R. v. J.C. Date:, 2013 BCPC 237

Citation: R. v. J.C. Date: 20130815 2013 BCPC 0237 File No: 76070-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: F.A. Dubenski Counsel for the Defendant: P. Hertzberg Place of Hearing: Nanaimo , B.C. Date of Judgment: August 15, 2013

[ 1 ] THE COURT: J.C. (the "offender") was originally charged on a single-count information by way of an indictment on File 76070-1 of an offence contrary to s. 163.1(4) of the Criminal Code , which is a

section dealing with the possession of child pornography. [ 2 ] Pursuant to s. 606(4) of the Criminal Code he pleaded guilty to an offence under s. 163(1) (

a) of the Criminal Code . The matter is before me for sentencing. [ 3 ] I initially heard submissions on July 19, 2013. The matter was put over to today's date to hear further submissions and to deal with sentencing. [ 4 ] Section 163(1) (

a) of the Code reads as follows: 163 .

(1) Every one commits an offence who (

a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever. [ 5 ]

Section 163 is dealt with under the punishment

section of s. 169. It provides as follows: 169. Every one who commits an offence under

section 163, 165, 167 or 168 is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (

b) an offence punishable on

summary conviction. [ 6 ] Crown has outlined the circumstances that relate to this matter. No issue is taken with those circumstances as they relate to the material elements of the offence. I find the circumstances as outlined by Crown to be the facts in this case, and they are sufficient to support both a plea of guilty and a finding of guilt with respect to an offence under s. 163(1) (

a) of the Code . [ 7 ] I do not intend to deal in significant depth with the facts as they have been outlined by Crown; however, given the nature of this matter, it is necessary for me to at least provide a

summary. [ 8 ] As a result of a police investigation and the execution of a search warrant, police obtained copies of a photograph which had been posted by the accused on a gaming website chatroom. The photograph in question depicts a young child who I would describe as a toddler approximately two years of age in a bathroom setting strapped to a board, naked, with a naked adult visible from the waist down with exposed male genitalia. The adult is defecating on the child. The child is in obvious distress. The photograph is totally repugnant.

It is dehumanizing and is disturbing by any standards. [ 9 ] The offender in this matter did provide statements to the police. He was cooperative. He indicated to the police that his purpose in posting this photograph, which I understand he had downloaded from a child pornography site, was for shock value. The shock was directed at an individual with whom he had been communicating on the Internet at the gaming website chat room.

His stated intention was to "gross out" the individual with whom he was engaged in an Internet exchange. [ 10 ] As a result of the execution of the search warrant and a forensic review of the computer hard drive, as well as an external drive, the police discovered 8,300 images.

Of those 8,300 images, 65 were classified as child pornography and 300 of the images were classified as being obscenities or fell within the definition of "crime comic" under s. 163(7) and (8) of the Criminal Code . [ 11 ] The offender in this case has no criminal record other than the offence to which he entered a guilty plea in this matter. [ 12 ] I am going to have to stand down momentarily in order to obtain the two reports to which I intend to make reference which I believe are not before me. [ 13 ] THE CLERK: Were they made exhibits? [ 14 ] THE COURT: Yes, they are. [ 15 ] THE CLERK: I've got them. [ 16 ] THE COURT: All right.

If possible, I am going to get the copies from which I was working. I will stand down briefly. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED)

[ 17 ] THE COURT: Mr. Clerk, I am going to have to prevail upon you for the exhibit copies of the documents. [ 18 ] THE CLERK: They're right here. [ 19 ] THE COURT: Yes, thank you. [ 20 ] Before me are two reports that have been prepared in connection with this matter. The reports are first of all a forensic psychological/psychiatric assessment report dated May 16, 2013. That report has been completed by Kimberly L. Kreklewetz, PhD, who is a registered psychologist with the Forensic Psychiatric Services Commission, Nanaimo Regional Clinic.

I will refer to that report as the "Psychological Assessment Report." [ 21 ] There is a second report which is a pre-sentence report. The report was completed July 9, 2013. That report was completed by Paul Whitehead, a probation officer at the Nanaimo Community Corrections Office. I will refer to that report as the "Pre-Sentence Report." [ 22 ] The Psychological Assessment Report is detailed in nature.

