B.C.’s Court of Appeal has rejected the appeal of a man convicted of possession of child pornography and sentenced to 27 months in prison.
B.C. Supreme Court Justice Murray Blok said in sentencing Kelly Glen Isbister, 52, in September that images and video files depicting child pornography were detected by a popular social media platform.
Police found a total of 150 images and 10 videos depicting child pornography on Isbister's cellphones.
Those images were reported to the National Centre for Missing and Exploited Children, a U.S. non‑profit organization that works to reduce the internet distribution of child sexual exploitation images and videos.
Blok said the centre forwarded reports to the B.C. Integrated Child Exploitation Unit.
“What is at issue here are images of exploited children who are being sexually abused,” Blok said.
Isbister appealed Blok’s decision to the appeal court.
Writing for the unanimous three-judge panel, Justice Janet Winteringham said Isbister already had a criminal record for sexual interference involving three children.
She said Isbister appealed on two grounds: that Blok failed to correctly account for restrictive bail conditions and that the judge failed to appreciate a connection between his Métis status and the offences.
Winteringham said the Crown submitted Blok “explicitly recognized and gave Isbister credit for his time on restrictive bail,” including granting a three-month reduction in the sentence.
Winteringham didn’t agree that Blok had to give greater weight to the bail conditions in crafting a sentence.
And, the Crown said, Blok had correctly followed court guidances regarding the sentencing of Indigenous offenders.
Winteringham noted Isbister had blocked Indigenous offender report writers from contacting his family.
And, she said, a Parole Board of Canada decision of Nov. 12, 2015 noted that, despite being assessed by an Elder and being recommended to have Indigenous programming and participate in Indigenous ceremonies while incarcerated, Isbister “made marginal efforts in this regard.”
Winteringham said Blok had noted his task was made more challenging by the “dearth of information” about Isbister’s circumstances and the relationship to the offences.
She said Blok did not place an impermissible burden on Isbister to prove a causal connection between his Métis status and the criminal offences.
“I would not accede to this ground of appeal,” she said before the appeal was dismissed.
What happened
Investigations revealed the images and video files to be associated with accounts in Isbister's name.
On Dec. 19, 2019, police executed a warrant at Isbister's address and seized his cellphone, which was examined as per the warrant.
Isbister was arrested at the scene, but he was released without conditions once the warrant execution was complete.
“He had only recently been released from serving a federal sentence for sexual offending against three children,” Winteringham said.
The Aldergrove man was arrested on the charge on Aug. 27, 2020, and a second cellphone seized at that time was found to contain further images of child sexual abuse.
'Abuse inflicted on the child'
Blok said such an accused may not have played a direct role in a child sex abuse crime, but added such behaviour increases the risk of harm to children.
“Someone, somewhere, sexually abused an exploited child in order to create these images, and possession and distribution of this material is tantamount to complicity in, and the endorsement of, the abuse inflicted on the child,” said Blok, who presided over the case in New Westminster.
In 2014, Isbister pleaded guilty to three counts of sexual interference with persons under 16. He was given an effective four‑year sentence with one year credit for pre-trial custody.
Blok also gave Isbister a lifetime order prohibiting him from communicating with people under age 16, attending public facilities or areas where people under 16 are present, or seeking or having employment of any sort that involved being in a position of trust or authority over people under 16.
Isbister was given credit for 369 days for time spent in custody awaiting sentence.
