The Court accepted a joint proposal for a 10-month conditional sentence served in the community for possession of child pornography. The Court did express misgivings with the absence of any independent or expert evidence in the record to justify the proposal as no Gladue report, pre-sentence report, or psychiatric assessment was obtained. The proposal was accepted, however, due to the high standard for any judicial departure from a joint submission on sentence.
Tyler Eugene Neasloss was charged with distributing and possessing child pornography contrary to the Criminal Code. At the sentencing hearing the Crown and defence jointly proposed a sentence comprising of a ten-month conditional sentence [“CSO”], three years’ probation and four ancillary orders. The Court questioned whether a non-custodial sentence was appropriate in the circumstances of the offence and offender. Although, not convinced a CSO gives proper effect to the sentencing principles of parity and proportionality, the Court is bound by the Supreme Court of Canada’s directive that trial judges are to follow joint submissions in all but the rarest of cases. The Court can only depart from a joint submission if it is so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons to believe that the proper functioning of the justice system had broken down (R v Anthony-Cook, 2016 SCC 43).
In 2018, Facebook, a United States social media corporation, reported the transmission of suspected child pornography to the National Centre for Missing and Exploited Children [“NCMEC”]. The following day, NCMEC reported the transmission to the BC Integrated Child Exploitation [“ICE”] Unit of the Royal Canadian Mounted Police [“RCMP”]. The BC-ICE Unit determined that two images sent by a Facebook user met the definition of child pornography and forwarded a report to the New Hazelton RCMP detachment. The Facebook user had used an identifying IP address. The RCMP obtained and executed a search warrant at a residence, at which time they arrested Mr. Neasloss. The RCMP seized several items from Mr. Neasloss’ bedroom. Mr. Neasloss confessed to possessing child pornography and viewing images of pre-pubescent boys and girls performing various sexual acts. He denied ever touching a child sexually, expressed shame and wrote a written apology to his family for what he has done.
Mr. Neasloss was 30 years old at the time of the offence and has no criminal record. Mr. Neasloss is a member of the Gitxsan Nation. In Grade 8, while attending Skeena Junior Secondary School, Mr. Neasloss left school, never to return. He lives a narrow, lonely and solitary life with his father, where he stays home, watches television and is not otherwise socially engaged. Mr. Neasloss does not drink or smoke or use drugs. He has no friends or intimate partners, past or present, no children, does not work and has a negligible work history. Mr. Neasloss lives on social assistance and although he might qualify for a disability pension, he is unable to navigate the application process.
Typically, before imposing sentence on an offender convicted of possessing child pornography, the trial judge has the benefit of a pre-sentence report and a psychiatric and psychological risk assessment. When the offender is Indigenous, the court often receives a Gladue report, In this case, the Court has no such reports. There is no Gladue report and only a faint thumbnail sketch of Mr. Neasloss’ personal history. The Court, however, is acutely aware of the challenges facing Indigenous people in this region. The systemic and background factors affecting Indigenous people in Canadian society have likely impacted Mr. Neasloss’ life in such a way as to diminish his moral culpability.
The Court does not know the nature or severity of Mr. Neasloss’s asserted psychological, cognitive and social impairments. Apparently, he has the intellectual skills to navigate the dark web to access child pornography, and the psychological dysfunction to do so. Both counsel, however, argue that sentencing ought to proceed in the absence of presentence reports or psychological assessments in order to minimize delay and expedite Mr. Neasloss’s access to treatment. Both counsel are experienced and clearly considered the systemic benefits of Mr. Neasloss’s guilty plea to justify a non-custodial sentence. The crafting of the sentence endeavours to protect the community from the risk of Mr. Neasloss reoffending through a combination of rehabilitative and restrictive conditions contained in various court orders. The Court endorses the joint submission as advocated by counsel.