R. v. Alexander, 2018 BCPC 389

Citation: R. v. Alexander 2018 BCPC 389 Date: 20180516 File No: 94514 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SCOTT LESLIE ROBERT ALEXANDER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE McQUILLAN Counsel for the Crown: H. Sangha and P. Kirk Counsel for the Defendant: D. Fai Place of Hearing: Port Coquitlam , B.C. Date of Hearing: February 14, 2017 and April 9, 2018 Date of Judgment: May 16, 2018

A Corrigendum was released by the Court on March 27, 2019 . The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] Scott Leslie Robert Alexander has pleaded guilty to one count of possessing child pornography on or about May 7, 2015, contrary to

section 163.1(4) of the Criminal Code . As the crown elected to proceed by indictment, Mr. Alexander is subject to a mandatory minimum sentence of six months in prison. Mr. Alexander seeks to challenge the constitutional validity of such a mandatory minimum sentence. [ 2 ] The sentencing hearing originally came before me on February 14, 2017. At that time Mr. Alexander was unrepresented, although he was prepared to proceed with sentencing, including advancing his argument regarding the constitutionality of the mandatory minimum sentence. After hearing Mr.

Alexander’s submissions I suggested that it may be to his benefit to adjourn the sentencing to allow him an opportunity to seek counsel to assist him in advancing what is a complicated constitutional argument. After many delays relating to Mr. Alexander’s attempts to obtain counsel, Mr. Fai was eventually secured to represent him and the matter finally proceeded to the completion of the sentencing hearing on April 19, 2018. [ 3 ] The crown seeks a sentence of 9 to 12 months along with probation for two to three years. The crown also seeks an order that Mr. Alexander be registered as a sex offender pursuant to

section 490.012 for a period of 10 years, and that he be subject to a prohibition under s. 161 of the Criminal Code for a period of five to ten years. [ 4 ] The defence seeks a determination that the mandatory minimum sentence of six months in prison is grossly disproportionate and as such violates Mr. Alexander’s right to not be subject to any cruel and unusual punishment or treatment pursuant to

section 12 of the Canadian Charter of Rights and Freedoms . The defence then seeks an 18 month sentence to be served in the community by way of a Conditional Sentence Order (“CSO”), followed by a period of probation. Circumstances of the Offence [ 5 ] On March 20, 2015 video images fitting the definition of child pornography were uploaded to a computer, which had an identifying IP address. The next day, the fact of that upload was reported to the National Centre for Missing and Exploited Children which in turn reported it to the police.

Police reviewed the video feed which contained four images of an adult hand digitally penetrating a pre-pubescent girl’s vagina. [ 6 ] A production order for subscriber information of the IP address was granted and Shaw Cablesystems identified an individual residing at [omitted for publishing], Coquitlam, B.C. as the subscriber. The investigation was then turned over to the Coquitlam RCMP. A search warrant was then obtained to search the main residence at [omitted for publishing]. Upon execution of that warrant it was determined that there were 2 separate basement suites that share the same internet connection.

Additional search warrants were obtained the same day to search each basement suite. [ 7 ] While police officers were awaiting judicial authorization to search the two basement suites, Mr. Alexander, the resident of the south basement suite, arrived home. He acknowledged that he was the person to whom the search was directed and provided police with a warned statement. [ 8 ] In his warned statement Mr. Alexander told police that they would find what they were looking for on a USB device.

He said that he had been looking at pornography since he was a teenager and had moved on to looking at child pornography for something different. He said that he originally just looked at pictures on the internet but in the past couple of years his viewing had escalated to even more pictures as well as videos of child pornography. He described his viewing of child pornography as being like an addiction and that the last time he had viewed any was two days earlier. [ 9 ] Mr.

Alexander further told police that he kept a webcam in the same plastic bag as where he kept the USB, which he used on a chat site called “Omegle”. He said that he might have uploaded a child pornography video onto Omegle once to see people’s reaction when they saw the video. He claimed that he never shared child pornography with other people and never purchased any child pornography. He said that he had used the USB over the last 4 years and believed that it was probably half full of images. He became very emotional after giving his statement to the police and said that he was ashamed of what he had done.

He was cooperative with the police and made no effort to deflect responsibility for his actions. [ 10 ] The police seized three devices from Mr. Alexander’s residence which contained child pornography. [ 11 ] The USB drive contained approximately 5700 images and 400 videos which met the definition of child pornography. The images and videos were organized into various folders and subfolders which appear to have been named to reflect the content of each. The created dates for the images and videos range from March 1, 2013 to May 6, 2015.

