IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On December 15, 2018, Tyler Eugene Neasloss (“Mr. Neasloss”) was charged indictably under Information 25114-1, with one count of distributing child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) and one count of possessing child pornography contrary to s. 163.1(4) of the Code. The offences were alleged to have occurred from September 1, 2018, to September 30, 2018, at or near Kispiox, British Columbia. On August 19, 2020, the Crown amended Count 2 of Information 25114-1 to extend the offence date from September 1, 2018, to December 14, 2018, and Mr. Neasloss entered a guilty plea to the amended Count 2.

[2]           At the time of the offence charged under Count 2 (as amended), s. 163.1(4) of the Code required the court to impose upon conviction a mandatory term of imprisonment, whether the Crown prosecuted the offences summarily (s. 163.1(4)(b) or by indictment (163.1(4)(a)). In R. v. Swaby, 2018 BCCA 416 (leave to appeal to SCC refused [2019] S.C.C.A. No. 17) the BC Court of Appeal found the 90 day mandatory minimum sentence under 163.1(4)(b) unconstitutional. A year later, in R. v Hamlin, 2019 BCSC 2266 (CanLII), the BC Supreme Court struck down as unconstitutional the one-year mandatory minimum sentence under 163.1(4)(a). As a result of these decisions a conditional sentence is now available to qualified offenders convicted under s. 163.1(4) of the Code.

[3]           At the sentencing hearing the Crown and defence jointly proposed a sentence comprising of a ten-month conditional sentence (“CSO”), three years’ probation and four ancillary orders. Upon canvassing extensive authorities binding on or persuasive to this Court, I questioned whether a non-custodial sentence is appropriate in the circumstances of this offence and this offender. I am not convinced a CSO gives proper effect to the sentencing principles of parity and proportionality. Despite these misgivings, I am bound by the Supreme Court of Canada’s directive that trial judges are to follow joint submissions in all but the rarest of cases. The question is whether this is such a case. For the reasons set out below, I have determined this is not a rare case and I will endorse the joint proposal as to sentencing.

[4]           The salient issues is whether the court ought to impose the non-custodial jail sentence counsel jointly propose.

[5]           The sentencing hearing proceeded before me on August 19, 2020, in the Hazelton Provincial Court. I heard submissions of counsel and received into evidence an Agreed Statement of Facts. I also received from the Crown the following authorities: (a) R. v. Alexander, 2019 BCCA 100; (b) R. v. Hamlin, 2019 BCSC 2266; (c) R. v. Mollon, 2019 BCSC 423; (d) R. v. Quested, 2019 BCPC 95; and (e) R. v. Swaby, 2018 BCCA 416. I reviewed these cases and the appellate authorities they reference: (i.e. R. v. Inksetter, 2018 ONCA 474, R. v. R.L.W., 2013 BCCA 50; R. v. Watson, 2018 BCCA 329; R. v. John, 2018 ONCA 702)). In addition, I canvassed a number of recent lower court sentencing decisions with respect to s. 163.1(4) of the Code, including: (a) R. v. C.H., 2020 BCSC 323; (b) R. v. Prince, 2018 BCSC 987; (c) R. v. B.J.M., 2019 BCPC 303; (d) R. v. Booth, 2019 BCPC 160; (e) R. v. Humphreys, 2020 BCPC 136; (f) R. v. Redekopp, 2020 BCPC 29; (g) R. v. S.D.M, 2015 BCPC 112 (CanLII), 2015 BCPC 0112; (h) R. v. S.L.G., 2019 BCPC 149; and (i) R. v. W.M.P., Terrace Docket 32030-1 (March 25, 2019).

[6]           The circumstances of the offence are set out in an Agreed Statement of Facts which Mr. Neasloss admitted pursuant s. 724 of the Code for the purposes of his guilty plea. The Crown read into the record the Agreed Statement of Facts and they were marked as Exhibit 1 in this sentencing hearing.

[7]           On September 25, 2018, Facebook, Inc. (“Facebook”), a United States social media corporation, reported the transmission of suspected child pornography to the National Centre for Missing and Exploited Children (NCMEC). The following day, NCMEC reported the transmission to the BC Integrated Child Exploitation (ICE) Unit of the Royal Canadian Mounted Police (RCMP).

[8]           The BC-ICE Unit determined that two images sent on September 24, 2018 by Facebook user “Stephanie Colace” to Facebook user “Mark Jr.” met the definition of child pornography and forwarded a report to the New Hazelton RCMP detachment on October 3, 2018. The Facebook user, “Stephanie Colace” had used an identifying IP address registered with City West Cable and Telephone Corporation (“City West”) and associated with a residence in Kispiox, BC.

[9]           On October 18, 2018, the RCMP obtained a Production Order directing City West to provide them with the name and address of the subscriber associated with the IP address. On October 24, 2018, City West informed the RCMP the IP address was registered to T.J. of [omitted for publication], Kispiox, BC.

[10]        On December 12, 2018, the RCMP obtained a search warrant for [omitted for publication] Street, Kispiox, BC, and on December 14, 2018, they executed the warrant. That same day, T.J. gave a warned statement to RCMP, denying any personal involvement with child pornography. She informed the RCMP that from August 2018 until November 2018, the accused, Tyler Eugene Neasloss and his father P.P., resided at [omitted for publication] Street, Kispiox, BC and had access to her Wi-Fi internet service.

[11]        By December 2018, Mr. Neasloss and P.P. had relocated to a residence at [omitted for publication] Drive in Kispiox, BC. On December 14, 2018, RCMP obtained and executed a search warrant at that residence, at which time they arrested Mr. Neasloss.

[12]        The RCMP seized several items at [omitted for publication] Drive in Kispiox, BC, including a Samsung cell phone, a Samsung tablet, a USB flash drive, and a security digital card (“SD card”) from Mr. Neasloss’ bedroom. The SD card was located inside the SD port of the Samsung tablet.

