Her Majesty the Queen - v. -, 2013 SKPC 57

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 057 Date: April 4, 2013 Information: 36654798 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darrel Donald Stupnikoff Appearing: M. A. Segu For the Crown K. D. Hill and B. R. Pfefferle For the Accused SENTENCING DECISION Q. D.

AGNEW , J [ 1 ] Darrel Donald Stupnikoff pled guilty on February 28, 2013 to one count of possessing child pornography and one count of making child pornography available contrary to ss. 163.1(3) and (4) of the Criminal Code . [1] On that date, I heard submissions from Crown counsel and defence counsel, as well as from Mr. Stupnikoff himself. [ 2 ] It is trite to say that every sentencing is unique, as every sentence must be tailored to the individual defendant. Nonetheless, there are two aspects of the present matter which are unusual. The first is that Mr. Stupnikoff is a second-time offender, having been

convicted in 2005 of possession of child pornography. The second unusual aspect is the sheer size of the collection of child pornography amassed by Mr. Stupnikoff in a relatively short period of time. [ 3 ] These factors, and perhaps others, may have contributed to the considerable disparity in the sentencing positions of the Crown and defence. The Crown urges me to sentence Mr. Stupnikoff to seven years incarceration; defence seeks a sentence of two years less a day and three years probation (in addition to five months of remand time spent to this date). [ 4 ] The accused is 58 years old.

He is married and his spouse, who is aware of these charges, has apparently been supportive, as indeed she apparently was when he was previously convicted. They have no children. He is a long-distance trucker and, other than his predilection for child pornography, he appears to be a stable and law-abiding individual. Except for the previous conviction referred to, he has no criminal record. [ 5 ] When the accused was convicted in 2005 of possession of child pornography, a pre-sentence report was prepared which was filed as an exhibit in the sentencing hearing with respect to the current charges.

That report provided information with respect to the accused’s background, and discussed risk factors and strategies to reduce the same, to try to prevent a recurrence of the accused’s behaviour. [ 6 ] As a side note, the report also illustrates the dangers of placing too much reliance on risk assessments. The accused was assessed in 2005 on the basis of the STATIC-99 test. Based on his score on that test together with other risk factors, the writer of the report believed that the likelihood of the accused sexually re-offending was approximately 9% in five years and 13% in ten years. In fact, Mr.

Stupnikoff began collecting child pornography again practically the instant he was no longer under the supervision of the justice system. I point this out not by way of criticism of the report writer, but as a reflection of the fact that even low probabilities sometimes occur. It must be remembered that such assessments deal in likelihoods, not certainties. [ 7 ] On October 13, 2005, the accused was convicted of one count of possession of child pornography, and sentenced to an eighteen month conditional sentence.

During the term of that sentence he was required to attend, and did attend, sexual offender programming. He was very compliant, did everything expected of him and appears to have been a model participant. However, when his period of supervision ended, he chose not to continue with the voluntary support programme.

Indeed, when he was interviewed by police with respect to the current offences, he acknowledged to them that he had begun collecting child pornography again virtually as soon as his conditional sentence order had expired, and has been doing so ever since. [ 8 ] When the accused pled guilty to possession of child pornography in 2005, he had 8,544 images and videos of child pornography. When he was arrested in 2012 on his present charges, his collection was almost ten times as large. He had accumulated it in slightly over five years.

Police have not yet reviewed all of the images and videos found on his two computers and four external hard drives, but rather used software tools to compare those files with known child pornography images and videos. Using such tools, they have determined that the accused had in his possession, at the time he was arrested, 80,393 images or videos containing child pornography. [2] The harm of possessing child pornography [ 9 ] The accused seems to lack insight into the harm which is done by downloading, possessing and viewing child pornography.

When arrested, he minimized his culpability by stating to police that he never offended hands-on: he only downloaded. When he addressed the Court at his sentencing hearing, he apologized to his wife, friends and other people for the disappointment and embarrassment that he had caused them; he did not make any mention of the children whose images appear in his extensive collection. [ 10 ] Unfortunately, the accused is not alone in his failure to recognize his possession of child pornography as a serious matter.

