IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Humphreys has pled guilty to one count of possessing child pornography between February 11 and April 19, 2017. The crown proceeded by indictment. Both the Crown and the defence agree that a period in custody is required as punishment for this offence, but disagree on the length of that sentence and whether or not that sentence will be served in the community under the terms of a conditional sentence order. For the reasons that follow, the Court finds that an appropriate sentence is 18 months in custody which sentence may be served in the community under strict conditions required by a conditional sentence order. There are a number of ancillary orders that are necessary all of which are also by agreement.

[2]           The gravamen of the offence is that the accused possessed various electronic devices which contain 881 photographs which are admitted to be child pornography.

[3]           At the time of the offence, the accused was in a common-law relationship with his co-accused A.Y. Ms. Y. shared custody of her then almost five-year-old son with the child’s father. The accused and Ms. Y had been living together since August 2016 and it is not entirely clear from the evidence before the Court how much of a parental relationship the accused had developed with the child.

[4]           In February 2017, Ms. Y, with the encouragement and enthusiastic support of the accused, began sending sexually explicit text messages promoting a physical sexual relationship between the accused and the five-year-old child. The images included images of the child’s genitalia as well as images of Ms. Y exposing the child’s anus while the child was sleeping. Together with those photographs came text conversations in which the couple discussed in detail how they hoped to sexually exploit the child on some future occasion after the two of them were back in physical presence. The text messaging was occurring at a time when the accused was deployed at sea and Ms. Y was at home caring for the child.

[5]           The proposed sexual exploitation of the child involved one or both of the accused and Ms. Y sodomizing the child and fellating the child as well as teaching the child to fellate the accused. Part of the conversation involved an exchange of ideas around rendering the child stupefied in order that they could affect their carnal interests. In further text conversation, the accused encouraged Ms. Y to seek out young children in the neighbourhood the two of them could also victimize. Ms. Y, with the active encouragement of the accused forwarded photographs of the child urinating in the toilet and standing naked in a bathtub. There was a further image taken when the child was asleep depicting Ms. Y spreading the buttock cheeks of her victim exposing his anus.

[6]           There is no evidence that the accused ever touched the child. There is further no evidence that the accused ever acted on any of this sexually explicit ideation.

[7]           Eight months later, the young victim’s father was using the iPad the parties shared and happened across the images and text message conversations. Not surprisingly, he was horrified and shocked by what he saw and contacted the authorities. The authorities executed a search warrant on the accused’s residence, found a laptop, iPad, and thumb drive that contained the 844 images of child pornography alleged in the count.

[8]           The Crown says that the appropriate range of sentence for these offences is seven to 10 months of jail followed by 12 to 18 months of probation. They also seek various ancillary orders such as the sex offender registration, a DNA order and a s. 161 prohibition from being in any place where children might be found. Counsel for the accused agrees that the case law requires a sentence focused on denunciation as well as general and specific deterrence but points out that those primary sentencing objectives can be met with the imposition, in extraordinary circumstances, of a conditional sentence order. He argues forcefully that this case represents one of those extraordinary circumstances.

[9]           The accused is 60 years of age and has spent the majority of his working life as a member of our Canadian military. His career with the military was highly successful and he retired after 33 years having attained the rank of chief warrant officer, the highest rank available without being a commissioned officer. He served the vast majority of his service as a medical assistant. In that capacity he was deployed to seven different combat tours; two in Bosnia, three in Afghanistan, one in the Golan Heights and one in Somalia. In each of those theatres, he witnessed atrocities of war.

[10]        In 2013, he retired from full-time service and began to work as a member of the Navy reserve. After four failed marriages, he met Ms. Y in 2016 and they began to reside together in August of that year sharing Ms. Y’s military housing. Ms. Y was also a member of the Canadian military.

[11]        Regrettably, during his time with the Canadian military, the accused suffered an acute level of post-traumatic stress disorder. Perhaps even more regrettably this disorder was never properly diagnosed until well after these charges had surfaced and he found himself before the courts. Prior to 2019, the general consensus of his caregivers was that he simply suffered from depression.