That particular report deals with the offender's version of the offences; his social history; current circumstances; his psychological, sexual, and relationship history; clinical impressions and current mental health status; results of psychological testing; a risk assessment; and a

summary of recommendations. It is detailed in nature, it is comprehensive, and it is helpful. [ 23 ] That report provides an excellent

summary of this particular offender. I will quote from paragraph 7 of the report under the heading of "Summary and Recommendations" as follows [as read in]: Before the court is J.C., a 22-year-old male awaiting sentencing for possession and distribution of obscene material. The offence involved J.C. uploading highly offensive images (e.g. a naked adult male defecating on a restrained infant) to a photo-sharing website reportedly to shock others and elicit their comments. A subsequent search of his computer revealed thousands of offensive and shocking images, including 65 child pornography images.

J.C. has no criminal record or history of police involvement prior to the index offence. J.C. denied any history of substance abuse or mental health contact. He acknowledged a longstanding history of social anxiety and isolation beginning at age 13. J.C. meets criteria for social anxiety disorder. Additionally, he reports that he is experiencing symptoms such as depressed mood, irritability, and loss of interest and pleasure. A diagnosis of dysthymic disorder (a chronic less severe form of depression) is queried at this time.

Information gleaned from the clinical interview in completion of a suicide assessment worksheet indicates that J.C. presently poses a low risk for suicidal harm. Due to his isolation and lack of support network, the writer informed J.C. of available resources to access should his mood deteriorate or he begins to experience thoughts of suicide. In discussing the index offence, J.C. had difficulty explaining the rationale for his behaviour. He denied ever using the images for sexual purposes such as fantasizing or masturbation and similarly denied any sexual attraction to minors.

He stated simply that he posted the images for "shock value," presumably receiving some enjoyment from other's reactions. J.C. did not appear to have considered the fact that the children depicted in the pornographic images were victims of sexual violence. Further, he reported that at the time of the offence he was unaware that his behaviour could constitute a criminal offence. It is this writer's opinion that the index offence does not appear to have been motivated by a deviant sexual interest.

Instead, it seems that boredom, coupled with social isolation from peers and/or family (who could provide J.C. with feedback regarding his behaviour) seems to have led him astray. Overall results of risk assessment (Risk for Sexual Violence Protocol - RSVP) indicate that J.C. presents a low risk to reoffend sexually. Note that the risk assessment and hypothesis regarding his offending behaviour are limited by the lack of collateral information available at the time of this report, particularly J.C.'s refusal to provide consent for the writer to contact members of his family.

Should subsequent information come to light that indicates a pattern of deviant sexual behaviour/interest, the risk estimate would change accordingly. [ 24 ] The Pre-Sentence Report also is comprehensive, well-written, and useful. In the Pre-Sentence Report, the author, Mr. Whitehead, delves into the family relationships, living arrangements, and associates of the offender. The report from the writer’s discussions with the offender's grandmother, confirms that the offender came to live with her when he was about 13 years of age. Essentially, the child was abandoned to the care of his grandmother.

The family from which the offender was delivered to his grandmother was described as desperately poor by the grandmother. The report confirms that the offender has limited contact with other family members and limited interaction with his stepfather since his parents' separation in 2011. It is the view of the grandmother that the offender will remain with her for a long time since she is of the view that he does not have the life skills to live independently. She describes him, as reported by Mr.

Whitehead, as "a loner and keeps to himself on gaming sites or surfing the net." [ 25 ] Under the heading of "Education, Vocation, and Employment," the Pre-Sentence Report indicates that J.C. experienced difficulties in school but did complete his grade 12 through attendances at Vancouver Island University. His education experience while at high school was marked by constant bullying, which again served to isolate him from his peers.

He subsequently withdrew from high school as a result of that bullying and pursued his education by the Internet. [ 26 ] The Pre-Sentence Report indicates that J.C. is, for all intents and purposes, unemployed but he does maintain two paper routes. [ 27 ] The report indicates under the heading of "Behaviour and Emotional Status" that J.C. has not been involved with mental health professionals except for the purposes of the Psychological Assessment Report that was completed in these matters.

[28] Under the heading "Attitude and Understanding Regarding the Offence," the Pre-Sentence Report again confirms anacknowledgement on behalf of the offender that he naively believed that he was not doing any harm by the offending acts for which hehas entered a plea of guilty. Again, the notion of reliance of the shock value of the photograph seems to have been his prime motivationfor the possession and distribution of the offending photograph. [29] The Pre-Sentence Report also provides some insight into J.C.'s life marked by isolation, over-involvement with the Internet,and interacting on gaming sites.

