IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Quested has entered a guilty plea to a charge of accessing child pornography contrary to section 163 (4.1) of the Criminal Code. That section provides for a mandatory minimum sentence of six months imprisonment where the prosecution proceeds by way of summary conviction, as it has here. Coincidentally, a sentence of six months imprisonment is the sentence sought by the Crown, regardless of the mandatory minimum.

[2]           Counsel for Mr. Quested submits that imposing such a sentence would be grossly disproportionate to the circumstances of the offence and the offender, and asks me to reject the mandatory minimum sentence as unfit and to impose a conditional sentence in its place.

[3]           The framework for analysing this issue was formulated by the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, and very recently used by our Court of Appeal in two sentence appeals, R. v. Swaby, 2018 BCCA 416, and R. v. Alexander, 2019 BCCA 100. In considering the Defence submission, my first task is to determine what I consider to be a fit sentence based upon the sentencing principles set out in Part XXIII of the Criminal Code. Secondly, I must consider whether the imposition of the mandatory minimum sentence would be grossly disproportionate to the sentence I consider fit and proportionate. If the answer is no, the court will go on to determine whether, even if the mandatory minimum sentence is not grossly disproportionate for this particular individual, might it be for another offender in a different, but reasonably foreseeable case for the same offence. If the answer to that second question is yes, the sentencing judge will find that to sentence the offender to the mandatory minimum sentence would violate section 12 of the Charter and will proceed to sentence the offender to the punishment deemed to be proportionate and fit.

[4]           In a case of this nature the primary consideration is to pass a sentence that will serve to denounce the offender’s conduct and to deter the offender and others from committing such a crime in the future. While a sentencing judge must keep these sentencing principles uppermost in mind, they do not preclude a consideration of the personal circumstances and previous good character of an offender or any other mitigating circumstances. In particular, section 718.2 mandates that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances” (subsection d), and that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders…” (subsection e).

[5]           This offender, now 73 years of age, comes before the court with no criminal record. He recently completed a career as a professional accountant and throughout his career held a variety of responsible positions with respected accounting firms. The materials submitted to me by defence counsel make it clear that Mr. Quested has, throughout his life, been a highly respected member of the community, a loving parent and doting grandfather. His wife of nearly fifty years also stands by him.

[6]           In reading the sentencing materials submitted on his behalf I am struck by the esteem in which he is held by others. I am particularly impressed with the thoughtful letter written by his son D., the father of two children aged 13 and 11. I will quote from that letter, as it does much to describe the character of Mr. Quested, and, not incidentally, that of his wife M. He says of his childhood:

[7]           In describing his father’s importance to the family, D. says this:

[8]           D. also spoke in his letter about the close, loving relationship his father has with D.’s children. He eloquently describes his father’s commitment to, and involvement with, his grandchildren and the love reciprocated by his grandchildren to him.

[9]           Mr. Quested has throughout his life generously served the community in his support of charitable causes, sometimes taking on a leadership role in addition to contributing financially.

[10]        There is no doubt that in recent years Mr. Quested has been under severe stress. In addition to being the primary care giver for his family members, he was particularly focussed on providing his mother with the care and attention she needed in order to maintain a decent quality of life. He began to drink heavily, often leaving work to go to bars where he would drink to the point of intoxication then hail a cab to take him home. At one point a VIHA nurse who was assisting with his mother’s care became alarmed at what she perceived as his mounting stress levels and connected him with counsellors from the Alzheimer’s Society who told him in no uncertain terms that he was endangering his physical and mental health by continuing to look after everyone but himself.

[11]        After his arrest in November 2016, Mr. Quested began counselling with Andrew McWhinnie, a psychologist with particular expertise in sex related criminal conduct who routinely conduct risk assessments at the behest of government agencies both in Canada and the United States. The therapeutic relationship continues to this day.

[12]        Mr. McWhinnie provided a detailed report of his counselling sessions with Mr. Quested as well as a risk assessment. He also noted that Mr. Quested has a “precarious medical condition involving a dangerous, and perhaps fatal, inoperable brain lesion” resulting from a brain stem stroke in August of 2017.

[13]        In his report Mr. McWhinnie distinguishes two different types of person attracted to child pornography. His report states as follows:

[14]        Mr. McWhinnie goes on to describe that with respect to the latter, non-pedophilic group of men, they go on to find “darker, more prohibitive” images even though they may feel disgusted and ashamed of themselves. But the activity continues, with the men rationalizing their conduct by thinking they are just looking, it’s only a photograph, and that they are not personally harming a child. With this group of men, of which Mr. Quested is one, there is no external reality at play to counter their rationalizations, and the offending activity continues. In the end, the offending activity resulted in the arrest of Mr. Quested.

[15]        In addition to the report of Mr. McWhinnie, defence counsel commissioned a risk assessment from another well-known professional, Dr. Peter Meuser. This was done so that no criticism could be made that Mr. McWhinnie’s report may be flawed or biased as a result of their therapeutic relationship.

