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KAMLOOPS - A Kamloops man who pleaded guilty to two charges related to child pornography offences will serve less than the minimum mandatory sentence after a B.C. Supreme Court judge ruled the minimum penalty as unconstitional.

The 56-year-old man who can only be identified by his initials, D.H, due to a court-ordered publication ban, pleaded guilty to one count of possession of child pornography and one count of accessing child pornography. The offender also has a previous conviction from 15 years where he sexually assaulted his own daughter who was roughly nine years old at the time. 

He was sentenced by Supreme Court Judge Janet Winteringham today, Oct. 4 to an eight month jail sentence for the offences that took place approximately four years ago. Full details of the case were not read into the record by Judge Winteringham during D.H's sentencing hearing. A full written transcript is expected in the future explaining her decision. It's unclear how his previous conviction weighed on sentencing, if at all, but it appears to be a reason for the publication ban on his identity. 

A police investigation began into the accused after the RCMP Integrated Child Exploitation Unit became aware of a photo that had been transferred from a social media account of the accused. It showed a naked underaged boy.

Police executed a search warrant at the accused’s house and seized his cellphone and laptop. Judge Winteringham says the accused was cooperative with investigators and gave them his password.

On the laptop, police found several videos ranging in length from 27 seconds to two minutes depicting sexual acts by adults on children.

One video was described by the judge containing a girl roughly seven years of age lying face up on a bed with an adult male having intercourse with the child.

Another video was described as a young boy, roughly ten years old, lying face down with an adult male performing anal intercourse.

In this case, the minimum mandatory sentence for accessing and possessing child pornography is one year in prison but his lawyer, Daniel McNamee, argued the sentence for his client was disproportionate.

McNamee argued a one-year minimum jail sentence violated section 12 of the Canadian Charter of Rights which protects an individual from cruel and unusual punishment.

This case follows on the coattails of two other cases in the province that have challenged the minimum mandatory sentence in child porn cases.

In 2018, the B.C. Court of Appeal upheld a ruling that struck down a mandatory minimum sentence for possession of child pornography in the case of Burnaby man named Matthew Christopher Swaby.

Police seized a computer Swaby shared with his mother and sister which contained 400 video files of sexual abuse against children, according to a 2018 report by the Vancouver Sun. 

Since the mandatory minimum sentence has now been struck down in a superior court, it is struck down in all courts across B.C.

“That’s what happened today, that part of the law just got struck off the book and I suppose as it stands now, there is no mandatory minimum penalty,” McNamee says. “Essentially they will have to leave it up to judges which I am always a fan of.”

McNamee says it is highly unlikely Crown prosecutors would appeal this sentence.

“I don’t think the B.C. Court of Appeal wants to see the minimum mandatory penalty for child pornograpghy back at the court of appeal for the third time in a year and a half,” he said. “We got a fair decision.”

The range for sentencing for these decisions typically range from four months to two years.

Crown prosecutors Janelle Khan and Lesley Ruzicka were seeking a sentence of 12 to 15 months followed by a three-year probation.

The accused will also be placed on a three-year probation after his jail sentence. Some of the conditions of his probation include not going to any public park where a person under the age of 16 is present or expected to be present. He also cannot posess or use any device capable of accessing any internet network except with written permission from his probation officer.

He is also banned for eight years from attending any public park, swimming area, playground, or daycare or seeking employment or volunteer in a position of trust involving people under the age of 16.

He must also register under the Sex Offender Information Registration Act for life.

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