R. v. Swaby

2017 BCSC 2020 R. v. Swaby IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Swaby, 2017 BCSC 2020 Date: 20171108 Docket: 27223 Registry: Vancouver Regina v. Matthew Christopher Swaby Before: The Honourable Mr. Justice Marchand On appeal from: An order of the Provincial Court, dated November 14, 2016 (R. v. Swaby, VA 234408). Reasons for Judgment Counsel for the Crown: L.A. Vizsolyi Counsel for the Accused: L.J. Helps Place and Dates of Trial/Hearing: Vancouver, B.C. August 2 and 3, 2017 Place and Date of Judgment: Vancouver, B.C. November 8, 2017 Introduction [1] The hardest sentencing decisions are those which involve serious offences committed by offenders with a reduced level of moral blameworthiness. This is one of those cases. [2] On January 6, 2016, Matthew Swaby pled guilty to the very serious offence of possessing child pornography contrary to s. 163.1(4) of the Criminal Code. The offence was committed between October 24, 2013 and January 12, 2014, when Mr. Swaby was 23 years old. At that time, the offence carried a mandatory minimum sentence of 90 days' jail. [3] Mr. Swaby is a young man with no prior criminal record who has significant cognitive impairments and mental health issues. He challenged the constitutionality of the mandatory minimum sentence in the circumstances of his case as well as in the case of a reasonable hypothetical. [4] In written reasons released on November 14, 2016, the sentencing judge found that the mandatory minimum sentence constituted cruel and unusual punishment contrary to s. 12 of the Charter. The Crown did not contest that the mandatory minimum sentence would be saved by s. 1 of the Charter. Ultimately, the sentencing judge imposed a four month conditional sentence order ("CSO") followed by two years of probation. [5] The essence of the sentencing judge's conclusion that the mandatory minimum sentence was unconstitutional is found in paragraph 91 of his written reasons which provides as follows: [91] Notwithstanding the legitimate penal objectives which support a mandatory minimum sentence of 90 days for the serious offence of possession of child pornography, I am satisfied well beyond a balance of probabilities that such a sentence is grossly disproportionate to the community based sentence that would otherwise be appropriate. I am confident that as much as Canadians find child pornography abhorrent and intolerable they would find it even more abhorrent and intolerable to imprison, for any length of time, an intellectually challenged young man with significant overriding mental health issues which contributed to the commission of the offence. The length of the mandatory minimum sentence, even after consideration of remission, only contributes to the degree to which it is excessive for Mr. Swaby. [6] The Crown appeals the finding of the sentencing judge that the mandatory minimum sentence amounted to cruel and unusual punishment. The Crown alleges that the sentencing judge erred in law and/or in principle by failing to properly assess the penological goals and sentencing principles in the following ways: 1. failing to give sufficient weight to the gravity of the offence, in particular by classifying the offence as one not involving direct harm; 2. failing to pay heed to the sentencing authorities in determining the appropriate sentencing range; 3. overstating and overemphasizing mitigating factors; 4. finding a connection between Mr. Swaby's cognitive deficits and mental health issues, and his offending; 5. failing to consider the totality of the evidence, in particular by failing to view representative samples culled from the images and videos found on Mr. Swaby's computer hard drives; and 6. engaging in speculation and conjecture when he concluded that an intermittent sentence would have a negative effect on Mr. Swaby. [7] The Crown further submits that the sentencing judge's imposition of a custodial sentence, even one to be served in the community, demonstrates that the mandatory minimum sentence was not grossly disproportionate. [8] Because Mr. Swaby has already completed his CSO, if the Crown is successful on its appeal, the Crown does not seek to have Mr. Swaby incarcerated. [9] If the Crown is not successful on its appeal and I find the mandatory minimum sentence to be grossly disproportionate in relation to Mr. Swaby, the Crown does not contest that the mandatory minimum sentence would be saved by s. 1. In those circumstances, I would have to declare the mandatory minimum sentence to be inconsistent with the Charter and of no force and effect. If I find that the mandatory minimum sentence would not be grossly disproportionate in relation to Mr. Swaby but would be grossly disproportionate in relation to a reasonable hypothetical, then the Crown requests leave to consider making submissions regarding whether the mandatory minimum sentence might be saved by s. 1. [10] For the reasons that follow, I uphold the sentencing judge's conclusion that the mandatory minimum sentence violates s. 12 of the Charter and declare it of no force and effect. Issues [11] The only issue is whether the mandatory minimum sentence provided by s. 163.1(4) of the Criminal Code, which was in force at the time of the offence, infringes s. 12 of the Charter. The Legislative Background [12] A mandatory minimum sentence for the possession of child pornography was first introduced by Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32 [Bill C-2]. Bill C-2 came into force on November 1, 2005, and mandated a minimum sentence of 14 days' jail for the possession of child pornography where the Crown proceeds summarily and 45 days' jail where the Crown proceeds by indictment. [13] In 2012, the Safe Streets and Communities Act, S.C. 2012, c. 1 increased the mandatory minimum sentence for possession of child pornography to 90 days' jail where prosecuted summarily and six months' jail where prosecuted by indictment. In 2015, the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23 further increased the mandatory minimum sentence for possession of child pornography to six months' jail where prosecuted summarily and one year where prosecuted by indictment. [14] It is the 90 day mandatory minimum jail sentence introduced by the Safe Streets and Communities Act that was in effect at the time of Mr. Swaby's offence that is at issue in this case. [15] The relevant provisions of the Charter state: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. The Analytical Framework [16] The parties agree on the analytical framework established by the Supreme Court of Canada for considering whether a mandatory minimum sentence amounts to cruel and unusual punishment. Borrowing liberally from the written submissions of the parties, I summarize the principles below. [17] The applicant bears the onus of establishing an alleged s. 12 Charter violation on a balance of probabilities. [18] The test under s. 12 is stringent and demanding. As Cory J. noted in Steele v. Mountain Institution, [1990] 2 S.C.R. 1385 at 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 of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter. [19] In R. v. Goltz, [1991] 3 S.C.R. 485 Gonthier J. reaffirmed the stringent nature of the s. 12 analysis, at 501: 30 Moreover, it is clear from both Smith and Lyons, [1987] 2 S.C.R. 309 that the test is not one which is quick to invalidate sentences crafted by legislators. The means and purposes of legislative bodies are not to be easily upset in a challenge under s. 12. In Smith, the Court explained, per Lamer J., at pp. 1077 and 1072: A minimum mandatory term of imprisonment is obviously not in and of itself cruel and unusual. The legislature may, in my view, provide for a compulsory term of imprisonment upon conviction for certain offences without infringing rights protected by s. 12 of the Charter. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate. [20] The test for whether a particular sentence constitutes "cruel and unusual" punishment is whether the sentence is "grossly disproportionate." To be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable": R. v. Ferguson, 2008 SCC 6 at para. 14. [21] In the more recent case of R. v. Nur, 2015 SCC 15, McLachlin C.J.C. reiterated the high threshold that is applied under s. 12: [39] This Court has set a high bar for what constitutes "cruel and unusual punishment" under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v .Smith, [1987] 1 S.C.R. 1045, at p. 1073. [22] There are two aspects to the s. 12 analysis. The first involves an individual or "particularized inquiry" which focuses on the individual circumstances of the offender. Where a sentence is grossly disproportionate for an individual offender, then a prima facie violation of s. 12 is established and the court must go on to consider whether the infringement can be justified under s. 1 of the Charter. The second aspect arises where a sentence is not grossly disproportionate for the individual offender. In those circumstances, the court can nevertheless go on to consider whether a breach of s. 12 arises from "reasonably foreseeable" circumstances advanced by the offender. "Reasonable hypotheticals" should relate to "a situation that may reasonably be expected to arise - not 'marginally imaginable', not 'far-fetched', but 'reasonable'": R. v. Latimer, 2001 SCC 1 at para. 78; R. v. Morrisey, 2000 SCC 39 at paras. 29-33; Nur at paras. 