R. v. Noseworthy, 2018 NLSC 233

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Noseworthy , 2018 NLSC 233 Date : November 22, 2018 Docket : 201601G6922 Her Majesty The Queen v. DOUGLAS NOSEWORTHY Before: Justice Carl R. Thompson Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: June 11-14, 2018; September 25, 2018; and November 13, 2018 Date of Oral Judgment: November 13, 2018

Summary: Sentence of 15 months in prison with ancillary orders following conviction for possession of child pornography. While the photographs were relevant to the sentencing, their viewing was not necessary as the verbal descriptors were adequate and there was no issue requiring their viewing. Appearances:

Jeffrey A. Summers Appearing on behalf of the Crown Mark J. Gruchy Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Isaacs (2015), 364 Nfld. & P.E.I.R. 125, 1136 A.P.R. 125 (N.L. Prov. Ct.); R. v. J.J.P., 2017 YKSC 66;R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v.Aylesworth, 2008 ONCJ 68; R. v. Brignolio, 2010 ONSC 4361; R. v. D. (M.D.), 2011 NWTTC 20; R. v. Kerr, 2017 NLTD(G) 107; R. v.Lilly, 2012 NLTD(G) 159; R. v. Lysenchuk, 2016 ONSC 1009; R. v. Proulx, 2010 MBQB 58; R. v. Y. (R.), 2013 BCPC 421; R. v.

Beierle,2017 ONSC 5377; R. v. Campbell, 2017 BCPC 313; R. v. Dansereau, 2014 ONCJ 250; R. v. Ducey (2015), 376 Nlfd. & P.E.I.R. 298,1170 A.P.R. 298 (N.L. Prov. Ct.); R. v. MacDonald, 2018 SKQB 18; R. v. Miller, 2015 NWTSC 50; R. v. Tulloch, 2017 ABPC 257. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Thompson, J.: BACKGROUND [1] On June 14, 2018, Douglas Noseworthy was found guilty of accessing and possessing child pornography contrary to section163.1 of the Criminal Code, R.S.C. 1985, c.

C-46. [2] The Offender entered a plea of guilty subsequent to the commencement of his trial having challenged unsuccessfully thesearch warrant to enter his residence and seize computer images and the provision of his right to silence and to counsel on arrest. AGREED FACTS [3] On June 14, 2018 the parties filed an Agreed Statement of Facts, paragraphs 1-9 of which state: 1. On October 24, 2014 an account linked to the accused, Douglas Noseworthy, uploaded 61 images of child pornography using theemail dougnoseworthy@hotmail.com. 2.

On the same date, Microsoft Skydrive made two reports to the CyberTipline of the National Centre for Missing and ExploitedChildren (“NCMEC”) in the United States regarding the images on its servers. The IP address associated with the accused’s account wastraced back to Newfoundland and Labrador, Canada. 3. The NCMEC then referred the matter on to the National Child Exploitation Coordination Centre in Canada which then forwardedthe matter on to the NL Combined Forces Special Enforcement Unit (CFSEU) where Cst. Lisa Harris reviewed both reports.

Sheconfirmed that the images in the reports met the definition of child pornography in Canada under

Section 163.1 of the Criminal Code. Cst. Harris subsequently applied for and was granted a production order on the internet subscriber information related to the identified IPaddress and then a search warrant for the accused’s residence and any computer system therein. 4. On October 6, 2015, prior to the execution of the search warrant at the accused’s residence by members of the CFSEU, Cst.Harris and Cst. Terry Follett arrested the accused at his place of work and provided him with a copy of the search warrant.

Shortly afterhis arrest, the accused told police that they would find child pornography on a laptop in his residence. He gave a further recordedstatement to Cst. Harris after returning to his residence which is already entered into evidence as exhibits LH #1 and #2. 5. During the search of the accused’s residence, members of the CFSEU seized a number of computer systems including desktopcomputers, laptops, external hard drives and other digital media.