The conclusion reached in the report is that J.C. has essentially "withdrawn from the socialmainstream." [30] Crown's sentencing position with respect to this matter may be summarized in the following terms. [31] Crown is seeking a suspended sentence accompanied by a probation order of 18 months with specific terms that are designed toreinforce to the offender the significantly harmful effects of the type of obscene material which J.C. was possessing and in the case ofthe photograph which he was responsible for distributing. [32] The position advanced by Mr. Hertzberg as counsel for J.C. is that he, Mr.

Hertzberg, agrees that a period of probation, with theterms being suggested by Crown, is appropriate in these circumstances. However, what is being proposed to me is that I should considerand grant J.C. a conditional discharge pursuant to s. 730 of the Criminal Code. [33] In support of Crown's position, Crown points to a number of aggravating factors: first of all, the photograph itself and itsoffensive content. The photograph is, as I say, characterized by Crown as at the higher end of obscene material. It is viewed by Crownas having two particular egregious aspects to it.

One is the sadistic nature of the photograph depicting the child in bondage, and theother is the fact that it does involve a child of tender years. [34] Crown submits that as a second factor that I should consider the additional materials that were found to be in the possession ofthe offender.

Those are not the subject matter of the charges before me, but as I understand Crown's position, I am being asked to drawthe appropriate inference that this offender was not a stranger to the type of websites where this material is most unfortunately availableto people. [35] In addition, the Crown has pointed out that there are some mitigating factors that I should take into consideration. The firstmitigating factor is that there is no apparent widespread distribution of the offending photograph. Next there is a lack of a criminalrecord.

Furthermore the offender engaged in this behaviour, so far as can be determined, not with a profit or a gain motive and that thereappears not to be any sexual gratification aspect to the photograph or its use. [36] Crown also points to the fact that there has been a widespread level of cooperation by the offender in terms of dealing with thepolice.

I do note, however, that there seems to have been a lesser amount of cooperation by the offender when it came to dealing with thepsychological assessment or the forensic Psychological Assessment Report that was completed to assist the court. [37] With respect to the position advanced for a conditional discharge, Mr. Hertzberg adopts the same mitigating factors that werementioned by Crown. In the first submissions that I heard, there was some issue taken by Mr.

Hertzberg that the photograph itself maynot be what would traditionally be viewed as sadistic in nature; rather, he indicates that it certainly is offensive by its very nature. Theaggravating factor of the very nature of that photograph and perhaps the lack of insight by J.C. as to the offence that he has committedand the implications of his behaviour are dealt with by Mr. Hertzberg in the context of the personal circumstances of J.C. as enunciatedto and by the authors of the two reports that are before me. [38] Mr.

Hertzberg points to the social isolation and anxiety and the self-image issues that seem to plague J.C. [39] Mr. Hertzberg does point out that given the comprehensive nature of the investigation that was required by this particular case,that J.C. has entered what can be regarded as a relatively early plea in this matter which, again, I must take into consideration as amitigating factor. [40] It is fair for me to conclude that the terms of the proposed probation order are not in dispute and that some thought has goneinto consideration of the specific terms that should be included.

I have reviewed those terms carefully, and I will accept the terms thathave been presented to me and incorporate those as part of my sentence. [41] What I must now turn to is whether or not this is a matter for which a conditional discharge should be made available to J.C. Inthat regard, I note that the position that has been advanced by Crown is in opposition of a conditional discharge; in that regard, Crownhas referred me to two specific cases.

It is submitted by both the Crown and defence that they have not been able to locate any casesupon which I can specifically rely when considering whether or not this is a matter which would make it appropriate for a conditionaldischarge. [42] The case which Crown has referred me to and which I find to be most helpful is R. v. Ingvaldson, [2012] B.C.J. No. 2717, 2012BCPC 437. It is a decision of my brother Judge Kitchen rendered on December 4, 2012.

That decision is useful insofar as the analysisundertaken by Judge Kitchen and specifically as it relates to the approach used by courts in dealing with matters particularly relating tochild pornography. [43] In the Ingvaldson matter, the facts were materially different. Mr. Ingvaldson was a teacher at a Vancouver high school. He wasin possession of child pornography images, and those included 41 images of prepubescent boys and girls being sexually assaulted andpenetrated by male adult penises.