56, 65 and 77. [23] In Nur at para. 46, McLachlin C.J.C. recognized that under both stages of the analysis: the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter. [24] In determining whether a sentence meets the threshold of gross disproportionality, the court must examine all relevant contextual factors. This requires an examination of the gravity of the offence, the personal circumstances of the offender and the particular circumstances of the offence to determine whether the impugned sentence would appropriately address the applicable sentencing principles in s. 718 of the Criminal Code. In addition, the court must also consider the actual effect of the punishment on the offender; the penological goals and sentencing principles upon which the sentence is fashioned; the existence of valid alternatives to the punishment imposed; and a comparison of punishments imposed for other crimes. Not all of the factors will necessarily be relevant in each case, nor will the presence or absence of any one of them be determinative of the question of gross disproportionality: Morrisey at paras. 27-28; R. v. Stewart, 2010 BCCA 153 at paras. 20-21. [25] In weighing the s. 12 considerations, "the court must also consider and defer to the valid legislative objectives underlying the criminal law responsibilities of Parliament": Latimer at para. 76. As the Court noted at para. 77 in Latimer: 77 In emphasizing the deferential standard for the s. 12 review, this Court has repeatedly adopted the following passage from R. v. Guiller (1985), 48 C.R. (3d) 226 (Ont. Dist. Ct.), at p. 238, per Borins Dist. Ct. J. [cites omitted]: It is not for the court to pass on the wisdom of Parliament with respect to the gravity of the various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. [26] If a mandatory minimum sentence is found by a court of inherent jurisdiction to infringe s. 12 of the Charter and cannot be saved under s. 1, a constitutional exemption under s. 24(1) is not an appropriate remedy. Instead, the mandatory minimum punishment must be declared inconsistent with the Charter and held to be of no force and effect pursuant to s. 52 of the Constitution Act, 1982: Ferguson, at paras. 13 and 74. [27] In the case of a finding by a provincial court judge that a law is unconstitutional, the judge may refuse to apply the law to the specific case before her. The finding does not render the law of no force or effect under s. 52: R. v. Lloyd, 2016 SCC 13 at para. 19. Background and Sentencing Decision [28] In January 2014, a specialized unit within the RCMP identified an IP address associated with Mr. Swaby as having downloaded a large number of suspected child pornography files between the offence dates. On February 5, 2014, the RCMP executed a search warrant at the home Mr. Swaby shared with his mother and sister in Burnaby. The RCMP seized and forensically examined two computer hard drives belonging to Mr. Swaby. [29] One of the hard drives contained 399 video files meeting the definition of child pornography. An Agreed Statement of Facts describes representative samples of the videos, including vile acts of sexual abuse perpetrated against children as young as one-year-old. Collectively, the two hard drives contained 480 images meeting the definition of child pornography. The Agreed Statement of Facts describes representative samples of the images, which also included vile acts of sexual abuse perpetrated against children of various ages with some of the children described as being toddlers. [30] Mr. Swaby was arrested on February 5, 2014. Mr. Swaby was cooperative with the RCMP and provided a lengthy warned and recorded statement to an investigating officer. A copy of Mr. Swaby's statement was marked as an Exhibit at the sentencing hearing. [31] From Mr. Swaby's statement, it is apparent that he specifically searched for child pornography, did so because he was bored, understood it was wrong and watched for the shock value. Mr. Swaby acknowledged that he sometimes masturbated while watching child pornography but denied being sexually attracted to children or having ever inappropriately touched a child. Mr. Swaby's naivety and reduced cognitive ability are also apparent throughout his statement. [32] Mr. Swaby underwent two psychological assessments, the first with Dr. Patrick Bartel in the fall of 2014 and the second with Dr. Sarah Mordell in the spring of 2016. Both assessments involved clinical interviews with Mr. Swaby, collateral interviews with his mother, review of documents from the RCMP outlining the circumstances, review of related clinical records and reports, and psychological testing. Dr. Mordell also had telephone contact with two probation officers. [33] The two psychological assessment reports had many common features. Both reports note that Mr. Swaby: 1. had difficulty finding his way to the assessments requiring both psychologists to go out on the street to find and then escort Mr. Swaby to their offices; 2. has significant cognitive challenges; 3. has a history of hearing voices in his head; 4. has a history of depression, including suicidal ideation and suicide attempts; 5. at the time of his offending, was experiencing depression and social isolation which he dealt with by spending excessive amounts of time online while alone in his room; 6. has suffered from chronic sleep disturbance; 7. was curious about child pornography; 8. has pedophilic interests but not a pedophilic disorder; 9. presents a relatively low risk to commit a future sexual contact or child pornography offence; and 10. would benefit from mental health supports but, given his low intellectual functioning, would likely not benefit from specialized sex offender treatment. [34] The psychological assessments also had some differences. [35] Dr. Bartel's testing indicated that Mr. Swaby's cognitive and intellectual functioning was in the Extremely Low Borderline range with Mr. Swaby scoring in the 0.01st percentile on an omnibus indicator. Mr. Swaby produced an IQ of 53, meaning that his true IQ would be between 49 and 59, nineteen times out of twenty. Dr. Bartel concluded that Mr. Swaby likely has an intellectual disability which Dr. Bartel notes was formerly known as "mental retardation". Dr. Bartel's assessment also suggested "the presence of a significant schizoaffective disorder (i.e., a combined Schizophrenia and Major Depressive Disorder)." [36] Regarding any causal link between Mr. Swaby's intellectual functioning and his offending, Dr. Bartel wrote: His intellectual disability would have likely affected his ability to reason and think through the illegality of what he was doing and the possible negative consequences should he be caught. His psychosis and depression would also have made it more likely for him to isolate himself and seek relief and limited pleasure through pornography use. [37] Dr. Bartel specifically indicated that he had "significant concerns about Mr. Swaby's ability to tolerate incarceration, his potential heightened suicide risk as a result, and the potential for being victimized by others in custody." From a "mental health perspective", Dr. Bartel concluded that "incarceration would be very detrimental to this young and vulnerable man." [38] Dr. Mordell's intellectual testing produced varied results such that she did not report an overall IQ score. Perceptual reasoning was a particular strength for Mr. Swaby but other indices returned results in the Low Average, Borderline and Extremely Low ranges. Dr. Mordell suggested one reason for the discrepancy between her results and Dr. Bartel's could be Mr. Swaby's depression at the time of Dr. Bartel's testing which may have resulted in poor concentration and lower motor functioning. [39] Further testing by Dr. Mordell, indicated that Mr. Swaby's adaptive functioning was in the 2nd percentile and could be described as being in the Borderline to Extremely Low range. [40] Dr. Mordell concluded that Mr. Swaby appears to meet the criteria for Persistent Depressive Disorder (formerly known as Dysthymia) and that he would benefit from ongoing monitoring to rule out a primary psychotic disorder. Dr. Mordell concluded that Mr. Swaby did not meet the criteria for an intellectual disability but acknowledged that a change in his personal circumstances, such as a job loss or loss of his support system, could result in him meeting the criteria. [41] Dr. Mordell did not address whether Mr. Swaby's intellectual functioning and mental health issues were connected to his offending. Dr. Mordell also did not address the effect of incarceration on Mr. Swaby. [42] A Pre-Sentence Report ("PSR") dated March 9, 2016, provided additional background regarding Mr. Swaby. The author of the PSR noted that Mr. Swaby took responsibility for his offence and was embarrassed by his actions. Mr. Swaby was unable to verbalize why he had offended but thought he had viewed child pornography out of curiosity even though he knew it was wrong. [43] The sentencing hearing took place from April 11 to 13, 2016. In a brief oral decision on the first day of the hearing, the sentencing judge declined to view or enter into evidence a video compilation of samples from the videos and images seized. [44] The sentencing judge reserved judgment to May 18, 2016 but, in the course of deliberations, determined that he wished to have a psychiatric assessment of Mr. Swaby. The sentencing judge was concerned that Dr. Mordell's report did not address some of the issues addressed in Dr. Bartel's report. The sentencing judge also considered that "neither report addressed whether there was any connection between Mr. Swaby's mental health and level of cognitive functioning and his commission of the offence." [45] The sentencing judge ordered a forensic psychiatric assessment and posed five specific questions to be addressed. Unfortunately, no psychiatric assessment was completed. Instead, Dr. Mordell prepared a follow up report dated June 14, 2016, addressing the five questions posed by the sentencing judge. Dr. Mordell provided the following new information: 1. Dr. Mordell indicated that it would be speculative to determine Mr. Swaby's mental health functioning at the time of his offence, but "it is reasonable based on Mr. Swaby's reports of his behaviours at the time to conclude that he was experiencing symptoms of depression at the time." 2. Dr. Mordell stated that "(l)ower intellectual functioning can impact decision-making, judgment, abstract thinking, and executive function". 