[13]        At 20:30 on December 14, 2018, Mr. Neasloss gave a warned statement to RCMP Constable Dart, in which he confessed to possessing child pornography from September to October 2018. He admitted viewing images of pre-pubescent boys and girls performing various sexual acts. He admitted to using a Facebook profile under the name “Stephanie Colace” and sending two images to a Facebook user named “Mark Jr.” Mr. Neasloss denied ever touching a child sexually. He expressed shame and wrote a written apology to his family for what he has done.

[14]        Mr. Neasloss was detained in custody until he was released on a Recognizance of Bail by Judge Bakan in the early morning of December 15, 2018.

[15]        On February 16, 2019, Constable Nicholas Evelyn prepared a Digital Field Technician Observation Report (the “Report”) with respect to the seized devices. He found no data on the USB flash drive and no data on the Samsung cell phone that met the definition of child pornography as set out in s. 163.1 of the Code. Constable Evelyn was unable to extract any data from the Samsung Tablet because the device was password protected. The SD Card, however, contained 35 images that met the definition of child pornography (which included several duplicate images) and one video that met the definition of child pornography. There were also several deleted videos on the SD card that had names associated with child pornography but those could not be restored.

[16]        The images and video on the SD card depict boys and girls between the ages of 5 to 10 years old engaged in explicit sexual activity. Seventeen of the images are particularized in para. 19 of Exhibit 1; the video is described in para. 20. Mr. Neasloss admits he possessed the images and video found on the SD card and agrees these images and video meet the definition of child pornography.

[17]        In R. v. Swaby, 2017 BCSC 2020 at para. 109, Justice Marchand noted that ordinarily a sentencing judge should view the images of child pornography that depict the crime. In this case, the Crown and defence counsel submit the Agreed Statement of Facts accurately sets out the activities depicted in the images and video and I did not view the images.

[18]        Mr. Neasloss was born on June 26, 1988. He was 30 years old at the time of the offence and 32 at the time of sentencing. He has no criminal record.

[19]        From August 2018 until November 2018, Mr. Neasloss resided with T.J. and his father, P.P., at [omitted for publication], Kispiox, BC. In December 2018, Mr. Neasloss and P.P. moved to a residence located at [omitted for publication] Drive in Kispiox, BC, where they currently reside.

[20]        Typically, before imposing sentence on an offender convicted of possessing child pornography, the trial judge has the benefit of a pre-sentence report and a psychiatric and psychological risk assessment. When the offender is Indigenous, the court often receives a Gladue report, In this case, the court has no such reports.

[21]        Mr. Neasloss is a member of the Gitxsan Nation. He was born in Terrace B.C., where he went to school. In Grade 8, while attending Skeena Junior Secondary School, Mr. Neasloss left school, never to return. Mr. Neasloss lives a narrow, lonely and solitary life. Essentially, Mr. Neasloss lives with his father, stays home and watches television and is not otherwise socially engaged. Mr. Neasloss does not drink or smoke or use drugs. His father does not drink alcohol and prohibits its consumption in his home. Mr. Neasloss has no friends or intimate partners, past or present; he has no children; he does not work and has a negligible work history. Mr. Neasloss lives on social assistance and although he might qualify for a disability pension, he is unable to navigate the application process. Mr. Neasloss says “I kinda have no interests, don’t do anything, sometimes it’s a struggle just to get out of bed.”

[22]        Defence counsel submits, Mr. Neasloss manifestly presents with cognitive deficits, anxiety and depression. He also struggles with suicidal ideation. The defence has not provided any medical records of Mr. Neasloss having been assessed for or diagnosed with any mental health or developmental issues. Mr. Neasloss only assessment occurred in 2011 when his father took him to the Quesnel hospital for a voluntary psychiatric evaluation. He remained there for a week or two, after which he was discharged with medication, the nature of which is unknown. It appears Mr. Neasloss did not receive any ongoing treatment as a result of this intervention.

[23]        Defence counsel submits there are no medical records because Mr. Neasloss was abandon by society. Although the Court could now order a psychological assessment, it would likely engender further delays, particularly at this time when the COVID-19 pandemic is ongoing.

[24]        The Crown adduced no victim impact statements from the children depicted in the pornographic images and video. They are unknown. In R. v. S.D.M., 2015 BCPC 112 at para. 49, Judge Hicks describes the inherent harm caused by the possession of child pornography:

[25]        The Crown and defence jointly submit a sentence for Mr. Neasloss consisting of the following six components:

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

[27]        I have set out the relevant sentencing provisions of the Code below.

[28]        Proportionality (s. 718.1) is the fundamental principle of sentencing which requires the sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. It includes two components: (a) the harm or likely harm to the victim; and (b) the harm or likely harm to society and its values: R. v. Lacasse, 2015 SCC 64 (CanLII), at para. 130. Proportionality is determined both on an individual basis and by comparing the case before the court with similar cases, while taking into account the sentencing objectives set out in sections 718 and 718.2 of the Code: Lacasse at paras. 53-54. A sentence will be demonstrably unfit if it is disproportionate to the conduct underlying the offence and constitutes a marked departure from sentences imposed for similar conduct.

[29]        Appellant courts have repeatedly held the paramount sentencing objectives for possession of child pornography are denunciation and deterrence: R. v. Allen, 2012 BCCA 377, R.L.W., Inksetter, Watson, Swaby BCCA and Alexander. Denunciation communicates society’s condemnation of the impugned conduct: R. v. Proulx, 2000 SCC 5 (CanLII), at para. 102 citing R. v. M. (CA), 1996 CanLII 230 (SCC). Deterrence "refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct”: R. v. B.WP.; R. v. B.V.N., 2006 SCC 27 (CanLII). Where the principles of denunciation and deterrence have priority, the focus of the sentencing judge is more on the offence committed (the conduct) than on the offender. While factors personal to the offender remain important, they necessarily take on a reduced role: R. v. Friesen, 2020 SCC 9, paras. 104-105; R. v. B.C.M., 2008 BCCA 365 (CanLII), para. 35. This priority focus on conduct reflects the gravity and wrongfulness of the conduct and the serious harm it causes.

