Crown: C. Good, Office of the Crown Attorney, Brantford
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
¶ 1 THE COURT: The defendant is charged with one count accessing child pornography. The Crown proceeded summarily in the circumstances; therefore there's a minimum penalty of 14 days incarceration.
¶ 2 The periods which, over which this took place were May 19th, 2006, as I understand it, to May 28th, 2007 and then May 29th, 2008 to June 21st, 2009. Between those two time periods, the accused didn't have a computer. It had been destroyed. It covers a period together of approximately three years.
¶ 3 Initially, it started with the defendant downloading sexually explicit adult material. There's nothing wrong with that, at least not legally. This, however, unfortunately, segued into the downloading of child pornography. Much of the initial downloading, I think, it is agreed, came inadvertently and the defendant, when he realized what he had, deleted the child pornography without viewing the same. Eventually, he began viewing child pornography and deleting the same and ultimately began viewing and retaining the child pornography.
¶ 4 There is an agreed statement of facts which is being filed. I don't intend on going through all of it, most of which, regrettably, because of my age, I don't understand. But the following, I think, is a sufficient summary for our purposes.
¶ 5 The Crown, had this matter proceeded to trial, would only have been able to prove that a very small number of illegal images, perhaps between 10 and 20 were, in fact, intentionally downloaded and viewed by Mr. R. Moreover, there is data which positively suggests that some files were not viewed. Since LimeWire searches for and downloads files as a group and most importantly as a result of the forensic examination, the Crown accepts that Mr. R. did not view all of the images nor was he aware of many of the files and file names which we now know were saved on his computer, most likely in the shared folder as part of a list of files that were not viewable on the computer screen. The Crown also accepts that Mr. R. had no mens rea [meaning "intent"] regarding some of the illegal files which he viewed as some of the files were unintentionally downloaded.
¶ 6 Though the Crown can only prove both the actus reus [meaning "the act"] and mens rea for 10 to 20 of the images and movies, defence and Crown agree that a reasonable number of images and movies for which Mr. R. is criminally culpable is approximately 10 percent of the total images and movies found from the material during the periods of March 19th 2006 to May 28th 2007, and May 29th 2008 to June 21st 2009. The total number of images, 90, and movies, 753, is 843. The total number of images and movies accessed, therefore, for the purpose of the guilty plea, is approximately 85 images or movies. Mr. R. makes that admission, in part, because he wants to take full responsibility for actions and in part because he knows that his assessment, treatment, and counselling must first start with an accurate account of the facts.
¶ 7 In summary, then, the Crown could have garnered convictions on approximately 85 images and/or movies.
¶ 8 Possession of any child pornography, viewing of any child pornography is an extremely serious matter as the Supreme Court has repeatedly expressed. Nonetheless, just as in relationship assaults, the court is obliged for proportionality reasons to classify the size of the collection of pornography. For my purposes, this could be described as a very small collection of child pornography viewed by the defendant. The other thing, which has to be understood in regards to this particular situation, is, sharing. Sesame Street says that's a good thing, but regrettably not so much in regard to child pornography. The defendant was inadvertently and unknowingly sharing files through Limewire. This defendant, like me, is something of a Luddite. He downloaded a apparently a free program called Limewire, but he left it in the default settings as opposed to in some way protecting against what took place, which was, people downloading from his shared files and downloading into his shared files unbeknownst necessarily to him, or at least that's how I understand the situation. People should be more careful with computers.
¶ 9 The most striking aspect of this matter, so far as I'm concerned, is that this defendant did not access or view child pornography for his own sexual gratification. He is not, so far as I can see, and has been tested, a pedophile, nor a hebephile, nor is he in any way excited by anything but adult women. The defendant, regrettably, was abused as a child by a family friend which included, equally regrettably, anal penetration, which he has had a great deal of trouble dealing with. In fact, up to the point of this situation, he hadn't dealt with it at all, save and except to repress it, something which is understandable.