6. The seized items were processed by CFSEU Computer Forensics Examiner Dean Boyer and copied onto CFSEU servers. Copied images and video from these items included files which were recovered using forensic computer software that were otherwise deleted or were no longer accessible to the user at the time of the warrant’s execution. 7. All image and video files were then screened and categorized by Cst. Harris for the presence of child pornography regardless of whether the images were accessible to the user or not. After this was done, Mr.

Boyer forensically examined the drives to determine whether the identified child pornography files were deleted/unallocated or otherwise unavailable without forensic recovery software. When files are deleted they are marked as occupying unallocated space and are not accessible to the user. They appear to the user to no longer exist and are no longer under their control. They can only be detected by forensic examination of a storage medium. 8. In her categorization process, Cst.

Harris identified 17,852 unique images and 3 unique videos which met the definition of child pornography across 5 exhibits, of which less than 2000 were accessible by the user without forensic recovery software: 1. TF02 – Dell Inspiron P39F Laptop – 4616 images of child pornography, of which: a. 1464 were readily accessible under the file location “Users/Doug/AppData/Local/Freenet/Downloads” b. A further 175 deleted images could be restored by the user without forensic software. c. Over 3000 images were in unallocated space and unavailable to the user 2.

TF03 – Dell Inspiron 1300 Laptop – 179 images of child pornography which were all in unallocated clusters and unavailable to the user 3. TF04 – external hard drive – 1428 images of child pornography a. 1426 located in unallocated clusters and inaccessible to the user b. 2 images found were accessible under the folder “C/s/s/s/s/Clicfree backup/10/C/ Users/Doug/Documents/Downloads” 4. TF07 – Dell Inspiron 1525 Laptop – 11623 images of child pornography and 3 videos of child pornography a. The three videos were found in unallocated clusters and inaccessible to the user b.

The “majority” of the images were found in unallocated clusters or lost file and would be considered inaccessible c. 217 images of child pornography were found in the system volume information folder which could be restored by the user from a system restore point without the aid of forensic software. A system restore point restores the entire computer to a previous state. This is frequently used as a security measure to protect against unintended issues arising from updates and setting changes. The use of a system restore point affects the entire computer and is not normally use to work with specific files.

Said differently, these images were not in the normal control of the user not readily visible to them. 5. TF08 – Dell Inspiron 680M Laptop – 6 images of child pornography, all of which were located in unallocated clusters and inaccessible to the user 9. During the forensic examination process, Mr. Boyer documented that numerous programs including Google Chrome, Microsoft Internet Explorer and FreeNet were used to download and access files with names associated with child pornography in the period of 2014 to 2015.

There was also evidence that indicated that the accused further in the past had subscribed to UseNet groups with names

associated with child pornography.[1] [4] Attached to the Agreed Statement of Facts are written sample image descriptions of Exhibits 5, 6, 7 and 8 which contain thedigital images. In general, all these images disclose prepubescent male and female persons with their bodies fully or partially exposedand the genitalia presented; some are of infant or toddler age.

Additionally, there are two images of an adult male with the penis insertedinto the anus of a child; a female infant or toddler with an adult hand touching the vagina; a small female child with an adult male penisin her mouth and an image where the vagina of a female is red as if irritated. Three images show the words “smallest pussy”; one thewords “Bambina Sex 5”; and another the words “Lolita” and “Lolita magazine”.

These are stated to be common terms to depict a childpornography magazine. [5] There is also an image of a prepubescent female with an erect male penis inserted into the vagina with an unknown thirdperson licking the nipples of that female child and the words “photo by carl”. [6] As well, there is an image of two females intertwined, one of whom is prepubescent; an image of a prepubescent femaleunclothed having her finger inserted into her vagina; another with a yellow object inserted into the vagina; another unclothed with herhands tied above her head; another with an adult finger touching the vagina; another, an exposed anal and vaginal area with theprepubescent female holding a sign saying “Eric Guy from Bored”; another with an adult holding a yellow object close to theprepubescent female’s vagina; and another with an adult hand spreading the vaginal folds of the infant.