By interesting coincidence, the day before the sentencing hearing in this matter a university professor apparently voiced similar thoughts. Professor Tom Flanagan of the University of Calgary is reported to have said, with respect to the idea of jailing people who view child pornography, “[i]t is a real issue of person liberty and [sic] to what extent we put people in jail for doing something in which they do not harm another person.” [3] I hasten to say that I do not know whether or not Professor Flanagan actually made those remarks, and they are

not directly relevant to this accused in any event. However, they echo what appears to be the accused’s view of the harm, or lack thereof, which is involved with downloading and viewing child pornography. Furthermore, this attitude is one which has been heard before in these cases: the harm has already been done to the child; the accused has not done anything to the child by viewing the images; what is wrong with watching images of something that has already happened?

Obviously this justification would apply equally to downloading child pornography, making it available to others, and all similar offences other than the original sexual assault on the child. What, really, is the harm? [ 11 ] Because this is a frequently-encountered question, I will be as clear as I can be in answering it. It is important that Mr.

Stupnikoff, and others who may be tempted to excuse their viewing of child pornography with this same justification, understand exactly what the harm is. [ 12 ] As has been said before, possession of child pornography creates the market for child pornography. [4] Whether money changes hands or not, child pornography appears to respond to the simple law of supply and demand: people like the accused, although not creators of child pornography, create a demand for child pornography and thus stimulate its production.

It is in this very real and important way that the remarks attributed to Professor Flanagan are wrong when he allegedly said that people who view child pornography “do not harm another person”. [ 13 ] Placing the conversation in terms of economic analysis makes it seem very dry and theoretical, and indeed quite sanitized.

Talking of supposed harm as a matter of supply and demand, postulating probable market responses to demand by consumers: this discussion could be taking place in a dusty classroom, complete with chalkboards and an afternoon sun making listeners doze in their chairs. [ 14 ] This is a matter which is far from dry, academic or unrelated to real people. To put the matter in more concrete terms, because of the accused and people like him there are almost certainly children, including infants, toddlers, and babies, somewhere in the world, right this instant, being raped.

At the very moment that you, the reader, are reading this, unspeakable horrors, which will scar these children physically and mentally for life, are being visited upon them for the pleasure of Darrel Stupnikoff and others like him. The bodies of these children are too small to accept the adult erections, or other items, being forced into them. The flesh of these children is being torn apart, their blood is being spilt, because Mr. Stupnikoff and his ilk enjoy watching it. [ 15 ] Nor is the harm confined to the acts themselves, horrible as those are.

Among the images of child pornography which I have had to view as a member of this Court, including in the present matter, I have seen any number which involved children with expressions on their faces that are, in context, disturbing in a completely different way. [ 16 ] Raising children is a difficult task, with many pitfalls and problems. In one sense, however, it is very easy: children simply want to be loved. In general, children respond to being loved, and repay that love with trust, love and a desire to please. Many of the images I have seen, including in this case, are not of children being forced.

Some children, even in the midst of the most appalling imagery, are looking at the person holding the camera with the same expression they might have when giving a parent a home-made birthday card: “Look what I did for you. Are you pleased with me? Did I make you happy?” In some ways, these images are among the hardest to view, because the child seems to have been manipulated into acts which many adults would find repulsive, in an attempt to make the person behind the camera happy, to love them more. [ 17 ] The depth of the betrayal implicit in those images is almost inconceivable.

The lifelong consequences of that betrayal can only be imagined. Yet it is that betrayal which Mr. Stupnikoff has helped to create, by his demand for child pornography. The harm of making available child pornography [ 18 ] The harm in possessing child pornography is then compounded by distributing or making available this material. Obviously, this either actually or potentially places the material in the hands of still more viewers. The effects of having evidence of such abuse in the hands of others has been the subject of considerable judicial comment. In R. v.

Kwok [5] , the Court received a victim impact statement from a girl (“M.A.”) whose abuse had been recorded and distributed. To quote the judge in that case, who in turn quotes M. A.: . . .the statement is a poignant description of the particularly heinous victimization of children that occurs when their degradation is

photographed and placed on the Internet. I am confident that these feelings would be shared by any child, or indeed adult, who was treated in this way. M.A.'s statement reads, in part, The absolute worse (sic) thing about everything that happened to me was that Matthew [her abuser] put my pictures on the internet. He traded them with other people like baseball cards. What kind of people want to see pictures of a little girl being abused in this way? ...