[16]        In addition to interviews with Mr. Quested and collateral contacts, including Mr. McWhinnie, Dr. Meuser administered psychological tests and conducted a full DSM mental status examination of Mr. Quested.

[17]        Dr. Meuser’s summary is as follows:

[18]        Finally, Dr. Meuser concludes that Mr. Quested is not a risk to any children in his care. He also considers Mr. McWhinnie’s report a generally accurate assessment of Mr. Quested.

[19]        In September of 2016, police were notified by Google that a suspected child pornography image had been downloaded to Mr. Quested’s computer. Following an investigation, Mr. Quested was arrested in November of that year, taken to court and released bail with strict conditions limiting his contact with children and prohibiting him from using any device capable of accessing the internet.

[20]        Within his computer, police investigators found almost 3400 images, of which over 1000 were considered to fall into the prohibited category of child pornography. These images were found in various locations, including his browser cache, trash and internet history. The images were not stored in any organized fashion.

[21]        The images contained scenes of bondage, oral sex and other depravities with children whose age appeared to be between two and nine. Mercifully these images were not shared with the court, and I can say little more about them. There is no dispute, however, that these images were graphic and disgusting, and to any objective observer revealed horrendous abuse of the children depicted.

[22]        The offending conduct took place for the two years prior to arrest.

[23]        Our societal understanding of the harm caused by the child pornography industry has evolved over time, particularly with a greater acknowledgment that merely viewing such images contributes to the abuse. Without a consumer there would be no product. Viewing child pornography is not a harmless pastime, and rationalizations must not be entertained. In this case it is abundantly clear that Mr. Quested now fully understands the role he played in supporting the exploitation of children.

[24]        Based upon a review of the authorities I have no doubt that, absent compelling circumstances, a jail sentence is warranted. Such cases offer no reason to look in any depth beyond the principles of denunciation and deterrence. However in this case I find the personal circumstances of Mr. Quested compel me to give considerable weight to the provisions of section 718.2 (d) and (e) and consider whether a non-custodial sentence would serve to provide a fit and proportionate sentence.

[25]        The aggravating factors in this case consist of the relatively large size of the collection of images and their nature, depicting as they do, very young children engaged in the most serious type of sexual activity, sometimes with adult males.

[26]        The mitigating factors are significant:

[27]        Mr. Quested burned himself out as a care-giver and turned to alcohol and child pornography as a means to relieve the oppression he felt. His arrest brought his drinking and internet browsing to an abrupt halt. It was a reality check like no other. He has faced his demons with the help of family and Mr. McWhinnie and is not a danger to anyone, including children. He has had a lifetime of honest work and exemplary service to the community in which he lives. He has strong family and community support, and the events that brought him to court were an aberration in an otherwise long and productive life.

[28]        I think it is also important to remember that Mr. Quested has a significant and potentially deadly medical condition. He would not do well if confined to prison for a variety of reasons, including his age, the nature of the offence, and his health challenges.

[29]        In R. v. Proulx, 2000 SCC 5, Chief Justice Lamer said at paragraph 109 that:

[30]        In this particular case I believe that less restrictive sanctions, not imprisonment, are appropriate and proportionate in the circumstances. I am satisfied that a conditional sentence order with significant conditions, including reparations to the community, will satisfy both the need to denounce and deter the conduct to which he has pled guilty, and to achieve those restorative goals referred to by Chief Justice Lamer. Given the mitigating factors present in this case I find a conditional sentence order to be a proportionate sentence.

[31]        I also find that the imposition of the mandatory minimum sentence of six months imprisonment would be grossly disproportionate for this particular offender, and would violate section 12 of the Charter, which mandates that every person has the freedom not to be subjected to cruel and unusual punishment.

[32]        To take the matter a step further, if I am incorrect in my finding that a mandatory six month sentence would be grossly disproportionate for Mr. Quested, it would clearly be grossly disproportionate for the offender Swaby in the case of R. v. Swaby (supra). The Crown concedes that the Swaby circumstances constitute a “reasonable hypothetical” in all the circumstances.

[33]        I decline to sentence Mr. Quested to a mandatory term of imprisonment. Therefore Mr. Quested qualifies in all respects for a CSO under s.742.1 of the Criminal Code of Canada and will be sentenced to a Conditional Sentence Order of twelve months duration followed by a Probation Order of twelve months duration.

[34]        The terms of the Conditional Sentence Order are as follows:

[35]        During the probationary period to follow you will be subject to these conditions:

[36]        There will be two ancillary orders. This is a primary designated offence and pursuant to section 487.05(1), I make an order authorizing the taking of bodily samples from you for purposes of registration in the DNA National Databank. You will attend at a local police station within two weeks upon direction of your supervisor and submit to the taking of samples. Finally, pursuant to section 490.012 you are required to comply with the Sex Offender Information Registration Act for ten years.