R. v. Bordal, 2022 BCPC 19

Citation: R. v. Bordal 2022 BCPC 19 Date: 20220124 File No: 87757-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TODD ANTHONY BORDAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. WHONNOCK Counsel for the Crown: Nicholas Barber via MS Teams Counsel for the Defendant: Christopher Churchill via MS Teams Place of Hearing: Nanaimo , B.C. Date of Hearing: January 24, 2022 Date of Judgment: January 24, 2022 INTRODUCTION [ 1 ] On May 19, 2020, Todd Anthony BORDAL (“Mr.

Bordal”) was charged indictably under Information 87757-1, with one count of possessing child pornography contrary to s. 163.1(4) of the Code and one count of distributing child pornography contrary to s. 163.1(3) of the Criminal Code , R.S.C. 1985, c. C-46 (the “ Code ”). The offences were alleged to have occurred from October 21, 2019 and January 29, 2020 at or near Nanaimo, British Columbia.

Crown has now proceeded summarily and a guilty plea has been entered on count one, the possession of child pornography. [ 2 ] Recently, s. 163.1(4) of the Code required the court to impose upon conviction a mandatory term of imprisonment, whether the

Crown prosecuted the offences summarily (s. 163.1(4)(

b) or by indictment (163.1(4)(a)). In R. v. Swaby, 2018 BCCA 416 (leave toappeal to SCC refused [2019] S.C.C.A. No. 17) the British Columbia Court of Appeal found the 90 day mandatory minimum sentenceunder 163.1(4)(

b) unconstitutional. A year later, in R. v Hamlin, 2019 BCSC 2266 , the British Columbia Supreme Court struckdown as unconstitutional the one-year mandatory minimum sentence under 163.1(4)(a). [3] At today’s sentencing hearing, the Crown and defence jointly proposed a sentence comprising of a suspended sentence and twoyear period of probation, and ancillary orders. Upon canvassing extensive authorities binding on or persuasive to this Court, I questionedwhether a non-custodial sentence is appropriate in the circumstances of this offence and this offender.

I am not convinced that a period ofprobation gives proper effect to the sentencing principles of parity and proportionality. Despite these misgivings, I am bound by theSupreme Court of Canada’s directive that trial judges are to follow joint submissions in all but the rarest of cases. The question iswhether this is such a case. For the reasons set out below, I have determined this is not a rare case and I will endorse the joint proposal asto sentencing. ISSUES [4] The salient issue is whether the court ought to impose the non-custodial sentence counsel jointly propose.

CIRCUMSTANCES OF THE OFFENCE [5] The circumstances of the offence are that there was a report from the National Center of Missing and Exploited Children of thetransmission of suspected child pornography to the British Columbia Integrated Child Exploitation (“ICE”) Unit of the Royal CanadianMounted Police (“RCMP”). [6] The username on Freechat Now was “G naked perv hubby” of the person now identified as Mr. Bordal. [7] On January 29, 2020 the RCMP executed a search warrant and seized a number of electronic devices from Mr.

Bordal. [8] In total, there were ten images and a four second video which met the definition of child pornography. [9] Four of the ten images were uploaded by Mr. Bordal. [10] Mr. Bordal pled guilty to possession of child pornography on September 9, 2021. [11] A Presentence Report and Psychological Report were ordered. [12] In R. v. Swaby, 2017 BCSC 2020 at para. 109, Justice Marchand noted that ordinarily a sentencing judge should view the imagesof child pornography that depict the crime.

In this case, the Crown and defence counsel agreed that crown counsel’s submissionsaccurately sets out the activities depicted in the images and I did not view the images or video. Despite R. v. Swaby, I do not feel a needto review the images or video as Crown has described the child pornographic images in court. CIRCUMSTANCES OF THE OFFENDER [13] Mr. Bordal was born in Port Alberni. He is not of indigenous ancestry. [14] He moved to Nanaimo in 1993. He is currently 49 years old. [15] He has been married twice, although he is currently separating from his second wife. [16] Mr.

Bordal and his wife lost a child in 2010 and that had a huge impact on him. [17] Mr. Bordal lost his father in 2019, although whether it was before or during the offence dates is not clear to me from the reportsand submissions. [18] Mr. Bordal has maintained employment for a long time but is currently working as a trucker and is on call. [19] He expressed shame and talked about the impacts on friends and family. [20] Mr. Bordal reports that he stopped the chat room activity when the police removed his electronic equipment on January 29,2020. He has minimalized his role in the offences before the court.

VICTIM IMPACT STATEMENT [21] The Crown adduced no victim impact statements from the children depicted in the pornographic images and video. They areunknown. In R. v.

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

There is a concern that this offending against children is increasing and that the easy ability to circulate this material over theinternet 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 pornographyprovide the encouragement and the audience for those who would abuse children in order to produce that content.