I know that these pictures will never end and that my "virtual abuse" will go on forever. [6] [ 19 ] “What kind of people want to see pictures of a little girl being abused in this way?” Well, Mr. Stupnikoff wants to see it. As M.A. eloquently describes, her virtual abuse at the hands of Mr. Stupnikoff and those like him will never end. [ 20 ] Even the possibility that distribution might occur is traumatic. As stated by the Ontario Court of Appeal in R. v. D.G.F. [7] : Obviously sexual abuse of a child by a parent is likely to have a significant psychological effect on the child.

However, the additional trauma is caused by the child knowing that her photos are out in the public domain where unknown numbers of people around the world may be able to access them, and, in this case, know the child's name. It was unclear on the evidence whether anything transmitted in the conversation with the officer to a chat room that was immediately disabled could be available to be seen in the future. However, the victims have ongoing fear and uncertainty regarding what remains accessible on the internet and to whom.

It amounts to ongoing psychological victimization of all the children involved. [ 21 ] The idea that viewing child pornography is a harmless matter would be laughable, were it not so tragically harmful and wrong. Mr. Stupnikoff has helped create the market for this harm, by collecting it, and has fed the market, by making child pornography available. He has managed to sin on both sides of the supply and demand equation. Making available charge - evidentiary issue [ 22 ] The essence of the “possession for the purpose of distribution” charge is that Mr.

Stupnikoff allowed others to upload child pornography from his computer, via the file-sharing program which he also used for downloading. This program, called “eMule”, was the subject of some confusion at the sentencing hearing. Mr. Stupnikoff advised his counsel, who advised me, that the setting used by Mr. Stupnikoff for allowing uploading, namely 20 KB/second, was not the maximum setting: that is, that he deliberately chose to restrict the speed at which others could obtain files from him.

Furthermore, he asserted through counsel, he only set an upload speed at all because the eMule program will not allow downloads unless it is also set to allow uploads. Defence counsel hurriedly consulted with one of the police officers involved in investigations of this nature, and advised me that the officer had confirmed this information. Crown counsel also accepted this. [ 23 ] This information seemed to be offered in mitigation: Mr.

Stupnikoff would have me believe that he deliberately made it difficult for others to obtain child pornography from him, and that the only reason he made it possible at all was so that he could continue his own collecting. [ 24 ] I accept that this is counsel’s understanding. Still, I am puzzled by Exhibit P-5, which shows screen captures from the eMule program. One, showing Mr. Stupnikoff’s customized settings, shows 1,000 KB/second as the download capacity limit, and 20 KB/second as the upload capacity limit.

Immediately to the right of those two numbers are sliders, which appear to allow the user to vary those capacities. Both sliders are set all the way to the right, which in normal computer usage would mean that both are set to maximum capacity; yet Mr. Stupnikoff says that in fact this is the minimum upload speed which would still have allowed him to download. By convention, a slider set to the minimum would be all the way to the left, not the right; furthermore, by convention sliders immediately under and above each other would operate in the same way.

In other words, I would have expected that if the slider moved all the way to the right sets a minimum for uploading, the corresponding slider for downloading, immediately above it, would be set up the same way, with the minimum setting being all the way to the right. Since the download slider is all the way to the right, and the download speed is shown as 1,000 KB/second, this would mean that 1,000 KB/second is the minimum download speed the eMule program will allow. This seems unlikely, particularly in light of the information referred to below regarding default settings. [ 25 ] This statement of Mr.

Stupnikoff’s, that he had to set an upload speed in order to download, sits awkwardly beside the other

[ 25 ] This statement of Mr. Stupnikoff’s, that he had to set an upload speed in order to download, sits awkwardly beside the other screen capture on P-5. That screen capture shows the default settings for the eMule program. It shows that the program, when installed, automatically sets itself to download at a speed of 96 KB/second, and upload at a speed of 0 KB/second. On the face of it, then, this file- sharing program seems to be set by default to download files at a certain speed without allowing any uploading at all; yet this is completely contrary to the information provided by Mr.