REQUIREMENT TO VIEW IMAGES [7] The Crown has entered by consent a USB drive containing the pornographic images under a sealing order. The Crown is ofthe view that I am required to view these images as part of the sentencing hearing. [8] I note in the case of R. v. Isaacs (2015), 364 Nfld. & P.E.I.R. 125, 1136 A.P.R. 125 (N.L. Prov. Ct.), H. Porter, Prov. Ct. J.,declined to do so noting that a public audition risked only to exacerbate the offence. That concern was obviated by R.S. Veale, J. (as hethen was) in R. v. J.J.P., 2017 YKSC 66, by his granting a sealing order.

In the course of his concluding that the photographs be viewedas part of the sentencing proceedings, R.S. Veale, J. referenced two decisions at paragraphs 13-18 as follows: 13 Two relatively recent appellate cases to consider the viewing of child pornography in a sentencing context are R. v. Hunt, 2002ABCA 155 (Alta. C.A.) (”Hunt”) and R. v. M. (P.), 2012 ONCA 162 (Ont. C.A.) (”P.M.”). 14 In Hunt, a guilty plea proceeded on the basis of an Agreed Statement of Facts based on 549 graphic photographs of childpornography.

The Crown attempted to introduce the photographs at the time of sentencing and defence counsel objected as the AgreedStatement of Facts did not refer to the photographs. The sentencing judge declined to view the photographs, finding that the offenceswere well described in the Agreed Statement of Facts and it would be of no benefit to see the photographs. 15 In finding that the sentencing judge should have reviewed the photographs, the Alberta Court of Appeal stated at para. 16: Ordinarily, a sentencing judge would be expected to review photographs that depict the crime.

By definition, such photographs arerelevant. In this case, the photographs do not depict the crime - they are the crime. That is, the actus reus of this offence is making,printing, publishing, or possessing photographic representations of someone under eighteen years engaged in explicit sexual activity.Thus, they are relevant. Being relevant, they should have been reviewed by the sentencing judge unless some other exclusionary ruleapplied. Counsel for the Respondent did not suggest the prejudicial effect outweighed the probative value.

We doubt such an argumentcould be made when dealing with the actus reus of the crime. ... 16 M. (P.) also considered a sentencing judge’s refusal to view a disc of child pornography, which in that case included, among otherimages, five photos and three videos depicting the offender’s forced anal and vaginal intercourse with his daughter. There, theexpectation seemed to be that the disc would be played in open court, and the victim expressed her view that she did not want the discviewed.

In a sense picking up where Hunt left off, Rosenberg J.A. for the majority, found that sentencing judges do have the ability toexclude relevant evidence at sentencing on the basis that the prejudicial effect outweighs the probative value. He also, however, agreedwith the determination in Hunt that, ordinarily, the sentencing judge should view the kind of evidence proffered in this case if asked todo so (para. 31), as well as the view expressed by Molloy J. in R. v. Kwok, (ON SC), [2007] O.J. No. 457 (Ont.

S.C.J.)that “[w]hile the description in words of such disturbing images is shocking, nobody can fully appreciate the sickening horror of suchpornography without actually looking at it” (para. 33). 17 Despite the sentencing judge’s concern about playing the disc in open court, Rosenberg J.A. noted that he could have taken stepsto limit the exposure of the public and the victim to the images contained. 18 In the result, the majority of the Court of Appeal refused to interfere with the sentencing judge’s decision to decline to view thedisc.

[emphasis in original] [9] Assuming that the prejudicial effect can be eliminated by either a controlled viewing in court or privately in Justice’schambers, the former of which I would incline to as a preferred general approach, the question becomes whether the viewing isnecessary for the proper conduct of the sentencing hearing. [10] Sections 723(1) and (2) of the Criminal Code state: 723

(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions withrespect to any facts relevant to the sentence to be imposed.