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

(Cited with approval in Swaby BCSC and R. v C. H., 2020 BCSC 323 ). POSITION OF THE PARTIES [22] The Crown and defence jointly submit a sentence for Mr. Bordal consisting of the following components: a. pursuant to s. 731 of the Code, two years probation on conditions which are either rehabilitative or intended to protect the public, orboth; b. as possession of child pornography charged under s. 163.1(4) is a primary designated offence, pursuant to s. 487.051(1) of the Code,Mr. Bordal will submit to the taking of samples of bodily substances for the purpose for DNA analysis; c. pursuant to s. 490.013(2)(

b) of the Code, Mr. Bordal will comply with the Sex Offender Information Registration Act (SOIRA) for 10years; and d. pursuant to s. 164.2(1) of the Code, forfeiture of the electronic items the RCMP seized in the investigation of the offence for whichMr. Bordal has been convicted pursuant to s. 164.2(1). LEGISLATIVE FRAMEWORK [23]

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

(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. [24] I have set out the relevant sentencing provisions of the Code below. Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Objectives — offences against children 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, . . . (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, shall be deemed to be aggravating circumstances; (

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

. . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. PROPORTIONALITY [25] Proportionality (s. 718.1) is the fundamental principle of sentencing which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. Itincludes two components: (

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

b) the harm or likely harm to society and its values: R. v.Lacasse, 2015 SCC 64 , at para. 130. Proportionality is determined both on an individual basis and by comparing the casebefore the court with similar cases, while taking into account the sentencing objectives set out in sections 718 and 718.2 of the Code:Lacasse at paras. 53-54. A sentence will be demonstrably unfit if it is disproportionate to the conduct underlying the offence andconstitutes a marked departure from sentences imposed for similar conduct.

DENUNCIATION AND DETERRENCE [26] Appellant courts have repeatedly held the paramount sentencing objectives for possession of child pornography are denunciationand deterrence: R. v. Allen, 2012 BCCA 377, R.L.W., Inksetter, Watson, Swaby BCCA and Alexander. Denunciation communicatessociety’s condemnation of the impugned conduct: R. v. Proulx, 2000 SCC 5 , at para. 102 citing R. v. M. (CA), (SCC). Deterrence "refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging incriminal conduct”: R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 .

Where the principles of denunciation and deterrence have priority,the focus of the sentencing judge is more on the offence committed (the conduct) than on the offender. While factors personal to theoffender remain important, they necessarily take on a reduced role: R. v. Friesen, 2020 SCC 9, paras. 104-105; R. v. B.C.M., 2008 BCCA365 , para. 35.

This priority focus on conduct reflects the gravity and wrongfulness of the conduct and the serious harm itcauses. [27] In Lacasse, Wagner J. (as he then was), stated: [6] While it is normal for trial judges to consider sentences other than imprisonment in appropriate cases ... in all cases in whichgeneral or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment formeeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society. [28] In Proulx, the Supreme Court of Canada held that where objectives such as denunciation and deterrence are particularly pressing,incarceration will generally be the preferable sanction.

REHABILITATION [29] Although denunciation and deterrence have priority for the offence for which Mr. Bordal is being sentenced, I must stillgive weight to rehabilitation set out in s. 718(d). As the Supreme Court has pointed out in Lacasse, at para.4: One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moralvalues that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentencesthat are just and appropriate. PARITY [30]

Section 718.2(

b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offendersfor similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle . . . means that any disparitybetween sanctions for different offenders needs to be justified.” A sentence includes not only the period of incarceration, but alsoprobation and ancillary orders. [31] Assessing parity requires me to determine the appropriate sentencing range for the offence on which Mr. Bordal standsconvicted. CASELAW [32] In R. v.

R.L.W., 2013 BCCA 50 (cited in Swaby BCCA at para. 66 and in Alexander at paras. 38 and 40), the Indigenousoffender, R.L.W., was convicted after a trial of sexual assault and possession of pornography. He was almost 28 at the time of theoffence, and 30 at the time of sentencing. R.L.W. had no criminal record. The sentencing judge had the benefit of a pre-sentence reportand psychiatric assessment. R.L.W. had strong Gladue factors resulting in him being sexually victimized when he was young.

The trialjudge sentenced R.L.W. to five years’ incarceration for sexual assault causing bodily harm and 18 months’ consecutive for possession ofchild pornography, which the BC Court of Appeal upheld. Harris J.A. confirmed the range for possession of child pornography at thattime was between four months and two years. [33] In R. v. Inksetter, 2018 ONCA 474 (cited in Alexander, at para. 41), the offender was 51 with no criminal record and otherwise ofgood character. He pled guilty at the earliest opportunity and was convicted of possessing and making available a vast collection of childpornography. Mr.

Inksetter took responsibility, showed real remorse and sought counselling. The court had two reports frompsychologists indicating Mr. Inksetter presented a very low risk to commit a future violent offence, contact sexual offence, or childpornography offence. The sentencing judge imposed a custodial sentence of two years less a day, followed by three years’ probation. TheOntario Court of Appeal allowed the Crown appeal and imposed a global sentence of three and a half years’ incarceration. The appellate

court found the sentencing judge erred in prioritizing probation at the expense of denunciation and deterrence. Associate Chief JudgeHoy remarked at para. 22: 22 Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2,[2001] 1 S.C.R. 45 (S.C.C.), the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A.wrote in R. v. Andrukonis, 2012 ABCA 148(Alta.

C.A.), at para. 29, “possession of child pornography is itself child sexual abuse.” Thechildren depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing, and making availablehis vast and terrible collection to others, the respondent participated in the abuse of thousands of children. [34] In R. v. John, 2018 ONCA 702 (cited in Swaby BCCA at para. 90 and in Alexander, at para. 51), the Ontario Court of Appealheld the six month mandatory minimum sentence for possession of child pornography in force at the time of the offence violated s. 12 ofthe Charter. Mr.

John was convicted after a trial of possession of child pornography and sentenced to 10 months’ incarceration less 60days’ credit to reflect conditions of house arrest and 24 days post-conviction detention. On appeal, Mr. John sought a 90-day sentence oftime served. The Court found Mr. John in possession of 89 unique videos and 50 unique images of child pornography. His collectionincluded images of children as young as four years old, and perhaps younger, subjected to anal and vaginal penetration with sex toys andadult penises. Mr. John was 29 years old at the time of the offence and 31 at sentencing.

