R. v. Booth, 2019 BCPC 160

Citation: R. v. Booth 2019 BCPC 160 Date: 20190619 File No: 99024-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GEORGE ANGUS BOOTH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. McQUILLAN Counsel for the Crown: A. Blunt and L. Vizsolyi Counsel for the Defendant: P. Riddell, Q.C. Place of Hearing: Port Coquitlam , B.C. Date of Hearing: May 16, 2019 Date of Judgment: June 19, 2019 [ 1 ] THE COURT : George Angus Booth pleaded guilty to one count of possession of child pornography on or about December 9,

2017, contrary to s. 163.1(4) of the Criminal Code . The Crown has proceeded summarily. [ 2 ] Mr. Booth has filed a Constitutional Question Act notice in which he asserts that the applicable six month mandatory minimum sentence in s. 163.1(4)(

b) constitutes cruel and unusual punishment, contrary to s. 12 of the Canadian Charter of Rights and Freedoms (the “ Charter ”). [ 3 ] The Crown submits that a fit sentence for Mr. Booth is six months, that being the mandatory minimum, followed by an 18- month probation order. [ 4 ] The defence submits that a Conditional Sentence Order with a duration of six months would be a fit sentence, along with an 18 month probation order. Legal Framework [ 5 ] The mandatory minimum sentences prescribed by s. 163.1(4) have increased over time.

Prior to July 16, 2015 offenders faced a mandatory minimum sentence of 90 days if the Crown proceeded summarily and six months if the Crown proceeded by indictment. In R. v. Swaby 2018 BCCA 416 , the Court of Appeal upheld the

summary appeal decision of Mr. Justice Marchand of the BC Supreme Court ( 2017 BCSC 2020 ) in which he found that that 90 day mandatory minimum was unconstitutional and of no force and effect as it breached s. 12 of the Charter . That reasoning was followed by the more recent BCCA decision of R. v.

Alexander 2019 BCCA 100 in which the Court of Appeal found that the mandatory minimum of six months, where the Crown proceeded by indictment, was similarly unconstitutional and therefore of no force and effect. [ 6 ] Effective July 17, 2015, parliament increased the mandatory minimum sentence to six months where proceeding summarily, and one year where proceeding by indictment. Mr. Booth’s offence is captured by that most recent mandatory minimum, which is six months. That particular mandatory minimum has not previously been found to be of no force and effect by a superior court. [ 7 ]

Section 12 of the Charter states: 12 . Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [ 8 ] The framework for considering whether a mandatory minimum sentence offends s. 12 of the Charter was articulated by the BC Court of Appeal in Swaby at paragraph 62: [62] In Nur , the majority set out the analytical process to be followed when a mandatory minimum sentence is challenged. First, the court must determine what constitutes a proportionate sentence for the offence based on the objectives and principles of sentencing in the Code (para. 46).

Second, it must decide, bearing the proportionate sentence in mind, whether applying the mandatory minimum would result in a grossly disproportionate sentence for the offender before the court (para. 46). Third, if the sentence is not grossly disproportionate for that offender, the court must then consider whether any “reasonably foreseeable applications” of the provision will result in grossly disproportionate sentences for other offenders (para. 77).

If the answer to either of the latter two questions is yes, then the mandatory minimum sentence is inconsistent with s. 12 and “will fall unless justified under s. 1 of the Charter (paras. 46, 105–106). [ 9 ] Accordingly, the first step in this process is to determine what a fit sentence is for Mr. Booth, upon a consideration of the circumstances of the offence and his personal circumstances, while applying the principles of sentencing set out in the Criminal Code . Circumstances of the Offence [ 10 ] Admissions of Fact were filed and relied on for purposes of sentencing.

They can be summarized as follows. [ 11 ] The Ridge Meadows RCMP initiated two separate child pornography investigations after receiving two separate reports from the British Columbia Integrated Child Exploitation Unit. The first report involved the possession of a child pornography image on October 29, 2016 by a user called “gangus” on a social forum called Chatstep. The image showed a young pre-pubescent girl between 8 and 12 years of age lying naked on her back, on a bed, with her legs spread open. The girl had no pubic hair and limited breast development.