3. Regarding "how, if at all, Mr. Swaby's mental health and cognitive functioning contributed to the commission of the offence", Dr. Mordell reported that: Depression and lower intellectual functioning are both risk factors for committing a sexual offence, including non-contact offences. According to a risk assessment instrument (used by Dr. Mordell), these factors can lead to impulsive behaviour and be associated with poor coping, judgment, and self-awareness. In Mr. Swaby's case, such social isolation and excessive time spent on the internet, appear to have been factors contributing to his offence. 4. Dr. Mordell agreed with Dr. Bartel's opinion regarding the effect of incarceration on Mr. Swaby. She added that Mr. Swaby's employment and greater social engagement at the time of her assessment reduced his depression and risk "which would be compromised by a period of incarceration." 5. Dr. Mordell offered that Mr. Swaby's relatively low risk to reoffend "is likely to increase if he were to lose his job, become socially isolated, experience moderate stress, and/or return to spending much of his time online." [46] While he would have preferred that a psychiatric assessment had been completed as he had ordered, given the passage of time, the sentencing judge decided to press on rather than seek compliance with his order. [47] In his reasons for judgment, the sentencing judge carefully reviewed the circumstances of the offence, including the "egregious" and "disgusting" nature of child pornography in Mr. Swaby's possession. The sentencing judge then carefully reviewed Mr. Swaby's personal circumstances, his statement to the RCMP, and the psychological reports. [48] The sentencing judge reviewed a significant number of sentencing decisions for possession of child pornography and concluded that if there were no mandatory minimum sentence, a suspended sentence would have been within the range for Mr. Swaby. [49] After noting a number of aggravating and mitigating factors, the sentencing judge turned his mind to the appropriate sentence for Mr. Swaby if no mandatory minimum sentence were in place. [50] The sentencing judge recognized that the existence of child pornography is inherently harmful to children and society and that the primary sentencing objectives must be denunciation and deterrence. [51] The sentencing judge characterized the possession of child pornography as "unquestionably grave" but also concluded that Mr. Swaby's degree of moral culpability was "significantly attenuated by his personal circumstances, particularly his mental health and intellectual issues". The sentencing judge was satisfied that "Mr. Swaby's lower intellectual functioning combined with the presence of severe depression and probable psychotic disorder would have impacted his decision-making and judgment and that it contributed to his commission of the offence." The sentencing judge concluded that Mr. Swaby did not realize how wrong his conduct was. [52] Given his relatively low risk to reoffend, the sentencing judge did not consider specific deterrence or separating Mr. Swaby from society to be significant sentencing objectives. The sentencing judge further considered that separating Mr. Swaby from society would be contrary to the restraint principle. The sentencing judge was satisfied that management of Mr. Swaby's mental health needs, the stigma of the conviction, including Mr. Swaby's registration under the Sex Offender Information Registration Act, and strict terms of a community disposition order could adequately address specific and general deterrence, denunciation, and public safety concerns. [53] If not for the mandatory minimum sentence, the sentencing judge concluded that the appropriate sentence for Mr. Swaby would be either a CSO followed by probation or a suspended sentence with three years of probation. The sentencing judge then went on to consider whether the mandatory minimum sentence offended s. 12 of the Charter. [54] The sentencing judge relied on the legislative history to conclude that "possession of child pornography is one of the most serious of the possession offences known to our law." [55] The sentencing judge accepted that Parliament was responding to a "pressing problem" in a "rational and purposive" way through the introduction of strict penal sanctions on those who contribute to the abuse of children through the possession of child pornography. The sentencing judge also referred to the "laudable objectives" of general deterrence and denunciation and recognized the inextricable link between retributive justice and the fundamental principle of proportionality in sentencing. The sentencing judge noted that these objectives and legitimate penological goals must not result in a sentence which is grossly disproportionate. [56] While recognizing that compassionate grounds, without more, are not a valid basis for declaring a sentence mandated by an Act of Parliament contrary to s. 12 of the Charter, the sentencing judge noted the personal characteristics of the offender must be kept in mind in determining whether a mandatory minimum sentence is disproportionate for him. [57] After reviewing a number of cases involving a variety of circumstances, all of which upheld the constitutionality of mandatory minimum sentences for the possession of child pornography, the sentencing judge concluded that this was, nevertheless, a "rare and unique" case in which the mandatory minimum sentence of 90 days' jail would be so grossly disproportionate that it violates s. 12 of the Charter. [58] In reaching this conclusion, the sentencing judge emphasized Mr. Swaby's reduced moral blameworthiness and inability to tolerate incarceration as well as the negative effect that incarceration would have on Mr. Swaby's risk to reoffend. The sentencing judge found that public safety would be better served by a community based sentence. [59] The sentencing judge did not find it necessary to consider the circumstances of any reasonable hypotheticals. [60] The sentencing judge then adjourned proceedings to consider whether the mandatory minimum sentence could be saved by s. 1 of the Charter. [61] On January 5, 2017, the Crown took no position regarding s. 1, limited to Mr. Swaby's case only and based on the trial judge's findings. On March 9, 2017, the sentencing judge gave oral reasons outlining his conclusion that the mandatory minimum sentence provided by s. 163.1(4) could not be demonstrably justified in a free and democratic society. [62] The sentencing judge then imposed the four month CSO followed by two years of probation. Conditions of the CSO included 60 days of house arrest followed by 60 days of curfew. Both the CSO and probation order had protective terms and compelled Mr. Swaby to complete any assessment, counselling, or program as directed by his supervisor. The sentencing judge made a 10 year order under the Sexual Offender Information Registry Act and compelled Mr. Swaby to provide a sample of his DNA. [63] In his reasons for sentence, the sentencing judge acknowledged "the objective of protecting children from abuse by imposing strict penal sanctions on those who contribute to that abuse by possessing child pornography" and held that this required "a greater emphasis to be given to the sentencing objectives of deterrence and denunciation than would be reflected by suspending the passing of sentence and imposing probation." Analysis [64] The Crown does not quarrel with the approach taken by the sentencing judge. Rather, the Crown takes issue with various findings of the sentencing judge and his application of the principles. On my reading of his reasons, it is readily apparent that the sentencing judge clearly understood and followed the required analytical framework. [65] I will, therefore, begin my analysis by considering the specific errors alleged by the Crown. I will then address whether the sentencing judge erred in law in finding the mandatory minimum sentence provided by s. 163.1(4) to be contrary to s. 12 of the Charter. Did the sentencing judge fail to give sufficient weight to the gravity of the offence? [66] The essence of the sentencing function is set out in s. 718.1 of the Criminal Code which provides as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [67] The Crown submits that the sentencing judge undercut the gravity of Mr. Swaby's offence and fell into error by: 1. considering that it was the nature of the material rather than Mr. Swaby's actions which made his offence grave; 2. suggesting that the offence was less serious because it did not involve actual contact; and 3. attenuating his consideration of the penological goals of sentencing by incorporating an analysis of Mr. Swaby's moral culpability. [68] Many courts have weighed in on the serious nature of the offence of possessing child pornography. [69] In R. v. Sharpe, 2001 SCC 2 at para. 92, McLachlin C.J.C., for a majority of the Supreme Court of Canada wrote: [92] Children are used and abused in the making of much of the child pornography caught by the law. Production of child pornography is fueled by the market for it, and the market in turn is fueled by those who seek to possess it. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. The link between the production of child pornography and harm to children is very strong. 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 sexually 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. [70] Amongst the constellation of poignant judicial descriptions of the gravity of the possession of child pornography, I found the following passage of Hicks, Prov. Ct. J. in R. v. S.D.M., 2015 BCPC 112 at para. 49 to be particularly compelling: [49] Children are victimized in the most brutal and intrusive way at every stage of the child pornography continuum; from the grooming to the undressing, to the posturing, to the exposure, to the forceful intrusion into their most private places, to the physical force and restraint of the child, to threats and physical violence, and to the emotional struggle many of these children will endure over a lifetime. There is a concern that this offending against children is increasing and that the easy ability to circulate this material over the internet is encouraging that growth. Once these images are introduced to the internet, there is no ability to control where they appear, what use is made of them, how often they are re-sent and viewed. Those who possess, view, chat about and exchange child pornography provide the encouragement and the audience for those who would abuse children in order to produce that content. [71] The introduction and subsequent increases of mandatory minimum sentences for possession of child pornography reflect Parliament's view that the possession of child pornography is a very serious offence. [72] I further note that s. 718.01 of the Criminal Code, adopted in 2005, provides that a sentencing court must give primary consideration to the objectives of denunciation and deterrence for offences involving the abuse of a person under 18 years of age. This provision reflects the gravity of all offences involving the abuse of children, including the possession of child pornography. [73] To determine whether the sentencing judge fell into error by giving insufficient weight to the gravity of the offence requires a reading of his reasons as a whole. In addition to what I have already noted, the sentencing judge made the following comments on the harms of child pornography and how they relate to the case of Mr. Swaby: [14] (M)any of the videos on Mr. Swaby's computer fall at the more egregious end of the spectrum as they involve penetrative sexual activity between adults and very young children, including in a few cases, sadistic behaviours. The Agreed Statement of Facts provides descriptions of the various sex acts being performed. They are disgusting examples of the victimization of children. [56] The aggravating factors in the case at bar are the quantity of child pornography videos possessed ; the fact that they were collected over a lengthy period of time during which Mr. Swaby would sometimes delete and subsequently re-download child pornography videos; and the egregious nature of a number of the videos, particularly those which involve very young children involved in sexual acts while they are bound or held and struggle to resist. [58] The mere existence of child pornography is inherently harmful to children and to society in general. This was made explicitly clear by the Supreme Court of Canada in R v. Sharpe 2001 SCC 2, where throughout the decision it is recognized that the trauma suffered by children being used as sexual objects and often abused in the process, has life-long and extremely serious consequences which undermine their Charter rights and those of other members of society. [59] The principles of sentencing are set out in ss. 718 through 718.2 of the Criminal Code and with particular reference to s. 718.01, for the offence of possession of child pornography, the primary objectives must be denunciation and deterrence. Potential offenders must be discouraged from contributing to the exploitation and abuse of children and sentences imposed must affirm our societal values as to the abhorrent nature of this crime. [60] That being said, the individualized nature of the sentencing process requires some recognition of the other sentencing objectives to achieve a sentence which is proportionate to both the gravity of the offence and the degree of responsibility of the offender. The offence is unquestionably grave but it is important to note that it involves simple possession, which although it contributes to the abuse of children, does not involve direct physical or psychological abuse of children such as that inflicted by actual perpetrators of sexual assaults on children. [73] This legislative history suggests that possession of child pornography is one of the most serious of the possession offences known to our law. However, by their very nature, possession offences do not involve the direct infliction of harm on others and in my view, this should be taken into account in considering the moral culpability of a mentally and intellectually challenged offender. [74] An analysis of the gravity of an offence requires a consideration of both the character of the offender's actions and the consequences of those actions: Morrisey at paragraph 35. The consequences of possessing child pornography involve indirect contribution to the abuse of children and are unquestionably serious. On the other hand, the character of Mr. Swaby's actions are far less serious. He downloaded and watched child pornography available for free on the internet. Parliament has not set a very high threshold that must be met to attract criminal liability as was the case in Morrisey. It is the nature of the material Mr. Swaby downloaded more so than his actions that results in the characterization of the offence as grave. In my view, both considerations are also relevant to the degree of moral culpability that should be attributed to him. [74] With the greatest respect to the sentencing judge, I agree with the Crown on a number of points. [75] First, while the nature of the material possessed by Mr. Swaby was egregious, it was his act of possessing it that was harmful to children and society in the ways described in cases such as Sharpe, R. v. Morelli, 2010 SCC 8 at para. 8 and S.D.M. [76] Second, the possession of child pornography will never involve the direct abuse of children. It is precisely and always the indirect consequences of the possession which cause harm to children and society. [77] Third, it appears that the sentencing judge considered Mr. Swaby's cognitive limits and mental health issues in characterizing the seriousness of his offence. Mr. Swaby's cognitive limits and mental health issues ought to have been considered separately during the sentencing judge's weighing of Mr. Swaby's moral culpability: R. v. Lacasse, 2015 SCC 64 at para. 129. [78] All of this said, the sentencing judge is highly experienced and has dealt with child pornography cases in the past. His reasons display that he was well aware of the vile nature of the child pornography found in Mr. Swaby's possession and how such possession causes indirect but nevertheless grave harm to children and society. Further, Mr. Swaby's challenges were always going to be central to the sentencing judge's consideration of Mr. Swaby's moral culpability and whether the mandatory minimum sentence was grossly disproportionate in relation to his offence in his circumstances. [79] I will keep all of these points in mind in my determination of whether the sentencing judge erred in finding that the applicable mandatory minimum sentence infringed s. 12 of the Charter. Did the sentencing judge fail to pay heed to the sentencing authorities in determining the appropriate range of sentence? [80] The Crown submits that the sentencing judge "paid little heed to the sentencing authorities which demonstrated that sentences for the possession of child pornography had generally been on the rise and that jail sentences were generally considered to be appropriate." [81] The Crown provided a significant number of sentencing decisions to establish the appropriate range of sentence for the possession of child pornography. Some involved a challenge to the applicable mandatory minimum sentence while others did not. None pre-date the introduction of mandatory minimum sentences but several refer to sentencing decisions that do. [82] I have reviewed all of the decisions referred to by the Crown. I find it unnecessary to detail each decision to draw some broad conclusions. I will refer to some individual decisions where I consider that to be helpful. [83] The decisions cited by the Crown cover a wide array of circumstances. Generally, they involve first time offenders who had entered guilty pleas. Some had collections of child pornography which were similar to Mr. Swaby's collection while others had collections that were somewhat more or somewhat less egregious. Some had been victims of childhood abuse and/or suffered from mental health issues, including depression, anxiety, and social isolation. Some were genuinely remorseful and had taken steps to address their issues while others lacked insight or remorse. Most were convicted of simply possessing child pornography but a number were also convicted of making child pornography available to others. Some had a heightened level of moral blameworthiness. None involved an offender with Mr. Swaby's level of cognitive impairment or the type of reduced moral blameworthiness found by the sentencing