CHARLOTTETOWN, P.E.I. — A P.E.I. man with fibromyalgia who was caught with images, videos and text files involving child pornography has avoided jail time because of his health condition.
Instead, Robert Paul Jenkins, 63, will serve an 18-month conditional sentence that will include house arrest and a ban from using the internet.
Jenkins appeared before Justice Gregory Cann in P.E.I. Supreme Court in Charlottetown for sentencing recently after previously pleading guilty to one count of possessing child pornography.
The court heard Jenkins was found with 484 pictures, 87 videos and 70 text files involving child pornography.
Some of the files were duplicates, and all were obtained from the internet.
In sentencing Jenkins, Cann said child pornography offences are serious and devastatingly harmful to children.
“Child pornography is most emphatically not a victimless crime,” Cann said.
Jenkins was facing a mandatory minimum sentence of one year in jail for possession of child pornography, which he challenged, saying it was a violation of his charter rights.
Jenkins alleged his physical and psychological conditions were such that a period of time in jail would constitute cruel and unusual punishment.
At the time of the offence, Jenkins was 60 years old, and the court heard he receives disability benefits.
The defence presented evidence about Jenkins’s physical and mental health, including that he has been diagnosed with fibromyalgia for which he takes pain medications.
Jenkins has also been diagnosed with depression and other mental health issues.
He previously gave testimony describing his situation with levels of constant pain that vary, including periods with flare-ups that he said leave him bedridden.
The court also received a report from a psychiatrist with the opinion that Jenkins’ level of pain would increase if he was jailed because he wouldn’t be in control of his medications, which include medical marijuana.
The jail’s nurse manager told the court the facility could accommodate Jenkins’s needs, but he wouldn’t be able to control his pain management the way he does outside of jail.
Jenkins would receive pain medication four times a day and wouldn’t be given medical marijuana, the court heard.
Cann said he accepted the opinion that Jenkins would probably experience elevated anxiety and depression in jail, which would lead to increased pain.
In Jenkins’ unique set of circumstances, incarceration would lead to an increased level of suffering, Cann said.
Crown attorney Jeff MacDonald argued a conditional sentence wouldn’t put a significantly greater hardship on Jenkins since he was already housebound because of his health issues.
Cann said he disagreed Jenkins would see little change in his lifestyle with a period of house arrest.
He also said no parole will be available for Jenkins who will serve every day of the conditional sentence.
With the sentence, Jenkins must abide by multiple conditions, including staying in his home unless he has authorization from his supervisor to leave.
Jenkins must also undergo any assessment, counselling or treatment as directed, including for sexual deviancy and education related to the harm done to children by child pornography.
He is also banned from using any electronic devices that can access the internet during the conditional sentence.
After his sentence is finished, Jenkins will be on probation for three years, which will also include restrictions on internet use.
For 10 years, Jenkins will have to follow conditions meant to keep him away from children, and his name will also be on the national sex offender registry for 20 years.
Ryan Ross is The Guardian's justice reporter.