He has suffered from serious mental healthproblems for which he was inadequately treated, although he continued counselling. He was employed and remorseful, and no riskfactors had been identified requiring further treatment. The sentencing judge had the benefit of a PSR and medical opinions from Mr.John’s treating physician. In allowing the constitutional challenge, Ontario Court of Appeal in John stated, at para. 41: [41] The mandatory minimum is entirely unnecessary.

This court has recently emphasized the importance of denunciation anddeterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable forsuch offences involving child pornography: R. v. Inksetter, 2018 ONCA 474, at para. 16. In another recent decision, R. v. J.S., 2018ONCA 675, this court upheld a sentence of 18 years for sexual abuse of young children, making child pornography depicting that abuse,and distribution of that material. [35] In refusing to reduce Mr. John’s sentence, G.

Pardu J.A., commented, “But for the appellant’s very considerable efforts atrehabilitation, the sentence imposed could have been much higher.” [36] In R. v. Watson, 2018 BCCA 329 (cited in Swaby at para. 66 and in Alexander at para. 47) the offender was convicted after a trial(in July 2016) of possessing an extensive collection of child pornography and sentenced to one year incarceration and three years’probation. The Crown proceeded by indictment. At that time of the offence (January 2015), a s. 163.1(4) offence prescribed a mandatoryminimum punishment of six months in custody. Mr.

Watson was a 72-year-old retired aircraft mechanic with no prior criminal record.He led a pro-social life and had strong family support. The sentencing judge had a pre-sentence report and psychiatric assessment. Thejudge imposed a sentence of one year incarceration followed by three years’ probation, which Mr. Watson appealed.

The appellate courtcommented (at para. 25) that “sentences imposed in cases of child pornography will vary significantly depending on the nature of theoffence and the offender’s personal circumstances.” The appellate court held (at para. 26) the sentence imposed by the sentencingjudge was not only fit “it is on the lighter side of what might have been imposed.” [37] In R. v. Swaby, 2017 BCPC 478, upheld in R. v. Swaby, 2017 BCSC 2020, aff’d 2018 BCCA 416, leave to appeal to the SCCref’d 2019 S.C.C.A No. 19, the offender pled guilty to one count of possessing child pornography.

He was found to possess 400 videofiles meeting the definition of child pornography, including videos of penetrative sexual activity between adults and very young children.Mr. Swaby was 23 years old at the time of the offence and 28 at the time of his appeal. He had no criminal record. He cooperated withthe authorities and expressed remorse and his willingness to be assessed and treated. He had serious cognitive impairments andoverriding mental health issues which contributed to the commission of the offence.

Based on the two psychological assessments beforehim, PCJ Galati determined imprisonment would have been extremely hard on Mr. Swaby due to his intellectual deficits. Mr. Swabypresented a low risk of committing a future sexual contact or child pornography offence. He received a four-month CSO with two years’probation—a sentence upheld on appeal. In Swaby BCSC, Justice Marchand concluded the mandatory minimum sentence provided bys. 163.1(4) in force at the time of Mr. Swaby’s offence was contrary to s. 12 of the Charter and of no force and effect.

He stated at para.159: [159] Despite my finding that this mandatory minimum sentence is unconstitutional, the message to those who would contribute to theabuse of children through their possession of child pornography should be clear. If found guilty of the offence, they should expect to goto jail. Mr.

Swaby has escaped this outcome only because of his unique circumstances and, in particular, his highly reduced moralblameworthiness. [38] In Swaby BCCA, Bennett J.A., noted (at para. 65) that while incarceration is almost always the inevitable sentence forpornography offences, prior to the establishment of the mandatory minimum sentence, non-custodial sentences, such as discharges,suspended sentences and CSOs, were sometimes imposed for possession of pornography. Justice Bennett stated at para. 97: [97] The offence of possession of child pornography is extremely broad.

It captures not only actual photos and videos, but alsodrawings and cartoons. It is broad enough to capture conduct that, while morally blameworthy, does not justify a prison term. As withother broadly framed offences (e.g., Lloyd SCC at paras. 30 and 35), a mandatory minimum sentence of incarceration will be susceptibleto challenge. In Lloyd, at paras. 35-36, the Court found that where offences may be committed in a broad array of circumstances, and by awide range of people, they “will almost inevitably include an acceptable reasonable hypothetical”, and be found unconstitutional.

TheCourt once again recommended that the law be amended to permit a residual judicial discretion to exempt the outliers from a mandatoryminimum sentence. [39] In R. v. Alexander, 2019 BCCA 100 , the BC Court of Appeal declared the mandatory six-month minimum term ofimprisonment under s. 163.1(4)(a) (in force from August 9, 2012 to July 16, 2015) of no force and effect. Nevertheless, the appellatecourt upheld the lower court’s eight months’ jail sentence and dismissed Mr. Alexander’s appeal for a CSO. Mr. Alexander was 25 yearsold at the time of the offence and 28 at the time of sentence.

He had no criminal record and pled guilty to a single count of possession ofa large collection of child pornography. The sentencing judge had the benefit of a pre-sentence report and psychological risk assessment.

The Court noted that unlike the offender in Swaby , Mr. Alexander did not suffer from any diminished cognitive abilities or mental health issues beyond depression. Mackenzie J.A., for the court, discussed (in paras. 37 to 39) the appropriate range: [37] I agree with the Crown that the judge’s review of recent and relevant sentencing authorities, including Swaby BCSC , was extensive. It properly reflected society’s evolving understanding of the harmfulness of child pornography. The judge carefully considered all relevant mitigating and aggravating factors on sentence.