judge. [84] At the low end of the range, a 90 day intermittent sentence plus three years of probation was imposed on a 19 year old first time offender with a relatively small collection of child pornography consisting of 17 images and one video: R. v. Ahmed, 2012 ONCJ 71. At the high end of the range, 15 months of custody plus probation was imposed on middle aged first time offenders who possessed collections of child pornography that were grossly similar to Mr. Swaby's collection in circumstances where the offenders had a heightened level of moral blameworthiness: R. v. Buss, 2014 BCPC 381, and R. v. Davies, 2012 ONSC 6021. [85] Cases such as R. v. Johnson, 2011 NLCA 56, R. v. Schultz, 2008 ABQB 679, R. v. Watts, 2016 ABPC 57, and R. v. Walker, 2017 BCSC 1301, include references to sentencing decisions which predate the introduction of mandatory minimum sentences for the possession of child pornography. Many of the referenced decisions involved sentences ranging from an absolute discharge to a lengthy conditional sentence. Some of the conditional sentence orders appeared to relate to circumstances which I would consider more serious than Mr. Swaby's and to offenders who I would consider to have greater moral blameworthiness than Mr. Swaby. [86] With regard to the sentencing decisions which predate the introduction of mandatory minimum sentences for possession of child pornography, I agree with the remarks of Brown J. in Walker at para. 42: [42] In my view, the more dated cases referred to by the defence are not within the range of sentence, without the mandatory minimum sentence. As the BC Court of Appeal recognized in R. v. R.L.W., 2013 BCCA 50: [49] the range of sentences for possession of child pornography is broad, but, as the judge recognized, courts have over the years developed a greater appreciation of the harm caused to children by its manufacture, distribution and possession. More recent cases placed greater emphasis on denunciation and deterrence and sentences have tended to increase. [87] In Walker, Brown J. concluded that the appropriate range of sentence for a first time offender with sympathetic personal circumstances and a relatively small collection of child pornography to be "45 days to nine months, with most of the cases falling within the four to nine month range": para. 43. [88] The sentencing judge relied on the cases of R. v. Aylesworth, 2008 ONCJ 68, and R. v. J.J.B., 2004 BCPC 7, to support his conclusion that a suspended sentence would be within the range for Mr. Swaby. In keeping with the growing awareness of the harm done to children and society by the production, distribution and possession of child pornography and the greater emphasis on denunciation and deterrence, I consider these cases to now be outside the appropriate range of sentences outlined in the circumstances of those cases. That, however, is not the end of the matter. [89] In my view, it is also instructive to consider the findings of courts which have considered reasonable hypotheticals. [90] In R. v. LeCourtois, 2016 ONSC 190, Kent J. considered two reasonable hypotheticals involving the possession of one item of the least depraved child pornography in circumstances where the child pornography was possessed for a very short time and was then destroyed. In one of the hypotheticals, the offender found the child pornography inadvertently but took possession of it and, in the other hypothetical, the child pornography was voluntarily created by the subject of the child pornography who voluntarily sent the child pornography to the offender, who was a friend. Kent J. found at para. 14 as follows: [14] There are no doubt members of the judiciary who might consider the imposition of a non-custodial sentence upon the accused in either or both of the reasonable hypothetical situations as appropriate. A brief period of incarceration, however, would not be outside the appropriate range. This is particularly so when the mandatory minimum sentence is one that could be served intermittently. [91] In Walker, Brown J. considered a reasonable hypothetical where a 17 year-old sent naked photographs of herself to a boyfriend. After a breakup, a new girlfriend used her phone to take photographs of some of the images. The new girlfriend was "Aboriginal, 18 years old, has no criminal record and is considered a low risk to re-offend." Brown J. found at para. 45 as follows: [45] It is my view that a mandatory minimum sentence of 45 days would not constitute cruel and unusual punishment in the circumstances of the reasonable hypothetical put forward by the defence. While it may be a harsh sentence in those circumstances, it would not be grossly disproportionate as described by the Supreme Court. It would not be so excessive as to outrage standards of decency. A sentence of 45 days which can be served intermittently would not be cruel and unusual punishment. [92] Although LeCourtois and Walker contain strong statements regarding the constitutionality of 45 day mandatory minimum sentences for the possession of child pornography, their analyses of reasonable hypotheticals support the conclusion that, if not for the mandatory minimum sentence, community based dispositions would be within the range of appropriate sentences for cases at the less serious end of the range. In the balancing exercise involved in delivering a proportionate sentence, in my view, these cases also support the conclusion that community based dispositions would be within the range for more serious circumstances involving offenders with even lower levels of moral blameworthiness than described in the reasonable hypotheticals. [93] After taking into account the trend towards longer custodial sentences, in my view, the appropriate range for a first time offender with a collection of child pornography similar to Mr. Swaby's would be a jail sentence of six to 15 months. The range would, however, be lower if the first time offender had a smaller collection of child pornography and/or a particularly reduced level of moral blameworthiness. [94] If not for mandatory minimum sentences, in my view, the sentencing range for a first time offender with a particularly low level of moral blameworthiness and low risk of re-offending would include a community based sentence and, in particular, a CSO. [95] Whether the sentencing judge did or did not pay adequate heed to the trend toward increasing sentences in cases of possession of child pornography, in my view, a CSO was within the range of fit sentences for Mr. Swaby. The real question remains, however, whether a 90 day mandatory minimum sentence would amount to cruel and unusual punishment in the circumstances of this case or a reasonable hypothetical. Did the sentencing judge overstate and overemphasize mitigating factors? [96] The Crown submits that the sentencing judge incorrectly considered Mr. Swaby's lack of criminal record, his willingness to submit to assessment and treatment, that he is not a pedophile, and his compliance with bail conditions as mitigating factors. The Crown submits that these circumstances are rather an absence of aggravating factors. [97] The Crown did not identify a binding authority establishing that the absence of a criminal record and willingness to submit to assessment and treatment are not mitigating circumstances. In fact, many cases, including cases cited by the Crown, say otherwise. For example, in Walker at para. 34, Brown J. identified the absence of a criminal record to be a mitigating factor and, in R. v. Kwok, 2007 CanLII 2942 (Ont. S.C.J.) at para. 7, Molloy J. identified the offender's willingness to submit to treatment as a mitigating factor. [98] I agree with the Crown that the fact that Mr. Swaby is not a pedophile is properly characterized as the absence of an aggravating factor: Kwok at para. 7. Regarding the importance of the distinction, I agree with the statement at para. 8 of Kwok where Molloy J. says: "I prefer to think of the absence of an aggravating factor as being neutral, rather than mitigating, although in the final analysis not much may turn on the distinction." In this case, that Mr. Swaby is not a pedophile is highly relevant to the risk he poses. No matter how this factor is characterized, it is an important consideration in the context of the case and it was a proper consideration for the sentencing judge to take into account. [99] In R. v. R.M.D., 2014 BCCA 56 at para. 7, the court casts doubt on whether compliance with bail can be considered a mitigating factor. Nevertheless, Mr. Swaby's ability to comply with a stringent court order is relevant in a number of ways. From the Crown's perspective, it helps demonstrate that Mr. Swaby has a heightened level of functioning. From the defence perspective, it helps demonstrate that Mr. Swaby presents a reduced risk to the community. Again, it was important for the sentencing judge to take into account Mr. Swaby's performance on bail in his consideration of all the circumstances. [100] While the sentencing judge mischaracterized the fact that Mr. Swaby is not a pedophile and his good performance on bail as mitigating factors, I cannot conclude that these mischaracterizations led the sentencing judge into error in his overall contextual analysis. Did the sentencing judge err in finding a connection between Mr. Swaby's cognitive deficits and mental health issues and his offending? [101] The Crown submits that the sentencing judge erred in finding Mr. Swaby's mental health and cognitive issues to be causally linked to his offending and, therefore, to be mitigating factors. [102] Regarding Mr. Swaby's mental health and cognitive issues, the law