[30]        In Lacasse, Wagner J. (as he then was), stated:

[31]        In Proulx, the Supreme Court of Canada held that where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction.

[32]        Although denunciation and deterrence have priority for the offence for which Mr. Neasloss is being sentenced, I must still give weight to rehabilitation set out in s. 718(d). As the Supreme Court has pointed out in Lacasse, at para. 4:

[33]        Section 718.2(b) codifies the parity principle which holds sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. In Ipeelee, the Supreme Court held the “parity principle . . . means that any disparity between sanctions for different offenders needs to be justified.” A sentence includes not only the period of incarceration, but also probation and ancillary orders.

[34]        Assessing parity requires me to determine the appropriate sentencing range for the offence on which Mr. Neasloss stands convicted.

[35]        In R. v. R.L.W., 2013 BCCA 50 (cited in Swaby BCCA at para. 66 and in Alexander at paras. 38 and 40), the Indigenous offender, R.L.W., was convicted after a trial of sexual assault and possession of pornography. He was almost 28 at the time of the offence, and 30 at the time of sentencing. R.L.W. had no criminal record. The sentencing judge had the benefit of a pre-sentence report and psychiatric assessment. R.L.W. had strong Gladue factors resulting in him being sexually victimized when he was young. The trial judge sentenced R.L.W. to five years’ incarceration for sexual assault causing bodily harm and 18 months’ consecutive for possession of child pornography, which the BC Court of Appeal upheld. Harris J.A. confirmed the range for possession of child pornography at that time was between four months and two years.

[36]        In R. v. Inksetter, 2018 ONCA 474 (cited in Alexander, at para. 41), the offender was 51 with no criminal record and otherwise of good character. He pled guilty at the earliest opportunity and was convicted of possessing and making available a vast collection of child pornography. Mr. Inksetter took responsibility, showed real remorse and sought counselling. The court had two reports from psychologists indicating Mr. Inksetter presented a very low risk to commit a future violent offence, contact sexual offence, or child pornography offence. The sentencing judge imposed a custodial sentence of two years less a day, followed by three years’ probation. The Ontario Court of Appeal allowed the Crown appeal and imposed a global sentence of three and a half years’ incarceration. The appellate court found the sentencing judge erred in prioritizing probation at the expense of denunciation and deterrence. Associate Chief Judge Hoy remarked at para. 22:

[37]        In R. v. John, 2018 ONCA 702 (cited in Swaby BCCA at para. 90 and in Alexander, at para. 51), the Ontario Court of Appeal held the six month mandatory minimum sentence for possession of child pornography in force at the time of the offence violated s. 12 of the Charter. Mr. John was convicted after a trial of possession of child pornography and sentenced to 10 months’ incarceration less 60 days’ credit to reflect conditions of house arrest and 24 days post-conviction detention. On appeal, Mr. John sought a 90-day sentence of time served. The Court found Mr. John in possession of 89 unique videos and 50 unique images of child pornography. His collection included images of children as young as four years old, and perhaps younger, subjected to anal and vaginal penetration with sex toys and adult penises. Mr. John was 29 years old at the time of the offence and 31 at sentencing. He has suffered from serious mental health problems for which he was inadequately treated, although he continued counselling. He was employed and remorseful, and no risk factors had been identified requiring further treatment. The sentencing judge had the benefit of a PSR and medical opinions from Mr. John’s treating physician. In allowing the constitutional challenge, Ontario Court of Appeal in John stated, at para. 41:

[38]        In R. v. Watson, 2018 BCCA 329 (cited in Swaby at para. 66 and in Alexander at para. 47) the offender was convicted after a trial (in July 2016) of possessing an extensive collection of child pornography and sentenced to one year incarceration and three years’ probation. The Crown proceeded by indictment. At that time of the offence (January 2015), a s. 163.1(4) offence prescribed a mandatory minimum punishment of six months in custody. Mr. Watson was a 72-year-old retired aircraft mechanic with no prior criminal record. He led a pro-social life and had strong family support. The sentencing judge had a pre-sentence report and psychiatric assessment. The judge imposed a sentence of one year incarceration followed by three years’ probation, which Mr. Watson appealed. The appellate court commented (at para. 25) that “sentences imposed in cases of child pornography will vary significantly depending on the nature of the offence and the offender’s personal circumstances.” The appellate court held (at para. 26) the sentence imposed by the sentencing judge was not only fit “it is on the lighter side of what might have been imposed.”

[39]        In R. v. Swaby, 2017 BCPC 478, upheld in R. v. Swaby, 2017 BCSC 2020, aff’d 2018 BCCA 416, leave to appeal to the SCC ref’d 2019 S.C.C.A No. 19, the offender pled guilty to one count of possessing child pornography. He was found to possess 400 video files meeting the definition of child pornography, including videos of penetrative sexual activity between adults and very young children. Mr. Swaby was 23 years old at the time of the offence and 28 at the time of his appeal. He had no criminal record. He cooperated with the authorities and expressed remorse and his willingness to be assessed and treated. He had serious cognitive impairments and overriding mental health issues which contributed to the commission of the offence. Based on the two psychological assessments before him, PCJ Galati determined imprisonment would have been extremely hard on Mr. Swaby due to his intellectual deficits. Mr. Swaby presented a low risk of committing a future sexual contact or child pornography offence. He received a four-month CSO with two years’ probation—a sentence upheld on appeal. In Swaby BCSC, Justice Marchand concluded the mandatory minimum sentence provided by s. 163.1(4) in force at the time of Mr. Swaby’s offence was contrary to s. 12 of the Charter and of no force and effect. He states at para. 159:

[40]        In Swaby BCCA, Bennett J.A., noted (at para. 65) that while incarceration is almost always the inevitable sentence for pornography offences, prior to the establishment of the mandatory minimum sentence, non-carceral sentences, such as discharges, suspended sentences and CSOs, were sometimes imposed for possession of pornography. Justice Bennett states at para. 97:

[41]        In R. v. Alexander, 2019 BCCA 100 (CanLII), the BC Court of Appeal declared the mandatory six-month minimum term of imprisonment under s. 163.1(4)(a) (in force from August 9, 2012 to July 16, 2015) of no force and effect. Nevertheless, the appellate court upheld the lower court’s eight months’ jail sentence and dismissed Mr. Alexander’s appeal for a CSO. Mr. Alexander was a 25 year old at the time of the offence and 28 at the time of sentence. He had no criminal record and pled guilty to a single count of possession of a large collection of child pornography. The sentencing judge had the benefit of a pre-sentence report and psychological risk assessment. The Court noted that unlike the offender in Swaby, Mr. Alexander did not suffer from any diminished cognitive abilities or mental health issues beyond depression. Mackenzie J.A., for the court, discussed (in paras. 37 to 39) the appropriate range:

[42]        In R. v. Prince, 2018 BCSC 987 (cited in Mollon, at para. 72), the offender was convicted after trial of four child pornography-related offences. Between 330-350 images and six to eight videos were recovered, including of young children under the age of 12 and toddlers engaged in sexual acts with adults. Mr. Prince was 26-27 years old at the time of the offences, and 35 years old at the time of sentencing. He was an Indigenous offender who suffered a traumatic childhood which included sexual abuse. He had an unrelated criminal record. The Court had no psychological risk assessment because Mr. Prince continued to deny the offences. After noting the absence of many mitigating factors, Justice Ker stated (at para. 72), the “absence of mitigating factors is just that; their absence does not translate to the presence of aggravating factors.” Before credit for pre-sentence custody was applied, Justice Ker found an appropriate sentence would have been 12 months incarceration for the possession charge, three years for possession for the purpose of distributing, and three years for making available or distributing, to be served concurrently, followed by three years’ probation.

[43]        In R. v. Hamlin, 2019 BCSC 2266, Justice Winteringham declared the one-year mandatory minimum punishment under s. 163.1(4) and (4.1) of the Code was unconstitutional and of no force and effect. Mr. Hamlin pleaded guilty to possessing and accessing child pornography. His laptop was found to contain a pornographic image of a one to three year old female child and five pornographic video compilations depicting sexual acts by adults on the children. These acts included adult males having vaginal and anal intercourse with these young children. Mr. Hamlin was a 56-year-old self-employed carpenter with positive character references, and had a dated but related criminal record as it included a 2004 conviction for child sexual assault. He was remorseful and cooperative with the police. The court had the benefit of a current presentence report and forensic psychological report. Dr. Joneja assessed Mr. Hamlin as a high risk to reoffend. Justice Winteringham found a fit sentence was eight months’ incarceration followed by three years’ probation. In reaching this conclusion, Justice Winteringham considered those factors enumerated in para. 32 of his decision:

[44]        In R. v. Mollon, 2019 BCSC 423, Justice Crossin convicted Mr. Mollon of possessing and making available a “significant cache” of child pornography which included 1600 accessible still images and 70 videos. He received 15 months’ incarceration for possessing child pornography over a number of years. Justice Crossin describes (at para. 32) the material as traversing “a spectrum of depravity” all of which “triggers a certain visceral horror.” At the time of sentencing, Mr. Mollon was 50 years old with no criminal record. A solitary man, Mr. Mollon had a “difficult, dysfunctional and debilitating childhood.” He suffered from mild cerebral palsy. The Court had the benefit of two psychological assessments, but no pre-sentence report due to Mr. Mollon’s lack of participation in its preparation. Mr. Mollon showed little regard for the consequence of his conduct (para. 82). Justice Crossin states in para. 77:

[45]        After canvassing a number of authorities Justin Crossin comments (at para. 73) that sentences ranges for child pornography offences have increased with the court’s enhanced appreciation of its enduring harm. Citing Swaby, Justice Crossin states (at para. 70), that, “Given the seriousness of child pornography offences, a conviction for possession calls for a period of incarceration, absent exceptional circumstances. . .” At para. 69, Justice Crossin justifies these custodial sentences:

[46]        In R. v C. H., 2020 BCSC 323 (CanLII), the offender was 54 years old. He had no criminal record, he pled guilty, he was a contributing member of society, and he presented a low risk to reoffend. C.H. also suffered from some physical and mental health problems (major depression). Justice Forth was not convinced the evidence established C.H.’s mental health issues were solely causative of the offences committed, however he did accept they were mitigating. Justice Forth considered and rejected a CSO given the nature of the offence, the need for deterrence and denunciation, and the lack of exceptional circumstances. He found a fit sentence was in the lower end of the range set out by the Court of Appeal in Alexander and imposed six months’ incarceration followed by 24 months’ probation and ancillary orders.

[47]        R. v. Humphreys, 2020 BCPC 136, is a recent sentencing decision of Judge D. M. McKimm. Mr. Humphreys pled guilty to one count of possessing child pornography between February 11 and April 19, 2017. His electronic devices contained 881 images admitted to be child pornography. The victim of was the five year old child of Mr. Humphrey’s intimate partner and co-accused. The two accused exchanged texts in which they discussed sodomizing and fellating the child and teaching the child to fellate Mr. Humphreys. There was no evidence Mr. Humphreys every touched the child or acted on his sexually explicit ideation. Judge McKimm describes it (at para. 13) as a “relatively brief foray into this dark and evil area of sexual fantasy.”

