the children who are depicted in the images are victims; (

e) willingness to continue toseek counselling; and (

f) risk to reoffend was low. Mr. Capewell was also the primary caregiver for his disabled wife. There was noevidence Mr. Capewell suffered from any cognitive deficit or mental disorder. His symptoms of anxiety and depression did not appear tomeet the diagnostic threshold for any mood, anxiety, or paraphilic disorder. Justice Gerow declined the defence’s request for a CSO andimposed an eight-month jail sentence followed by 18 months’ probation. She states: [54] However, in my opinion, a conditional sentence allowing Mr.

Capewell to remain in his house with computer access does notsufficiently address the principles of deterrence and denunciation which are the primary objectives of sentencing for this offence. Fromthe community's perspective, allowing Mr. Capewell to continue to reside in his home with computer access does not reflect any changeto his life or represent any punishment. [82] In Hagen (BCPJ: November 20, 2020; BCCA (May 28, 2021)), the 36-year-old Indigenous offender pled guilty to possession ofchild pornography.

At the sentencing hearing, the Crown sought a conventional jail term in the “mid-range” of four months to two years,followed by three years’ probation. Mr. Hagen sought a conditional sentence of eight to ten months, with two years’ probation. JudgePatterson of this Court took into consideration the fact that Mr. Hagen: (

a) had no related convictions; (

b) did not produce or distributechild pornography; (

c) admitted the offence when arrested; (

d) pled guilty; (

e) undertook counselling of his own volition; (

f) possessed a“moderate” collection of pornographic images; (

g) possessed a collection that did not involve the infliction of bodily harm or gratuitousviolence against the children; (

g) did not pose a danger to children; (

h) indicated a willingness to continue with counselling; (i)demonstrated “genuine remorse”; and (

j) had been adversely impacted by the fact of the charges, including loss of employment and“public shaming”. Despite the mitigating factors and the absence of aggravating factors, Judge Patterson imposed a 10-month jailsentence, followed by three years’ probation. [83] Mr. Hagen appealed his sentence on the basis the judge: (

a) applied the wrong legal test for a conditional sentence; (

b) failed toconsider or gave inadequate effect to the appellant’s Indigenous background and childhood sexual victimization; and (

c) imposedunreasonable terms for both the probation order and the s. 161(1) prohibition. The appellate court upheld the sentence of 10 months’conventional imprisonment and three years’ probation; however, reduced the s. 161(1) prohibition to five years and amended thewording of the terms of probation and the s. 161(1) order. [84] In R. v. Partanen, 2021 BCPC 245 (July 27, 2021), the offender’s child pornography collection comprised 3,817 unique imagesand 453 unique videos, which included “grotesque assaults of the most heinous and depraved sort perpetrated against the most

vulnerable, defenceless and innocent victims one can imagine exist.” Mr. Partanen had a very troubled and often traumatic upbringing.He suffered shocking neglect at the hands of his drug-addicted mother, physical and psychological abuse from his father, and sexualabuse when he was about five or six years old from an older cousin. He had no criminal record and pled guilty very early on in theproceedings. The sentencing judge found the child pornography had a lifelong crippling impact on the victims. Judge E. Duncansentenced Mr.

Partanen to nine months’ jail followed by three years’ probation, with the usual ancillary orders. [85] In R. v. Martin, 2021 BCPC 195 (August 19, 2021), a 45-year old first-time offender pled guilty to possession of childpornography over a 30-day period. Mr. Martin had a strong work history and a commendable record for volunteering in his community.Judge Harris found aggravating: (

a) the volume of pornography possessed; (

b) the nature of the material; (

c) Mr. Martin sharing thematerial; (

d) Mr. Martin breached his employer’s trust by using the fire department’s Wi-Fi addresses as a tool in his offending; and (e)the images involved the abuse of persons under the age of 18 years, some as young as 6 – 8 years old. Judge Harris found mitigating Mr.Martin’s: (

a) guilty plea; (

b) genuine remorse; (

c) support in the community; (

d) lack of criminal record; (

e) rehabilitative steps taken;and (

f) low to moderate risk of reoffending. Judge Harris imposed a custodial sentence of 10 months followed by 12 months’ probation. [86] In R. v. McCrimmon, 2021 YKTC 28 (June 23, 2021), the 64-year-old first-time offender was found to have in his possessionchild pornography comprising 33,605 unique images and 4,696 unique videos of children ranging from approximately six months old to17 years of age. The content of the images traverses all five levels of the Oliver scale for depravity, including bondage, bestiality, andsexual activity with children who were clearly as young as two to three years of age.