The child pornography on the USB depicts children ranging in age from young toddlers to 13 year olds. The content of the majority of the videos was sexual assault of female children by vaginal and anal intercourse. The images ranged from girls posing nude, performing fellatio on adult males and being subjected to sexual intercourse with adult males. There were also some images that included bestiality and bondage. [ 12 ] The hard drive of the desk top computer shared by Mr. Alexander and his girlfriend contained approximately 300 images and one video that met the definition of child pornography.

The child pornography on the hard drive had created dates between January 13 and March 20, 2015 and included children that appeared to range from 8 to 13 years old. [ 13 ] Mr. Alexander’s cell phone also contained approximately 50 images that meet the definition of child pornography, and included children apparently aged 8 to 13, although at least one image involved a young child apparently between the age of one and three. [ 14 ] While I was not asked to look at any of the images or videos found on these devices, the Crown’s

summary of facts for sentencing included descriptions of some, including the following:

a. A video with a pre-pubescent female lying on her back, appearing to be unconscious, while an adult male inserts a vibrator or dildo in and out of her vagina. b. A video showing an adult erect male penis being inserted into the vagina of a pre-pubescent female while she looks at the camera. c. An image of a female appearing to be 9-12 years old, sitting on a chair with her feet tied together with rope and her arms bound behind her back. d.

An image of a young child, estimated to be one to three years old, with an adult erect penis resting against her vagina. [ 15 ] The various images and videos cover the range from the less serious such as erotic posing of children, to the far more egregious, being penetrative sexual activity between children and adults. I need say no more than that by any standard, all of the videos and images are disgusting and are depictions of the victimization of vulnerable children.

Circumstances of the Offender [ 16 ] Upon entering a guilty plea a pre-sentence report and a psychological assessment, including a risk assessment, were ordered. I have had the benefit of reviewing and hearing submissions on both. a. Pre-Sentence Report [ 17 ] Mr. Alexander is 28 years old, and was 25 years old at the date of the offence. He has no prior criminal history. [ 18 ] Mr. Alexander describes a good upbringing, with parents who were present, caring about his schooling and being involved in sports.

He has two half siblings from his father’s previous marriage, with whom he has no relationship, and an older sister who lives in Victoria. While his father frequently drank and became aggravated as a result, his upbringing was largely devoid of any domestic violence other than an incident when he observed his father attack his older half-brother. He remains connected with his parents, although they have no knowledge of the current charges. [ 19 ] Mr.

Alexander graduated from high school in Victoria with a C- average and says that he was a quiet, well behaved student and he believes that his teachers gave him passing grades because of his good behaviour. He has not attended any post-secondary education and has no immediate plans to do so. Since graduating from high school he has worked in a variety of jobs, lasting from a few months to a few years. He has worked for a moving company, as well as doing painting, framing and siding.

When the Pre-Sentence report was prepared he was working full time earning $19 per hour. [ 20 ] At the time of the pre-sentence report, Mr. Alexander was residing with his girlfriend, in Coquitlam, with whom he had been in a relationship for the past few years. At the time of the sentencing hearing he indicated that he no longer resides with his girlfriend. He describes himself in the pre-sentence report as quiet and not a very social person and that he has not made any new friends other than his current girlfriend, since moving from Victoria to the lower mainland in 2014.

I note however, that in his submissions he took issue with that characterization and believes that he is a social person, having been on several competitive teams in the past. [ 21 ] He denies any history of depression or any suicidal ideation, although oddly he did express an interest in wanting to go through with a physician assisted suicide at some point in the future.

He is anxious due to the court matters he currently faces and was prescribed anti-depressants in 2016, although he ceased taking them after a month, due to the side effects. [ 22 ] As for his sexual history, his first sexual encounter was with a girl when he was in middle school or high school. He describes watching adult pornography on the family computer while he was in middle school. In high school his viewing of pornography increased in frequency.

At some point while in high school he recalls hearing stories on the news about child pornography being illegal and he became curious about it and began searching for it online. He says that it was the search that motivated him and not the images themselves. He denies having past or present fantasies about underage children and says that there was no violence in the videos he watched.