¶ 10 Apparently, and although I found this unusual, it is confirmed by a doctor who's a specialise in this area, viewing child pornography allowed him to basically reassure himself that he wasn't the only one who had been so abused and he had an unusual desire by viewing to reassure the children in the images that the abuse was inappropriate but happened to many, I suppose. This, apparently, is not unusual as can be seen in the diagnosis by Dr Gojer, an acknowledged expert who has been seeing this particular individual.
¶ 11 We can tell by way of his diagnosis: Mr. R. has unresolved emotional turmoil related to past childhood sexual abuse. His motive dealing with this abuse was by suppressing the painful past memories and avoiding thoughts about them. The deteriorating relationship he had with his girlfriend and on commitment discovery of child pornography appears to have created an opportunity for him to relive his past and being unsophisticated was unable to psychologically correct past traumatic events. In the same way, he appears to have developed the compulsive need to keep looking at pictures of child pornography. I have seen this behaviour in several other clients who had been sexually abused in their past. That Mr. R. has an adult heterosexual relationship, tests as not showing pedophilia in a lab, and has no prior sexual offences involving actual children, militates, I think, against him suffering from pedophilia. Mr. R. does not suffer from any personality disorder nor does he have any of the features of a psychopath. He has no substance abuse problems. He has essentially been a pro-social individual all of his life.
¶ 12 So, apparently, what Mr. R. was doing in viewing child pornography, as unusual as it may seem, is not actually unusual in regards to those who have been sexually abused as children.
¶ 13 Sentencing principles which have application; there are a number, but primarily, generally, they would be specific deterrence, general deterrence and denunciation.
¶ 14 Specific deterrence is an attempt to deter individuals from repeating criminal offences. This individual has no prior record. The impact of what has taken place, I'm sure, will deter him from ever doing anything like this again. I do not have concerns in respect of specific deterrence.
¶ 15 General deterrence is the theory that by imposing sentences which speak out against an offence, others of a like-mind will not commit similar offences. Clearly, it's a theory. You cannot, by extrinsic evidence, establish that people don't commit crime. We don't keep track of people who don't commit crime. The federal government, apparently, wants to keep track of unreported crime, equally difficult. Nonetheless, general deterrence is a valid sentencing principle, whether it works or not.
¶ 16 Denunciation is simply put, the need to decry inappropriate behaviour. Denunciation does not attach to all offences by way of sentencing, but it most assuredly attaches to ones involving child pornography. The reason for the need for both general deterrence and denunciation has been expressed by the Supreme Court of Canada and is clear; child pornography leads to abuse of children. If people wouldn't possess and watch child pornography, there would be no market. If there was no market, the perverts who create child pornography would have no reason to do so and there would not be the abuse of children in the production of child pornography. It is, as Ms Good points out, an offence involving the abuse of children.
¶ 17 One of the other reasons there's a need for general deterrence and denunciation is that child pornography is incredibly prevalent. It is easily shared and it is difficult to enforce issues arising around the possession of child pornography. "Project P" in this province hasn't nearly the resources necessary to properly monitor all of those who choose to possess child pornography. Child pornography also has the impact of normalizing that which is not normal. People who view child pornography convince themselves by viewing the same that this type of behaviour is normal behaviour. Bizarre as that may seem, it is an impact of child pornography.
¶ 18 And, finally, child pornography is used to groom children. Child pornography is often shown to children and young adults in attempt to make them feel that this is normal behaviour and behaviour in which she should or he should engage. As a result of those problems and those sentencing principles, in most cases, periods of incarceration are called for in regards to accessing child pornography.
¶ 19 Sentencing, however, as pointed out, is not only proportional to the offence in the sentencing principles; it is proportional to the defendant. This particular defendant has lived a pro-social life, always working, always productive and has remained so since the time of his arrest, although in many ways he has been punished. He has, as a result of disclosing these matters to employers, been fired twice, even though these particular offences have no relationship to the type of employment that he has. He isn't involved in his employment with children or young people, for that matter, and yet because of the stigma which comes to be attached, he's been fired. Punishment in and of itself because currently his employment is not nearly as lucrative as the long-term employment he had when he was arrested.
