Crown: M. Sokolski, Office of the Crown Attorney, Toronto
Defence: Craig Penney, Toronto Child Pornography and Computer Crimes Lawyer
¶ 1 CROWN: Your Honour, I understand that Mr. O. wishes to resolve his matters today before this Court. The Crown anticipates pleas of guilty to count one in respect of the Information alleging possession of child pornography and counts two or the second count on the Information alleging two counts of indecent assault.
¶ 2 THE COURT: Mr. Penney, Mr. O. is fully aware of the legal implications of his guilty plea to these counts?
¶ 3 MR PENNEY: Yes, his is, Your Honour ... Mr. O. is fully aware that by entering pleas today on the count of indecent assault in 1962 and in 1967, and on possession of child pornography from February/March 2005 that he's waiving his right to a trial.
¶ 4 The trial is scheduled. I would be prepared to proceed to trial, but he wishes to waive his right to a trial, and he understands that by proceeding there is a risk of jail. The Crown will be asking for a jail term. There is also consequences in terms of the section 161 order. That order can be for up to life with respect to his access to parks and community centres and swimming areas. He's informed of that. He's informed as well that if Your Honour imposes a sentence, any sentence of less than two years in jail that Your Honour can additionally impose probation of up to 36 months, that the Crown as well would be applying for registration on the federal sex offender registry ...¶ 5 As well, the terms of extrajudicial consequences, there is the parallel Ontario registry ... which arises automatically by operation of law, and he'll be required to report there, in fact, for life because there's two indexed offences that he's pleading guilty to, and I think the federal one will be for 20 years because there's two indexed offences, and of course...
¶ 6 THE COURT: He's entering the pleas freely and voluntarily, the standard stuff as well as all the incidentals?
¶ 7 MR PENNEY: Yes, he is, Your Honour. You want to stand up, Mr. O., please.
¶ 8 CLIENT: Yes.
¶ 9 THE COURT: All right. We'll proceed with the arraignment and if you have trouble hearing, let me know. All right.
¶ 10 CLERK: A.O., you stand charged sometime between and including the first day of January in the year 1962 and the first day of January in the year 1967 in the Town of W***, did indecently assault T***, a male person, contrary to the Criminal Code of Canada, s.148;
¶ 11 And further that Mr. O., you stand charged sometime between and including the twenty-fifth day of February in the year 2005 and the fifteenth day of March in the year 2005 in the City of T***, did have in his possession child pornography, contrary to the Criminal Code ... How does the Crown elect to proceed? ¶ 12 CROWN: By indictment in respect of both Informations. ¶ 13 CLERK: How do you wish you plead, sir? ¶ 14 CLIENT: I plead guilty. ¶ 15 CLERK: Thank you very much. ¶ 16 CROWN: Your Honour, I'll start with the facts in respect of the allegation relating to the indecent assault between 1962 and 1967. By way of background, the complainant is T***. He immigrated to Canada from F*** at the age of five, arriving here with his mother, older sister and brother. ¶ 17 The first family home in which T*** settled in was located in T***. There, Mr. O., the accused before the Court, became a family friend. Between the years or sometime in between the years 1962 and 1967, inclusive of the dates on the Information, the complainant accompanied the accused on driving trips where Mr. O. owned a property. During these trips T*** was in the care of Mr. O., the accused before the Court. For the purposes of these proceedings, the accused, Mr. O. specifically admits that on seven to ten occasions he fondled the complainant's penis by reaching inside his pants. His touching was skin on skin. These allegations came to light as a result of a press conference in relation to Mr. O.'s arrest in respect of ... possession of child pornography charges that I'm going to tell Your Honour about. Those are the facts alleged in respect of this plea. ¶ 18 THE COURT: The facts on that offence, Mr. Penney? ¶ 19 MR PENNEY: Mr. O., are those facts substantially correct? Mr. O. is indicating yes they are. ¶ 20 THE COURT: Plea of guilty, admission of those facts, the elements of the offence having made out ... At this time there will just be a finding of guilt.¶ 21 CROWN: Thank you. By way of background in respect of the possession of child pornography Information, ... Mr. O. is an 86-year-old retired teacher. The investigation in respect of these matters began in England with the arrest of two other parties for offences involving child pornography. As a result of the investigation in England, the Toronto Police Service Child Exploitation Unit began investigating Mr. O. for the offence of possession of child pornography.