is clear that they may be mitigating factors but only if they are causally connected to his offending: R. v. Batisse, 2009 ONCA 114 at para. 38, R. v. Ramsay, 2012 ABCA 257 at para. 19, and R. v. Laskowski, 2015 BCCA 248 at para. 17. [103] With the greatest respect, I disagree with the Crown that the only evidence in support of the sentencing judge's finding of a causal connection was "speculative" and adduced only in response to a "leading question" from the sentencing judge. [104] Dealing with the second point first, Dr. Bartel's opinion on the causal connection between Mr. Swaby's mental health and cognitive issues and his offending was simply given as an ordinary part of his assessment and not in response to any specific question, leading or otherwise. Regarding Dr. Mordell's opinion on the causal connection, the sentencing judge asked for a "(p)sychiatric opinion as to how, if at all, Mr. Swaby's mental health and cognitive functioning contributed to the commission of the offence". [Emphasis added.] The sentencing judge appropriately raised an issue of concern and did not point Dr. Mordell towards any particular answer. [105] Dealing with the more substantive concern, there was reliable evidence before the sentencing judge that Mr. Swaby was depressed, hearing voices, and socially isolated at the time of his offending. Though differing in degree, the testing by Drs. Bartel and Mordell also provided reliable evidence that Mr. Swaby's intellectual functioning was significantly impaired at the time. [106] It is true that neither psychologist truly explored why Mr. Swaby specifically sought out child pornography to deal with his depression and social isolation, but both explained the connection between Mr. Swaby's mental health and cognitive issues and his offending. To reiterate, Dr. Bartel's supplemental report indicated that: (Mr. Swaby's) intellectual disability would have likely affected his ability to reason and think through the illegality of what he was doing and the possible negative consequences should he be caught. His psychosis and depression would also have made it more likely for him to isolate himself and seek relief and limited pleasure through pornography use. and Dr. Mordell's report indicated that: Depression and lower intellectual functioning are both risk factors for committing a sexual offence, including non-contact offences. According to a risk assessment instrument (used by Dr. Mordell), these factors can lead to impulsive behaviour and be associated with poor coping, judgment, and self-awareness. In Mr. Swaby's case, such social isolation and excessive time spent on the internet, appear to have been factors contributing to his offence. [107] While the sentencing judge was not entirely happy with the opinions he received on the causal connection, he certainly had an evidence-based foundation to conclude on a balance of probabilities that "Mr. Swaby's lower intellectual functioning combined with the presence of severe depression and probable psychotic disorder would have impacted his decision making and judgment and that it contributed to his commission of the offence." He did not err in doing so. Did the sentencing judge fail to consider the totality of the evidence? [108] The Crown submits that the sentencing judge erred when he declined to view representative samples of the photos and videos taken from Mr. Swaby's hard drives. [109] I do not quarrel with the Crown's submission that, ordinarily, a sentencing judge should view the images of child pornography that depict the crime: R. v. Hunt, 2002 ABCA 155. As stated by Molloy J. in Kwok at para. 48: "While the description in words of such disturbing images is shocking, nobody can fully appreciate the sickening horror of such pornography without actually looking at it." The case law is also clear that the sentencing judge is in the best position to determine what evidence is required to determine a fit sentence and to exclude evidence whose prejudicial effect outweighs its probative value: R. v. P.M., 2012 ONCA 162 at paras. 29 and 31. [110] In this case, the sentencing judge was an experienced judge who had viewed child pornography in the past. He concluded that viewing the images and videos would have "relatively insignificant probative value" that had the potential to be outweighed by its prejudicial effect. More to the point, the sentencing judge concluded that the graphic descriptions in the Agreed Statement of Facts were adequate for him to determine a fit sentence. Given his experience, he felt "well qualified to appreciate the sickening horror of such pornography without actually having to watch it." [111] As pointed out by the Ontario Court of Appeal in P.M., an appeal court should not interfere with a sentencing judge's exercise of discretion, provided the sentencing judge gives the parties an opportunity to be fully heard and exercises her discretion reasonably: paras. 25-29. In this case, the sentencing judge had the benefit of full submissions from the Crown and expressed a valid reason for the exercise of his discretion. Accordingly, I reject the Crown's submission that the sentencing judge erred by failing to consider the totality of the evidence. Did the sentencing judge engage in speculation when he concluded that an intermittent sentence would have a negative effect on Mr. Swaby? [112] Both psychologists reported that incarceration would have a detrimental effect on Mr. Swaby. Both had concerns about Mr. Swaby's ability to tolerate incarceration, a heightened risk of suicide, and the potential for Mr. Swaby to be victimized by other offenders while in custody. These opinions were amongst the central considerations in the sentencing judge's contextual analysis and ultimate conclusion regarding the constitutionality of s. 163.1(4). [113] The Crown submits the onus was on Mr. Swaby to go further to establish that an intermittent jail sentence "would not address any concerns related to the effect of incarceration on his mental health." The Crown notes that neither psychologist addressed this question. The Crown submits that the sentencing judge, therefore, engaged in speculation in concluding that: 1. an intermittent sentence would have any negative effect on Mr. Swaby; and 2. that it was "just as likely" that an intermittent sentence would "negatively exacerbate" rather than "considerably alleviate" the effect of incarceration on Mr. Swaby. [114] Engaging in speculation, as opposed to drawing rational inferences from the evidence, is an error of law: R. v. Todd, 2007 BCCA 176 at paras. 21 and 35-38. [115] On the first point, in my respectful view, the psychologists' reports gave the sentencing judge an evidentiary basis to find that any type of incarceration in line with the mandatory minimum sentence would have a negative effect on Mr. Swaby. In the context of an intermittent sentence, the open question was how much? [116] On the second point, Dr. Mordell's supplemental report indicates that Mr. Swaby's employment and greater social engagement at the time of her assessment "appeared to have reduced the severity of his depressive symptoms and consequently his risk." She then reported that these gains "would be compromised by a period of incarceration." The Crown submits that an intermittent sentence would allow Mr. Swaby to retain his employment and social connections to address the negative effect on Mr. Swaby and his risk to the community. [117] The statements by Dr. Mordell do not directly address the question of the effect of an intermittent sentence on Mr. Swaby nor whether any countervailing considerations, such as the need for Mr. Swaby to repeatedly report to a correctional facility, would exacerbate the effect of incarceration on Mr. Swaby. Rather than engage in speculation on the second point, I consider the sentencing judge to have refused to do so. He declined to infer either that an intermittent sentence would exacerbate or alleviate the effect of incarceration on Mr. Swaby. [118] The sentencing judge had an obligation to make a decision and, in my view, cannot be faulted for deciding to do so based on the imperfect information before him. [119] In turning to the ultimate question of whether the trial judge erred in finding s. 163.1(4) to be unconstitutional, I will keep in mind the limits within the evidence regarding the specific effect of an intermittent sentence on Mr. Swaby. Did the sentencing judge err in finding s. 163.1(4) to be contrary to s. 12 of the Charter? [120] I now move on to consider whether the mandatory minimum sentence of 90 days' jail was grossly disproportionate in Mr. Swaby's individual circumstances or in the circumstances of a reasonable hypothetical. As noted, this requires an examination of all relevant contextual factors. I will start with the particularized inquiry. Particularized Inquiry [121] For all of the reasons I have set out, the possession of child pornography is a very serious offence. While it does not involve the direct abuse of children by the particular offender before the court, it indirectly contributes to the exploitation and abuse of children. The possession of child pornography is harmful to children and to society at large. [122] Regarding Mr. Swaby's circumstances, these were thoroughly addressed by the sentencing judge. The key points are that Mr. Swaby was 23 years old at the time of his offence and had no prior criminal record. At the time of his offence, he was suffering from depression, social isolation, and psychotic symptoms. Mr. Swaby coped by spending an inordinate amount of time on the internet and accessing, amongst other things, child pornography. By