R. v. R.W.P., 2019 BCPC 133

Citation: R. v. R.W.P. 2019 BCPC 133 Date: 20190621 File No: 84313-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.W.P. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: L. Mascolo Counsel for the Defendant: J. Wright Place of Hearing: Nanaimo , B.C. Date of Hearing: June 21, 2019 Date of Judgment: June 21, 2019 The Issue [ 1 ] Mr. P. has entered a guilty plea to a single count of possession of child pornography, contrary to

section 163.1(4) of the Criminal Code . It is my task to sentence him for that offence. The Offender [ 2 ] Mr. P. is 40 years of age. He is married and has a daughter who will have her second birthday this year. Mr. P. has no criminal history.

[ 3 ] Mr. P. was adopted at birth. He learned of his adoption at age 11. He reports that his adoptive father told him that he was adopted, and that the adoptive father wished he had never adopted him. Mr. P. was angered by that. He reports being sexually abused by an adoptive uncle at age 13. Mr. P. became sexually active with girls his own age at age 14 and began using alcohol and marijuana at age 15. He was first prescribed psychiatric medication at age 13, and has sought psychiatric assistance for depression and related disorders since that time.

He continues to suffer from intermittent suicidal ideation. [ 4 ] Mr. P. is employed as a restaurant cook. His family and co-workers speak highly of him. The Offence [ 5 ] Counsel agree that the following is an accurate description of photos found by the police on Mr. P.’s computer: One of the images involved a naked 10 to 12 year old boy with an erection standing in front of an adult female. She is kneeling in front of him licking his lower abdomen while holding his penis with her left hand.

Another image is of a 7 – 9 year old female standing slightly bent at the waist in a child’s bedroom with her underwear pulled down to her thighs, exposing her vagina with her long blonde hair covering her chest. In another photo, a prepubescent female has her legs spread completely apart. The female’s vaginal and anal areas are completely visible. There is a large amount of semen-looking substance on the vaginal waist and belly-button areas.

Other content includes images of: a naked 7 year old child bent over and strapped to a bench wearing what appears to be a dog collar; a naked 6 year old holding the penis of and performing oral sex on a dog; a 5 year old asleep with an adult penis over her vagina and semen on her stomach area; a 6 year old girl lying on her back naked spreading her vagina open. The Authorities [ 6 ] Three points emerge clearly from the appellate jurisprudence:

a) Child pornography is so serious and so prevalent an offence that denunciation and deterrence are very important factors to consider in sentencing.

b) For that reason, a jail sentence must be imposed, except in “exceptional circumstances”.

c) Where a jail sentence is to be imposed, the appropriate range of sentence is 4 months to 2 years jail. I refer to R. v. Inksetter 2018 ONCA 474 , R. v. Swaby 2018 BCCA 416 (leave to appeal refused on June 20, 2019) and R. v. Alexander 2019 BCCA 100 . [ 7 ] Accordingly, I must impose a jail sentence in this case unless sufficient “exceptional circumstances” exist to justify a non- custodial sentence. I do not find a definition of “exceptional circumstances” in any of Inksetter, Swaby or Alexander. However, the phrase was used by the Court of Appeal in a similar context in R. v.

Voong 2015 BCCA 285 ; [2015] BCJ No. 1335. In that case, the court held that custodial sentences must be imposed in drug trafficking cases unless “exceptional circumstances” justify a non-custodial sentence. At paragraph 59 of the judgment, Justice Bennett said: Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

Because the context is so similar, I think that “exceptional circumstances” must have the same meaning in child pornography cases as it does in drug trafficking cases. Two phrases from the passage quoted stand out: (i) “… objectively identifiable steps toward rehabilitation …”; and (ii) “… something which would lead a sentencing judge to conclude that the offender had truly turned his or her life around …”. Those phrases would support the conclusion that the enquiry is to be directed primarily to the conduct of the offender in the interval between his arrest and the sentencing hearing.

However, in Swaby , at paragraphs 70 – 78 , Mr. Swaby’s pre-existing intellectual limitations and mental health challenges were found to be sufficiently exceptional circumstances to justify a non-custodial sentence. It follows that “exceptional circumstances” are not limited to post-offence conduct. [ 8 ] In R. v. Quested 2019 BCPC 95 ; [2019] BCJ No. 875 , a conditional sentence was imposed for a similar offence. The “exceptional circumstances” found in that case were that: (

i) Mr. Quested had “truly turned his life around” (paragraph 27): and (ii) Mr. Quested suffered from a medical condition which would be exacerbated by a jail sentence (paragraph 28). Application of the Principles in This Case [ 9 ] In response to my enquiry, Mr. Wright identified the following factors in support of the proposition that “exceptional circumstances” exist in this case: a. Mr. P. suffers from depression, suicidal ideation, poor memory, a learning disability and childhood sexual abuse. b. Mr.