Stupnikoff, apparently confirmed by the police and accepted by all counsel. [ 26 ] Parenthetically, I note that the default settings do not include the sliders referred to above, so it is not possible to compare them with Mr. Stupnikoff’s customized settings. [ 27 ] On the face of P-5, then, Mr. Stupnikoff’s statement is incorrect. I have to consider the fact that it has been presented to me both by his own counsel and by the Crown. Of course, P-5 has been put forward in the same manner.

If I considered the issue to be of sufficient importance, I would reconvene the sentencing hearing and ask counsel to explain the apparent contradiction. It may be, for example, that I am misunderstanding P-5, or that I misheard counsel. I have concluded that I do not need to hear further from counsel on this point. The information was offered in mitigation; the mitigation, if any, is extremely minor. The best that can be said for Mr.

Stupnikoff’s position is that he required other lovers of child pornography to wait a bit longer to satisfy their urges; he was not, however, willing to give up his own downloading in order to prevent others from obtaining files from him. Aggravating and mitigating factors [ 28 ] In mitigation is Mr. Stupnikoff’s guilty plea. There is no suggestion that there were significant flaws in the Crown’s case that might have jeopardized a conviction, nor of course were there vulnerable witnesses who were thus spared the ordeal of testifying in court. Nonetheless, Mr.

Stupnikoff was entitled to put the Crown to the proof of its case, with the always-present possibility that something might have come up that could have resulted in a not-guilty verdict; as Mr. Stupnikoff gave up that possibility, he is entitled to some credit for his decision. [ 29 ] He is employed, with a supportive spouse. [ 30 ] Mr. Stupnikoff was only marginally cooperative with police, and that only once it was clear that he was well and truly caught. No accused is required to cooperate with police; however, by choosing not to do so, Mr.

Stupnikoff is also not entitled to any credit in terms of mitigation. [ 31 ] There are two factors which are significantly aggravating. The first is the size of Mr. Stupnikoff’s collection of child pornography. The second, and more significant, factor is that this is a second offence. As indicated above, Mr. Stupnikoff was convicted in 2005 of possession of child pornography. He duly attended programming as directed until the end of his sentence, and was a model participant. He participated, he did the work: he did everything expected of him.

He discussed with program staff the possibility of re-offending, and was alive to that risk. Then, as soon as he was freed from court-ordered conditions, he dropped the programming entirely. He chose not to participate in the voluntary, “maintenance” support group, and instead virtually immediately began collecting child pornography again. It certainly appears that he was simply waiting for his time to expire; he could hardly wait to begin re- offending. Indeed, this time he went further: rather than simply collecting, as he had been convicted in 2005 of doing, he was now sharing it with others.

Precedents for sentencing [ 32 ] The amount of child pornography is often cited in sentencing decisions involving child pornography. Mr. Stupnikoff’s collection, at roughly 80,000 files, is the second-largest I have noted in the case reports, although it is dwarfed by the 880,000 sexually explicit images and videos of children found in R. v. Allen [8] .

I do not propose to make an extensive review of past cases, comparing the number of images or videos and the sentences given, for three reasons. [ 33 ] Firstly, it is my perception that sentences for these types of offences have been moving upward recently, partly as a result of

recent amendments to the Criminal Code , and partly perhaps as a result of the increasing frequency with which such charges seem to be appearing before the courts. Cases more than a few years old may therefore be of less assistance in deciding sentences now. Amendments to the Code which increased the minimum punishment are presumably acting in the inflationary way referred to by the Supreme Court of Canada in R. v.

Morrisey [9] (referring to firearms offences, but with comments applicable to any change in mandatory minimum sentences): . . . the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called "best" offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances.

The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [ 34 ] Furthermore, as has been recognized by other courts, the jurisprudence in this area is tending toward greater penalties. See, for example, the comments of the Ontario Court of Appeal in R. v. D.G.F. [10] [ 35 ] Secondly, it is also my perception that the size of these collections has been growing.

I speculate that this is a reflection of the increasing availability of high-speed internet access and the concurrent plunge in the price of digital storage media: the ability to download (and upload) child pornography has greatly increased at the same time as the cost of storing it has greatly declined. Older cases, where those factors were not present, may not be of as much assistance as a result.