[48]        Mr. Humphreys was 60 years old. He suffered from PTSD as a result of his service in the military and from a serious and debilitating heart condition which would make serving a sentence in a correctional facility particularly difficult. Judge McKimm found there to be exceptional circumstances meriting the imposition of an 18-month CSO rather than incarceration. He also ordered two years’ probation, a 20-year s. 161(1) order and a 20-year SOIRA order.

[49]        R. v. W.M.P., Terrace Docket 32030-1 (March 25, 2019) is a sentencing decision of Judge Jackson of this court. W.M.P. was convicted of possessing child pornography (s. 163.1(4)) on December 15, 2015. The Crown proceeded summarily. W.M.P. was found to have possessed six videos of child pornography. Judge Jackson consider the oft-cited factors set out in Regina v. Kwok, 2007 CanLII 2942 (ON SC). W.M.P. had no related criminal record. He was not involved in the purchase or production or distribution of pornography. The six videos depicted children ranging from four to 14 years old, engaged in sexual posing, masturbating, fellatio with an adult and in one instance, anal intercourse of a ten year old child. Although W.M.P. declined to participate in a psychiatric risk assessment, the court did have the benefit of a pre-sentence report. There was nothing outside his child pornography collection raising a suspicion W.M.P. posed a risk to children. He was 43 years old and otherwise of good character. Nevertheless, W.M.P. showed little genuine remorse or insight into the harm caused by possessing child pornography. In the 22-month period between the time he was charged and sentenced, he had not sought counselling. As a result of the charges, W.M.P. was separated from his family and lost his home and business. Unlike the offender in Swaby, W.M.P.’s moral culpability was not significantly reduced by his cognitive impairment. Judge Jackson ordered six months’ incarceration with two years’ probation, SOIRA and DNA orders.

[50]        In R. v. Quested, 2019 BCPC 95, the offender was found to have over 1000 images meeting the definition of child pornography on his computer involving children between the ages of two and nine, sometimes with adult men. He pled guilty to accessing child pornography. At the time of sentencing, Mr. Quested was a 73-year-old first offender. He worked as an accountant, had strong family support, was a highly respected member of the community, and a loving parent and doting grandfather. After his arrest, Mr. Quested immediately began counselling with a psychologist with expertise in sex-related criminal conduct. Mr. Quested complied with strict bail conditions, and showed true insight into and remorse for the harm his actions caused. An independent risk assessment showed Mr. Quested was not a danger to children in his care. Judge Higinbotham found that due to Mr. Quested’s age and a medical condition, prison would have been particularly difficult for him. Judge Higinbotham imposed a 12-month CSO followed by 12 months’ probation. He found exceptional the fact Mr. Quested had “truly turned his life around” and suffered from a precarious medical condition which would be exacerbated by a custodial sentence: see paras. 27 and 28.

[51]        In R. v. R.W.P., 2019 BCPC 133, the 40-year-old first time offender pled guilty to one count of possession of child pornography. The Crown had proceeded summarily. R.W.P. was pro-social, employed as a restaurant cook and had the support of his family. R.W.P. reported to have suffered from depression, suicidal ideation, poor memory, a learning disability and childhood sexual abuse by a family member. Judge Gouge noted R.W.P.’s narrative of his personal history was not well-supported by the pre-sentence report or psychological/psychiatric assessment. Upon canvassing the appellate authorities, including Voong, Inksetter, Swaby and Alexander, Judge Gouge concluded there were no exceptional circumstances to justify a non-custodial sentence. Specifically, he did not find exceptional that R.W.P. was gainfully employed and complied with bail conditions. As to his personal history, Judge Gouge stated at para. 15:

[52]        R. v. S.L.G., 2019 BCPC 149 (CanLII) is a sentencing decision of Judge Malfair of an offender convicted of making child pornography (s. 163.1(2) of the Code and accessing child pornography (s. 163.1(4.1)) between March 22 and March 28, 2018, S.L.G. was a 48-year old grandmother and educational assistant. From the time of her arrest S.L.G. admitted her wrongdoing and expressed remorse. She entered guilty pleas and took responsibility for her actions. She had no criminal record, a good work history, and an eagerness to engage in programs intended to address her offending behaviour. Judge Malfair ordered 14 months’ incarceration followed by three years’ probation and four ancillary orders.

[53]        In R. v. Booth, 2019 BCPC 160, Mr. Booth pleaded guilty to one count of possessing child pornography. He was 71 years old with no criminal record and a number of health issues. He did not suffer from any substance misuse and assessed a low risk to reoffend. Police found five images and one video satisfying the definition of child pornography and the Crown proceeded summarily. Judge McQuillan sentenced Mr. Booth to three months’ incarceration followed by 18 months’ probation.

[54]        In R. v. B.J.M., 2019 BCPC 303, B.J.M. pled guilty to possessing and making available child pornography. The investigating officers found 55 images of young females, including images B.J.M. had made himself of two girls he knew. The girls provided victim impact statements. B.J.M. had no criminal record, a university education, the support of his spouse and his employer. Judge Morgan sentenced B.J.M. to eight months’ incarceration for possession and 12 months’ for making available child pornography, to be served concurrently, followed by 24 months’ probation. Judge Morgan stated:

[55]        In R. v. Redekopp, 2020 BCPC 29, Mr. Redekopp pled guilty to one count of possessing child pornography contrary to s. 163.1(4) of the Code. He was found in possession of 791 images and 19 videos of child pornography focused on male children between the ages of 10 to 14 years engaged in sexual acts with adults. The Crown proceeded summarily. At sentencing Mr. Redekopp was 46 years old with a somewhat dated but unrelated criminal record. He had a difficult childhood and had been sexually abused when he was approximately six years old. Mr. Redekopp suffered from both physical and psychological disorders. His wife, 15 years’ his senior, had terminal lung cancer. At the time of sentencing Mr. Redekopp had rehabilitated himself from a drug addiction. He was assessed as a low to moderate risk to reoffend. Judge Morgan did not consider Mr. Redekopp’s case exceptional such that it would justify having a reduced focus on denunciation and deterrence and ordered six months’ incarceration followed by 24 months’ probation. Judge Morgan further determined a CSO would not give adequate voice to the principles of denunciation and deterrence.