(2) The court shall hear any relevant evidence presented by the prosecutor or the offender. [11] Section 724(1) of the Criminal Code states: 724

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedingsand any facts agreed on by the prosecutor and the offender. [12]

Section 726.1 of the Criminal Code states: 726.1 In determining the sentence, a court shall consider any relevant information placed before it, including any representations orsubmissions made by or on behalf of the prosecutor or the offender. [13] Given the presence in evidence of the detailed descriptions of the images contained in the Agreed Statement of Facts, my notviewing the images in my opinion would not offend sections 723(1) and (2) or section 724(1) of the Criminal Code, my having given theprosecution the opportunity to present the evidence in both described and visual form. [14]

Section 726.1 of the Criminal Code, however, mandates considerations of any relevant information placed before the Court. The digital form of the images is before the Court in this case. The question becomes whether it is necessary for me to view the imagesin my determination of sentence and in my assessing the sentencing submissions of both the Crown and the offender (see R. v.Shropshire, (SCC), [1995] 4 S.C.R. 227, para. 46; R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, para.91). [15] In the submissions I have reviewed, counsel have provided me with cases which I have considered and which I will havereferred to in this decision. These cases are submitted for the purpose of my having comparators of the factual component of the offenceby way of verbal descriptions of the images. It is from those descriptions that I assess the proposed similar sentences imposed asmandated by

section 718.2(

b) of the Criminal Code. [16] In this case, the Crown has advised a sentence of 15 months is appropriate; the Defence seeks the minimum of 12 months. [17] I am satisfied that I can comply with the mandated sentencing requirements of the Criminal Code in passing sentence withouthaving the visual component of the agreed upon descriptions contained in the Agreed Statement of Facts. In this case, I consider myreading and understanding the descriptors are more than adequate for my completion of this obligation without the visual duplicity.

Inthis case, there is no suggestion that my viewing visual images will more effectively allow me to complete the assessment required, noris there in issue any component of the descriptors requiring my viewing for its resolution. [18] In my view, in this case, by my having considered the descriptors, I will have considered the relevant information going to thedelict by which a conviction was entered without the added visual which I have to assume would serve to confirm the accuracy of thedescription.

In this instance, then, for the reasons stated, I do not consider that duplication as necessary for my present adjudication. Effectively, for the purpose of

section 726.1 of the Criminal Code in this hearing, I am satisfied that the visuals are relevant but theirviewing unnecessary, the information having been fully and accurately provided by the verbal descriptors. [19] If I may add by way of obiter dicta that the practice of the use of descriptors in cases of this type is a good one. It allows for aneffective, alternate manner of judicial process while ensuring that the obligations of counsel and the judge can be effectively completedwithout the obvious impact of the images upon them.

Obviously, such images could engage human responses with expected affectspotentially clouding the clarity of the lens through which the integrity of these functions is obtained. [20] That said, in another circumstance it may well be necessary for me to view the images or a representative sample in order toproperly and effectively complete this judicial function. At a minimum, the presentation of the descriptors does provide counsel and thejudge with a potential alternative to viewing in cases, such as this one, where I have elected not to view for the reasons specific to thismatter as noted.

SENTENCING PRINCIPLES: CRIMINAL CODE [21] The sentencing principles by which I am governed are set out in the Criminal Code as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for

the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. … 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. As well,

Section 163.1(4) (

a) of the Criminal Code states:

(4) Every person who possesses any child pornography is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; … POSITION OF THE CROWN AND DEFENCE ON SENTENCE period [ 22 ] The Crown seeks a period of incarceration of 15 months. The Defence asks for 12, the minimum mandated.

MITIGATING FACTORS [ 23 ] The pre-sentence report advises the Offender suffers from crippling arthritis; he has a good employment history; he has a good family history; he has attended sessions with a psychologist to address this addiction to child pornography and he currently has family support. Robert Bradbury, psychologist, confirms that the Offender has been able to increase his awareness of the impact of this pornography upon children. The Offender recognizes the behaviour to be wrong. The Offender has no criminal record.

