2018 BCCA 416

In 2018 BCCA 416, Mr. S, a 23-year-old man, pleaded guilty to possessing child pornography.

During a police investigation into the file sharing of online child pornography, the police found a large number of child pornography images that had been downloaded to Mr. S’s IP address. A search warranted was issued and a search of his home resulted in 400 video files of child pornography on his computers. Some of the videos contained adults sexually abusing very young children, voyeuristic videos, as well as sadistic sexual acts on children. 480 photos and cartoons of child pornography were also discovered.

Mr. S claimed he had used an acronym commonly used for finding child pornography and understood he was seeking out child pornography. He claimed he downloaded it because he was “bored” and enjoyed the “shock value” of the videos, but he also acknowledged he masturbated to the images.

Mr. S had mental health issues, including suicidal behaviour and ideation, depressed mood, and had auditory hallucinations in the form of a voice who he called his best friend “Chris.” Two psychologists did not think that Mr. S would be able to mentally tolerate incarceration.

The child pornography provision required a 90-day mandatory minimum sentence upon conviction. However, the sentencing judge found that this mandatory minimum sentence violated Mr. S’s right to be free from cruel and unusual punishment. Considering Mr. S’s personal mental health circumstances, a 90-day jail term would have been grossly disproportionate, even if served intermittently.

Mr. S was sentenced to four months to be served in the community and two years’ probation at trial.

The Crown appealed the court’s finding that the mandatory minimum sentence was unconstitutional, but it was dismissed.

The appeal court found that while “[e]xcept in exceptional cases, those who possess child pornography will be incarcerated,” the mandatory minimum sentence would violate some people’s right to be free of cruel and unusual punishment, both in respect to Mr. S and to some other hypothetical offenders. Mr. S had exceptional circumstances due to his cognitive difficulties that reduced his moral blameworthiness, and his severe mental health issues that would be made worse if he were to be put in jail.

Also see: [2019] SCCA No 17 (Application for leave to appeal), 2018 BCCA 416 (Appeal), 2018 BCCA 35 (Appeal), 2017 BCSC 2020 (Appeal), 2016 BCPC 478 (Charter).

Criminal Offence(s): Child Pornography Offences