[56]        In my view, the application of the parity principle militates against a CSO for possession of child pornography offences. In Swaby BCCA, Bennett JA concluded (at para. 66) that a conviction for possession of child pornography, absent exceptional circumstances, will generally require a period of incarceration, even in the absence of a mandatory minimum sentence. In para. 84, she states:

[57]        In R. v. Voong, 2015 BCCA 285, Justice Bennett defined exceptional circumstances as follows:

[58]        The exceptional circumstances in Swaby went far beyond his youth, his guilty plea and his lack of criminal record. Mr. Swaby suffered from a combination of cognitive, intellectual and mental health impairments which “highly reduced [his] level of moral culpability”. The Court also accepted expert evidence that Mr. Swaby’s intellectual deficits made him “a young and vulnerable man” for whom incarceration would be very detrimental.

[59]        Although defence counsel asserts Mr. Neasloss suffers from an array of unspecified mental health and cognitive deficits, I have no medical evidence particularizing these issues.

[60]        Sentencing is a highly individualized process. The proportionality analysis requires the sentencing judge to go beyond considering the circumstances of the offender and the offence and weigh all of the aggravating and mitigating circumstances and collateral consequences. An aggravating factor will tend to increase the severity of the sentence; a mitigating factor will weigh in favour of a more lenient sentence. The Crown must prove all disputed aggravating factors beyond a reasonable doubt: R. v. Gardiner, 1982 CanLII 30 (SCC). The offender must prove all disputed mitigating factors on a balance of probabilities: s. 724(3)(d) of the Code; R. v. Dreger, 2014 BCCA 54 (CanLII).

[61]        Section 718.2(a) of the Code states a “sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” For the most part, aggravating and mitigating factors relate to two categories:

[62]        The judge must also consider any collateral consequences arising from commission of an offence, the conviction for an offence, or the sentence imposed for an offence that impacts the offender: R. v. Pham, 2013 SCC 15 and R. v. Suter, 2018 SCC 34. The collateral consequences are not necessarily aggravating or mitigating factors under section 718.2(a) of the Code as they do not relate to the gravity of the offence or the level of responsibility of the offender. Nevertheless, they do speak to the personal circumstances of the offender. The consequences can flow from the function of legislation, or social, personal or occupational implications. They sometimes result in disqualification from benefits or activities or other burdens and hardships that flow from a conviction. Collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: Suter.

[63]        In R. v. Kwok, 2007 CanLII 2942 (ONSC), Justice Molloy identified oft-cited aggravating factors which the court must consider in a child pornography possession case. Judge Malfair summarize these factors in S.L.G. (at para. 34), which I have considered to the circumstances in this case:

[64]        Judge Malfair recognized as mitigating:

[65]        A collateral consequence of Mr. Neasloss is the COVID-19 pandemic which has resulted in significant mobility restrictions to persons detained in correctional facilities. In R. v. Stevens, 2020 BCPC 104 (CanLII), Malfair, J. extensively canvassed the law on collateral consequences, exceptional circumstances, and detention in the time of COVID-19. These authorities included: Voong, Pham, Suter, R. v. Morgan, 2020 ONCA 279 (CanLII); R. v. Lemmen, 2020 BCPC 67; R. v. Dakin, 2020 ONCJ 202; R. v. Hearns, 2020 ONSC 2365 ; R. v. Day, 2020 NLPC 1319A00658; R. v. T.K., 2020 ONSC 1935; R. v. Parasmothy, 2020 ONSC 2314, R. v. Kandhai, 2020 ONSC 1611; R. v. McGrath, 2020 ONCJ 192; R. v. Laurin, [2020] O.J. No. 1266 (ONCJ); R. v. Wilson, 2020 ONCJ 176; R. v. Haynes, [2020] O.J. No. 1982 (ONCJ); R. v. Myles, 2020 BCCA 105. Judge Malfair concluded (at para. 66), the collateral impact of COVID-19 on an offender sentenced to a further period of custody “is not of sufficient force to warrant a significant reduction of custody to maintain proportionality.”

[66]        In R. v. Lariviere, 2020 ONCA 324, the offender appealed his sentence arguing that the impact of COVID -19 justified reducing his sentence. The appeal was dismissed and in dealing with the issue, the court took judicial notice of the pandemic; however, they limited it to the pandemic generally and not specifically to a prison population. The court then went on to observe that there was nothing unique to the offender's situation that justified reducing an otherwise fit sentence. At para. 17, the court stated:

[67]        In this case, the evidence does establish anything unique to Mr. Neasloss’s particular circumstances of incarceration, or personal vulnerability, that would justify shortening an otherwise fit sentence. The fundamental principle of proportionality prevails and the indirect consequences of COVID-19 cannot be used to reduce a sentence to the point where it is no longer proportional to the seriousness of the offence or to the moral culpability of the offender.

[68]        As the sentencing judge, I am guided by the principle of restraint codified in ss. 718.2(d) and (e) of the Code. Section 718.2(e) provides 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, with particular attention to the circumstances of Aboriginal offenders.”