Similarly, at one time the nature of the material in the collection was of significance in sentencing: some were largely of simple nudity, and therefore not as aggravating as others, such as those which focussed on or included bondage, torture or bestiality. With large collections such as Mr. Stupnikoff’s, I believe those factors are no longer as important: with larger collections, there are likely to be images or videos of all kinds. Certainly, Mr. Stupnikoff’s was significantly worse than mere nudity, containing even in the relatively-random selection shown to me scenes of penetration and bondage.

Again, decisions from even several years ago may therefore not be directly relevant. [ 36 ] Thirdly, the size of an accused’s collection cannot give rise to any suggestion of “tariff sentencing”, of a certain amount of jail time for every hundred images, for example. In addition to any other issues, the idea becomes unworkable at both the bottom and top ends of the quantity scale. It is not viable to suggest that, as Mr. Stupnikoff now is convicted of having ten times the amount of child pornography he had previously, he should receive a sentence ten times as long; or that, as he had one-tenth the amount of Mr.

Allen, that he should receive a sentence one-tenth as long. Even attempting to assign tariffs on the basis of a logarithmic progression would quickly become unworkable. [ 37 ] In my view, the amount of child pornography is relevant, but not in a “tariff” way. It gives scope to the harm I referred to earlier. If collecting creates demand, than larger collections create greater demand; if every viewing or downloading compounds the original harm done, then larger amounts of child pornography equate to larger amounts of compounding. Additionally, the fact that Mr.

Stupnikoff collected over 80,000 unique files in just over five years speaks to the degree of interest, or obsession, which Mr. Stupnikoff has in child pornography. This is clearly part of the circumstances of the offender which must be taken into account in sentencing. Finally, an accused could theoretically face a separate count of possession for each image or video of child pornography: in Mr. Stupnikoff’s case, over 80,000 potential charges, not even considering any “make available” charges.

The logistics alone would be overwhelming, not to mention that the totality principle would make any such charging decision pointless. However, a higher sentence for a greater number of files is warranted to reflect this legal jeopardy. The fact that Mr.

Stupnikoff had 80,000 files is perhaps little different than if he was found with 60,000 or 90,000 files; yet it is significantly different than if he had instead accumulated 100 files of child pornography. [ 38 ] Having said that, I propose to examine two categories of precedents: (1) decisions involving repeat child-pornography offenders, and; (2) recent Saskatchewan decisions. Repeat offenders [ 39 ] I have been able to locate very few child pornography sentencing decisions involving a repeat offender.

Given the sadly-large number of reported decisions on child pornography, I simply may have been unable to locate them. There are some which have come to my attention, however.

[ 40 ] The oldest of these cases is R. v. Schneider [11] , a 2008 case from the Ontario Court of Justice. Mr. Schneider had been convicted in 1995 of making child pornography, and given a suspended sentence. He was convicted in 2008 of one count of accessing child pornography. As stated by Wong J. in referring to the prior conviction: Although the offence was committed over 13 years ago, it is alarming that Mr. Schneider would ever even consider possessing child pornography again.

Convictions such as those related to child pornography carry with them such stigma, public humiliation, and revulsion, that the courts typically expect an offender once found guilty to never re-offend. It is difficult to think of any other Criminal Code offences for which there is such general consensus and public condemnation. Yet, Mr. Schneider was not deterred when he was found guilty and sentenced in 1995 to a period of probation. It is necessary, therefore, for this Court today to send the message to Mr. Schneider clearly and unequivocally that society will not tolerate his crime. [12] [ 41 ] Mr.

Schneider had a total of 689 videos and 85 images of child pornography. [ 42 ] Crown and defence agreed that three years probation was appropriate, but differed on the amount of time the accused should spend in custody. The Crown’s position was six to 12 months, while defence argued for a 90-day intermittent sentence. The Court, after referring to the previous conviction as the “most aggravating” [13] factor in deciding the sentence, ordered six months in custody (less 10 days for time served), followed by three years of probation. [ 43 ] R. v.