There were also, according to the facts set out in the case, images of very young children in sexualposes. [44] In the Ingvaldson case, Judge Kitchen reviewed the decision of R. v. Sharpe, 2001 SCC 2 , [2001] S.C.J. No. 3, inwhich paragraphs 28, 34, 86, 87, 88, 89, 90, 91, and 92 canvassed the concerns that both Parliament and I dare say society has withrespect to pornography and, in particular, with respect to child pornography. Paragraph 18 of Judge Kitchen's decision makes reference

specifically to paragraph 92 of the Sharpe decision, which reads as follows: 92 The fifth and final harm -- the abuse of children in the production of pornography -- is equally conclusive. Children are used andabused in the making of much of the child pornography caught by the law. Production of child pornography is fueled by the market forit, and the market in turn is fueled by those who seek to possess it. Criminalizing possession may reduce the market for childpornography and the abuse of children it often involves. The link between the production of child pornography and harm to children isvery strong.

The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in thecourse of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay withthe child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade.

Even when it does not, the childmust live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be beingwatched and enjoyed by someone. [45] The Ingvaldson case resulted in a jail sentence to the offender in that case of a three-month sentence followed by a two-yearperiod of probation. One of the factors taken into account was the fact that the pornographic material in that particular case wasextremely offensive.

There was a depiction of very young children, including penetration of the children, and the fact that the materialwas accessed by the offender on a school computer. There was also the fact that he was also a teacher and in a position where he wasobliged to report child pornography; accordingly that was an aggravating factor that was taken into account. [46] The Ingvaldson case can be contrasted with another decision which was referred to me by Crown. That is the R. v. Action Salesand Rentals Ltd. case, a decision of the Supreme Court of Newfoundland - Trial Division, [1987] N.J. No. 271.

That case dealt with anappeal of convictions for the possession of obscene material by, as I read the case, a video store. The case is referred to me notnecessarily for its precedential value but certainly to demonstrate, I think, the difference as to the present approach that the courts haveadopted with respect to obscenity and pornographic materials, and the more benign approach that may have been prevalent in the late1980s. That earlier approach certainly has been eclipsed by the development of the case law since that time.

Ingvaldson, of course, is anexample of where the courts and certainly Parliament and society have taken a much more serious approach to this disturbing problemwithin society. [47] The position that Crown is advancing is that this is a matter that I should exercise my discretion and not provide a conditionaldischarge simply because of the very nature of the material that was contained within the photograph being distributed by the offender inthis case and that the adequate specific and general deterrence cannot be achieved by the use of a conditional discharge. [48] Mr.

Hertzberg, on behalf of the offender, approaches this matter from a different perspective. Under s. 730 of the CriminalCode, a conditional discharge may be granted if there is the ability to meet the conditions that have been set out in R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559 (B.C.C.A.). In the Fallofield decision at paragraph 21, the court lays out the applicationof s. 730 and the conditions for a conditional discharge. Those are summarized in the 2013 Martin's Judicial Edition of the CriminalCode at page 1483, and I will quote that particular provision: In R. v.

Fallofield, the court draws the following conclusions as to the application of this section:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law orthe offence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that itis not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given by s. 662.1 [now s. 730] should not be exercised as an alternative to probation or suspended sentence.

(8) Section 662.1 [now s. 730] should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases. [ 49 ] It is the submission on behalf of the offender in this matter that the imposition of a suspended sentence with a resulting criminal conviction on J.C., first of all, is not in his best interest and second, certainly does not advance the public interest. It is Mr.

Hertzberg's suggestion that the first precondition for the granting of a conditional discharge, namely that it is in the best interests of the accused exists in this matter.

With respect to the second condition precedent of not being contrary to the public interest, he says that given the isolation that this man before me presents, that entering a criminal conviction against him rather than a conditional discharge will simply provide a new set of circumstances for increased isolation of this individual and not afford him the opportunity of either participating in society or making a positive contribution to society. [ 50 ] It is suggested to me that given J.C.'s limited employment opportunities at this point, and his limited employment record, that the imposition of a criminal conviction will serve as a further barrier to him gaining employment and being able to enter into a more mainstream participation with the broader community.