[69]        R. v. Gladue, 1999 CanLII 679 (SCC) and R. v. Ipeelee, 2012 SCC 13, are the governing cases with respect to how s. 718.2(e) should be applied, and establish the framework for sentencing Indigenous offenders. The judge has a statutory duty imposed by s. 718.2(e) to consider the unique systemic and background factors which may have played a part in bringing the particular offender before the court and the types of sentencing procedures and sanctions that may be appropriate because of the offender’s particular Indigenous heritage. The offender is not required to establish a causal link between background factors and the commission of the offence before being entitled to have those factors considered by the sentencing judge. Judges may take judicial notice of the broad systemic and background factors affecting Indigenous people generally and case-specific information from the offender in the presentence reports. Generally, an offender’s Indigenous heritage is considered a special and mitigating factor for sentencing purposes: see Sheck v. Canada (Minister of Justice), 2019 BCCA 364 (CanLII).

[70]        I have no Gladue report and only a faint thumbnail sketch of Mr. Neasloss’ personal history; however, I am acutely aware of the challenges facing Indigenous people in this region. Accordingly, I accept the systemic and background factors affecting Indigenous people in Canadian society have likely impacted Mr. Neasloss’ life in such a way as to diminish his moral culpability. I suspect those factors, both systemic within society and specific to Mr. Neasloss’ played a role in his criminal behaviour.

[71]        In Friesen, the Supreme Court of Canada was asked to consider the appropriateness of a starting point or range in sentencing in the context of sexual offences against children. The unanimous Court held that sentencing ranges and starting points are guidelines rather than hard and fast rules. The Court emphasized that sexual offences against children are inherently wrongful and “always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case:” Friesen, para. 76. The Court went on to stress (at para. 91) that proportionality requires sentencing judges consider the personal circumstances of offenders. For example, offenders who suffer from mental disabilities that impose serious cognitive limitations, can have a mitigating effect because the accused likely have a diminished moral culpability. The Court went on to state at para. 92:

[72]        In assessing counsel’s joint submission, I have also considered the Ontario Court of Appeal’s recent decision in R. v. Sharma, 2020 ONCA 478. In that case, the 20-year-old Indigenous offender pled guilty to importing cocaine contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996. She had no prior criminal record and committed the offence in order to pay her rent and avoid homelessness for herself and her young daughter. The sentencing judge characterized Ms. Sharma as “an intergenerational survivor of the government’s residential school effort to eradicate the cultural heritage of her people.” Nevertheless, the judge rejected Ms. Sharma’s application for a CSO and her constitutional challenge to s. 742.1(c) which statutorily restricted its availability in that case. Ms. Sharma received a custodial sentence of 17 months.

[73]        On appeal, Ms. Sharma challenged the constitutionality of s. 742.1(c), the provision which restricts the availability of a CSO for offences prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life, and s. 742.1(e)(ii) of the Code, which restricts the availability of a CSO for offences prosecuted by way of indictment that involved the import, export, trafficking or production of drugs, with a maximum term of imprisonment for 10 years. Ms. Sharma argued that ss. 742.1(c) and 742.1(e)(ii) infringe s. 7 of the Charter because they are overbroad and arbitrary and s. 15 because of their discriminatory effect on Indigenous offenders on the basis of race.

[74]        The Court of Appeal overturned the custodial sentence, agreeing that ss. 742.1(c) and 742.1(e)(ii) of the Code infringe s. 7 and 15 of the Charter and could not be saved by s. 1. The appropriate sentence would have been a CSO of 24 months less a day. The appellate court reasoned:

[75]        Although they did not find the impugned provisions arbitrary, the majority did find them overbroad because they deny CSOs for offenders convicted of an offence with a high maximum penalty even when the appropriate sentence is less than two years in prison.

[76]        Feldman J.A., for the majority, found the impugned provisions were not saved by s. 1 of the Charter. She states at para. 179:

[77]        In the result, the majority declared that ss. 742.1(c) and 742.1(e)(ii) of the Code unjustifiably infringe ss. 7 and 15 of the Charter and are, therefore, of no force or effect.

[78]        Throughout this sentencing hearing, I expressed my reluctance to impose a non-custodial sentence for Mr. Neasloss, particularly in the absence of presentence reports and a psychological risk assessment. The Crown Counsel acknowledges that ordinarily a conviction for the offence of child pornography attracts a custodial sentence. She submits Mr. Neasloss is an exceptional case where a CSO is appropriate because:

[79]        Defence counsel submits a CSO is justified for Mr. Neasloss because of his Indigenous heritage and society has failed in its duty to identify and address his mental health and cognitive issues. The risk to the community is manageable because Mr. Neasloss is not violent, does not misuse substances and resides in a “dry home” with his father.

[80]        Both counsel argue that sentencing ought to proceed in the absence of presentence reports or psychological assessments in order to minimize delay and expedite Mr. Neasloss’s access to treatment.

[81]        The Crown and defence have presented to the Court a joint submission as to sentence in exchange for Mr. Neasloss entering a plea of guilty. In Anthony-Cook, the Supreme Court of Canada has recognized the importance of negotiated sentencing positions for the well-being of our criminal justice system. Sentencing judges are to accept a joint submission unless to do so would bring the administration of justice into disrepute. Justice Moldaver stated (at para. 34) that a joint submission should not be rejected lightly:

[82]        Recently in R. v. Wong, 2018 SCC 25 (CanLII), the Supreme Court of Canada reiterated its direction on joint submission [citations omitted]:

[83]        Appellate courts have held that while they are not immutable or sacrosanct, joint submissions should only be rejected in exceptional circumstances: R. v. Dunkers, 2018 BCCA 363 at para. 38 R. v. Cheema, 2019 BCCA 268 (CanLII), R. v. Manca, 2019 BCCA 280 (CanLII), R. v. White, 2019 BCCA 461 (CanLII); Whitfield v. British Columbia (Provincial Court), 2018 BCSC 1065; R. v. Belakziz, 2018 ABCA 370 (CanLII); R. v. McKay, 2019 SKCA 129 (CanLII); R. v. Fuller, 2020 ONCA 115 (CanLII); R. v. Binet, 2019 QCCA 669 (CanLII); R. v. Mantla, 2020 NWTCA 6 (CanLII); R. v McInnis, 2019 PECA 3 (CanLII), R. v. Kippomee, 2019 NUCA 3 (CanLII). The public interest test for accepting joint submissions is more stringent than the fitness test or even the demonstrably unfit test, both of which were rejected in Anthony-Cook.