With her right hand she was inserting an imitation phallus into her vagina. [ 12 ] The second report involved the possession of an image on January 27, 2017 on a social website called Similar Worlds by a user called “AngusBrown”, with two associated e-mail addresses. The image showed a topless child, between the ages of four and seven, with no breast development, performing fellatio on an adult male.

The child has one of her hands around the base of the adult male’s penis and the top of the penis in her mouth. [ 13 ] The police then obtained judicially authorized production orders from Telus Communications for information in relation to the two Internet Protocol (“IP”) addresses associated to the two images.

The subscriber information connected to both IP addresses revealed the following information: a. the same user name of George Booth; b. the same address in Pitt Meadows, B.C.; c. the same e-mail of [omitted for publication]@gmail.com; and d. had the same service activation date and home telephone number. [ 14 ] Based on this information, the police obtained a warrant to search the associated residence in Pitt Meadows, British Columbia. The warrant was executed on December 9, 2017. Mr.

Booth and his wife were home at the time. [ 15 ] During the course of the search the police seized multiple electronic devices and storage devices. In a bedroom primarily

occupied by Mr. Booth the police found a notebook which contained multiple user names and passwords, including references to [omitted for publication]@gmx.com and “gangus”. Mr. Booth was then arrested for possession of child pornography. [ 16 ] A forensic search of a USB stick, seized from the top of the dresser in Mr. Booth’s bedroom, revealed the following images and video that also constitute child pornography: i. An image of a naked female child lying on her back with her legs in the air.

The child’s legs are folded back behind her head, wrapping around her back while she is holding onto her feet and smiling at the camera. Her vagina and anus are fully exposed. The child does not appear to have any hair follicles forming in her vaginal area and her breasts do not appear to have developed. ii. An image of a child between the ages of three to five, lying face down on a bed while an adult male places his erect penis in between the child’s bum cheeks and anal area. The sex of the child is unknown. iii.

An image of a female child between the ages of eight and 10 who is fully clothed and sitting on a bed next to a naked male. The female child has the male’s penis in her mouth while she is looking at the camera. iv. A video of a female child between the ages of two to three that shows the child’s vagina and chest and an erect penis being inserted into her vagina. [ 17 ] A total of five images and one video file fall within the definition of “child pornography”. The same forensic examination also found several images which do not constitute child pornography.

These included an image of a naked child between the ages of eight and eleven, the image of a child between the ages of eight and ten lying on her back in underwear and a mesh top, the image of a clothed child between the ages of six and eight at the beach, and several images of adult females engaged in oral sex or sexual intercourse with animals. [ 18 ] All of the referenced images and videos were downloaded by Mr. Booth and saved onto his USB stick.

Circumstances of the Offender [ 19 ] I have had the benefit of both a pre-sentence report dated September 7, 2018 (the “PSR”) and a psychological assessment dated August 31, 2018 to assist in sentencing. [ 20 ] Mr. Booth is 71 years old. He had a positive upbringing and has one younger sibling who he remains in touch with. [ 21 ] He has been married for 44 years and has three adult children, two of whom have children of their own. He has frequent contact with them although this offence has put a strain on their relationships. At one point his son-in law would not allow him to see his grandchildren.

These charges have been a shock to his family members and his brother advised that such behaviour is out of character for him. [ 22 ] Mr. Booth has been the sole provider for his family and his brother described him as living to serve his family. His wife has never had a driver’s license and she relies on him for day-to-day activities as well as driving her wherever she needs to go. Mr. Booth’s wife and children continue to be supportive of him, as is his brother and much of his extended family. [ 23 ] Mr. Booth has a grade 13 education and attended university for one year.

He had a positive experience in school and had above average grades. Following high school he was consistently employed at a variety of jobs before obtaining long term employment at Skytrain in 1987. He retired from Skytrain in 2015, spending the last 22 years as a Vehicle Maintenance Department Supervisor. [ 24 ] Mr. Booth has a number of health issues, including Type II diabetes, sleep apnea and Chronic Obstructive Pulmonary disease. He has never received a mental health diagnosis and has never been under the care of a psychiatrist.

