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The court acquitted the accused on two child pornography counts, finding the Crown did not prove knowledge or prohibited purpose beyond a reasonable doubt.
The court sentenced Kelly Glen Isbister to a global 27-month custodial term for child pornography possession and breaching a recognizance, with ancillary orders and custody credit.
The judge concluded that the Crown proved beyond a reasonable doubt that Burke surreptitiously recorded the complainant and possessed child pornography because independent witness identification of the complainant in a dated 'new' video on the accused's phone, the accused's unusual conduct leaving with his phone, and the absence of any reasonable alternative explanation together supported an inference of guilt on the required elements of ss.162(1)(a) and 163.1(4).
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The trial judge erred by failing to adequately consider reasonable alternative inferences—specifically that another resident with access could have downloaded the material and that a virus capable of executing attacker commands could have allowed a remote third party to download the files—thereby imposing on the Crown the obligation to negate those reasonable possibilities; convictions were therefore set aside and a new trial ordered.
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The Court allowed the appeal and held the trial judge erred in principle by using aggravating facts from the sexual interference offences to elevate the remaining sentence after accepting a joint one‑year sentence for those offences (thus double‑counting); the error materially affected the sentence so the remaining sentence was set aside and a substituted global sentence was imposed consistent with Anthony-Cook, Friesen and the totality principle.
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The trial judge's credibility findings were supported and not palpably or overridingly erroneous; after rejecting the defence evidence as not credible the only reasonable inference from the circumstantial evidence was that the appellant knowingly possessed the child pornography, so the convictions are upheld.
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Considering the extreme size and depravity of the collection, the primacy of denunciation and deterrence for child sexual exploitation, and mitigating factors including guilty plea, first-offender status and agreed remand credit, a global custodial sentence of 682 days reduced by Summers/Duncan credit of 391 days yields a net custodial sentence of 290 days imprisonment followed by 36 months probation; ancillary orders (DNA, 20-year SOIRA, 5-year s.161, forfeiture) are appropriate; mandatory one-year minimums are conceded to violate s.12 and are moot for sentencing here.
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The appeal is allowed and a new trial ordered because the trial judge relied materially on dates and viewing metadata that were derived solely from a Digital Forensic Report that was not admitted into evidence; those non‑evidentiary dates played an essential part of the judge’s reasoning that the appellant had knowledge and control of the illicit material, producing a miscarriage of justice notwithstanding that admissible evidence could have supported conviction.
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The Crown failed to prove beyond a reasonable doubt that W.M. will likely reoffend at the time of release after serving the custodial sentence; although a pattern of repetitive sexual offending causing likely severe psychological harm was established, the required probability of recidivism at release could not be met given the offender's advanced age, health and expert evidence regarding age-related risk decline, so the court declined to designate W.M. a Long-Term Offender; the court imposed a global custodial sentence of 12.5 years (with 4.5 years remand credit for a go-forward term of 8 yea…
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On a guilty plea to possession of child pornography, the court imposed 16 months’ imprisonment, two years’ probation, and ancillary orders.
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