Wanamaker [14] is a 2011 decision from the Alberta Court of Queen’s Bench. Mr. Wanamaker was found guilty, after trial, of possessing and accessing child pornography. His collection was comprised of 38 videos and “thousands” of images, apparently all of young girls dressed and posed provocatively, and four images of post-pubescent female children in sexually-explicit poses. He had been convicted in 2007 of possession of child pornography, and sentenced to 22 months. He also had a record for other offences, including incest and breaching probation. The Court sentenced Mr.

Wanamaker to two years less a day, plus three years probation. It appears from the discussion in the case that this term was imposed because it was the longest the trial judge felt able to impose while still imposing probation. [15] In order to give this term of imprisonment, the Court explicitly gave no credit for eight months’ remand time, although this was expressed as a feature of “denunciation”. [16] The effective length of incarceration, even crediting pretrial detention at 1:1, was in essence two years, eight months.

The refusal to give credit for pretrial custody was held on appeal to be an error, and the sentence reduced accordingly. [17] [ 44 ] Next in time is another Ontario Court of Justice case, R. v. Tackaberry , also from 2011. The accused had a record for sexual assaults on children, both as a youth and as an adult, although the last was from 1997. In 2008, he received a sentence of 18 months for possession of child pornography. He pled guilty in 2011 to two counts of possession of child pornography, arising from his possession of 150 images and two videos.

A joint submission was accepted for two years custody, in addition to over 16 months of remand time, a designation as a long-term offender and a long-term supervision order for eight years. [ 45 ] In R. v. Marks [18] , a 2011 oral decision from the Ontario Court of Justice, the accused had been convicted in 2007 of possession of child pornography, making child pornography and two counts of distributing child pornography. At that time, he had been sentenced to one year in jail, followed by three years of probation. The probation included no pornography.

In 2010, he was found in possession of approximately 1,000 photographs and 10 videos of child pornography, as well as adult pornography. He pled guilty to possession of child pornography and breach of probation. The accused had apparently taken a number of steps to attempt to deal with issues driving his use of child pornography. The Court acceded to a joint submission for two years less a day, followed by three years probation. [ 46 ] The Ontario Court of Justice gave a decision in 2012 in R. v. Hutchings . [19] Mr.

Hutchings pled guilty to one count of possession of child pornography, one count of accessing the same, two counts of distributing, and two counts of breach of probation. The breaches were of conditions relating to computer use. Mr. Hutchings had been convicted in 2010 for a single count of possession of child pornography, for which he had received a sentence of 4 ½ months in custody and three years probation. It appears that he began collecting child pornography within a month of his release on probation, and in less than a year had accumulated over 60,000 unique images and “several hundred” videos.

Including remand time, the accused was sentenced to a total of three years. Of that figure, three months seems to be directly attributable to the breaches of probation [20] ; effectively, therefore, the comparable sentence for the purposes

of Mr. Stupnikoff’s sentencing was 33 months. There are two striking parallels between Mr. Hutchings’ situation and that of Mr. Stupnikoff: the fact that the offending behaviour resumed very quickly, and the size of the collection amassed. There are also differences, including the fact that Mr. Hutchings began re-offending while still on conditions, whereas Mr. Stupnikoff waited until he was off conditions. Recent Saskatchewan decisions [ 47 ] In 2009, Gabrielson J. of the Saskatchewan Court of Queen’s Bench gave an oral decision in R. v. Johannson [21] . Mr.

Johannson pled guilty to three counts of possession of child pornography and was convicted after trial of two counts of making child pornography available. He was 28, and had no record. This was one of the first cases in Saskatchewan of “make available” via file- sharing, and arose by the accused failing to change the settings on his file-sharing program. The sharing took place over approximately one and a half years. Mr. Johannson’s collection when apprehended amounted to 46 files, of a nature not extreme for this type of offence.

He was sentenced to a total of one year imprisonment and three years probation. [ 48 ] R. v. Tomacek is another 2009 Saskatchewan Queen’s Bench decision. As the decision involved simply whether or not an order should be made under s. 161 of the Criminal Code , there are not a lot of circumstances set out.

