B.C.’s top court tosses mandatory jail time rule
Burnaby man pleads guilty to child porn charge
B.C.’s highest court has upheld a ruling that strikes down as unconstitutional a mandatory minimum sentence of 90 days in prison for possession of child pornography.
The B.C. Court of Appeal case relates to a Burnaby man who pleaded guilty to one count of possession of child pornography.
In January 2014, a special unit of the RCMP had identified an internet address associated with a man named Matthew Christopher Swaby that had downloaded a large amount of child porn.
Police executed a search warrant at the home that Swaby, 23, shared with his mother and sister and seized computers containing 400 video files, including videos of vile acts of sexual abuse perpetrated against children as young as a year old.
The computers also had 480 images of child porn.
Swaby, who is now 28 years old, told police that he searched for child porn on the internet and that he did so because he was bored. He said he understood it was wrong and watched for the shock value.
The accused also told police that he sometimes masturbated while viewing the videos or images, but denied being sexually attracted to children or having ever inappropriately touched a child.
But two psychologists found that Swaby had significant cognitive and mental health issues.
He had trouble finding his way to the psychological assessments, requiring the psychologists to go out on the street and find him and escort him into their offices.
Swaby had a history of hearing voices in his head and suffered from depression, has attempted suicide, and suffers from chronic sleep disturbance.
His intellectual functioning was in the “extremely low” range in nearly all respects and his IQ test was in the range of 49-59.
The psychologists were concerned he would not be able to tolerate incarceration.
Because the Crown proceeded summarily against him, he faced a 90-day mandatory minimum jail sentence.
But Provincial Court Judge Joseph Galati found that the mandatory provision violated a section of the Charter that protects an individual’s freedom from cruel and unusual punishment. Galati imposed a four-month conditional sentence with strict conditions.
Galati said that while the Criminal Code requires that denunciation and deterrence be prioritized where an offence involves children, there were numerous mitigating factors in the case.
He concluded that Swaby’s moral culpability was low, that his cognitive and mental health issues likely contributed to him committing the crime, and that he did not realize the gravity of his actions.
The judge said that a 90-day sentence would be “grossly disproportionate” to the conditional sentence that would otherwise be appropriate.
On appeal, Galati’s ruling was upheld in November 2017 by B.C. Supreme Court Justice Leonard Marchand.
The Crown appealed again, but in a decision released Friday, a three-judge panel of the B.C. Court of Appeal upheld the finding that the mandatory minimum jail sentence was a violation of Swaby’s rights.
In her reasons for judgment, B.C. Court of Appeal Justice Elizabeth Bennett noted that possession of child porn was a “very serious” crime and that jail terms were warranted unless there were exceptional circumstances.
Bennett found that absent a mandatory minimum jail sentence, a sentence for Swaby to be served in the community under strict conditions would satisfy all of the objectives and principles of sentencing and would be a proportionate sentence.
“I agree with (the lower courts) that the mandatory minimum sentence is grossly disproportionate, and that sending Mr. Swaby to prison, even to serve an intermittent sentence, would outrage the standards of decency of most informed Canadians.”
Bennett earlier noted that the appeal was moot as Swaby had completed his conditional sentence and the Crown indicated it would not seek further jail time if the court concluded the law was constitutional.