¶ 20 This particular defendant has had normal sexual relations, some in the long-term and many relationships where there were children as part and parcel of the family unit. And, yet, he has never, to anyone's knowledge, ever done anything to hurt children. In fact, a number of the letters from people with whom he had had relationships continue to indicate that they trust him with their children because he is, in the circumstances, a decent human being. Letters from family and friends attest to his kindness, his helpfulness, his sensitivity and his hardworking character. He has a substantial support system, although much of it has left, I'm sure it's just because of the hour of the day. He is not, most importantly, I think, a pedophile or a hebephile and he is of substantially low-risk to re-offend.
¶ 21 The fact of the matter is that Mr. R., quite appropriately, upon being arrested, went to a person, a Dr Gojer, who, apparently, is an expert in regards to sexual deviancy including pedophilia and hebephilia. He went through the embarrassment of phallometric testing, and phallometric testing indicated that he has no interest in young children or pre-pubescent young women or men. His only interest and the only thing which stimulates him are adult females, as I suppose it should be. The only unusual or criminogenic factor in regards to Mr. R. is, regrettably, his own victimization.
¶ 22 What has Mr. R. done since his arrest? Mr. R. plead guilty immediately when the applicable charges were laid. He immediately sought counselling with a known expert. He has been tested. He is not a pedophile or hebephile. He has no fetishes, nor any type of sexual deviancy, nor any particular mental health issues, save and except those that relate to his own victimization. He took sexual offender counselling and now Dr Gojer recommends that he take no more because he's of the view that he's not a sexual offender and he's not likely to sexually offend. However, he is now, as he should, engaging in counselling which arises from his own abuse. I suppose it could be said that it's an ill-wind that blows no good.
¶ 23 Position of the various parties are as follows: The Crown wishes a 90-day intermittent sentence, less time-served, three days on a two-for-one basis for a total of 84 days, for all the reasons indicated under the sentencing principles. It would be foolish for me to try and fool Ms Good and say I read all the cases, but I did read the one from Justice Wong. I know what her opinion is of the range but I noted when I was reading it, that before there were minimum penalties, there were some justices who were handing out non-custodial dispositions much I'm sure, to the chagrin of the current government, which will explain why it is we're now saddled with minimum penalties, because apparently we can't be trusted to do what we're supposed to.
¶ 24 Defence wants the 14-day minimum. I don't know, Mr Penney, perhaps, I misheard, do you wish it intermittent or do you wish the defendant to serve it on consecutive days?
¶ 25 MR PENNEY: It was an intermittent sentence what we were asking Your Honour, jointly...
¶ 26 THE COURT: Okay. That's fine, less time-served, on a two-for-one basis, which would be a total of eight days, intermittently, plus probation. No 161 orders. The Crown is seeking a 161 order only as it relates to sub-paragraph C, which relates to computers and using computers for the purposes of communicating with those under 16, but the Section 161 order would be for a period of 10 years, as opposed to the maximum probation, which would be a period of three years.
¶ 27 Ultimately, and I may as well deal with this matter at this stage, section 161 orders are protective measures, they're not meant to be punitive nor are they meant to assist, really, in rehabilitation. They are meant to protect vulnerable citizens, those under 16, from a repetition of an offence by an individual who has shown a proclivity thereto. Bearing in mind they're protective, in my opinion, these orders are unnecessary, at least, for the length of times that they would be in place because there is little or no likelihood that Mr. R. is going to re-offend. Mr Penney, who apparently does a substantial number of these types of cases, has indicated that Dr Gojer, rarely, if ever, expresses his views in regards to re-offending as definitely he did in this particular report. Clearly, the doctor's of the view that there is very little likelihood that this individual will ever re-offend and nor has he offended in a personal way towards children. He's viewed child pornography, which indirectly impacts on children, but there's no indication that he has any issue with children which is likely to be damaging.