P. has been in the community on strict bail conditions for more than a year, and is not accused of any breach of bail. c. The child protection service in his home community have allowed him to continue to reside in his home with his wife and daughter. It should be inferred that they do not consider him to be a risk to his daughter.

d. He has steady employment and is a valued employee. e. He has not sought counselling or treatment only because he cannot afford it. [ 10 ] Mr. Wright’s submission is not well-supported by the psychological/psychiatric assessment submitted at the sentencing hearing. The following are some pertinent extracts: Mr. [P.’s] current narrative of his psychiatric history was not consistent with collateral information or information contained in the presentence probation report. * * * Mr. P. had a tendency to minimize his offending when giving his account of his behaviour. * * * Mr.

P. impressed as experiencing low mood and anxiety and presents with borderline personality traits but did not impress as meeting the diagnostic criteria for any mental illness or personality disorder at this time. * * * While he claims to have been heavily involved in the mental health system … this is not consistent with the file information. * * * Previous psychiatric assessments have described Mr. P. as manipulative with polysubstance abuse and possible adjustment disorder, as well as borderline personality traits. However, it appears that his last mental health contact was about 18 years ago.

The psychological/psychiatric assessment makes no reference to intellectual limitations or impairment. [ 11 ] When Mr. P. attended at a psychiatric hospital in 2001, his clinical notes described him as “... characterized by malingering, lying and manipulative behaviour.” [ 12 ] I do not think that compliance with bail conditions should be regarded as an “exceptional circumstance”. Rather, I think that it should be an expectation. [ 13 ] I do not know whether the child protection authority in Mr. P.’s community have had access to the psychological/psychiatric assessment which was provided to me.

In any case, it is my duty to make my own assessment of Mr. P., based on the information provided to me, which may be quite different from the information provided to the child protection authority. [ 14 ] Mr. P. is to be commended for maintaining employment and performing his duties diligently. However, I do not regard that as an exceptional circumstance. [ 15 ] Mr. P.’s unfortunate personal history may provide an explanation for his offence, and so may be said to be relevant to his level of moral culpability. That was considered to be a decisive factor in Swaby and Quested .

I do not consider it to be so in this case because of the many indications in the psychological/psychiatric assessment that Mr. P.’s self-report is unreliable. I also think it useful to bear in mind that people in good mental health do not access child pornography. If individual psychological scars constitute “exceptional circumstances”, incarceration will be the exception rather than the rule. [ 16 ] I conclude that there are no “exceptional circumstances” in this case sufficient to justify a non-custodial sentence.

Length of Sentence [ 17 ] The English Court of Appeal has held that an important factor is the nature of the activity observed in the images: R v. Oliver [2002] EWJ No. 5441. The court described a range, from least to most serious, as follows: a. those depicting erotic posing with no sexual activity; b. sexual activity between children or solo masturbation by a child; c. non-penetrative sexual activity between adults and children; d. penetrative sexual activity between children and adults; e. sadism or bestiality. That system of classification was adopted in R. v.

Pommer 2008 BCSC 737 ; [2008] BCJ NO. 1056 @ paragraph 61. The images in the possession of Mr. P. included images in classes “a”, “c” and “e”, the latter being the most egregious. [ 18 ] The number of images is also a relevant consideration. Mr. P. possessed 7 images, a relatively small quantity. [ 19 ] It is not suggested that Mr. P. was engaged in the manufacture or trafficking of child pornography. [ 20 ] I take into account Mr. P.’s guilty plea. [ 21 ] Overall, I conclude that a fit sentence in this case would be six months imprisonment, followed by a term of 2 years probation

on the following conditions. Mr.

P. must: a. keep the peace and be of good behaviour and attend court when required to do so by the court; b. report in person to a probation officer within 72 hours of his release from custody and report thereafter as and when directed by his probation officer; c. attend, participate in and successfully complete any psychological assessment, counselling or treatment program to which he is referred by his probation officer; d. not go to any park, playground, swimming area, community centre, daycare centre or swimming pool unless he is accompanied by a person approved in writing by his probation officer; e. with the exceptions noted, not to have any contact or communication with any person who is or appears to be under the age of 16 years.

The exceptions are: (

i) his own daughter; (ii) incidental contact in a public place when other adults are present; or (iii) when accompanied by a person approved in writing by his probation officer; f. not to seek or accept any position, whether paid or unpaid, if the duties of the position include being in a position of trust or authority in relation to persons under the age of 16 years; g. not to possess any pornography; h. not to possess or use any device capable of accessing the internet, except with the written permission of his probation officer and in compliance with any conditions which his probation officer may impose.

June 21, 2019 ____________________________ T. Gouge, PCJ Provincial Court of British Columbia