No. 9317
Port Hardy Registry

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

REGINA)REASONS FOR JUDGEMENT
)
v.)OF THE HONOURABLE
)
VERNON BOYD LOGAN)JUDGE SAUNDERSON

Counsel for the CrownBruce Goddard
Counsel for the DefendantDaniel Nowosad
Place of HearingPort Hardy
Date of HearingDecember 15, 1995

[1]
The defendant pleaded guilty to possession of child pornography, contrary to s.163.1(4) of the Criminal Code, and the matter was adjourned for sentence. The Crown proceeded summarily.

THE EVIDENCE

[2]
The police seized a variety of child pornography from the defendant's home. Most of the material consisted of magazines containing photographs of physically mature teenaged boys performing sexual acts with each other. Some pictures were of pubescent boys and girls involved in sexual activities together, and a few depicted pubescent girls engaging in similar behaviour. Among the written material were the ``Sodomite Invasion Review'', a newspaper published in Vancouver; NAMBLA Bulletins; and Varieties of Man/Boy Love, five articles on the subject compiled by NAMBLA. NAMBLA is an acronym for North American Man/Boy Love Association, an organization that advocates ``support for boys and men who have or desire consensual sexual and emotional relationships and [works] to educate society on their positive nature .... NAMBLA condemns sexual abuse and all forms of coercion'' (Bulletin, Vol.15, No.6, October 1994). The notion that children, by virtue of their youth, may be incapable of giving legal or informed consent to sexual activity with adults finds no favour with NAMBLA.

[3]
It must be emphasized that the defendant is not charged, nor is there any evidence, that he created, published, imported, distributed, or sold child pornography, or had it in his possession for any of those purposes. Moreover, there is no suggestion that the defendant has been sexually involved with children, or that the pornography inspired any deviant behaviour by him. Finally, there was no evidence or argument of a causal relationship between reading child pornography and committing sexual offences against children.

THE DEFENDANT AS A PERSON

[4]
The defendant is a 57 year old man who lives alone and runs a small business in Port Hardy, a community of some 5,000 souls where he has resided since 1972. He has earned a Bachelor of Commerce, and had careers in real estate and insurance before becoming involved in his present business. His work requires that he travel outside Canada frequently. He does not have a criminal record.

[5]
His past and present employment have made him well known in Port Hardy. He is a public-spirited man, having been involved in a number of community organizations. He enjoys the confidence and respect of large number of people, although publication of the facts of this charge in the local newspaper has made him a figure of some notoriety. His counsel asserts that the public and the press do not appear to have made a distinction between the charge against the defendant and child molesting. As a result of this criminal proceeding, he has resigned his position with an international organization. He has also lost, at least temporarily, the company of a woman who has been his constant companion for seventeen years. She was unable to cope with the public reaction to this charge. As well, the defendant suffers from colitis, a medical condition which has been severely aggravated by the stress resulting from the criminal charge and the publicity arising from it.

SENTENCE SUBMISSIONS

[6]
Crown counsel argued that the principle of general deterrence requires the imposition of a fine or imprisonment, which in either case should be coupled with a period of probation with a term that the defendant have no unsupervised contact with children.

[7]
Defence counsel urged the court to grant the defendant a discharge because a conviction is likely to inhibit or prevent his ability to travel outside Canada, and because he needs no further deterrence in the form of a penalty or a criminal record.

CASES AND OTHER MATERIALS CONSIDERED

[8]
There are very few decisions on sentences imposed for simple possession of child pornography, presumably because s.163.1(4) only came into effect on August 1, 1993. The following cases have been unearthed.

R. v. Jewell (unreported), February 25, 1994, Ontario Court (Provincial Division):
12 months in prison.
R. v. Cassidy (unreported), July 4, 1994, Ontario Court (Provincial Division):
90 days in prison.
R. v. Marr (unreported), April 13, 1995, British Columbia Provincial Court:
$2,000 fine and two years probation.
R. v. Higgins (unreported), June 21, 1995, British Columbia Provincial Court:
suspended sentence and two years probation.
R. v. Stroempl (unreported), September 25, 1995, Ontario Court of Appeal:
10 months in prison.

Jewell, Cassidy, and Stroempl all contain significant aggravating factors.
Marr, Higgins, and the case at bar contain none.