He concluded the appropriate range for a first-time offender would be a jail sentence of six to 15 months. The appellant has not provided any submissions or authorities challenging this range, nor has he established, in my view, that the sentence imposed was demonstrably unfit. [38] Moreover, the range identified by the sentencing judge is not materially different from the broad sentencing range of four months to two years’ imprisonment provided in R. v.

R.L.W. , 2013 BCCA 50 at paras. 21 and 49 . [39] At sentencing, the appellant asserted a CSO was a fit sentence for him as the facts of this case are analogous to those in Swaby BCSC . However, the judge accurately distinguished Mr. Swaby’s circumstances from those of the appellant. Moreover, recent authorities say incarceration will be necessary in all cases of possession of child pornography, except in exceptional cases, to appropriately emphasize the principles of denunciation and deterrence. I do not consider the present case to be exceptional. [ 40 ] In R. v.

Prince , 2018 BCSC 987 (cited in Mollon , at para. 72), the offender was convicted after trial of four child pornography- related offences. Between 330-350 images and six to eight videos were recovered, including of young children under the age of 12 and toddlers engaged in sexual acts with adults. Mr. Prince was 26-27 years old at the time of the offences, and 35 years old at the time of sentencing. He was an Indigenous offender who suffered a traumatic childhood which included sexual abuse. He had an unrelated criminal record. The Court had no psychological risk assessment because Mr.

Prince continued to deny the offences. After noting the absence of many mitigating factors, Justice Ker stated (at para. 72), the “absence of mitigating factors is just that; their absence does not translate to the presence of aggravating factors.” Before credit for pre-sentence custody was applied, Justice Ker found an appropriate sentence would have been 12 months incarceration for the possession charge, three years for possession for the purpose of distributing, and three years for making available or distributing, to be served concurrently, followed by three years’ probation. [ 41 ] In R. v.

Hamlin , 2019 BCSC 2266 , Justice Winteringham declared the one year mandatory minimum punishment under s. 163.1(4) and (4.1) of the Code was unconstitutional and of no force and effect. Mr. Hamlin plead guilty to possessing and accessing child pornography. His laptop was found to contain a pornographic image of a one to three year old female child and five pornographic video compilations depicting sexual acts by adults on the children. These acts included adult males having vaginal and anal intercourse with these young children. Mr.

Hamlin was a 56-year-old self-employed carpenter with positive character references, and had a dated but related criminal record as it included a 2004 conviction for child sexual assault. He was remorseful and cooperative with the police. The court had the benefit of a current presentence report and forensic psychological report. Dr. Joneja assessed Mr. Hamlin as a high risk to reoffend. Justice Winteringham found a fit sentence was eight months’ incarceration followed by three years’ probation.

In reaching this conclusion, Justice Winteringham considered those factors enumerated in para. 32 of his decision: [32] Regardless of the constitutionality of the mandatory minimum in this case, I agree with the Crown that when determining a proportionate sentence in cases involving child pornography, there are a number of factors that the court must nonetheless bear in mind: (

a) the gravity of offences involving child pornography, as reflected by Parliament's choice to impose a mandatory minimum sentence, cannot be ignored. See, for example, the Ontario Court of Appeal's remarks about child pornography as a pervasive social problem in R. v. Inksetter , 2018 ONCA 474 at paras. 23-25 ; (

b) except in exceptional cases, the sentencing range for possession of child pornography starts with incarceration: see Swaby , at paras. 66-67; and, Alexander , at paras, 40-42; and (

c) BC courts have indicated a broad sentencing range of four months to two years for possession of child pornography: see Alexander , at paras. 37-39 . [ 42 ] In R. v. Mollon , 2019 BCSC 423 , Justice Crossin convicted Mr. Mollon of possessing and making available a “significant cache” of child pornography which included 1600 accessible still images and 70 videos. He received 15 months’ incarceration for possessing child pornography over a number of years.

Justice Crossin describes (at para. 32) the material as traversing “a spectrum of depravity” all of which “triggers a certain visceral horror.” At the time of sentencing, Mr. Mollon was 50 years old with no criminal record. A solitary man, Mr. Mollon had a “difficult, dysfunctional and debilitating childhood.” He suffered from mild cerebral palsy. The Court had the benefit of two psychological assessments, but no pre-sentence report due to Mr. Mollon’s lack of participation in its preparation. Mr. Mollon showed little regard for the consequence of his conduct (para. 82).

Justice Crossin states in para. 77: [77] Mr. Mollon has not exhibited remorse or any empathy for the victims. This does not aggravate matters but it blunts any finding that he has commenced on any fundamental path to rehabilitation. In addition there is little if any evidence or information before the court that Mr. Mollon has any insight into the harm these offences cause to children. Mr.

Mollon seems completely oblivious to the collateral damage the symbiotic relationship between producer and consumer causes throughout the lives of these children; damage, perhaps irreparable and in perpetuity. [ 43 ] After canvassing a number of authorities Justice Crossin comments (at para. 73) that sentences ranges for child pornography offences have increased with the court’s enhanced appreciation of its enduring harm.

Citing Swaby , Justice Crossin states (at para. 70), that, “Given the seriousness of child pornography offences, a conviction for possession calls for a period of incarceration, absent exceptional circumstances. . .” At para. 69, Justice Crossin justifies these custodial sentences: [69] At the root of all child pornography offences is the hands-on sexual abuse and sexual exploitation of children by those who produce child pornography. That abuse is itself a criminal offence that is extremely serious and one that strikes at the core values of any right thinking member of society.