¶ 28 So, what we're really dealing with, in my opinion, after having discussed the section 161 order at the length thereof, is the length of sentence. When it comes to length of sentence, in addition to considering the sentencing principles and the application thereof, it's always been my practice, as best I can, to look at mitigating and aggravating factors to determine the appropriate length of punishment, because that's what it is.
¶ 29 In aggravation, the nature of the offence is in and of itself aggravating, it causes great harm to young people and it is prolific in nature and clearly needs to be stopped. That is, perhaps, the most aggravating feature of what Mr. R. did. The other aggravating factor is correctly pointed out by the Crown, is that although he accessed a small amount, he accessed it over a three-year period. This wasn't a momentary lapse in judgment on the part of Mr. R. It's not as if he downloaded it, looked at it and deleted and said, boy I'm never doing that again. He, in fact, did access, view, delete or not, over a protracted period of time. Those are both aggravating factors.
¶ 30 Mitigating, there are a great number more of mitigating than aggravating factors. This is a good thing. Mr. R. plead guilty. That's a demonstration of remorse and a substantial saving of court time. As I understand, this was scheduled for three, four, perhaps even five days until a plea took place.
¶ 31 This particular defendant has displayed a pro-social life throughout his life. He had a small number of retained images. A most unusual reason for accessing and retaining as previously noted. He has been tested. He is not a pedophile nor a hebephile, nor is he any other kind of sexual deviant. His likelihood of re-offence is slim. He has undertaken appropriate treatment which is no longer in the opinion of Dr Gojer necessary and he is currently addressing the core issue which led to his viewing of child pornography.
¶ 32 Having considered all of that, I frankly don't think that any more jail time than the minimal is necessary to meet sentencing principles, including retribution. I do feel, however, that this is not a minimum fact situation and therefore the minimum penalty is not appropriate. There is a need for more punishment to express the court's denunciation and the need for general deterrence. I just don't think that it has to be by way of a period of increased incarceration.
¶ 33 In this jurisdiction, Mr Penney, with the cooperation of counsel over the years, this court has come to the conclusion that charitable contributions to organizations in the community do a great deal more than fines that end up in the maw of the federal government and disappear almost instantaneously on great things like expensive jet aircraft, you know, helicopter rides for members of Parliament, that type of thing. It's my intention, if your client will consent, so that he doesn't have to go to jail for any more time, to make a sizeable charitable contribution to the Boys and Girls Club so that some children can enjoy themselves instead of being abused and I'm not thinking of one or two-hundred dollars. I'll certainly give Mr. R. sufficient time to pay it but I'm thinking more in terms of thousands of dollars than hundreds of dollars. Not tens of thousands, however. Is your client willing to and can he place himself in a position to say pay $4,000 to the Boys and Girls Club if given sufficient time?
[For brevity, a portion of the transcript has been edited out.]
¶ 34 Bearing in mind time-served, three days on a two-for-one basis, the defendant has eight days to serve. I will permit that he serve that sentence intermittently as follows-bear with me for a minute, this is slightly different. No, we can do it this way. He'll serve his intermittent sentence as follows: He'll report to jail today for purposes of intake. He'll receive a credit for his attendance at jail today. He'll be released later from the Brant County Jail this afternoon sometime. He'll report to a jail as directed Saturday morning at 9:00 a.m. He'll serve his sentence through Saturday and Sunday until Sunday at 6:00 p.m., and every consecutive Saturday and Sunday thereafter until such times the sentence is served in full. From the date his intermittent sentence is imposed until his obligation to serve the same ceases, while not incarcerated pursuant thereto, he will keep the peace, be of good behaviour, report to the jail on time in a sober condition, showing no signs of consumption of alcohol or non-prescription drugs. Following that, he will be on probation for a period of three years. You'll report within two working days of his release from custody to a Probation Officer in this judicial district. He'll remain under supervision, he'll report as and when directed.