[9]
There has been, and continues to be, considerable debate about whether viewing pornography causes individuals to commit sexual offences. That issue was addressed in ``Pornography'', a paper written by James R. Robertson of the Research Branch of the Library of Parliament, published February 15, 1984 and revised January 12, 1993. Experimental evidence was found not to be reliable, and ``anecdotal and statistical evidence suffer from the defect of being unable to establish a causal link between pornography and violence. The presence of such material may be merely symptomatic of anti-social behaviour, rather than its cause.'' The author also refers to the theory that pornography can act as a ``safety valve'', but finds the ``catharsis theory is as unprovable as the theory that pornography induces aggression.'' As to child pornography, the harm found was ``to do with the participation of children in the production of such material, and their exposure to it.''

[10]
In upholding the criminalization by Parliament of obscenity in s.163 of the Criminal Code, the Supreme Court of Canada foreshadowed one of Parliament's justifications for prohibiting the possession of child pornography by legislation which was to come into force a year and a half later:
``While a direct link between obscenity and harm to society may be difficult, if not impossible, to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs.''
R. v. Butler (1992), 11 C.R. (4th) 137 at p.177.

[11]
the House of Commons debate of May 28, 1993 is instructive. On that day Bill C-128 was given second reading. The bill was to become s.163.1 of the Criminal Code establishing the various offences relating to child pornography. The government spokesman had this to say:
``The purpose of a law specifically addressing child pornography is to deal with the sexual exploitation of children and to make a statement regarding the inappropriate use and portrayal of children in media and art which have sexual aspects.

Our message is that children need to be protected from the harmful effects of child sexual abuse and exploitation and are not appropriate sexual partners.''

[12]
By making simple possession of such materials an offence, it was the government's stated purpose to curb the flow of child pornography by discouraging its exchange and attacking any commercial market for it. The bill was supported by both opposition parties.

[13]
In Stroempl the Ontario Court of Appeal echoed Parliament's concern that the very creation of child pornography ``frequently involves direct child abuse in one form or another'', and that the imposition of appropriate sanctions against consumers ultimately ``would substantially reduce the motivation to produce child pornography in the first place'' (para. 8).

DECISION

[14]
the principal issue for the court is whether the defendant should be granted a discharge. Such a disposition requires a finding that it is in the best interests of the accused and not contrary to the public interest: R. v. Fallofield (1974), 13 C.C.C. (2d) 450 at p.454 (B.C.C.A.). In this case a discharge would clearly be in the defendant's best interests. He is of good character and without previous conviction. A conviction is not needed to deter or rehabilitate him, but ot would likely have significant adverse effects on his business. As to ``the public interest in the deterrence of others, while it must be given due weight, [it] does not preclude the judicious use of the discharge provisions'' (p.455).

[15]
In R. v. Wallner (1988), 66 C.R. (3d) 79, the Alberta Court of Appeal held at p.82:
``The public interest is not to be equated with, nor decided by, general expressions of public concern. The [discharge] section ... is specifically directed towards promoting rehabilitation in appropriate cases ....''
[16]
In a detailed consideration of the meaning of public interest in the context of a contemplated discharge, Paradis J. concluded:
1.
The public interest cannot and should not be equated with public concern -- if it exists -- over the severity or leniency of sentences; and
2.
The only basis upon which the term can be applied rationally in any given case is by asking the question: Is it against the public interest not to warn the public at large about the accused through the medium of a criminal record?
R. v. Bigg (unreported), January 21, 1994, British Columbia Provincial Court, North Vancouver, No. 24993.

[17]
If the public needs to be ``warned'' about the accused, and there is no evidence that any warning is necessary, that has already occurred through the news media and, no doubt, by word of mouth in his small community. In this respect it must be borne in mind that the defendant is not accused of committing any overt act detrimental to the public. His crime is entirely passive. He had prohibited material in his possession and, presumably, read it. That is the extent of his culpability. there is no suggestion that he is a threat to the public. He is entitled to a discharge.

[18]
The remaining issue is whether the defendant ought to be discharged absolutely or on the conditions prescribed in a probation order. The Crown asks that he be prohibited from having unsupervised contact with children, but has not offered any basis for such an order. There must be a connection between the facts of the offence and the probation condition sought: R. v. Caja and Billings (1977), 36 C.C.C. (2d) 401 (Ont. C.A.). Here there is none.

[19]
The defendant will receive an absolute discharge.

Port Hardy, B.C.(Judge's initials)
January 23, 1996