In the year leading up to these charges he says that was viewing pornography daily. [ 23 ] He reports smoking marijuana daily but denies any other drug use or problems with alcohol. [ 24 ] While he expresses a willingness to abide by protective conditions that may be imposed by the court with respect to contact with anyone under the age of 18, he expressed some concern about having his internet access prohibited. He also expressed discontent about being required to attend the Forensic Sex Offender Program, stating his belief that he does not belong in such a program and that he would find it awkward.

He states that he feels devastated by the charges, by which he means the impact of the charges on his life and future, as well as on his girlfriend and on the other tenants in the house he was residing in when the police searched the residence. b. Psychological Assessment and Risk Assessment [ 25 ] A psychological assessment and risk assessment was prepared on December 12, 2006 by Dr. Kathy Lewis to assist in sentencing. In that report Mr. Alexander describes that he first found and began watching child pornography in 2013.

Although he denied that he found sexual images of children to be sexually arousing to him he admitted that he became erect and masturbated to orgasm when he viewed them. Although he described himself as doing poorly in school, testing showed him to be of average intelligence, albeit with significant thinking and concentration problems. There was no evidence of mental health concerns, other than some anxiety and depressive symptoms since his arrest on these charges. [ 26 ] In terms of the risk assessment, Mr.

Alexander was adamant that he has never been sexually aroused by children, despite his statements that he masturbated to orgasm while watching child pornography. He was unable to reconcile the two, and said “I can’t explain how I masturbated to something I didn’t find sexually attractive. I watched it and masturbated to it but I wasn’t really thinking about it. It was a habit.” When asked about the possible effects that the child pornography had on the children depicted in the images he

said, “I don’t believe that I’ve contributed to their sexual abuse by watching child pornography.” [27] Mr. Alexander stated that his sexual interest was in females from teenagers and older. However, when confronted with the factthat much of the child pornography material found on his computer included children between the ages of 2 and 13 he expressed surpriseand was unable to explain the contradiction.

He stated that he felt there was no risk that he would reoffend and expressed reluctance toparticipate in sexual offender treatment to help reduce his risk to re-offend, stating that, “I don’t see the point of therapy because I’m notgoing to be given a second chance. Why should I do it for them?” He stated that he did not believe that it was fair that he be incarceratedand required to register as a sex offender but that if he was not required to be registered with the National Sex Offender registry he mightbe willing to participate in a sexual offender treatment program. [28] Mr.

Alexander was found to represent a low to moderate risk for future sexual offending. His risk would be in the low range ifhe successfully completes a sexual offender treatment program. However, Dr. Lewis further stated that it will likely be very difficult toengage him in therapy in a meaningful manner given his ongoing denial of sexual deviancy and his rationalization of his offendingbehaviours. Challenge to Mandatory Minimum Sentence [29] Mr. Alexander is subject to a mandatory minimum sentence of six months in jail for a conviction for possession of childpornography where the crown has proceeded by indictment.

I note that previously a mandatory minimum sentence of 45 days, where thecrown proceeded by indictment, had been in place since 2005. In addition, after this offence date Parliament increased the mandatoryminimum sentence for this offence to one year in jail where the crown proceeds by indictment. It is the six month mandatory minimumthat applies to Mr. Alexander given the date of this offence and as such it is that minimum that he challenges. [30] Mr. Alexander’s challenge to the mandatory minimum is founded on

section 12 of the Canadian Charter of Rights andFreedoms, which states: 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [31] In the case of R. v. Swaby, 2017 BCSC 2020 Mr. Justice Marchand, sitting on a crown appeal of a decision of the ProvincialCourt of British Columbia, found that a 90 day mandatory minimum sentence for possession of child pornography (where the crownproceeded summarily) was grossly disproportionate, and therefore contrary to

section 12 of the Charter. He further found that it was notsaved by

section 1 of the Charter and accordingly the mandatory minimum of 90 days was found to be of no force and effect. However,as the crown has elected to proceed by indictment in the present case, I am dealing with a different subsection than in Swaby, whichmandates a mandatory minimum sentence of six months rather than 90 days. As such, this particular mandatory minimum sentence hasnot yet been found to be unconstitutional and of no force and effect by a superior court. [32] In Swaby, the court described the very high threshold that must be met for there to be a breach of

section 12 of the Charter. Beginning at paragraph 17 the court stated as follows: [17] The applicant bears the onus of establishing an alleged s. 12 Charter violation on a balance of probabilities. [18] The test under s. 12 is stringent and demanding. As Cory J. noted in Steele v. Mountain Institution, (SCC), [1990] 2S.C.R. 1385 at 1417: It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisionsof s. 12 of the Charter.