any measure, he has significant intellectual deficits which were likely exacerbated by his depression at the time of his offence. Mr. Swaby's lengthy statement to the police demonstrates that he understood what he was doing was wrong but also that he is naïve and immature, if not childlike. For example, Mr. Swaby was easily led by the interviewer, was unable to grasp his legal rights, and lacked insight into the process he found himself in. [123] As the Crown noted, I must also keep in mind that Mr. Swaby graduated from high school in a modified program, has held a number of unskilled jobs and has lived independently in shared accommodations since his bail conditions required him to move out of his mother's home due to its location. [124] The circumstances of the offence were also canvassed thoroughly by the sentencing judge and have been summarized in these reasons. [125] The aggravating factors are: 1. the quantity of child pornography possessed; 2. the egregious nature of some of the videos; and 3. the fact that the child pornography was collected over a significant period of time during which Mr. Swaby would sometimes delete and then re-download videos. [126] The mitigating factors are: 1. Mr. Swaby's relative youth and lack of social network at the time of the offence; 2. Mr. Swaby's mental health and cognitive issues which were connected to his commission of the offence; 3. Mr. Swaby's pro-social personality and otherwise good character, including his lack of a criminal record; 4. Mr. Swaby's immediate cooperation with the RCMP; 5. Mr. Swaby's immediate expression of remorse and acknowledgement of responsibility, resulting in his early guilty plea; and 6. Mr. Swaby's willingness to be assessed and receive treatment. [127] In terms of the impact of the mandatory minimum sentence on Mr. Swaby, the psychological reports establish that incarceration would have a detrimental impact on Mr. Swaby. Given that there was no evidence regarding the specific impact on Mr. Swaby of an intermittent sentence, I am unable to say anything other than that any incarceration would lead to some increased level of depression, a somewhat heightened risk of suicide, and exposure to the risk of being victimized by other offenders. I can also say that the psychological reports support the sentencing judge's conclusion that incarceration would likely increase rather than decrease the risk to the public posed by Mr. Swaby. [128] The purpose and principles of sentencing are set out in ss. 718 to 718.2 of the Criminal Code. In terms of penological goals relating to the sentencing of an offender convicted of possession of child pornography, I note the following: 1. Parliament was responding to a pressing problem when it introduced a mandatory minimum sentence for the possession of child pornography; 2. Parliament was acting rationally and purposively in pursuing the objective of protecting children by imposing strict penal sanctions on offenders who contribute to the abuse of children by possessing child pornography; 3. As required by s. 718.01 of the Criminal Code, a sentencing court must give primary consideration to the objectives of denunciation and deterrence when imposing a sentence for an offence involving the abuse of a person under the age of 18; 4. The objective of retributive justice represents "the fundamental requirement that a sentence imposed be just and appropriate under the circumstances": Morrissey at para. 48; 5. In a case such as this where there is a low risk of reoffending, protection of the public, specific deterrence, and separation of the offender from society are less pressing; and 6. Even in cases where denunciation, deterrence and retributive justice are primary sentencing objectives, s. 718.1 of the Criminal Code still requires that "(a) sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." [129] Turning to the sentencing range, as indicated earlier in these reasons, in my view, the appropriate range for a "typical" first time offender with a collection of child pornography similar to Mr. Swaby's would be a custodial sentence of six to 15 months. That said, in my view, if not for the mandatory minimum sentence, the sentencing range for an offender with a particularly low level of moral blameworthiness and low risk of re-offending would include a community based sentence and, in particular, a CSO. [130] In terms of comparing the mandatory minimum sentence at issue in this case to punishments imposed for similar offences, the Crown referred me to R. v. Hayes (10 September 2015), Surrey Registry no. 203783-2C (B.C. Prov. Ct.), in which the offender was convicted of sexually assaulting the 14-year-old complainant on a transit bus. The sexual assault involved the offender flipping the complainant's skirt up with his hand two or three times. The offender was moving his hand toward the complainant's "bum" but stopped when a passenger on the bus called out and the complainant began to exit the bus. The offender was a 31-year-old first time offender who had a brain injury which resulted in impulsivity. [131] The trial judge dismissed a s. 12 Charter challenge regarding the 90 day mandatory minimum sentence finding a 90 day sentence to be "excessive but not one that is so grossly disproportionate that Canadians would find it abhorrent or intolerable." In my view, the offence in Hayes was less serious than Mr. Swaby's case and, as a result of his brain injury, Mr. Hayes had a reduced level of moral blameworthiness comparable to Mr. Swaby. [132] Another helpful comparison case is R. v. J.L.M., 2017 BCCA 258. In J.L.M., the offender was convicted of communicating with a person under the age of 18 years for the purpose of obtaining sexual services, and obtaining sexual services for consideration contrary to s. 212(4) (now s. 286.1(2)) of the Criminal Code. The offender's 16-year-old niece masturbated the offender and he touched her breasts in return for money and cigarettes. Both J.L.M. and his niece were indigenous. J.L.M. probably had fetal alcohol syndrome and had a difficult childhood. The mandatory minimum sentence was then six months. The sentencing judge sentenced J.L.M. to seven months' imprisonment. [133] For a majority of the Court, Bennett J.A. held that the mandatory minimum sentence was grossly disproportionate as it related to J.L.M. and as it related to reasonable hypotheticals. At paras. 53 and 54, she wrote in relation to J.L.M.: [53] In this case, we have a first offender of Aboriginal heritage, whose life has been fraught with difficulty since childhood. He suffers from mental and physical health problems and chronic pain. On the other hand, the offence was opportunistic and took serious advantage of a vulnerable young relative who he knew was addicted to drugs. The harm to her was significant, as noted by her parents in the pre-sentence report. [54] In my view, on examining the sentences imposed in other cases and the circumstances of this offence and offender (and in particular his Aboriginal heritage) the broad sentencing range applicable to J.L.M., absent the mandatory minimum, would be as low as a suspended sentence and as high as six months. This sentence could be served either in prison or conditionally in the community. If a conditional sentence order is imposed, a longer sentence may be appropriate. Certainly more aggravating factors, in terms of the offence or offender, would attract a higher sentence. Therefore, the mandatory minimum of six months materially exceeds the bottom end, (a suspended sentence), of the range for J.L.M, and thus the mandatory minimum sentence is grossly disproportionate as it applies to J.L.M. [134] One reasonable hypothetical considered by Bennett J.A. involved a young adult offender with the mental function of a young teenager awkwardly propositioning a 17-year-old with money for a sexual service but being immediately rebuffed. Regarding this and other reasonable hypotheticals Bennett J.A. held at para. 62: [62] In my opinion, although the legislative intent to prevent harm to vulnerable children cannot be questioned, the offence "covers a wide array of situations of varying moral blameworthiness" (Lloyd SCC at para. 49), and captures not only those involved in the heinous act of juvenile prostitution, but also far less culpable conduct. There are, in my opinion, reasonable hypotheticals that demonstrate that the mandatory minimum sentence for this offence can be grossly disproportionate to the act and offender. [135] Bennett J.A.'s reasons for judgment reflect overarching values in our society, which are consistent with many of the Calls to Action of the Truth and Reconciliation Commission ("TRC") and also with the principles behind the Youth Criminal Justice Act ("YCJA"). For example, in recognition of reduced moral blameworthiness, the TRC's Call to Action 34 calls upon governments in Canada to enact statutory exemptions from mandatory minimum sentences for offenders affected by fetal alcohol spectrum disorder. Regarding the YCJA, it recognizes that the criminal justice system for young persons "must be based on the principle of diminished moral blameworthiness": s. 3(1)(b). The YCJA would not support a custodial disposition for a first time youth offender who committed the reasonable hypothetical considered by Bennett J.A. set out above: s. 39(1). [136] In the result, Bennett J.A. imposed a nine month CSO. [137] In my view, the offence in J.L.M. was at least as serious as Mr. Swaby's and involved an offender with a reduced level of moral blameworthiness comparable to Mr. Swaby. As a result, I must conclude that sentences for similar offences committed by similar