¶ 22 On the 22nd day of November 2011, officers from the Child Exploitation Unit executed a Criminal Code search warrant on the address of Mr. O. During this search, officers seized a number of external storage devices commonly referred to as thumb drives and the accused's computer. ¶ 23 An analysis of these revealed the following: Mr. O.'s computer contained no images of child pornography but did contain approximately five unique images of child nudity and 33-hundred or 3,300 unique images of young boys mostly being head shots. The external storage devices were located hidden inside a closet. ¶ 24 The accused today admits to hiding these devices in the closet as he was aware of the investigation and the arrest in respect of the two parties in England and he was aware that he was also at risk of being investigated and arrested. ¶ 25 An examination of these devices reveals that firstly the accused has been possessing child pornography from February 2005 up to and including the date of his arrest on the 22nd day of November 2011, and secondly that the accused accessed images of child pornography from February 2005 up to and including dates throughout 2009. ¶ 26 Mr. O. agrees that the external devices contained 9,600 unique images of child pornography for which he had knowledge and control. And at this time, Your Honour, under s. 486 I would ask for an order essentially excluding the public from the courtroom. That can be accomplished without actually having the public leave because I suggest to show Your Honour a sample of the images on a computer that Detective Bond has brought with her. They can be viewed by Your Honour at the desk without projecting them onto the screen in Court. If Your Honour's agreeable to that ruling then we can do it that way. Alternatively we can ask for a s. 486 order excluding the public and I can get a projector, we can project them. ¶ 27 MR PENNEY: Let's deal with those facts. Mr. O., did you hear those facts as read out by the Crown attorney? ¶ 28 CLIENT: I did. ¶ 29 MR PENNEY: And sir, do you agree with those facts? ¶ 30 CLIENT: I do. ¶ 31 MR PENNEY: He agrees with those facts, Your Honour and ask that you find him guilty of that offence as well, please. ¶ 32 THE COURT: Similarly, the elements of that offence have been made out for which there will now be a finding of guilt.Crown: M. Sokolski, Office of the Crown Attorney, Toronto
Defence: Craig Penney, Toronto Child Pornography and Computer Crimes Lawyer
¶ 1 CLIENT: Your Honour, 50 years ago I fondled a little boy on several occasions. By fondling T*** I did not consider the impact on him or the harm I was doing while he was so young and impressionable. Years later, I participated in the possession and collection of child pornography. A few of the images were very distasteful, horrid, even disgusting. In this, I unthinkingly contributed to a nasty phenomenon that feeds on the innocence of children and the base desires of pedophiles. After attending therapy sessions with Drs. Gojer and Kalia, I am deeply ashamed of my behaviour. I am more remorseful and upset with myself than I can possibly describe. I will never allow myself to repeat those terrible things. I hope to continue the healing sessions with Dr. Gojer and fully realize the consequences and implications of my egregious behaviour. In my long life I had learned much. It is a pity that I didn't learn some of it earlier. I undertake to never again repeat what I did, ever. I am deeply ashamed and remorseful, and I am relieved that my parents and brothers are no longer alive to witness my despicable behaviour.
[For brevity, portions of the Judgment have been eliminated.]
¶ 2 THE COURT: As already indicated, Mr. O. has no criminal record of any kind, let alone for similar offences, and definitely not for similar offences or has any pending charges. He was not involved in the production or distribution of child pornography, but he possessed 9,600 unique images, which is significantly extensive, or as the Crown described, massive collection, which he stored in thumb drives, and concealed in his closet. They were transferred from his computer to these thumb drives. The collection would have taken some time to collect, and covered young males all the way from toddlers to teens. Obviously the size of this collection is clearly an aggravating factor. Also aggravating is Mr. O. is a diagnosed pedophile, as found by Dr. Gojer. It is the Crown's submission that because Mr. O. is diagnosed as a pedophile, and his acknowledgement that he would access pictures of the legal kind, in the Crown's submission, the defendant constitutes an ongoing danger to re-offend.
¶ 3 The other side of the ledger, mitigating factors, it's a plea of guilty. He plead guilty to both charges. The plea can and will be considered an early plea in the circumstances. It took some time for a technician to be assigned and analyze the contents of thumb drives, as well as time for disclosure analysis, psychiatric assessment and several Crown and judicial pre-trials. The guilty plea also obviated the necessity of the victim of the indecent assault to testify, and extensive Court time that would have been required to present the case in a preliminary hearing and a trial. I have reviewed the victim impact statement, as has Mr. O., who is now fully aware, if he wasn't before, of the lasting impact, after all these years, of his conduct, it had on the victim, who at the time was a vulnerable, trusting individual, and even now, continues to suffer and requires counselling. ¶ 4 Further, Mr. O.'s plea, in my view, is an expression of genuine remorse. This is underlined by his early inculpatory statement to police, his candour with Dr. Gojer, and his describing his conduct as despicable when afforded an opportunity to address the Court. He has no criminal record. While on bail for both charges, for over 10 months, he had no breaches. He self-managed himself. He lives alone. The police had authority to check compliances at any time and found no breaches. He did do three days of pre-trial custody. He has been subjected to public shame and humiliation by virtue of police press releases after each charge. He also received some hate mail. He had mud thrown at his residence as a result of the media reporting. He had a clear and excellent record as a teacher and as a citizen, with a good reputation in the community. He experienced a loss of self worth and personal dignity. He continues to have support in the community, from his immediate neighbour, his surety, his surety's family, and friends. Mr. O. has been in counselling with Dr. Gojer since March 2012, he only missed sessions due to ill health. He's been an active participant in the group process, and has been receptive to feedback. He has evinced an intention to continue such counselling. The Crown accepts that conditional sentence is available in this case. ¶ 5 Having considered the submissions of counsel and reviewing the applicable sentencing principles, and all the aggravating and mitigating factors, I am satisfied that Mr. O., at 86 years of age, and in frail health, receive a conditional sentence, albeit, in the, what I consider to be rare and even exceptional circumstances in these cases, but it is appropriate, one of sufficient length and appropriate conditions to serve the applicable sentencing principles for possession of child pornography, and will protect the community and young boys in particular. So, accordingly, on the possession of child pornography, there will be a 12 month conditional sentence. On the indecent assault, there will be a six month conditional sentence, consecutive, to be followed by two years probation. I'll get to the ancillary relief in a moment ... ¶ 6 On the conditional sentence, let me caution you Mr. O., you breach any provision of these conditional sentences, and my obligation in law, because it will return to me, will be to consider incarcerating you in real jail for the balance of that conditional sentence.