The test for determining whether a sentence is disproportionately long is very properly stringent and demanding.A lesser test would tend to trivialize the Charter. [19] In R. v. Goltz, (SCC), [1991] 3 S.C.R. 485 Gonthier J. reaffirmed the stringent nature of the s. 12 analysis, at 501: 30 Moreover, it is clear from both Smith and Lyons, (SCC), [1987] 2 S.C.R. 309 that the test is not one which is quick toinvalidate sentences crafted by legislators. The means and purposes of legislative bodies are not to be easily upset in a challengeunder s. 12.

In Smith, the Court explained, per Lamer J., at pp. 1077 and 1072: A minimum mandatory term of imprisonment is obviously not in and of itself cruel and unusual. The legislature may, in my view,provide for a compulsory term of imprisonment upon conviction for certain offences without infringing rights protected by s. 12 ofthe Charter. … We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leaveto the usual sentencing appeal process the task of reviewing the fitness of a sentence.

Section 12 will only be infringed where thesentence is so unfit having regard to the offence and the offender as to be grossly disproportionate. [20] The test for whether a particular sentence constitutes “cruel and unusual” punishment is whether the sentence is “grosslydisproportionate.” To be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be“so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishmentabhorrent or intolerable”: R. v.

Ferguson, 2008 SCC 6 at para. 14. [21] In the more recent case of R. v. Nur, 2015 SCC 15 , McLachlin C.J.C. reiterated the high threshold that is appliedunder s. 12: [39] This Court has set a high bar for what constitutes “cruel and unusual … punishment” under s. 12 of the Charter. A sentenceattacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence

and the circumstances of the offender: R. v .Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1073. [33] Turning next to the analysis to be undertaken where a breach of

section 12 is alleged, Mr. Justice Marchand further stated inSwaby: [22] There are two aspects to the s. 12 analysis. The first involves an individual or “particularized inquiry” which focuses on theindividual circumstances of the offender. Where a sentence is grossly disproportionate for an individual offender, then a primafacie violation of s. 12 is established and the court must go on to consider whether the infringement can be justified under s. 1 ofthe Charter. The second aspect arises where a sentence is not grossly disproportionate for the individual offender.

In thosecircumstances, the court can nevertheless go on to consider whether a breach of s. 12 arises from “reasonably foreseeable” circumstancesadvanced by the offender. “Reasonable hypotheticals” should relate to “a situation that may reasonably be expected to arise – not‘marginally imaginable’, not ‘far-fetched’, but ‘reasonable’”: R. v. Latimer, 2001 SCC 1 at para. 78; R. v. Morrisey, 2000 SCC39 at paras. 29-33; Nur at paras. 56, 65 and 77. [34] However, it is not every case that will require an examination of the constitutionality of a mandatory minimum sentence.

Asstated by the Supreme Court of Canada in R. v. Lloyd 2016 SCC 13 at paragraph 18: [18] To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimumprovision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squandertime and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this casedetermined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr.

Lloyd, he couldhave declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issuearises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in thecase.

To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as acondition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-makingprocess. [35] My understanding of that paragraph from Lloyd is that sentencing judges have latitude to consider whether it is appropriate toengage the s. 12 analysis, upon a consideration of whether an appropriate sentence for the particular offender may be impacted by themandatory minimum.

In order to consider that issue, or what the parties have referred to as the issue of “mootness”, I must consider thesentencing principles set out in the Criminal Code, as well as the sentencing range established by previous cases. [36]

Section 718 sets out the purpose and objectives of sentencing as follows 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. [37]

Section 718.01 further requires a court to give primary consideration to the objectives of denunciation and deterrence where theoffence involves abuse of children. A conviction for possession of child pornography engages that section. [38]

Section 718.1 sets out the fundamental principle that a sentence be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. [39]

Section 718.2 requires a sentencing judge to consider any mitigating or aggravating circumstances relating to the offence or theoffender as well as to impose a sentence similar to what has previously been imposed on similar offenders for similar offences in similarcircumstances. [40] Mr. Alexander asserts that a number of cases that pre-date the enactment of mandatory minimum sentences for possession ofchild pornography support a sentence less than the present minimum of 6 months and in fact support the fitness of a community basedsentence. He relies on the following cases in that regard: R. v.