He does however, report experiencing symptoms of depression and anxiety as a result of the current charges and has been prescribed an anti-depressant. He has also been seeing a psychologist for the past year to help him address his stress and to eventually discuss the circumstances surrounding the offence. He intends to continue with that counselling. [ 25 ] He does not suffer from any substance abuse issues. Nor does he have any criminal record or involvement with the criminal justice system. [ 26 ] Mr.

Booth’s first sexual encounter occurred when he was 20 years old and he had two intimate relationships prior to marrying his current wife. He and his wife have not been intimate for over ten years as a result of him working night shifts and, more significantly, the onset of erectile problems as a result of his Type II diabetes. They have maintained separate bedrooms for several years. [ 27 ] He says that he began searching the internet for reasons behind and solutions to his diabetes-caused erectile problems.

He began to view pornography websites to try to become aroused but was unable to maintain a complete erection. He says that he never looked specifically for child pornography but that he began receiving images from women when he was “sexting” online. He was unable to tell the PSR writer why he kept the images instead of deleting them and insisted that he never looked at children. He says that he has now ceased to look at pornography as a result of these charges and acknowledges the reality that he will no longer be sexually active. [ 28 ] Mr.

Booth states that he is ashamed and remorseful for his actions and the toll it has taken on his family. He expressed the same sentiments in open court when he was given an opportunity at the conclusion of his sentencing hearing. He was at a loss to explain his behaviours, only saying that he was trying to find a way to get aroused as he had not grasped his inability to function sexually as a result of his diabetes. [ 29 ] In the psychological report, Mr.

Booth revealed that after receiving various images from persons he understood to be women “sexting” him, he saved the images to a USB stick to prevent his wife from seeing them. He indicated that he would occasionally look at all the pictures he had saved but insisted that they did not arouse him. He denied ever going back to specifically look at the images with

children or that he ever masturbated to the pictures of children. He also denied ever having any sexual thoughts or fantasies about children. [ 30 ] The writer of the psychological report, Dr. David Wiebe, states that three factors likely made an indirect contribution to Mr. Booth committing these offences. Those were the prolonged lack of sexual intimacy with his wife, his diabetes related erectile dysfunction, and his high levels of stress due to being the sole provider and main caretaker in the family. However, Dr.

Wiebe indicates that these factors do not provide a specific explanation for why he chose child pornography and why he continued to view it multiple times over a lengthy period of time. Moreover, although he has pled guilty and appears remorseful, in the absence of any other plausible explanations, Dr. Wiebe states that one is left with the assumption that his offenses must have been driven by a sexual interest in children and sexual arousal to images of child pornography. [ 31 ] Dr.

Wiebe concludes that, although there is no well validated and established measure to assess the risk for re-offending in child pornography offences, Mr. Booth does not have many risk factors for any kind of future sexual offending. Principles of Sentencing in the Criminal Code [ 32 ]

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 for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct 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. [ 33 ]

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

section and, as such, these are the pre- eminent considerations in determining a fit sentence in this case. [ 34 ]

Section 718.1 sets out the fundamental principle that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 35 ]

Section 718.2 requires a sentencing judge to consider any mitigating or aggravating circumstances relating to the offence or the offender as well as to impose a sentence similar to what has previously been imposed on similar offenders for similar offences in similar circumstances. [ 36 ] Offences involving child pornography are by their very nature serious and their gravity is beyond dispute. The impact on its victims may be profound. The Supreme Court of Canada commented on the consequences for the victims in R. v. Sharpe 2001 SCC 2 at para 92 : [92] The abuse is broad in extent and devastating in impact.

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

Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone. [ 37 ] In addition to the various sentencing principles outlined above, in cases involving child pornography sentencing judges are able to consider both the volume of materials possessed as well as the nature of the materials. In R. v. Missions 2005 NSCA 82 , five categories from the least to most serious depictions were described and have become widely used by the courts. The categories are: a.