Child pornography captures this sexual abuse of children in electronic image, creates a record of that abuse, and permits the perpetrator to share that abuse with others. Those who wish to possess child pornography encourage the sexual abuse of children and encourage the recording of this abuse by providing a market for those who produce child pornography. Therefore,

even simple possession of child pornography must be treated as a very serious offence. Further, the offence of making available childpornography is incrementally more serious than simple possession since the distribution of child pornography creates a broader marketand puts more images in circulation. [44] In R. v C. H., 2020 BCSC 323 , the offender was 54 years old. He had no criminal record, he pled guilty, he was acontributing member of society, and he presented a low risk to reoffend. C.H. also suffered from some physical and mental healthproblems (major depression).

Justice Forth was not convinced the evidence established C.H.’s mental health issues were solely causativeof the offences committed, however he did accept they were mitigating. Justice Forth considered and rejected a CSO given the nature ofthe offence, the need for deterrence and denunciation, and the lack of exceptional circumstances. He found a fit sentence was in thelower end of the range set out by the Court of Appeal in Alexander and imposed six months’ incarceration followed by 24 months’probation and ancillary orders. [45] R. v. Humphreys, 2020 BCPC 136, is a sentencing decision of Judge D. M. McKimm. Mr.

Humphreys pled guilty to one count ofpossessing child pornography between February 11 and April 19, 2017. His electronic devices contained 881 images admitted to be childpornography. The victim of was the five year old child of Mr. Humphrey’s intimate partner and co-accused. The two accused exchangedtexts in which they discussed sodomizing and fellating the child and teaching the child to fellate Mr. Humphreys. There was no evidenceMr. Humphreys ever touched the child or acted on his sexually explicit ideation.

Judge McKimm describes it (at para. 13) as a“relatively brief foray into this dark and evil area of sexual fantasy.” [46] Mr. Humphreys was 60 years old. He suffered from PTSD as a result of his service in the military and from a serious anddebilitating heart condition which would make serving a sentence in a correctional facility particularly difficult. Judge McKimm foundthere to be exceptional circumstances meriting the imposition of an 18-month CSO rather than incarceration. He also ordered two years’probation, a 20-year s. 161(1) order and a 20-year SOIRA order. [47] R. v.

W.M.P., Terrace Docket 32030-1 (March 25, 2019) is a sentencing decision of Judge Jackson of this court. W.M.P. wasconvicted of possessing child pornography (s. 163.1(4)) on December 15, 2015. The Crown proceeded summarily. W.M.P. was found tohave possessed six videos of child pornography. Judge Jackson consider the oft-cited factors set out in Regina v. Kwok, (ON SC). W.M.P. had no related criminal record.

He was not involved in the purchase or production or distribution of pornography.The six videos depicted children ranging from four to 14 years old, engaged in sexual posing, masturbating, fellatio with an adult and inone instance, anal intercourse of a ten year old child. Although W.M.P. declined to participate in a psychiatric risk assessment, the courtdid have the benefit of a pre-sentence report. There was nothing outside his child pornography collection raising a suspicion W.M.P.posed a risk to children. He was 43 years old and otherwise of good character.

Nevertheless, W.M.P. showed little genuine remorse orinsight into the harm caused by possessing child pornography. In the 22-month period between the time he was charged and sentenced,he had not sought counselling. As a result of the charges, W.M.P. was separated from his family and lost his home and business. Unlikethe offender in Swaby, W.M.P.’s moral culpability was not significantly reduced by his cognitive impairment. Judge Jackson ordered sixmonths’ incarceration with two years’ probation, SOIRA and DNA orders. [48] In R. v.

Quested, 2019 BCPC 95, the offender was found to have over 1000 images meeting the definition of child pornographyon his computer involving children between the ages of two and nine, sometimes with adult men. He pled guilty to accessing childpornography. At the time of sentencing, Mr. Quested was a 73-year-old first offender. He worked as an accountant, had strong familysupport, was a highly respected member of the community, and a loving parent and doting grandfather. After his arrest, Mr. Questedimmediately began counselling with a psychologist with expertise in sex-related criminal conduct. Mr.

Quested complied with strict bailconditions, and showed true insight into and remorse for the harm his actions caused. An independent risk assessment showed Mr.Quested was not a danger to children in his care. Judge Higinbotham found that due to Mr. Quested’s age and a medical condition, prisonwould have been particularly difficult for him. Judge Higinbotham imposed a 12-month CSO followed by 12 months’ probation. Hefound exceptional the fact Mr.

Quested had “truly turned his life around” and suffered from a precarious medical condition which wouldbe exacerbated by a custodial sentence: see paras. 27 and 28. [49] In R. v. R.W.P., 2019 BCPC 133, the 40-year-old first time offender pled guilty to one count of possession of child pornography.The Crown had proceeded summarily. R.W.P. was pro-social, employed as a restaurant cook and had the support of his family. R.W.P.reported to have suffered from depression, suicidal ideation, poor memory, a learning disability and childhood sexual abuse by a familymember.

Judge Gouge noted R.W.P.’s narrative of his personal history was not well-supported by the pre-sentence report orpsychological/psychiatric assessment. Upon canvassing the appellate authorities, including Voong, Inksetter, Swaby and Alexander,Judge Gouge concluded there were no exceptional circumstances to justify a non-custodial sentence. Specifically, he did not findexceptional that R.W.P. was gainfully employed and complied with bail conditions.

As to his personal history, Judge Gouge stated atpara. 15: [15] [R.W.P.’s] unfortunate personal history may provide an explanation for his offence, and so may be said to be relevant to his levelof 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 becauseof the many indications in the psychological/psychiatric assessment that [R.W.P.’s] self-report is unreliable. I also think it useful to bearin mind that people in good mental health do not access child pornography.