Ching 2006 BCPC 661 , 2006 BCPC 0661; R. v. Dragani 2007BCPC 45; R. v. Austin 2006 BCPC 596 , 2006 BCPC596; and R. v. Tylek 2006 ABPC 85. Three of those cases resulted inCSO’s and one resulted in a suspended sentence. [41] However, older cases such as the ones set out above are of limited usefulness given society’s evolving understanding of theharmfulness of child pornography. As stated by Madam Justice Brown in R. v. Walker 2017 BCSC 1301, at para 42: [42] In my view, the more dated cases referred to by the defence are not within the range of sentence, without the mandatory minimumsentence.

As the BC Court of Appeal recognized in R. v. R.L.W., 2013 BCCA 50 : [49] … the range of sentences for possession of child pornography is broad, but, as the judge recognized, courts have over the yearsdeveloped a greater appreciation of the harm caused to children by its manufacture, distribution and possession. More recent cases placed

greater emphasis on denunciation and deterrence and sentences have tended to increase. [ 42 ] More recently however, in Swaby , the court determined that if not for the mandatory minimum, a CSO would be available in some cases for the offence of possession of child pornography. At paragraphs 93-94, the court stated: [93] After taking into account the trend towards longer custodial sentences, in my view, the appropriate range for a first time offender with a collection of child pornography similar to Mr. Swaby’s would be a jail sentence of six to 15 months.

The range would, however, be lower if the first time offender had a smaller collection of child pornography and/or a particularly reduced level of moral blameworthiness. [94] If not for mandatory minimum sentences, in my view, the sentencing range for a first time offender with a particularly low level of moral blameworthiness and low risk of re-offending would include a community based sentence and, in particular, a CSO. [ 43 ] In the result, and in the exceptional circumstances of Mr.

Swaby’s case, the Supreme Court of BC held that denunciation, deterrence and protection of the public would be adequately addressed by a community based sentence, or CSO, for a period of four months, along with probation for two years. [ 44 ] In the present case the Crown says that the appropriate range of sentences for a case such as this is from 9 to 12 months. The crown relies on a number of cases in support of that range. While I have read all of the cases provided by the crown, I will refer only to those that I consider the most similar to the case at bar.

All of the cases described below involved first offenders. [ 45 ] R. v. Allen 2013 BCPC 69 . In that case the offender had pled guilty to possession of over 2000 images and 456 videos, which were highly organized on his computer. Despite the guilty plea the sentencing judge found that the offender lacked insight and true remorse and was therefore a poor candidate for rehabilitation. He was sentenced to one year in prison. [ 46 ] R. v. Buss 2014 BCPC 381 . The 38 year old offender was found guilty of possessing child pornography following a trial.

He had maintained that he had no knowledge of the 770 images and 192 videos of child pornography found on his computer. The videos were at the extreme end of the scale of seriousness of the depictions. A mandatory minimum of 6 months applied and the sentencing judge found that a fit sentence was 15 months in jail. [ 47 ] R. v. Cafferata 2009 YKTC 95 . The 56 year old offender had pled guilty to possessing 17,000 images of child pornography on his computer. He had lost his job as a result of the offence. He was assessed at low risk to reoffend. The mandatory minimum sentence was 45 days.

He was given a sentence of 6 months in prison and 2 years of probation. [ 48 ] R. v. Dumais 2011 ONSC 276 . The 36 year old offender had pled guilty to possessing 170 images and 33 movies of child pornography. He had been a respected elementary school teacher and had lost his job as a result of the charges. He was deemed a low risk to reoffend and was engaged in counselling. He was sentenced to 9 months in prison and one year of probation. [ 49 ] R. v. Johansen 2009 ONCJ 305 . The 30 year old offender pled guilty to one count of possessing child pornography and one count of making it available for distribution.

He was found with 95 images and 145 videos, which contained very serious depictions of violent child pornography. He suffered from a history of mental illness. He was sentenced to 8 months for the possession charge and 15 months consecutive for distribution. [ 50 ] R. v. S.D.M. 2015 BCPC 112 . The 27 year old offender pled guilty, following a voir dire, to possessing and to distributing child pornography. The case involved 471 images and 114 videos, which included very disturbing depictions covering the full range of child pornography. The offender suffered from chronic depression.

