Crown: J. Armenise, Office of the Crown Attorney, Barrie
Defence: Craig Penney, Toronto Child Pornography and Computer Crimes Lawyer
¶ 1 CLERK: Mr. M., you stand charged between the 1st of November, 2012 and the 13th of June, 2013, at Canada Forces Base, in the said Region, in the Province of Ontario, unlawfully did make available child pornography, to wit: computer graphic movies, contrary to s. 163.1(3) of the Criminal Code. The Crown elected to proceed by indictment on April 9th, 2015. How do you plead to this charge?
¶ 2 MR PENNEY: Your Honour, on behalf of Mr. M., Mr. M. pleads not guilty to the charge as read, but guilty pursuant to s. 606(4) with my friend's consent to an offence under s. 163(2)(a), that he did knowingly expose to public view obscene material.
¶ 3 CROWN: That is with the consent of the Crown, Your Honour.
¶ 4 MR PENNEY: Listen carefully, Mr. M., to the facts.
¶ 5 CROWN: Your Honour, as a result of the discussions that my friend and I have had, there are a considerable number of facts to read into the court. They are found in Mr. Penney's materials, the bright pink application record, paragraphs 33 through 65, but I do propose to read them into the record.
¶ 6 THE COURT: Okay, thank you.
¶ 7 CROWN: Thank you. Your Honour, it's my understanding that on the 28th day of May, 20-13, Detective Constable Doug Lockhart, who is a police officer with the Ontario Provincial Police, and also a member of the Child Exploitation Unit, started the software program Roundup Ares, which works hand-in-hand with the internet Crimes Against Children database. The program automates the downloading of suspected child pornography files on the Ares peer-to-peer file sharing network. Detective Constable Lockhart is familiar with the peer-to-peer file sharing, specifically the operation of the Ares network. Detective Constable Spence was later advised by Detective Constable Lockhart that an investigative folder existed for a suspect in [the area].
¶ 8 On the 3rd day of June of 2013, Detective Constable Spence viewed the investigative folder created by Roundup Ares program and confirmed the following: that on the 28th day of May of 2013, the program identified a computer with an internet protocol address of 174.xxx.xx.xxx as a potential download source for at least three files of investigative interest. On the 3rd day of June of 20-13 at 11:00 a.m., Detective Constable Spence viewed those three partial movie files that were downloaded directly from a user at IP address 174.xxx.xx.xxx. These partial files clearly fit the definition of child pornography in the Criminal Code, and Detective Constable Spence continued the investigation.
¶ 9 MR PENNEY: Your Honour, I have reviewed those facts with Mr. M. and I warned my friend in advance that I'm not going to admit them as being truthful in their entirety of sustaining the plea. They do comprise the background, Your Honour, but I'm not admitting on behalf of Mr. M. that the child pornography files, that there's criminal liability that attaches to the child pornography files that were identified in the facts, but I am admitting that in the eight-month period that's identified in the Information, that Mr. M. did download, using a computer program, at least one file that fell within the definition, that was obscene and did expose it to public view, and it was exposed to public view, Your Honour, because the default settings on Mr. M.'s computer were left intact, meaning that every single file that he downloaded was also made available to public view, because every file that's downloaded is also shared with others, and, on that basis, I would ask Your Honour to please find him guilty.
¶ 10 CROWN: And those facts are agreed upon by the Crown.
¶ 11 THE COURT: I'll make a finding of guilt on that basis.
Crown: J. Armenise, Office of the Crown Attorney, Barrie
Defence: Craig Penney, Child Pornography and Luring Lawyer, Toronto
¶ 1 REASONS FOR SENTENCE: The disposition that is being proposed today is a rare thing in a criminal court. Whether it be conditional or absolute, a discharge is an oddity. It's only available where it's in the best interest of the offender who is before me, and it almost invariably is, but also that it not be contrary to the public interest. And in addressing the public interest, I need to ensure that the sentence I impose is one which both denounces the conduct in question makes it clear that this conduct is utterly unacceptable in our communities but I also have to deter, deter you personally, and try to deter members of the public who might become aware of this sentence. Sometimes it is argued that discharges, conditional or absolute, don't accomplish that latter purpose, that they are too gentle for the purposes of denunciation and deterrence. But when, as in this case, and this is, as has been described, a unique case, the discharge is accompanied by a lengthy probation order which seeks to address the problems that you have faced which have resulted in your engaging in this criminal behaviour, I regard denunciation and deterrence as being met.