[84]        The relevance of sentencing precedents is greatly attenuated with joint submissions, because in conventional sentencing, the systemic benefits derived from joint submissions need not be considered: Mantla, at para. 22, citing Anthony-Cook at para 48; Belakziz at para 21.

[85]        Sentencing involves an inherently individualized assessment. As the sentencing judge I must take into account Mr. Neasloss’s personal circumstances as well as the circumstances of the offences, which include the aggravating and mitigating factors, and the collateral consequences. I must consider Mr. Neasloss’ Indigenous heritage and the systemic factors within society itself and the background factors unique to Mr. Neasloss that likely played a role in his criminal behaviour. I cannot lose sight of the purposes and principles of sentencing set out above. Having given consideration to all these factors, I am still not persuaded a CSO is appropriate. Specifically, I do not feel comfortable ordering a community-based sentence without a psychological or psychiatric risk assessment or pre-sentence report.

[86]        I accept the Crown and defence counsel are generally “well placed to arrive at a joint submission that reflects the interests of both the public and the accused” because “they will be highly knowledgeable about the circumstances of the offender and the offence and the strength and weaknesses of their respective positions”: Anthony-Cook, para. 44. From my perspective, the Crown has a strong case. Its witnesses are predominantly professional and cooperative and are unlikely to be traumatized by the court proceeding.

[87]        At this sentencing hearing, the Crown and defence provided the court with comprehensive submissions. Seeking further submissions seems unnecessary. Also, appellate authorities caution sentencing judges against sending counsel away to revise joint submissions as to do so risks increasing delay, uncertainty and inefficiencies: R. v. Kippomee, 2019 NUCA 3 (CanLII), at para. 50; R. v. Fuller, 2020 ONCA 115 (CanLII); at para. 21. In any event, I am not lacking submissions, but rather, (a) an “accurate, independent and balanced assessment of [this] offender, his background and his prospects for the future”: R. v. Junkert, 2010 ONCA 549 (CanLII), para. 59; and (b) an expert psychological assessment of the offender’s mental health and cognitive issues. I do not know the nature or severity of Mr. Neasloss’s asserted psychological, cognitive and social impairments. Apparently, he has the intellectual skills to navigate the dark web to access child pornography, and the psychological dysfunction to do so.

[88]        Given the dearth of independent and expert evidence, I cannot say the sentence the Crown and defence propose is one, absent a joint submission, I would otherwise impose. The question I must now answer is whether the joint submission is one I should accept given the stringent public interest test for its rejection. I can only depart from a joint submission if it is so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons to believe that the proper functioning of the justice system had broken down: Anthony-Cook, para. 33.

[89]        In my view a 10-month CSO for possession of child pornography offends the principles of parity and proportionality. The Crown and defence are experienced counsel. Clearly they consider the systemic benefits of Mr. Neasloss’s guilty plea justify a non-custodial sentence. They also agree the sentencing ought to proceed today in the absence of a presentence report or Gladue report or psychiatric or psychological risk assessments. They have crafted a sentence which endeavours to protect the community from the risk of Mr. Neasloss reoffending through a combination of rehabilitative and restrictive conditions contained in various court orders. I am unable to say their joint proposal would cause a reasonable person to conclude "the proper functioning of the justice system had broken down." Accordingly, I will endorse the joint submission as advocated by counsel.

[90]        Tyler Eugene Neasloss, you pled guilty to Count 2 on Information 25114-1 charging you with possessing child pornography from September 1, 2018 to December 14, 2018, in Kispiox, BC, contrary to s. 163.1(4) of the Code. I accept your guilty plea to that offence and I find you guilty of that offence.

[91]        I will endorse the joint proposal and impose a 10 month jail sentence to be served in the community followed by three years’ probation, both on the terms and conditions agreed to by counsel. You will also be subject to four ancillary orders: (a) a s. 161 order for 10 years; (b) a SOIRA Order for 20 years duration (490.013(2)(b)); (c) a DNA Order; and (d) a forfeiture order under s. 164.2(1) of the Tablet and SD card the RCMP seized in their investigation of this matter.

[92]        You must comply with a conditional sentence order for a term of 10 months. The conditions are:

[93]        You must comply with the probation order for a term of three years. The conditions are:

[94]        Possession of child pornography contrary to s. 163.1(4) is a primary designated offence. Pursuant to section 487.051(1) of the Criminal Code, I order you to provide a sample, or samples, of your bodily substances for purposes of registration in the national DNA databank. You must attend at the RCMP police station in New Hazelton, BC, during regular business hours, on or before September 30, 2020, and submit to the taking of the samples. This order is valid until executed.

[95]        Pursuant to section 161 of the Criminal Code, you are prohibited for ten years commencing today from using the Internet or other digital network, except in the following circumstances:

[96]        Pursuant to s. 490.012 of the Criminal Code, you to comply with the requirements of the Sexual Offender Information Registration Act for 20 years.

[97]        Pursuant to section 164.2(1) of the Criminal Code, following your conviction under section 162.1, 163.1, 172.1, 172.2 I am satisfied on a balance of probabilities that the Samsung Tablet (serial number R52JAQCW2RH) and the SD Card (31461-006A00LF) was used in the commission of the offence and is your property. I order these items forfeited to Her Majesty to be disposed of at the direction of the Attorney General.

[98]        As the offence occurred before July 22, 2019, there is no Victim Fine Surcharge under s. 737 of the Code.