He was sentenced to 8 months in custody for the possession charge and 10 months for distribution. [ 51 ] R. v. Wright 2012 ONCJ 698 . The 22 year old offender pled guilty to possessing child pornography and to making it available. A total of 404 videos and 40 images of child pornography had been found on his computers. The material depicted the full range of victimization of children as young as infants and had been collected over a period of several months. The offender had voluntarily engaged in treatment programming prior to sentencing and appeared to have both insight and remorse.

He also suffered from depression. He received a sentence of 12 months in custody followed by 3 years of probation. [ 52 ] In my view, the cases relied on by the crown support a sentencing range of 8 to 12 months for an offender and offence with similar circumstances to those present in this case. [ 53 ] Mr. Alexander suggests that the facts of this case are analogous to those in Swaby , where it was found that a CSO was a fit sentence.

The aggravating factors in that case were found to be: 1. the quantity of child pornography possessed; 2. the egregious nature of some of the videos; and 3. the fact that the child pornography was collected over a significant period of time during which Mr. Swaby would sometimes delete and then re-download videos. [ 54 ] The mitigating factors were found to be: 1. Mr. Swaby’s relative youth and lack of social network at the time of the offence; 2. Mr. Swaby’s mental health and cognitive issues which were connected to his commission of the offence; 3. Mr.

Swaby’s pro-social personality and otherwise good character, including his lack of a criminal record;

4. Mr. Swaby’s immediate cooperation with the RCMP; 5. Mr. Swaby’s immediate expression of remorse and acknowledgement of responsibility, resulting in his early guilty plea; and 6. Mr. Swaby’s willingness to be assessed and receive treatment. [ 55 ] At first blush, the aggravating and mitigating factors are similar to those in the case at bar. However, there are some significant differences. Mr. Swaby was found to have significant cognitive deficits, presenting with an IQ of 53, which according to one psychologist, qualified him as having an intellectual disability.

He had a history of hearing voices in his head which suggested the presence of a significant schizoaffective disorder. He had a history of depression, including suicidal ideation and suicide attempts. Those particular facts were found to diminish his moral culpability. In addition, one psychologist had significant concerns about his ability to tolerate incarceration, which would put him at heightened risk of suicide and the potential for being victimized by others. [ 56 ] In the case before me, there is no evidence that Mr. Alexander suffers from diminished cognitive abilities.

Despite having significant thinking and concentration problems, testing showed him to fall within the average range of intelligence. He does not suffer from any mental health issues beyond some depression which appears related to the charges he currently faces. Furthermore, while expressing remorse, which is supported by his guilty plea and cooperation with the police, Mr. Alexander seems somewhat unmotivated to engage in sexual offender counselling, which he seems to consider pointless. [ 57 ] I find that the particular circumstances of Mr. Swaby are quite different from that of Mr. Alexander.

Furthermore, I do not find that the principles of denunciation and deterrence would be given adequate voice by way of a CSO for Mr. Alexander. Based on my review of the case law I agree with the statement of Mr. Justice Marchand in Swaby that the appropriate range for a first time offender with a collection of pornography similar to that of Mr. Swaby’s would be a jail sentence of 6 to 15 months. I do not find anything in the particular circumstances of Mr.

Alexander or the circumstances of his offence which would reduce his moral blameworthiness below that range. [ 58 ] I would also note the caution contained in the final paragraph of the Swaby decision: [159] Despite my finding that this mandatory minimum sentence is unconstitutional, the message to those who would contribute to the abuse of children through their possession of child pornography should be clear. If found guilty of the offence, they should expect to go to jail. Mr.

Swaby has escaped this outcome only because of his unique circumstances and, in particular, his highly reduced moral blameworthiness. [ 59 ] Since I have found that the sentencing range for Mr. Alexander does not fall below the mandatory minimum sentence of 6 months, as indicated above in the passage from Lloyd , this issue is effectively moot and accordingly I decline to engage in an analysis of the constitutionality of the mandatory minimum. In that regard I agree with the approach taken by Judge Solomon in R. v.

Sieber 2017 BC Provincial Court Abbotsford # 81820, May 9, 2017, where he held that he was not compelled to conduct the constitutional analysis when the result would have no impact on the sentence applicable. What is a fit sentence in this case? [ 60 ] In the present case I find the mitigating factors to be Mr. Alexander’s lack of a criminal record, his guilty plea, his relative youth and his cooperation with the police. I also find to be somewhat mitigating the fact that he has been subject to bail conditions, without incident, for a period of over two years.