Mr. Hertzberg indicates that the reports that I have referred to do show insight on the part of J.C. and that those reports adequately demonstrate that he is remorseful, that he has demonstrated an appropriate response, and that further deterrence by way of the suspended sentence is not necessary in order to meet the sentencing principles set out in our Criminal Code . [ 51 ] The Criminal Code sets out in s. 718 as follows: 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 52 ] The activities of J.C. can be described as nothing less than abhorrent. I must weigh what I view as his totally unacceptable behaviour against the personal circumstances of this young man who is before me. He is clearly an individual who, for reasons that are partly described in the two reports before me, has isolated himself and I dare say has been bypassed by mainstream society. He lives in a world that is detached from the realities of modern society.

He is an individual who clearly needs some assistance, both at a professional level and I am going to suggest by way of directions from this court, in order to make him more clearly aware of his duties and responsibilities within society. I am not satisfied that imposing upon him a suspended sentence necessarily will add anything more to the deterrence and denunciation of his conduct than can be achieved through a conditional discharge and the conditions attached to that conditional discharge.

Clearly, the fact that he is before this court and is facing serious charges in itself will send a message of deterrence and denunciation for other people who may view this type of behaviour as acceptable or within what could be regarded as mainstream. [ 53 ] Accordingly, I am satisfied that the conditions as set out in Fallofield can be achieved and the preconditions are satisfied, and accordingly, I will impose upon and grant J.C. a conditional discharge. [ 54 ] I am going to ask you to stand now, J.C. [ 55 ] I believe Mr. Hertzberg has explained the nature of a conditional discharge to you.

In essence, if you satisfy the conditions of the conditional discharge, you will not have a criminal record. However, if you breach any of the conditions that I impose upon you, it is very possible that you will lose the benefit of that conditional discharge and you will be brought back before the court in order to deal

with those allegations of breach. [ 56 ] You cannot consider the conditions to be something in the nature of a suggestion. They are things you must do and the court is making an order which must be strictly complied with. Do you understand that? [ 57 ] THE ACCUSED: Yes. [ 58 ] THE COURT: All right. The conditions that I am going to attach to this conditional discharge and the probation order have been outlined by Crown and joined into by Mr. Hertzberg. The first condition will be that you will keep the peace and be of good behaviour and attend court when required to do so by the court.

Second is, you must report to and be under the supervision of a probation officer.

I require that you report by 12 noon tomorrow to the probation office here in Nanaimo at the address that will be provided to you, in person and thereafter as directed. [ 59 ] You must provide your probation officer with your current residential address, and you are not to change that address without first notifying your probation officer. [ 60 ] I am going to require that you attend for assessment and psychiatric or psychological counselling as may be directed by your probation officer. [ 61 ] I am going to require that you take such counselling through the British Columbia Mental Health and Addiction Services as may be directed by your probation officer. [ 62 ] I am going to impose a condition that you must complete 50 hours of community work service at the direction and to the satisfaction of the probation officer within the first six months of the probation order. [ 63 ] I am going to require you to complete an essay within the first three months of your probation order on the topic of harm in the production and distribution of sadistic and obscene material involving children, such essay to be completed to the satisfaction of your probation officer. [ 64 ] I believe those are all the conditions that were being sought by Crown other than the forfeiture order.

Am I correct in that regard, Mr. Dubenski? [ 65 ] MR. DUBENSKI: Yes. [ 66 ] THE COURT: All right. The Crown is also seeking an order for forfeiture of all electronic storage devices that contain child pornography, comic crime, or other obscene material seized in this investigation.

I will say for the record that I understand that that will result in the forfeiture of the hard drive and the external devices and CD-ROMS and any videos that may have been seized, but that will not prevent the return of the seized computer back to the offender in this matter. [ 67 ] I am aware of the limited financial means J.C. lives under. Accordingly, I am going to waive the victim surcharge in this matter. [ 68 ] Is there any other matter that I need deal with?

As I understand it, at the taking of the plea on this offence by Judge Saunders, that she made a finding of not guilty with respect to the original offence under s. 163.1(4) . [ 69 ] MR. HERTZBERG: Judge Saunders did, Your Honour, yes. [ 70 ] THE COURT: Thank you. Anything further? [ 71 ] MR. DUBENSKI: Just the duration of the discharge, Your Honour. [ 72 ] THE COURT: Eighteen months as requested and as agreed to by counsel. [ 73 ] MR. HERTZBERG: Thank you. I believe that concludes the matter, Your Honour. [ 74 ] MR. DUBENSKI: Yes. [ 75 ] THE COURT: Thank you. (REASONS CONCLUDED)