This incarceration for the Offender will be physically difficult. [ 24 ] The Offender personally offered a sincere apology to his family, the Court and expressed his awareness of the impact of his activity on these young persons. CIRCUMSTANCES OF THE OFFENDER [ 25 ] I have noted in the mitigating factors the Offender’s work history, his family support at this time and his limitation by arthritis. His pre-sentence report estimates him to be at a minimum to low risk to reoffend. VICTIM IMPACT [ 26 ] We do not know the victims.

We do know that they have been subject to degradation, assault and unacceptable abuse of their person. The damage upon the youths and infants and their consequent losses as described can be irrecoverable. The victims described here are silent; they are children in their early development, some infants. aggravating factors [ 27 ] I have noted the known impact of such treatment on the persons of these youths and infants. Abuse of children is an abhorrent event in our society. Its occurrence is contrary to the natural responsibilities of caring, support, love and nourishment of young lives.

AGGRAVATING CIRCUMSTANCES [ 28 ] The images are of children, some very young—these are real children. The acquisition of the material promotes the abuse of these children. The abuse has known severe consequences. The volume of material is significant. The access and use is over a lengthy period of time. CASE LAW – SIMILAR SENTENCES

[ 29 ] The Crown and the Defence have submitted case law for my assistance to which I will now refer. [ 30 ] In the case of R. v. Aylesworth , 2008 ONCJ 68 , there were 1,034 images of boys aged 7-10 years, and the offender was 36 years of age. The images are of boys touching each other with hints of anal intercourse and fellatio. The offender has no criminal record. There was a guilty plea entered, and a suspended sentence with three months’ probation was imposed. [ 31 ] R. v. Brignolio , 2010 ONSC 4361 , was a case wherein a plea of guilty was entered by a 68-year-old male to possession of some 1,600 images.

A 12 month sentence was imposed when the minimum sentence then was 14 days’ incarceration. [ 32 ] R. v. D. (M.D.) , 2011 NWTTC 20 , was a case wherein a 50-year-old male was convicted summarily of possession of 1,000 images and stories including images of a family member. A sentence of 15 months was imposed where the minimum sentence then was 14 days’ incarceration. [ 33 ] In the case of R. v. Kerr , 2017 NLTD(G) 107, Burrage, J. of this Court imposed concurrent sentences of 12 months each on two separate indictments for possession of child pornography.

Consecutive sentences of 12 and 18 months incarceration each were also imposed on the two indictments for distribution of child pornography. The 36-year-old offender was found in possession of 470 images and 146 movies which were shared by him. [ 34 ] In the case of R. v. Lilly , 2012 NLTD(G) 159, a guilty plea was entered on an agreed statement of facts disclosing possession of 199 images by a 56-year-old male. This attracted a sentence of 12 months where the minimum sentence then was 6 months. [ 35 ] In R. v. Lysenchuk , 2016 ONSC 1009 , a sentence of 9 months’ incarceration was imposed.

There were 5,920 photographs and 588 videos. The offender was 65 years of age and was of low risk to reoffend. [ 36 ] R. v. Proulx , 2010 MBQB 58 , was an appeal of a sentence of 90 days which was substituted with a sentence of 8 months. The minimum then was 14 days. There were 2,500 images and videos. [ 37 ] In the case of R. v. Y. (R.) , 2013 BCPC 421 , the minimum in effect then was 45 days’ incarceration on a guilty plea to computer luring of a 13-year-old female and possession of child pornography.

The possession of 982 images and 32 movie clips had occurred over a three and one-half period and attracted a sentence for that offence of 90 days. [ 38 ] The case of R. v. Beierle , 2017 ONSC 5377 , deals with a 43-year-old offender with no record. He had access to approximately 3,000 images over an approximate two-year period. A one-year sentence, the then minimum, was imposed. The Crown in that case had proceeded by

summary conviction. [ 39 ] In the case of R. v. Campbell , 2017 BCPC 313 , on a plea of guilty of possession during an approximate one-year period of nearly 368,000 images, a sentence of 10 months was imposed where the mandatory minimum was then six months. There was no previous record. This was a joint submission. [ 40 ] In the case of R. v. Dansereau , 2014 ONCJ 250 , a guilty plea was entered to possession of 535 images and 31 movies, anal penetration and fellatio were depicted. A sentence of 15 months was imposed when the minimum sentence was then 45 days. [ 41 ] In R. v.