If individual psychological scars constitute “exceptionalcircumstances”, incarceration will be the exception rather than the rule. [50] Judge Gouge sentenced R.W.P. to 6 months’ incarceration followed by 2 years’ probation. [51] R. v. S.L.G., 2019 BCPC 149 is a sentencing decision of Judge Malfair of an offender convicted of making childpornography (s. 163.1(2) of the Code and accessing child pornography (s. 163.1(4.1)) between March 22 and March 28, 2018, S.L.G.was a 48-year old grandmother and educational assistant. From the time of her arrest S.L.G. admitted her wrongdoing and expressedremorse.

She entered guilty pleas and took responsibility for her actions. She had no criminal record, a good work history, and aneagerness to engage in programs intended to address her offending behaviour. Judge Malfair ordered 14 months’ incarceration followedby three years’ probation and four ancillary orders. [52] In R. v. Booth, 2019 BCPC 160, Mr. Booth pleaded guilty to one count of possessing child pornography. He was 71 years old

with no criminal record and a number of health issues. He did not suffer from any substance misuse and assessed a low risk to reoffend.Police found five images and one video satisfying the definition of child pornography and the Crown proceeded summarily. JudgeMcQuillan sentenced Mr. Booth to three months’ incarceration followed by 18 months’ probation. [53] In R. v. B.J.M., 2019 BCPC 303, B.J.M. pled guilty to possessing and making available child pornography. The investigatingofficers found 55 images of young females, including images B.J.M. had made himself of two girls he knew.

The girls provided victimimpact statements. B.J.M. had no criminal record, a university education, the support of his spouse and his employer. Judge Morgansentenced B.J.M. to eight months’ incarceration for possession and 12 months’ for making available child pornography, to be servedconcurrently, followed by 24 months’ probation. Judge Morgan stated: [60] I agree that [B.J.M], being the current sole provider for his family, creates a sympathetic circumstance for his family.

However,sympathetic circumstances are not exceptional circumstances. [B.J.M’s] incarceration will have a financial impact that will presumablyfall to his spouse to address. The information in the PSR is that she is educated, and, as a past [omitted for publication], has provenmarketable skills. I do not lose sight of [B.J.M’s] concern about some barriers to her success in maintaining employment that he believesexist. [61] However, it is the sympathetic circumstances of victims of child pornography that, through deterrent sentencing, the courts aretrying to prevent.

It is the lifelong psychological and possible physical injuries, and the possible lifelong suffering of the thousands ofchild victims, that judges are trying to prevent through deterrent sentencing. It will take a very compelling set of offender circumstancesto justify a sentence with a lesser deterrent effect. [62] Unfortunately for [B.J.M.], those compelling and exceptional circumstances are not present. [63] The fact that the mandatory minimum sentences for the two offences B.J.M.] has pled guilty to have been struck down as beingunconstitutional does not automatically lower the sentencing bar.

The finding of unconstitutionality was based on actual or hypotheticalcases where unusual circumstances resulted in the mandatory minimum sentences being grossly disproportionate to the gravity of theoffence and/or the moral blameworthiness of the offender. In the usual case where there were no exceptional or unusual circumstances,Parliament’s determination of appropriate minimum sentences did not offend the Charter and were often exceeded.

APPLICATION OF THE PARITY PRINCIPLE IN THIS CASE [54] In my view, the application of the parity principle militates against probation for possession of child pornography offences.In Swaby BCCA, Bennett JA concluded (at para. 66) that a conviction for possession of child pornography, absent exceptionalcircumstances, will generally require a period of incarceration, even in the absence of a mandatory minimum sentence. In para. 84, shestates: [55] In R. v. Voong, 2015 BCCA 285, Justice Bennett defined exceptional circumstances as follows: [59] . . .

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable stepstowards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result ofthe 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 wouldlead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public wassubsequently better served by a non-custodial sentence. [56] The exceptional circumstances in Swaby went far beyond his youth, his guilty plea and his lack of criminal record. Mr. Swabysuffered from a combination of cognitive, intellectual and mental health impairments which “highly reduced [his] level of moralculpability”. The Court also accepted expert evidence that Mr.

Swaby’s intellectual deficits made him “a young and vulnerable man” forwhom incarceration would be very detrimental. [57] There are no such identified exceptional circumstances for Mr. Bordal. MITIGATING, AGGRAVATING AND NEUTRAL FACTORS AND COLLATERAL CONSEQUENCES [58] Sentencing is a highly individualized process. The proportionality analysis requires the sentencing judge to go beyondconsidering the circumstances of the offender and the offence and weigh all of the aggravating and mitigating circumstances andcollateral consequences.

An aggravating factor will tend to increase the severity of the sentence; a mitigating factor will weigh in favourof 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) of the Code; R. v.Dreger, 2014 BCCA 54 . [59]

Section 718.2(

a) of the Code states a “sentence should be increased or reduced to account for any relevant aggravating ormitigating circumstances relating to the offence or the offender.” [60] The judge must also consider any collateral consequences arising from commission of an offence, the conviction for an offence,or the sentence imposed for an offence that impacts the offender: R. v. Pham, 2013 SCC 15 and R. v. Suter, 2018 SCC 34. [61] In R. v. Kwok, (ONSC), Justice Molloy identified oft-cited aggravating factors which the court must considerin a child pornography possession case. Judge Malfair summarize these factors in S.L.G. (at para. 34) which I have considered as to Mr.Bordal:

a) Any criminal record for similar or related offences: Mr. Bordal has no criminal record;

b) Circumstances where there is also production or distribution of the material: Mr. Bordal uploaded 4 child pornographic images;