The accused pled guilty to making available video and still images of child pornography over roughly a three-week period, and a joint submission was accepted by the Court of one year of incarceration followed by two years of probation. [ 49 ] With respect to both of the above cases, I note that the one year penalty was the minimum allowed by the Criminal Code . [ 50 ] There are three cases reported from Saskatchewan in 2012, beginning with the Court of Appeal’s decision in R. v. Benson . [22] Mr.

Benson was 18, and was convicted after trial in 2010 of two counts of possession of, and one count of making available, child pornography. The accused had no record, and had a “large quantity” [23] of child pornography. The Court of Appeal upheld the trial judge’s sentence of 15 months and three years probation. [ 51 ] The first Court of Queen’s Bench decision from Saskatchewan last year was R. v. Pattison [24] . Mr. Pattison was 22, with no related record. He had been viewing child pornography since he was 14, and was found to have 4,380 child pornography files.

He pled guilty to 53 counts, which involved possession of child pornography, making it available to others, distribution of it, accessing it and producing it, the latter by way of written material he authored. He was an active sharer, catering to specific requests from others for certain types of child pornography. He was sentenced to a total of five years, less five months for remand credit. [ 52 ] Following Pattison by just over a month was R. v. Lorenz [25] , another decision of the Saskatchewan Court of Queen’s Bench. The accused, who was 42, pled guilty to a single count of possession of child pornography.

He was found in possession of 449 unique photographs and nine unique videos, all of child pornography. He also admitted to having viewed and deleted a vast amount of child pornography. Mr. Lorenz, although acknowledging through his guilty plea that his actions were criminal, did not seem to understand that any actual harm had been done by his viewing of child pornography, and seemed to have no remorse. There are obvious parallels with the case at bar. Mr.

Lorenz was sentenced to nine months’ incarceration and three years of probation. [ 53 ] In reviewing the above cases, I have also of course had the advantage of their summaries of other cases, which I have noted but not cited directly in this decision. [ 54 ] As can be seen, some of the decisions referred to were the result of joint submissions. I do not consider them to have the same precedential value as cases in which the sentencing judge came to their own decision as to an appropriate penalty.

As is well-known both to counsel and to the Court, a joint submission is to be given very serious consideration by the sentencing judge, and rejected only if it would be clearly inappropriate, such as where it is demonstrably unfit, would be contrary to the public interest or would bring the administration of justice into disrepute. [26] The range of “not clearly inappropriate” can be quite broad, such that the sentence imposed by virtue of a joint submission may be significantly different than what the Court would have imposed in its absence.

Since a sentence imposed as a result of a joint submission is therefore not the result of unfettered judicial reasoning, I think it should be given less weight as a precedent.

[ 55 ] Counsel have referred me to a number of other cases, and I have reviewed additional cases as well. Although I do not propose to refer to the details, in deciding this matter I have had reference to the following, in addition to the decisions cited elsewhere in this decision: R. v. Pelich [27] ; R. v. L.A.W. [28] ; R. v. Houston [29] ; R. v. Johansen [30] ; R. v. P.M.V. [31] ; R. v. Bock [32] ; R. v. Hilderman [33] ; R. v. Butler [34] ; R. v. Blatchley [35] ; R. v. Clayton [36] ; and R. v. Dean [37] .

Conclusion [ 56 ] In reaching my decision, I have considered all of the above matters, as well as the sentencing provisions outlined in sections 718 , 718.01 , 718.1 and 718.2 of the Criminal Code . I have concluded that, particularly for a second-time offender, the principles of denunciation and deterrence must be uppermost in the Court’s mind. [ 57 ] Mr. Stupnikoff has never been incarcerated: his previous sentence was a conditional sentence, which he served without breach. It was completely unsuccessful in getting the message through to him.

He took all of the programming, did all the work, was assessed at a very low likelihood to re-offend, and could not wait to get off of conditions and begin collecting child pornography again. This time around he went further, making it available to others as well. [ 58 ] Over the course of the next several years, he dedicated a large part of his time and effort to collecting child pornography, amassing what is by current standards an extremely large collection. In so doing, he re-victimized every child depicted, and encouraged the abuse of still more children.

He went on to make various of his files available to others for download, compounding the re- victimization. His remorse, such as it is, is directed to his wife and friends, for the embarrassment he has caused them. The children whose betrayal and mutilation he has encouraged have received not a word from him. Despite all of the effort devoted to and by him following his last conviction, he has no understanding of the harm of collecting or passing on child pornography, and no empathy, no compassion for his victims.