offenders include community based dispositions and, in particular, CSOs. [138] Given the Court of Appeal's imposition of a CSO in J.L.M., I must reject the Crown's submission that the sentencing judge's imposition of a custodial sentence to be served in the community, namely the four month CSO, is incongruent with the sentencing judge's finding that the mandatory minimum sentence was grossly disproportionate. The loss of the option of serving a custodial sentence in the community, in appropriate circumstances, can result in a mandatory minimum sentence being grossly disproportionate. [139] I turn now to my fully contextualized consideration of the totality of the circumstances within the particularized inquiry. [140] As has been stated throughout these reasons, the offence of possession of child pornography is unquestionably grave and sentences must emphasize denunciation and deterrence in an effort to limit the harm done to victims and society. In the vast majority of cases, a period of incarceration served in a correctional facility will be called for to achieve these critical objectives. [141] At the same time, the sentencing judge was in the best position to assess Mr. Swaby's moral blameworthiness. In his many years "on the front line", the sentencing judge has undoubtedly dealt with a great number of justice system participants with cognitive impairments similar to Mr. Swaby's. He had the benefit of three psychological reports and a pre-sentence report. He carefully reviewed Mr. Swaby's statement to the police and had an opportunity to observe Mr. Swaby in the courtroom. [142] Given the time it has taken Parliament and the courts to fully appreciate the seriousness of the indirect harm caused by the possession of child pornography, it was entirely reasonable for the sentencing judge to conclude that Mr. Swaby could not understand just how wrong his conduct was. In my view, this is why the sentencing judge emphasized the fact that Mr. Swaby had not committed a direct offence against a child. Even with his cognitive deficits, it is much more likely that Mr. Swaby could appreciate the harmful consequences associated with assaulting a child as compared to possessing child pornography. [143] I am not in a position to second-guess the sentencing judge's assessment of Mr. Swaby's moral blameworthiness. It was based on the evidence and the sentencing judge's experience and, frankly, I agree with him. [144] In the individualized balancing act involved in determining a fit sentence for Mr. Swaby, I have no hesitation in saying the mandatory minimum sentence is excessive. While a period of incarceration would fulfill the primary and critical sentencing objectives of denunciation and deterrence, it would not be necessary to specifically deter Mr. Swaby nor protect the public. It would not reflect any degree of judicial restraint and would not recognize Mr. Swaby's highly reduced level of moral blameworthiness. It would also expose Mr. Swaby to risks which could have a highly negative effect on him and create a greater risk to the community. [145] In approaching the difficult question of whether the mandatory minimum sentence would not just be excessive but so grossly disproportionate that Canadians would find it abhorrent and intolerable, I must be careful not to make my decision on compassionate grounds: R. v. Wust (1999), 125 C.C.C. (3d) 43 (B.C.C.A.) at para. 59. I must also be deferential to Parliament, though only to the limits established by s. 12 of the Charter. [146] Every day, courts across Canada grapple with the unique circumstances of parties with cognitive impairments and/or serious mental health issues in criminal, family, child protection and civil contexts. In the criminal sentencing context, courts strive to impose fit sentences. There are a wide variety of outcomes depending on factors such as the seriousness of the offence, the risk to the community and the moral blameworthiness of the offender. In cases involving serious risk to the community, lengthy or even indeterminate sentences are imposed: see, for example, R. v. Jennings, 2016 BCCA 127. [147] The possession of child pornography is truly criminal and Mr. Swaby's offence was objectively very serious. Nevertheless, the gravity of the offence is only one side of the proportionality equation. [148] On the other side of the equation, as evidenced by this case, the possession of child pornography can cover a "wide array of situations of varying moral blameworthiness." Mr. Swaby has significant cognitive impairments which were exacerbated at the time of his offence by what the sentencing judge referred to as "overriding mental health issues". Given the sentencing judge's finding that Mr. Swaby's cognitive impairment and mental health issues contributed to his offence and that Mr. Swaby did not understand just how wrong his conduct was, the sentencing judge did not err in concluding that Mr. Swaby had a highly reduced level of moral blameworthiness. [149] While the repulsive nature of child pornography may lead to a variety of views amongst informed Canadians, in my view, a clear majority of Canadians who were fully informed about the offence, Mr. Swaby's personal circumstances, and the penological goals would find a jail sentence of 90 days' imprisonment, even if served intermittently, to be abhorrent and intolerable. Their standards of decency would be outraged by the imprisonment of a person with Mr. Swaby's deficits and vulnerabilities. They would reach this conclusion not out of a sense of compassion but as a result of Mr. Swaby's reduced level of moral blameworthiness and low risk to re-offend. Their conclusion would be reinforced by the detrimental effect of any type of incarceration on Mr. Swaby. They would understand that, in the exceptional circumstances of Mr. Swaby's case, denunciation, deterrence and protection of the public would be adequately addressed by Mr. Swaby's incarceration in the community, his registration on the sex offender's registry, and the other terms of his sentence. [150] I have not reached my conclusion based on the recommendations of the TRC or the principles of the YCJA, however, given that Mr. Swaby's reduced level of moral blameworthiness would be similar to the moral blameworthiness of an offender with fetal alcohol spectrum disorder or an immature youth offender, both support my conclusion. [151] As a result of my particularized inquiry, I find the mandatory minimum sentence provided by s. 163.1(4) that was in force between October 24, 2013 and January 12, 2014 of 90 days' jail to be grossly disproportionate and, therefore, contrary to s. 12 of the Charter. Reasonable Hypotheticals [152] Turning to "reasonable hypotheticals", I start by reiterating that reasonable hypotheticals should relate to "a situation that may reasonably be expected to arise - not 'marginally imaginable', not 'far-fetched', but 'reasonable'": Latimer, Morrissey and Nur. [153] In Canada, the fact is that many offenders suffer from mental health issues, cognitive impairments, addictions, and/or poverty. Accordingly, as Bennett J.A. did in J.L.M., it is not inappropriate to consider modest offences perpetrated by offenders with reduced levels of moral blameworthiness as reasonable hypotheticals. Such hypotheticals are not far-fetched or marginally imaginable. [154] In my view, a reasonable hypothetical can be created by combining one of the hypothetical circumstances considered in LeCourtois with one of the hypothetical offenders described in J.L.M. In my view, a sentence of 90 days' jail would be abhorrent and intolerable to Canadians informed of brief and inadvertent possession of one item of the least depraved child pornography by a person with the mental function of a young teenager. This conclusion would not be based on compassion but on a consideration of the less serious nature of the offence combined with the reduced moral blameworthiness of the offender. Absent a mandatory minimum sentence, a suspended sentence and probation would be well within the range of fit sentences in such circumstances. [155] Even if my analysis within the particularized inquiry is wrong, on the basis of this reasonable hypothetical, I find that the mandatory minimum sentence provided by s. 163.1(4) that was in force between October 24, 2013 and January 12, 2014 of 90 days' jail to be grossly disproportionate and, therefore, contrary to s. 12 of the Charter. Section 1 Analysis [156] Because I have found that the mandatory minimum sentence would be grossly disproportionate in relation to Mr. Swaby, the Crown does not contest that the mandatory minimum would be saved by s. 1 of the Charter. [157] The s. 1 issue was thoroughly analyzed by the sentencing judge and the Crown has not appealed his analysis. I, therefore, conclude that the mandatory minimum sentence provided by s. 163.1(4) that was in force at the time of Mr. Swaby's offence cannot be justified in a free and democratic society and is not saved by s. 1. Conclusion [158] In conclusion, I find the mandatory minimum sentence provided by s. 163.1(4) that was in force at the time of Mr. Swaby's offence to be contrary to s. 12 of the Charter and of no force and effect. [159] Despite my finding that this mandatory minimum sentence is unconstitutional, the message to those who would contribute to the abuse of children through their possession of child pornography should be clear. If found guilty of the offence, they should expect to go to jail. Mr. Swaby has escaped this outcome only because of his unique circumstances and, in particular, his highly reduced moral blameworthiness. "L.S. Marchand J." Marchand J.