c) The size of the collection: Mr. Bordal’s collection of child pornography was modest;

d) The nature of the collection, including the age of the children involved and the relative depravity and violence depicted: There is nodispute the images included very young children (between 3 and 8) and are best described as abhorrent;

e) The extent to which the offender is seen as a danger to children: The psychological report, although it does not go into detail aboutMr. Bordal’s Risk for Sexual Violence Protocol, simply concluded that based on the risk assessment, Mr. Bordal was in the low riskrange; and

f) Whether the offender has purchased child pornography and contributed to the sexual victimization of children for profit: I have noevidence Mr. Bordal purchased or sold child pornography. [62] Judge Malfair recognized the following as mitigating circumstances at paragraph 35 of S.L.G. and I have considered these factorsas they apply to Mr. Bordal:

a) The youthful age of the offender: Mr. Bordal was 48 years old at the time of the offence. I would not characterize him as a youthfuloffender;

b) The extent to which the offender has shown insight into their problem: Mr. Bordal is willing to engage in extensive counselling andtreatment as a term of the probation;

c) Whether the offender has demonstrated genuine remorse: I accept Mr. Bordal’s guilty plea, and his compliance with his bailconditions and his willingness to participate in treatment and adhere to significant restraints on his liberty as indicia of his genuineremorse;

d) Whether the offender is willing to submit to treatment or counselling or has taken treatment: Mr. Bordal has completed 9/9 meetingsfrom October 7, 2021 to January 20, 2022 with the Vancouver Upper Island Sex Offender Program and has expressed a desire tocontinue with counselling; and

e) The extent to which the offender has already suffered for their crime in their family, career or community: Mr. Bordal was subject tostrict bail conditions to which he adhered to since June of 2020. Mr. Bordal also tells the court that he has hurt his family and friends. COLLATERAL CONSEQUENCES [63] A collateral consequence of Mr. Bordal being charged with these offences is that Mr. Bordal, in his own words, is losing hiswife. RESTRAINT [64] As the sentencing judge, I am guided by the principle of restraint codified in ss. 718.2(

d) and (

e) of the Code. [65] In Friesen, the Supreme Court of Canada was asked to consider the appropriateness of a starting point or range in sentencing inthe context of sexual offences against children. The Court held that sentencing ranges and starting points are guidelines rather than hardand fast rules. The Court emphasized that sexual offences against children are inherently wrongful and “always put children at risk ofserious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case tocase:” Friesen, para. 76.

The Court went on to stress (at para. 91) that proportionality requires sentencing judges consider the personalcircumstances of offenders. ISSUE: SHOULD THE COURT FOLLOW THE CROWN AND DEFENCE’S JOINT SUBMISSION ON SENTENCE? [66] Throughout this sentencing hearing, I expressed my reluctance to impose a non-custodial sentence for Mr. Bordal. [67] Crown submits that Mr. Bordal’s attitude and understanding of the offence is similar to other offenders before the court. [68] Defence counsel submits the joint submission is appropriate because Mr.

Bordal’s risk to re-offend is low and he has notbreached those bail conditions. Defence counsel submits that the primary recommendation in the psychological report is to continuecounselling and therapy and the Vancouver Island Upper Island Sex Offender program will accomplish that. Defence counsel states thathis client is prepared to do whatever the court wants and has moved his employment around to focus on his counselling.

He furthersubmits that this matter was always set for disposition but there were significant Covid-19 delays in getting this before the court. [69] The Crown and defence have presented to the Court a joint submission as to sentence in exchange for Mr. Bordal entering a pleaof guilty. In R. v. Anthony-Cook, the Supreme Court of Canada has recognized the importance of negotiated sentencing positions for thewell-being of our criminal justice system. Sentencing judges are to accept a joint submission unless to do so would bring theadministration of justice into disrepute.

Justice Moldaver stated (at para. 34) that a joint submission should not be rejected lightly: Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would leadreasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolutiondiscussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and forgood reason . . . [70] Recently in R. v.

Wong, 2018 SCC 25 , the Supreme Court of Canada reiterated its direction on joint submission[citations omitted]: [61] Guilty pleas are of central importance to the Canadian criminal justice system. For many years, a substantial majority of criminalconvictions in Canada have resulted from guilty pleas...The guilty plea is one aspect of the plea bargaining process, in which Crown and

defence counsel negotiate a joint submission on sentence and the accused agrees in exchange to plead guilty. As this Court recentlystated, such agreements are “commonplace and vitally important to the well-being of our criminal justice system, as well as our justicesystem at large” . . .

The plea bargaining process is fundamental to the administration of justice: the disposition of cases by means of pleabargains benefits all participants in the justice system, preserves limited resources and introduces certainty into the criminal process. . . [71] Appellate courts have held that while they are not immutable or sacrosanct, joint submissions should only be rejected inexceptional circumstances [72] Sentencing involves an inherently individualized assessment. As the sentencing judge I must take into account Mr.

Bordal’spersonal circumstances as well as the circumstances of the offence, which include the aggravating and mitigating factors, and thecollateral consequences.

Having given consideration to all these factors, I am still not persuaded a probation period alone is appropriate.Specifically, I do not feel comfortable ordering a community-based sentence when the cases are clear that some measure of incarcerationis called for given the gravity of the offence. [73] I accept the Crown and defence counsel are generally “well placed to arrive at a joint submission that reflects the interests of boththe public and the accused” because “they will be highly knowledgeable about the circumstances of the offender and the offence and thestrength and weaknesses of their respective positions”: Anthony-Cook, para. 44.