¶ 2 I agree with counsel that, particularly in circumstances where the Crown was facing what can only be described as an uphill battle when it came to the question of whether or not your Charter right to trial within a reasonable time was going to be violated, in those circumstances where you have entered this plea, and effectively signed on for the best treatment that can be found for the difficulty that you face, I regard this as an appropriate sentence. I think it's the best sentence that can be imposed.
¶ 3 Counsel have gone to a good deal of trouble in attempting to devise appropriate conditions of the probation order which I am to impose. I have reviewed those and I regard them all as appropriate conditions ... These, together with a little more, are the probation terms that I intend to impose. Mr. M. have you had an opportunity to review – I take it you have – with Mr. Penney, the 16 conditions that are set out on the typed probation conditions form, which he's provided to me?
¶ 4 CLIENT: Yes, sir.
¶ 5 THE COURT: And you recognize, sir, that all of these will be the terms that you're under for a period of 24 months?
¶ 6 CLIENT: Yes, sir.
¶ 7 THE COURT: In addition to those terms, I will impose a term reflecting, mirroring, precisely the language of s. 161(1)(b) of the Criminal Code, that is to say, prohibiting you from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer, or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. And with a slight modification, I am going to impose a term that mirrors s. 161(a) of the Criminal Code, except that I'm going to delete the restriction against attendances in public parks, with the result that you will not attend public swimming areas where persons under the age of 16 years are present, or can reasonably be expected to be present, or a daycare centre, school ground, play ground, or community centre, all unless you are in the physical company of another adult person 21 years of age or older.
¶ 8 I will say that, having read Dr. Gojer's report, I am encouraged. It's clear to me that you did immediately, at least on your attendances on Dr. Gojer, take ownership, as they say, for your condition, and your tendency toward viewing obscene material of the kind which has been described in the course of this plea and sentencing. The fact that you did understand what you were doing, and the fact that it was wrong, the fact that although you have viewed this kind of material, you have never, as reported in Dr. Gojer's report, acted on these tendencies apart from viewing, is encouraging. It's also encouraging today to hear you recognize that this crime that you have engaged in is not victimless. A number of courts in this province, at a higher level than mine, have commented on the fact that this offence victimizes those children whom one sees in these pictures repeatedly, every time that they are viewed. And, of course, the fact that there is a market for this kind of material leads to the more serious offences of actually forcing children into the acts which are depicted.
¶ 9 But yours is a very encouraging case. Of those which I have seen which involve this kind of offence, you seem to be taking all reasonable steps toward grappling with the problem and attempting to minimize it, and to minimize the danger that might exist to the public as a result of the condition that you're in.
¶ 10 So, the sentence will be a conditional discharge for a period of two years with the 16 terms contained in the document entitled "Probation Conditions Proposed by Defence – 24 Months," which Madam Clerk now has in her hand, together with the two additional terms which I have mentioned. There would be a victim fine surcharge in this case.
¶ 11 CLERK: This is from May? I don't think there is one, Your Honour. May 2013? I believe it came in October, 2013.
¶ 12 THE COURT: It's prior to the date on which fines ceased to be discretionary. Does the Crown have a position?
¶ 13 CROWN: No, I have no position, sir.
¶ 14 THE COURT: I'm going to waive the victim fine surcharge. It seems to me that Mr. M. already has enough difficulties to face. He doesn't need an additional charge. Are there any other terms of the sentence, counsel, that I have not addressed?
¶ 15 CROWN: No, thank you, sir.
¶ 16 THE COURT: Any other aspects?
¶ 17 CROWN: No, I think it has really covered everything. I appreciate Mr. Penney and his proposed conditions again, because they are so thorough with respect to the different mechanisms to access the internet. It's appreciated.
¶ 18 MR PENNEY: Thank you.
¶ 19 THE COURT: Mr. M., I think you are to be commended for taking the steps you have toward trying to deal with this problem, and I think your counsel and the Crown are to be commended for the work that they have put into resolving this matter as they have.
¶ 20 CLIENT: Thank you, sir.
¶ 21 THE COURT: Good luck, sir.
¶ 22 CLERK: And the remaining counts?
¶ 23 CROWN: If they may be marked as withdrawn, please?