In that case, the Crown presented to the court anumber of victim impact statements from the children, now adults, depicted in the collection. Despite a difficult and troubled childhood,Mr. McCrimmon had a long and consistent work history. He had support in the community from people he had known for many years;his remorse was clear and Mr. McCrimmon took active steps to deal with his offending behaviour with positive results. He wascompliant with his bail conditions for two years. T.C.J.

Brooks in McCrimmon (YKTC) considered the unchanged sentencing range fromR.L.W. to Hagen, for the offence of possession of child pornography and concluded that in light of Friesen, the sentences must increase,albeit incrementally. Judge Brooks imposed a 20-month jail sentence followed by two years’ probation for the s. 163.1(4)(

a) offence. Healso imposed a five-year s. 161 prohibition. [87] The Crown appealed Mr. McCrimmon’s sentence, seeking an increase to the jail sentence to three years and a s. 161 order to 20years. In R. v. McCrimmon, 2022 YKCA 1 (January 12, 2022), the Yukon Court of Appeal upheld the 20-month jail sentence and twoyears’ probation. The court did allow the appeal with respect to the s. 161(1) order and increased its length from five to 15 years, with theterms prescribed at sentencing. The appellate court affirmed the principles espoused in Friesen applied to possession of child-pornography offences.

As stated at para. 72, Justice DeWitt-Van Oosten states, “There is nothing about Hagen that should cause asentencing judge to treat two years’ imprisonment as the top end of the range of available sentences for possession of child pornographypost-Friesen, even for a first-time offender.” The Court of Appeal also affirmed Judge Brooks’ determination that probation could have adeterrent effect. Justice DeWitt-Van Oosten states at para. 61: [61] I see no error of principle here. The judge was correct at law.

Probation orders are principally focused on rehabilitation; however,they can also have a deterrent and denunciatory effect, particularly if they contain terms that significantly curtailliberty: R. v. Voong, 2015 BCCA 285at para. 61; R. v. Kodimyala, 2020 BCCA 275at para. 42; R. v. Aguilera Jimenez, 2020YKCA 5at para. 52. Also see R. v. Ellis, 2022 BCCA 278 , at para. 176. [88] On September 15, 2021, in the sentencing of R. v. Mitchell, 2021 BCPC 246 , Judge Sacca considered as aggravating thesize of Mr. Mitchell’s collection (over 500 images), the nature of the collection (animated), and the fact Mr.

Mitchell shared a sexualizedcartoon image and had inappropriate conversations with a youth who knew him while Mr. Mitchell occupied a position of authority andtrust. Judge Sacca found mitigating Mr. Mitchell: (

a) entered an early guilty plea; (

b) had no criminal record; (

c) was otherwise of goodcharacter; (

d) showed remorse through his commitment to counselling and rehabilitation; (

e) demonstrated insight into his role inperpetrating child abuse by consuming and sharing child pornography; (

f) was a low risk to reoffend; (

g) had ongoing support from hisfriends and family; (

h) suffered lasting trauma that he experienced as a vulnerable adolescent by the sexual exploitation he suffered andthe exposure to child pornography by his abuser. Judge Sacca found the totality of the mitigating factors was sufficient to render the case“exceptional” and imposed an 18-month CSO followed by 12 months’ probation. [89] On October 29, 2021, in R. v. Massini, 2021 BCPC 302 , the offender pled guilty to the charge of possessing childpornography. I acceded to a joint submission from the defence and counsel for a 10-month jail sentence followed by two-years’probation.

In that case, I found aggravating the fact Mr. Massini’s collection included images that were edited (photo-shopped) in adisturbing manner and the fact that the images included very young children. I accepted Mr. Massini: (

a) had no criminal record; (

b) wasa low risk to reoffend; (

c) was remorseful; (

d) showed insight; (

e) attended Sexaholics Anonymous for more than two years prior to hissentencing; (

f) had the support of the community; (

g) had otherwise lived his entire life in a prosocial manner and has been a productivemember of society. [90] R. v. Pelletier, 2022 BCPC 125 (March 1, 2022), involved a 39-year-old Indigenous male first-time offender with significantGladue factors, who possessed a very large child pornography collection. The Crown proceeded summarily. Despite his “very difficultand traumatic childhood”, Mr. Pelletier had multiple mitigating factors to his credit, including: (

a) an early guilty plea; (

b) earlycooperation with the police; (

c) remorse; (

d) insight into the harm caused to the child victims; (

e) willingness to take counselling; (f)presented a low risk to reoffend; (

g) compliant with his bail conditions; (

h) no criminal record; (

i) significant Gladue factors; (

j) fullparticipation in the development of the three Pre-sentence Reports

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