From my perspective, the Crown has a strong case. Itswitnesses are predominantly professional and cooperative and are unlikely to be traumatized by the court proceeding. [74] At this sentencing hearing, the Crown and defence provided the court with comprehensive submissions. Seeking furthersubmissions seems unnecessary. Also, appellate authorities caution sentencing judges against sending counsel away to revise jointsubmissions as to do so risks increasing delay, uncertainty and inefficiencies: R. v. Kippomee, 2019 NUCA 3 , at para. 50; R. v.Fuller, 2020 ONCA 115 ; at para. 21.

CONCLUSION ON SENTENCING [75] I cannot say the sentence the Crown and defence propose is one, absent a joint submission, I would impose. To be clear, this caseseems similarly situated to the circumstances of the offender in R. v. Booth and I think three months jail is the decision that I wouldreach. However, the question I must now answer is whether the joint submission is one I should accept given the stringent public interesttest for its rejection.

I can only depart from a joint submission if it is so unhinged from the circumstances of the offence and the offenderthat its acceptance would lead reasonable and informed persons to believe that the proper functioning of the justice system had brokendown: Anthony-Cook, para. 33. [76] In my view a two year period of probation for possession of child pornography offends the principles of parity andproportionality. The offence calls out for a substantial jail term. The Crown and defence are experienced counsel. Clearly theyconsidered the systemic benefits of Mr.

Bordal’s guilty plea justify a non-custodial sentence. They have crafted a sentence whichendeavours to protect the community from the risk of Mr. Bordal reoffending through a combination of rehabilitative and restrictiveconditions contained in various court orders. I am unable to say their joint proposal would cause a reasonable person to conclude "theproper functioning of the justice system had broken down." Accordingly, I will endorse the joint submission as advocated by counsel. DISPOSITION [77] Mr.

Bordal, you pled guilty to Count 1 on Information 87757 charging you with possessing child pornography from October 21,2019 to January 29, 2020, in Nanaimo, British Columbia, contrary to s. 163.1(4) of the Code. I accept your guilty plea to that offence andI find you guilty of that offence. [78] I will endorse the joint proposal and impose a suspend sentence with two years’ probation, both on the terms and conditionsagreed to by counsel. You will also be subject to three ancillary orders: (

a) a SOIRA Order for 10 years duration (490.013(2)(b)); (

b) aDNA Order; and (

c) a forfeiture order for the items the RCMP seized in their investigation of this matter. PROBATION ORDER [79] You must comply with the probation order for a term of two years. The conditions are: Condition 1: Keep the peace and be of good behaviour. Condition 2: Appear before the Court when required to do so by the Court. Condition 3: Notify the Court or the Probation Officer in advance of any change of name or address, and promptly notify the Court orthe Probation Officer of any change of employment or occupation.

Condition 4: You must report by telephone to a probation officer at 101 - 17 Church Street, Nanaimo, BC at 250-741-3744 by 3:00 pmtomorrow, January 25 2022. If the office is closed, you must continue calling daily during regular business hours until you have spokento a probation officer and received further direction to report. After that, you must report as directed by your officer. Condition 5: You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by yourprobation officer. This may include counselling or programming for sexual offence prevention.

Condition 6: You must not possess or use any device capable of accessing any computer network including the internet, unless: (

a) youdo not delete the history of the internet use from the device; (

b) the device you use retains and displays the history of internet use; (c )you do not install or have any applications or platforms on the device that automatically deletes messages, videos, or photos viewed fromthe device; permits incognito internet browsing; or allows data to be deleted from the device remotely; (

d) you do not access, directly orindirectly, or maintain any personal profile on any social media sites, social networks, internet discussion forums or chat rooms; (

e) youdo not communicate or attempt to communicate with any person you know to be or who reasonably appears or represents themselves to

be under the age of 18 years through any electronic means, including, but not limited to, telephones and computers, unless they are members of your family; (

f) upon the request of a peace officer, you must give them access to any device in your possession that is capable of accessing the internet or any computer network so they can verify compliance with this condition. Condition 7: You must not go to any public park, public swimming area, community centre, or theatre where persons under the age of 18 years are present or can reasonably be expected to be present, or a daycare centre, school ground, or playground, except in the immediate presence of M.M., B.B. or D.B.

Condition 8: You must not have any contact or communication, directly or indirectly, or be in the presence of any person under the age of 18 years, except while in the immediate presence of M.M., B.B. or D.B., or except that you may be in the presence of any person under the age of 18 if it is in a public place and incidental to your employment. Condition 9: You must not engage in volunteer work or employment that would bring you in contact with persons under the age of 18 years, except that you may continue your current employment.

Any contact with persons under 18 years in that capacity must be in a public place and incidental to your employment ANCILLARY ORDERS [ 80 ] Possession of child pornography contrary to s. 163.1(4) is a primary designated offence. Pursuant to

section 487.051(1) of the Criminal Code , I order you to provide a sample, or samples, of your bodily substances for purposes of registration in the national DNA databank. You must attend at the RCMP police station in Nanaimo, Britih Columbia, during regular business hours, on or before February 28, 2022, and submit to the taking of the samples. This order is valid until executed. [ 81 ] Pursuant to s. 490.012 of the Criminal Code , you to comply with the requirements of the Sexual Offender Information Registration Act for 10 years. [ 82 ] Pursuant to

section 164.2(1) of the Criminal Code , I am satisfied on a balance of probabilities that the items seized by the RCMP were used in the commission of the offence and is your property. I order these items forfeited to Her Majesty to be disposed of at the direction of the Attorney General. VICTIM FINE SURCHARGE [ 83 ] The victim fine surcharge is due and payable in full. _________________________ The Honourable Judge K. Whonnock Provincial Court of British Columbia