[12]        Following a thorough assessment of the accused by Dr. Monkhouse, it became clear that much of this deviant behaviour forming the gravamen of these offences can be attributed to a response to the post-traumatic stress disorder. Citing a published article with respect to the symptoms of post-traumatic stress disorder Dr. Monkhouse writes:

[13]        It is important to remember as well that the offending behaviour that involved the exploitation of Ms. Y’s five-year-old child was limited to the period from February to April 2017. Although there was extensive communication between Ms. Y and the accused between April 2017 and his ultimate arrest in December of that same year, there is no evidence that the conversation regarding the exploitation continued. Rather it was a relatively brief foray into this dark and evil area of sexual fantasy.

[14]        Furthermore, while the more than 800 images of child pornography existed in December 2017 there is no evidence that the accused continued to accumulate images after the February 2017 date in the computer. The evidence establishes and confirms the accused’s submission that by the time of his arrest in December 2017 his risk-taking sexual behaviours had moved on from pedophilia to other non-criminal sexual predilections. In sum, we are dealing with an individual who, for a relatively brief period of time, dabbled in the dark and odious world of child pornography and pedophilia. It was not a sustained and committed sexual practice.

[15]        It is against this backdrop that the court must fashion a fit and proper sentence.

[16]        Our Court of Appeal recently ruled that individuals who possess child pornography must be incarcerated except in exceptional circumstances. R. v. Swaby, 2018 BCCA 416 at para. 62, the Court of Appeal reiterated that sentiment more recently in R. v. Alexander, 2019 BCCA 100 when they wrote at para. 39:

[17]        Moreover, Mr. Justice Crossin of our Supreme Court accurately captures the state of the law when he writes:

[18]        I have considered all of the authorities put forward to me in the authorities contained within and described by Mr. Justice Crossin and agree with Crown Counsel that the range of sentence for the possession of child pornography is indeed 6 to 10 months for individuals with no prior criminal history except in exceptional circumstances. The real question here is whether there are exceptional circumstances such that serving that sentence in the community is appropriate.

[19]        There are serious aggravating circumstances in this matter. The collection of child pornography is extensive and is on multiple platforms. The collection is organized and replicated. There is no evidence before the Court with respect to the depravity of the collection. See R. v. Pommer, 2008 BCSC 737 at paras. 60 to 61.

[20]        Further aggravating these offences is the breach of trust involved in the exploitation of Mr. Humphreys’ co-accused’s child. Mr. Humphreys was an active participant and party to the actions of his co-accused in her abuse of her son. He encouraged the taking of sexually explicit photographs of the child and actively encouraged her exploitation of the child both in fantasy and reality. While he may not have been directly in a position of trust in relation to the child, he was most certainly in a role of promoting the abuse of the position of trust between mother and child. The role playing portrays Mr. Humphreys as the dominant partner in the couple’s sexual fantasy behaviour and in that capacity he directed and encouraged the exploitation of the five-year-old son of his co-accused. There is, therefore, some evidence that he assisted in the production of child pornography, an aggravating circumstance. There is no evidence that he has profited on, nor purchased child pornography. See R. v. Warn, 2007 ONCJ 417 at para. 4.

[21]        There is also a powerful victim impact statement drafted by the young victim’s father. While it may be that the young victim will forever remain none the wiser for his abuse, there is no doubt that this atrocious behaviour had real world victims in the guise of his father, who discovered this deplorable behaviour. The Court is also aware that the young victim has no doubt lost any meaningful relationship with his own mother who also committed these offences at the behest of Mr. Humphreys.

[22]        There are many mitigating circumstances. Mr. Humphreys has entered a guilty plea and accepted his responsibility for this offence. The Court was advised that this guilty plea is a very meaningful guilty plea as there were a number of serious obstacles to the successful prosecution of the matter. He is sincerely remorseful for his behaviour.

[23]        He has abided by his bail conditions for over two years without incident.