Ducey (2015), 376 Nlfd. & P.E.I.R. 298, 1170 A.P.R. 298 (N.L. Prov. Ct.) , a sentence of 16 months’ imprisonment was imposed when the minimum was 6 months for possession of 2,600 images and 1,600 videos. [ 42 ] In R. v. MacDonald , 2018 SKQB 18 , a plea of guilty to possession of 152,000 images and 6,200 videos over a ten-year period attracted a sentence of 16 months. [ 43 ] In R. v. Miller , 2015 NWTSC 50 , a plea of guilty to possession of 1,000 images and videos which were shared by a 63 year old attracted a sentence of 16 months. [ 44 ] In R. v.

Tulloch , 2017 ABPC 257 , a guilty plea to possession of over 10,000 images shared over an eight-year period by a 27 year old attracted a sentence of 18 months. CONCLUSION [ 45 ] It is most significant that

section 718.01 of the Criminal Code mandates a period of imprisonment for one year to ten years and that

section 718.2 (a)(ii.1) mandates consideration of abuse upon a person under the age of 18 years. Parliament is clear and emphatic in its direction. [ 46 ] The case law as reviewed discloses a general range for this offence as between 12 and 18 months. [ 47 ] In this case, there were 17,852 images and 3 videos of child pornography identified of which 2,000 were accessible by the Offender. The activity continued undetected since the internet came to be available—a considerable period of time.

While all cases submitted appear appropriate for consideration of parity, I conclude that this offence falls more specifically to the type set out in R. v. MacDonald , R. v. Miller , R. v. Dansereau , R. v. D. (M.D.) and R. v. Ducey . I conclude 15 months’ incarceration to be the appropriate moderate period of sentence as recommended by the Crown. [ 48 ] The sentence which I impose on the Offender for the offence of possession of child pornography under

section 163.1 of the Criminal Code is a period of 15 months’ incarceration less 6 days credit for the Offender’s detention upon arrest. In addition, following the period of incarceration of 15 months, the Offender shall be subject to a probation order for a period of two years and shall 1) keep the peace and be of good behaviour;

2) appear before the court when required to do so by the court; and 3) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 49 ] The following are ancillary Orders affecting the Offender: 1) A DNA Order under

Part XV of the Criminal Code ; 2) An Order under section 161(1) of the Criminal Code by which the Offender will be prohibited for a period of ten years from:

a) attending at any daycare centre, school ground, playground or community centre;

b) seeking, obtaining or continuing any employment whether or not the employment is remunerated; or becoming or being a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years;

c) using a computer system for the purpose of communicating with a person under the age of 16 years;

d) using the internet or other digital network except as required for work, banking, pension and personal finances, veteran’s affairs, communications with his spouse, children and grandchildren or contact with his lawyer; 3) An Order under

section 490.012 of the Criminal Code to comply with the provisions of the Sex Offender Information Registration Act , S.C. 2004, c. 10 for a period of 20 years as required by

section 490.013 of the Criminal Code . 4) Pursuant to

section 490.1(1) of the Criminal Code , a Forfeiture Order to be issued for the seizure of the following items which contain images and videos of child pornography and constitute offence-related property:

a) Forensic Exhibit #TF02 – Dell Inspiron P39F Laptop;

b) Forensic Exhibit #TF03 – Dell Inspiron 1300 Laptop;

c) Forensic Exhibit #TF04 – External Hard drive; and

d) Forensic Exhibit #TF07 – Dell Inspiron 1525 Laptop 5) A victim surcharge pursuant to section 737(2) (b)(ii) of the Criminal Code in the amount of $200.00 is ordered and is to be paid within 30 days from today’s date. _____________________________ Carl R. Thompson Justice