Images depicting erotic posing with no sexual activity; b. Sexual activity between children, or solo masturbation by a child; c. Non-penetrative sexual activity between adults and children; d. Penetrative sexual activity between children and adults; and e. Sadism of bestiality. The materials possessed by Mr. Booth included all but the fourth category. Case Law [ 38 ] Sentencing is an individualized process, with no two cases exactly the same. However, previously decided cases are useful in determining sentencing ranges, and to ensure that the principle of parity described in s. 718.2(

b) is honoured.

[ 39 ] The crown relies on a number of cases in support of its submission that a proportionate sentence for Mr. Booth is six months. [ 40 ] The first crown case is R. v. Butler [2017] N.J. 396. Here the offender pled guilty to one count of possessing and one count of transmitting child pornography. He was in possession of 16 videos and 110 images, which fell at the lower end of egregiousness. He had no prior record, expressed remorse and had been sexually assaulted when younger and suffered some mental health effects of that assault.

The court noted that most offenders in cases of this nature enter guilty pleas and have no prior record. The court declined to find that the mandatory minimum sentence was unconstitutional and imposed a sentence of 10 months for the possession charge and 12 months for the transmitting charge. Leave to appeal this sentence was denied by the Newfoundland Court of Appeal. [ 41 ] In R. v. John 2017 ONSC 810 , the 31-year-old offender was found guilty of possessing 89 videos and 50 images of child pornography.

The nature of the pornography was found to be aggravating as it depicted children as young as two and showed vaginal and anal penetration of children. The court found that the mandatory minimum sentence of 6 months did not offend the Charter and imposed a sentence of 10 months, less 2 months of pre-sentence house arrest. On appeal, the Ontario Court of Appeal upheld the sentence but found that the mandatory minimum sentence infringed s. 12 of the Charter in reasonably foreseeable hypothetical circumstances and thus was of no force and effect: 2018 ONCA 702 . [ 42 ] In R. v.

Swaby 2017 BCSC 2020 , the offender pled guilty to possession of child pornography. He was a young man with no criminal record and with significant cognitive deficits and mental health issues. He was found in possession of 399 video files and 480 images meeting the definition of child pornography. The sentencing judge found that on both the particularized inquiry and reasonably hypothetical approach, the 90-day mandatory minimum sentence infringed s. 12 of the C harter and imposed a 4-month conditional sentence order, followed by probation for two years.

That was upheld on appeal to the BC Supreme Court and the BC Court of Appeal: 2018 BCCA 416 . [ 43 ] In R. v. Alexander 2018 BCPC 389 , I sentenced an offender to 8 months of imprisonment. He had pled guilty to possessing over 6000 images and 400 videos that met the definition of child pornography. The images were collected over a period of two years. I declined to consider the challenge to the mandatory minimum sentence of 6 months.

The BC Court of Appeal upheld the 8 month sentence but nonetheless concluded, on the basis of Swaby, that the six month mandatory minimum sentence was unconstitutional based on a reasonable hypothetical. In doing so the BCCA stated at paragraph 39: [39] 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. [ 44 ] In R. v.

M.O.C . 2016 BCPC 273 , an offender was found guilty of possessing 58 videos and one image that met the definition of child pornography. He was 70 years old, had no record and suffered from a number of health problems. He seemed to lack insight into the fact that his offence was wrong. The Crown sought a sentence of 12 months and the defence sought a sentence of six months. No challenge was made to the mandatory minimum sentence of six months. The offender received a sentence of 10 months. [ 45 ] s the offender pled guilty to possessing three videos that met the definition of child pornography.

The computers on which the videos were found had numerous anti-forensic characteristics, suggesting a level of sophistication regarding their use. His viewing of child pornography was also found to be part of a pattern of selecting and viewing such material. The offender was 74 years old, the father of two adult children and grandfather of four grandchildren. He had no prior criminal record and was deemed to be at a low risk to reoffend. He was engaged in counselling. The sentencing judge declined to consider the constitutionality of the mandatory minimum and imposed a sentence of six months. [ 46 ] In R. v.