[24]        Mr. Humphreys has no prior criminal history and has served his country diligently and with pride for over 30 years. He continues to be a productive member of society and serves as an excellent employee and role model as noted in the letters of recommendation. A letter from Major Christian Borland of the Albert Head Air Cadet Summer Training Centre notes:

[25]        Regrettably, Mr. Humphreys now suffers from a serious and debilitating heart condition which will make serving a sentence in a correctional facility particularly difficult. His physician writes:

[26]        Most importantly, the accused suffers from post-traumatic stress disorder as a result of his service to his country. Indeed it is this PTSD which is the central trigger which led both he and his co-accused to turn briefly to this dark and sinister sexual predilection. It is a well-known symptom that those who suffer from PTSD often turn to dangerous and risk seeking behaviours to combat the awful symptoms they suffer from the PTSD. I am satisfied that the accused here was seeking out this risky and deplorable sexualized behaviour to deal with his symptoms.

[27]        Perhaps more importantly he is also now well aware of the seriousness of his behaviour and has taken proactive steps to deal with every aspect of his mental health struggles. I am confident that his condition will not continue to place our society at risk. His treating psychologist writes:

[28]        And further, he writes:

[29]        In my view, all of the above suggests that in this case there are indeed truly exceptional circumstances meriting the imposition of a conditional sentence order rather than a traditional period of incarceration.

[30]        The Criminal Code provides that “the fundamental purpose of sentencing is to protect society and to contribute to respect for the law … and the maintenance of a just peaceful and safe society by imposing just sanctions” [see: Criminal Code § 718]. The Criminal Code articulates the court’s obligation:

[31]        The Criminal Code further provides that in instances involving the abuse of children that the primary consideration in sentencing are the objectives of denunciation and deterrence [see: Criminal Code § 718.01].

[32]        This principle is consistent with the jurisprudence from our Court of Appeal found in R. v. R.W., 2013 BCCA 50 where the Court writes:

[33]        The Court of Appeal has consistently reinforced that fundamental principle of sentencing [see: R. v. Swaby, 2018 BCCA 416 and R. v. Alexander, 2019 BCCA 100].

[34]        However, against this legislative backdrop, the Court must be always mindful of the principle of proportionality that provides. “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” [see: Criminal Code § 718.1].

[35]        Turning to the analysis with respect to the imposition of conditional sentences, the Criminal Code provides that when a sentence is imposed of less than two years the court has the discretion to allow the offender to serve that sentence in the community under supervision and subject to conditions. The court must only do so, however, if it is, “satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2” [see: Criminal Code § 742.1].

[36]        Given the need to have as a primary objective of sentencing a strong statement of general and specific deterrence and denunciation I must consider whether or not a conditional sentence order in this case is adequate to make a sufficiently strong statement of denunciation and deterrence.

[37]        Early in the jurisprudence around the imposition of conditional sentence order’s the Supreme Court of Canada confirmed that conditional sentences provide for society’s denunciation and condemnation of criminal behaviour. On the question of denunciation the Court writes:

[38]        Similarly, on the question of the use of conditional sentences to affect the principles of general and specific deterrence the Court writes:

[39]        I am satisfied that a conditional sentence order of longer duration than proposed by the crown but with strict conditions adequately meets the need for this Court to craft a sentence which specifically deters both the accused and any like-minded offenders and adequately denounces society’s condemnation for Mr. Humphreys’ horrendous crimes.

[40]        Mr. Humphreys will be sentenced to 18 months in custody to be served under the terms of a conditional sentence order.

[41]        This will be followed by a period of probation for two years with conditions.

[42]        Pursuant to s. 161(1) of the Criminal Code for a period of 20 years prohibiting the accused from:

[43]        There will further be a requirement that the accused comply with an order requiring registration under the Sex Offender Information Registry Act for a period of 20 years. Finally, there will be an order that the accused is required to provide a sample of his DNA and attend at the Victoria Police Department within the next seven days to provide such sample.