I am not persuaded that his mental health or cognitive abilities are in any way mitigating. [ 61 ] The aggravating factors are the significant quantity of the child pornography materials, the fact that the material was collected over a period of over two years, and the detailed organization of the pornographic materials suggesting a high degree of intentionality, as opposed to impulsivity. [ 62 ] I also find that Mr. Alexander’s expressions of remorse are somewhat attenuated by his comments that he does not see the point of therapy as well as his ongoing denial of sexually deviant interests.

While he is seen to be a low to moderate risk for reoffending, his lack of motivation to engage in treatment remains a concern in relation to his risk. [ 63 ] Having given consideration to the above described principles of sentencing, the applicable mitigating and aggravating circumstances and previously decided cases I find that a fit sentence for Mr. Alexander is one of 8 months in prison. [ 64 ] Following your release from prison you will be subject to probation for 18 months. The terms of your probation will be: 1. You must keep the peace and be of good behaviour. 2.

You must appear before the court when required to do so by the court. 3. You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation. 4. You must report in person to a probation officer at 2610 Mary Hill Road, Port Coquitlam, B.C. within 2 business days of your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different time frame.

After that you must report as directed by the probation officer. 5.

(2303) You must not go to any public park, public swimming area, or community centre where persons under the age of 18 years are present or can reasonably be expected to be present, or a day-care centre, school ground or playground, except with the written permission of your probation officer.

(2304) You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know to be or reasonably appears to be under the age of 18 years, except with the written permission of your probation officer. 7.

(2305) You must not engage in activities, volunteer work or employment that could bring you in contact with persons under the age of 18 years without the written permission of your probation officer and when so engaged, you must carry this permission. 8.

(2501) You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by your probation officer. 9.

(2602) You must not: 1. Use any device capable of accessing the internet unless: a. it has the capacity to retain and display the history of the internet use; and b. you consent to inspection of the device by your probation officer or a peace officer. 2. Delete the history of the internet use from the device. 3. Use the internet to contact or attempt to contact any person you know to be or who reasonably appears or represents him or herself to be under the age of 18 years. 4.

Possess any device capable of storing digital images, unless you consent to inspection of the storage device by your probation officer or a peace officer. 5. Having consented, you must provide the device and any password used to lock the device to your probation officer or a peace officer, upon their request, in order for him or her to monitor your compliance with this order. 10.

(2605) You must not possess any pornographic material or access any pornographic material by electronic means. [ 65 ] As this is a primary designated offence, pursuant to

section 487.051(1) I make an order in form 5.03 authorizing the taking of samples of bodily substances from you for the purposes of registration in the DNA national databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples. [ 66 ] Pursuant to

section 490.012 you are required to comply with the Sex Offender Information Registration Act for 10 years. [ 67 ] I decline to make a prohibition order under s. 161. I am satisfied that the protective terms set out in the probation order which mirror the language in

section 161 set out the appropriate duration for such restrictions. The evidence at sentencing was that Mr. Alexander was privately viewing child pornography, and there was no evidence of any likelihood of his actions progressing beyond that. As such, a further prohibition under s. 161 is not, in my view, necessary. _________________________________ The Honourable Judge R.P. McQuillan Provincial Court of British Columbia CORRIGENDUM - Released March 27, 2019 In the Reasons for Judgment dated May 16, 2018, the following changes have been made: [1] Paragraph 64, number 7 should read: 7.

(2305) You must not engage in activities, volunteer work or employment that could bring you in contact with persons under the age of 18 years without the written permission of your probation officer and when so engaged, you must carry this permission. [2] Paragraph 65 should read: As this is a primary designated offence, pursuant to

section 487.051(1) I make an order in form 5.03 authorizing the taking of samples of bodily substances from you for the purposes of registration in the DNA national databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples. [3] Paragraph 67 should read: I decline to make a prohibition order under s. 161. I am satisfied that the protective terms set out in the probation order which mirror the language in

section 161 set out the appropriate duration for such restrictions. The evidence at sentencing was that Mr. Alexander was privately viewing child pornography, and there was no evidence of any likelihood of his actions progressing beyond that. As such, a further prohibition under s. 161 is not, in my view, necessary. _______________________________

The Honourable Judge R.P. McQuillan Provincial Court of British Columbia