Watson 2018 BCCA 329 , the Court of Appeal upheld a 12 month sentence for an offender who had possessed over 220,000 images of child pornography and a small number of videos. The collection had been organized and labelled by the offender who was 72 years old, with no prior criminal record. [ 47 ] In R. v. Wang 2016 ONSC 5610 , the offender was convicted of possessing 38 images and five videos that met the definition of child pornography. The offender was 26 years old and had no record. The offender received a sentence of nine months. [ 48 ] In R. v.

King 2016 NWTSC 29 , the offender pled guilty to possessing 68 videos and 39 images that met the definition of child pornography. The offender was 51 years old, aboriginal and had a tragic childhood. He had no record. He was sentenced to 24 months. [ 49 ] In R. v. Johnstone 2011 NLCA 56 , the Newfoundland Court of Appeal overturned a sentence of 15 months and imposed a sentence of 10 months for a 72-year-old offender who had pled guilty to possessing 20 videos of child pornography. He had no criminal record, showed insight and had health problems. [ 50 ] In R. v.

Dumais 2011 ONSC 276 , the offender pled guilty to possessing 170 images and 44 videos of child pornography. He was 36 years old with no criminal record. He had no mental health issues, health issues, or substance abuse issues. He had 3 university degrees and was a respected elementary school teacher. He was considered low risk to re-offend. The Crown sought a 12-month sentence and the defence sought an intermittent jail sentence of 90 days.

He was given a nine month sentence. [ 51 ] The defence relies on the following cases which, he says, permits a lower sentencing range than the range suggested by the Crown. [ 52 ] R. v. Hammond 2013 BCSC 439 the court considered a

summary conviction appeal as well as an appeal of a 60 day intermittent sentence. The applicable mandatory minimum was 14 days. The offender was found to be in possession of four videos which met the definition of child pornography. He had no criminal record. He denied knowing that the videos were on his computer. Both the conviction and the 60 day sentence were upheld, with the court concluding that sentences of 14 days to 120 days are within the range of for an offender such as the one before the court. [ 53 ] In R. v. Leask 2013 BCSC 926 , a 34-year-old offender was found guilty of possessing 26 child pornography images. The Crown

had proceeded by indictment and there was a 45-day minimum sentence that applied. The sentencing judge found that the nature of theimages was relatively benign and the quantity of the images was relatively small. The sentence imposed was the minimum of 45 days, tobe served intermittently. [54] In R. v. Kotzer 2016 BCSC 902, the court heard a

summary conviction and sentence appeal by the accused. The convictionappeal was dismissed and the sentence was reduced from four months to the mandatory minimum of 14 days. However, I agree with theCrown that this case is of limited usefulness as the reduced sentence on appeal was the result of a joint submission, with no facts outlinedin support of the sentence. [55] In R. v. T.J.R.M. 2016 BCPC 177, the 31 year old offender pled guilty to possessing 82 images and 56 videos of childpornography. The materials included vaginal and anal penetration of very young children.

The offender admitted to being addicted topornography, and in particular to child pornography, which he had been viewing for a number of years. The Crown sought a sentence ofsix months and the defence sought the mandatory minimum of 90 days. The sentencing judge imposed the mandatory minimum of 90days. [56] In R. v. M.T. 2016 BCPC 243, the 49-year-old offender pled guilty to possessing child pornography. The quantity of thematerials is not readily apparent from the sentencing decision, although there were at least 4 videos that included sex acts betweenchildren and adults.

The offender had no criminal record and was determined to be at low risk to reoffend. The Crown sought a sentenceof six to nine months while the defence sought the mandatory minimum of 90 days. The court imposed a sentence of 90 days. Sentencing Ranges in Child Pornography Cases [57] A number of BC cases have discussed sentencing ranges in child pornography cases. [58] In R. v.

R.L.W. 2013 BCCA 50, in a case that proceeded by indictment, the BC Court of Appeal upheld a general range ofbetween four months and two years for possession of child pornography offences. [59] Nonetheless, sentences imposed in cases of child pornography will vary significantly depending on the nature of the offence andthe offender’s personal circumstances: R. v. Watson 2018 BCCA 329 at para 25. [60] In R. v.