¶ 35 This is an offence which smacks of violence towards children. He'll abstain from owning, possessing or carrying any offensive weapon in the usual terms of such an order. He'll surrender any such weapon or documentation within 48 hours. Make reasonable efforts to find and maintain suitable employment or attend school, training or educational programs as directed. There is no one that he ought not to associate with so far as I'm concerned in the usual terms of such an order. He'll attend, cooperate with and apply himself to whatever assessment, counselling, treatment or course of treatment as arranged by his probation officer in consultation with Dr Gojer and Dr Sharma, directed towards but not limited to sexual propriety and sexual victimization, which he regrettably has been the subject of.
¶ 36 Now, we need to go through some of the terms and conditions that Ms Good so kindly provided to me which, of course, I can't find immediately but I will no doubt. Yes, here we go. I don't think there's a need for him to reside at any particular address. However, in the terms of Section 161 which is probably the easiest way of dealing with this, once I find my Criminal Code.
¶ 37 The defendant will abstain-and this isn't actually in the section, terms of Section 161, this is a separate term-he'll abstain from communicating, contacting or associating directly or indirectly with persons under the age of 16 years unless accompanied by a responsible adult person over the age of 25 years or as is incidental to his employment. He shall not attend any public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present or a daycare centre, school ground, playground or community centre, unless accompanied by a responsible adult over the age of 25 years of age. He will not seek, obtain or continue any employment, whether or not the employment is remunerated or become or be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years of age. And he shall not use a computer, pardon me, he shall not use a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years of age.
¶ 38 Someone will correct me if I'm not complying with requests of counsel. You shall not, you will not possess any, at any place, pardon me, any software-this is all written out, Madam Clerk, or most of it, and I'll help with you, this if I have to so. Not possess at any place any software designed to eliminate evidence of internet activity or to wipe clean hard drives or records of downloaded materials. He will not download, install or use peer-to-peer sharing software. He will not access or possess any sexually explicit images in digital format.
¶ 39 Moving on, he shall provide written consent to allow the Brantford City Police and/or the RCMP at the request of a probation officer to conduct warrantless searches of his residence for the specific and limited purpose of monitoring and for enforcing the probationary terms as they relate to computer use and internet access. And we've already covered the issue of treatment which is the 14th term suggested by Ms Good, but we have done so in the usual terms that the court uses.
¶ 40 Now, finally, as I say, to increase the punishment aspect to create denunciation and general deterrence, because it is not, in an absolute sense, a minimum fact situation, the defendant, having volunteered to do so, will make a charitable contribution to the Boys and Girls Club in the amount of $3,000 within 34 months of the making of the probation order and provide his probation, provide his probation officer with a written receipt for the same, within the same 34-month period. I would strongly recommend, Mr. R., if you're going to have difficulty in that regard, that you should make your contribution as you go along. The Boys and Girls Club will really, really appreciate ongoing contributions. You'll go and obtain ongoing receipts. You show them to your probation officer as things go along. He or she will take a photocopy and then of course at the end of the year you can submit them to Revenue Canada and the government can help assist with the Boys and Girls Club, which apparently they don't do very much of right now.
¶ 41 MR PENNEY: One final application, Your Honour, having ... .
¶ 42 THE COURT: You want me to waive the victim surcharge?
¶ 43 MR PENNEY: Yes, please. Having regard to the $3,000 that he, that he will be donating.
¶ 44 THE COURT: I have always doubted where the victim surcharge monies went, whether they were ever isolated from general revenue or otherwise and I rarely, if ever, make the orders. But, nonetheless, I will specifically, in your case, for your comfort, waive any victim surcharge.
¶ 45 MR PENNEY: Thank, Your Honour.
¶ 46 THE COURT: You're most welcome. Sorry to keep you all day.