Walker 2017 BCSC 1301, Brown J. found that the appropriate range of sentence for a first-time offender withsympathetic circumstances and a relatively small collection of child pornography (182 images) was “45 days to nine months, with mostof the cases falling within the four to nine month range”: para 43 [61] In Swaby (BCSC) Marchand J. held that [93] … the appropriate range for a first time offender with a collection of pornography similar to Mr. Swaby’s would be a jail sentenceof six to 15 months.

The range would, however, be lower if the first time offender had a smaller collection of child pornography and/or aparticularly reduced level of moral blameworthiness. [62] Nonetheless, absent a mandatory minimum, in some circumstances a Conditional Sentence Order (“CSO”) may satisfy thesentencing objectives. In Swaby (BCCA) the Court of Appeal said the following at paragraphs 77-78: [77] In R. v.

Proulx, 2000 SCC 5 , 2000 SCC5 at para 22 the Court concluded that a CSO is “also a punitive sanction capableof achieving the objectives of denunciation and deterrence.” [Emphasis in original.] [78] I agree with Galati P.C.J and Marchand J that absent a mandatory minimum sentence, a sentence to be served in the communityunder strict conditions would satisfy all of the objectives and principles of sentencing, and would be a proportionate sentence. [63] However, as stated in the BCSC Swaby decision: [140] the offence of child pornography is unquestionably grave and sentences must emphasize denunciation and deterrence in an effortto limit the harm done to victims and society.

In the vast majority of cases, a period of incarceration served in a correctional facility willbe called on to achieve these critical objectives. Indeed the final paragraph of Swaby (BCSC) states: [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 reducedblameworthiness.

Mitigating and Aggravating Circumstances [64] In the present case I find the following circumstances to be mitigating: 1. Entering a guilty plea, and at an early stage in the proceeding. 2. Mr. Booth’s lack of a criminal record. 3. Expressions of remorse, as expressed to the writer of the PSR and in court. 4. The modest size of the offending materials. 5. Mr. Booth’s otherwise exemplary life.

6. His relatively advanced age, accompanied by some health problems. 7. Having the support of his wife and family. 8. His engaging in counselling since the charges arose, although this is somewhat attenuated by the fact that the counselling hasnot yet focussed on his offending behaviour. 9. The passive way in which he obtained the materials, which was unsolicited and sent by individuals whom he believed to bewomen he was ‘sexting’ with online. 10. The minimal risk factors he presents to reoffend, as described in the Psychological Report. [65] I find the following to be aggravating circumstances: 1.

The egregious nature of some of the child pornography materials possessed by Mr. Booth. 2. The possession of images of bestiality involving adult females. [66] I am also mindful of the fact that despite the passive way in which Mr. Booth received these materials, he nonetheless tooksteps to save them to a USB stick and would occasionally look at all the pictures he saved, including the pornographic images involvingchildren. As previously stated by Dr. Wiebe, there remains some concern that Mr.

Booth’s offences may have been driven by a sexualinterest in children. [67] I have given consideration to whether a Conditional Sentence Order would be a fit and proportionate sentence, I find that itwould not. While the decision in Swaby opened the door to the imposition of a CSO in exceptional circumstances, such as the reducedmoral blameworthiness of Mr. Swaby given his very significant cognitive impairments, I do not find Mr. Booth’s circumstances to be soexceptional.

In my view, the imposition of a CSO in the circumstances would not adequately give effect to the principles of denunciationand deterrence. [68] Upon a consideration of the relevant sentencing principles, prior sentencing cases and the mitigating and aggravatingcircumstances in this case, I find that, absent the mandatory minimum sentence prescribed in the Criminal Code, a fit sentence for Mr.Booth would be three months in prison.

Does the Mandatory Minimum Sentence Result in a Grossly Disproportionate Sentence? [69] The second step in the Nur analysis is to decide, keeping in mind the proportionate sentence, whether applying the mandatoryminimum would result in a grossly disproportionate sentence for Mr. Booth. To be grossly disproportionate, a sentence must be morethan merely excessive. The sentence must be “so excessive as to outrage standards of decency” and disproportionate to the extent thatCanadians “would find the punishment abhorrent or intolerable”: R. v.

Ferguson 2008 SCC 6 , 2008 SCC6 at para 14. [70] The threshold for a s. 12 breach is high and courts must be careful to not stigmatize every disproportionate or excessivesentence as a constitutional violation. As Cory J. noted in Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R.1385 at page 1417: It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions ofs. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding.

Alesser test would tend to trivialize the Charter. [71] There are two aspects to the s. 12 analysis. The first is the “particularized inquiry” which focusses on the individualcircumstances of the offender. Where a sentence is grossly disproportionate for an individual offender then a violation of s. 12 isestablished and the court should go on to consider whether the infringement can be justified under s. 1 of the Charter. The second aspectarises where the sentence is not grossly disproportionate to the individual offender.

In those circumstances, the court can then go on toconsider whether a breach of s. 12 arises from “reasonable hypothetical circumstances” advanced by the offender. [72] The particularized inquiry involves an examination of all relevant contextual factors including the circumstances of theoffender, the circumstances of the offence, the actual effect of the punishment on the offender and the penological goals and sentencingprinciples. [73] Given the high threshold that must be met for a finding of grossly disproportionate, in my view, on a particularized inquiry, Mr.Booth has failed to meet that test.

While the applicable mandatory minimum of six months may be excessive when applied to hiscircumstances and the circumstances of his offence, I am unable to say that it is so excessive as to outrage standards of decency, or that itis such that Canadians would find it abhorrent or intolerable. Indeed, a sentence of six months fits within the range of sentencesdescribed in the cases for offenders similar to Mr. Booth. [74] As I have found that the mandatory minimum sentence is not grossly disproportionate for Mr.

Booth on the basis of his ownpersonal circumstances, I must nonetheless consider whether any reasonably foreseeable applications of the mandatory minimumprovision will result in grossly disproportionate sentences for a hypothetical offender. [75] The Crown acknowledges that the ruling in Swaby establishes a reasonable hypothetical that may be applied to the s. 12analysis in the case before me. Accordingly, I find that the mandatory minimum sentence of six months would be grosslydisproportionate in the case of a reasonable hypothetical and, as such, violates s. 12 of the Charter.

As such, I decline to apply themandatory minimum sentence to Mr. Booth but, instead, would impose a custodial sentence of three months, followed by probation for aperiod of 18 months.

[ 76 ] Before addressing the terms of the probation order and the ancillary orders, I pause to note that in its written submissions the Crown advised that if the mandatory minimum was found to violate s. 12 of the Charter , it requested the opportunity to consider whether it would seek to justify the violation under s. 1 of the Charter . [DISCUSSION WITH COUNSEL] [ 77 ] THE COURT: Mr. Booth, can you stand, please. [ 78 ] The sentence that I will impose on you is a custodial sentence of three months, followed by probation for a period of 18 months. [ 79 ] The terms of the probation order 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 of any change of name or address or of any change of employment or occupation. 4. You must report in person to a probation officer at 2610 Maryhill Road, Port Coquitlam, B.C. within two business days after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere. After that you must report as directed by the probation officer. 5.

If at any time prior to the expiration of this order, you are arrested, detained or have served a sentence for another offence, you must report to the probation officer within two business days of your release from custody. 6. You must reside at a residence approved in advance by your probation officer. You must provide your phone number to your probation officer and you must not change your residence or your phone number without the written permission from your probation officer. 7.

You must not go to any public park, public swimming area, or community centre where persons under the age of 16 years are present or can reasonably expect to be present, or a daycare centre, school ground or playground. The exceptions to this are: a. With the written permission of your probation officer. You must carry the written permission when you are in the prohibited area; b. In the immediate presence of J.B., but only after she has been provided with a copy of this order; c. In the immediate presence of another adult, and only after he or she has been provided with a copy of this order. 8.

You must have no contact or communication directly or indirectly with, or be alone in the presence of any person you know to be or who reasonably appears to be under the age of 16 years. The exceptions to this are: a. If they are your grandchildren; b. If you have the written permission of your probation officer in which case you must carry the permission; c. In the immediate presence of J.B. and only after she has been provided with a copy of this order; d. With the consent of the child’s parent or guardian, but only after the parent or guardian has reviewed this order; e.

In the course of legitimate employment, but only in the immediate presence of an adult who has knowledge of this order, or when contact is necessary and incidental to the employment; and f. Incidental contact while attending a business premises, a common area in a building, and while on public transit. 9. You must not consume any alcohol or intoxicating drugs, except in accordance with a lawful prescription. 10.

You must attend, participate in and successfully complete any intake, assessment, counselling, program, treatment or residential treatment program as directed by your probation officer, which may include but is not limited to the Forensic Sex Offender Program and the Sexual Offender Maintenance Program. 11. While owning, possessing or using any device capable of accessing any computer network including the internet: a. You must not delete your browsing history. b.

You must not access, directly or indirectly, any social media sites, social networks, internet discussion forum or chat rooms, or maintain a personal profile on any such service, including Facebook, Tinder, Instagram, LinkedIn or any similar service. c. You must 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 16 years through a social networking website, instant messaging service, or chatroom program. d.

Having consented, you must sign release of information forms as will enable your probation officer to monitor your compliance with this term. Any information obtained by the probation officer can be given to a peace officer.

e. Having consented, you must provide the device and any password used to lock the device to your probation officer upon their request, in order for him or her to monitor your compliance with this order. 12.

You must not possess either personally or through another person any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in s. 2 of the Criminal Code , or any related authorizations, licences or registration certificates. [ 80 ] Pursuant to s. 161 of the Criminal Code , you are prohibited for seven years from: 1.

Attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre. 2. Having contact or communication with, or being alone in the presence of any person you know to be or who reasonably appears to be under the age of 16 years. The exceptions to this are as follows: a. If they are your grandchildren; b. In the immediate presence of J.B. and only after she has been provided with a copy of this order; c.

With the consent of the child’s parent or guardian, but only after the parent or guardian has reviewed this order; d. In the course of legitimate employment, but only in the immediate presence of an adult who has knowledge of this order, or when contact is necessary and incidental to the employment; and e. Incidental contact while attending a business premises, a common area in a building, and while on public transit. 3. While owning, possessing or using any device capable of accessing any computer network including the internet: a. You must not delete your browsing history. b.

You must not access, directly or indirectly, any social media sites, social networks, internet discussion forum or chatrooms, or maintain a personal profile on any such service, including Facebook, Tinder, Instagram, LinkedIn or any similar service. c.

You must 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 16 years through a social networking website, instant messaging service, or chatroom program. [ 81 ] Pursuant to s. 490.012, you are required to comply with the Sex Offender Information Registration Act for ten years. [ 82 ] The offence of possessing child pornography is a primary designated offence. Pursuant to s. 487.051(1).

Accordingly, I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. [ 83 ] There shall also be an order for forfeiture of all offence-related property. [DISCUSSION WITH COUNSEL] [ 84 ] THE COURT: It will be a 90-day sentence. You are sentenced to 90 days of imprisonment. You must serve this sentence intermittently starting today, which is June 19th. Thereafter, each weekend from Friday at six o'clock until Sunday at six o'clock on consecutive weeks. And where would he have to report for that? [ 85 ] MR.

RIDDELL: He will be taken into custody today as his first day. He will be processed. My recollection is he goes to North Fraser and they will sort of register him and get all his particulars, tell him when, where and how he reports. [ 86 ] THE COURT: Okay.

So North Fraser. [ 87 ] In addition, at all times when you are not in custody on this order and until your intermittent sentence has been served in full, you are on probation with the following conditions. [DISCUSSION WITH COUNSEL] [ 88 ] THE COURT: Additionally, there will be a term that is as follows. [ 89 ] On each occasion when a part of the interim jail sentence is to be served you must arrive at the place where the sentence is to be served on time and in an entirely sober condition without any alcohol, intoxicating substance or drugs in your body except in accordance with a medical prescription. [DISCUSSION WITH COUNSEL] [ 90 ] THE COURT: I will direct that the DNA sample be taken while he is in custody. (REASONS FOR SENTENCE CONCLUDED)