His attitude is shared by many people. [ 59 ] There has been a clear signal from Parliament that sentences for child pornography need to be higher. There is a clear trend in the courts along the same lines. Mr. Stupnikoff needs to be deterred from repeating these offences yet again, and others need to understand that should they choose to commit such offences, the consequences will be significant; if they choose to offend again, the consequences will be severe. [ 60 ] Parliament has said that the maximum sentence for the offence of making available child pornography is ten years.

Considering all of the above, the appropriate sentence for Mr. Stupnikoff is five years incarceration on that charge, and I sentence him accordingly. With respect to the charge of possession of child pornography, I sentence him to a concurrent term of four years incarceration. After credit for five months of remand time, Mr. Stupnikoff has four years, seven months left to serve. [ 61 ] The Crown has asked for an order under s. 161 of the Criminal Code for life; defence argues for an order for less than this. In favour of his position is the fact that Mr.

Stupnikoff has never been convicted of any offences against children personally, nor are there any allegations that he has done anything of that nature. In addition, he is of an age where the courts sometimes expect that sexual offending may start to decrease due to age. On the other hand, he now has two convictions within a short period, suggesting that his sexual urges with respect to children are not in fact decreasing. I believe it appropriate that the duration of the order should be 15 years. As it begins to run once Mr.

Stupnikoff is released from custody, he will be in the range of 70 years old when it ceases. I believe that this will be sufficient for the protection of the public, and in particular children, for whose benefit s. 161 exists. [ 62 ] I therefore make the following orders: (

a) taking of DNA pursuant to s. 487.051 (

a) of the Criminal Code ; (

b) a lifetime Sex Offender Information Registration Act order pursuant to s. 490.012 of the Criminal Code ; (

c) an order pursuant to s. 161(1) (a) - (

c) of the Criminal Code for a period of 15 years;

(

d) a forfeiture order in the terms of the draft order filed, defence having consented to the same. [ 63 ] As Mr. Stupnikoff is going to be incarcerated for a considerable period of time, I waive the usual surcharges. ________________________ Q.D. Agnew, J [1] S. 163.1(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months. S. 163.1

(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 five years and to a minimum punishment of imprisonment for a term of six months; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days. [2] The accused had a total of approximately 1.5 million image and video files; obviously, the possibility exists that there is more child pornography within the roughly 1.4 million files which have not yet been examined. Since nothing is known of those other files, however, they play no role in this sentencing. [3] The Globe and Mail , March 1, 2013, p. A3. See also CBC TV, The National , February 28, 2013.

Professor Flanagan is reported also to be a CBC commentator and a columnist for The Globe and Mail . [4] R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45, 194 D.L.R. (4th) 1, 264 N.R. 201, [2001] 6 W.W.R. 1, 150 C.C.C. (3d) 321, 146 B.C.A.C. 161, 239 W.A.C. 161, 39 C.R. (5th) 72, 86 C.R.R. (2d) 1, 88 B.C.L.R. (3d) 1 at para. 28 . That decision also contained the following comments specifically with respect to the harm done by child pornography (at paragraph 158): The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code , is inherently harmful to children and to society.

This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities.

[5][2007] O.J. No. 457, , 72 W.C.B. (2d) 533 (Ont. S.C.J.) [6]Paragraph 51. [7]2010 ONCA 27, [2010] O.J. No. 127, 250 C.C.C. (3d) 291, 259 O.A.C. 364, 98 O.R. (3d) 241, 72 C.R. (6th) 299 at paragraph 25. [8] [2012] B.C.J. No. 1945, 2012 BCCA 377, 327 B.C.A.C. 236, 104 W.C.B. (2d) 970, 556 W.A.C. 236.

The case report does not makeclear whether these are 880,000 unique files, or if there is some duplication. [9] 2000 SCC 39, [2000] 2 S.C.R. 90, 36 C.R. (5th) 85, 148 C.C.C. (3d) 1, 191 D.L.R. (4th) 86, 259 N.R. 95, 77 C.R.R. (2d) 259, 36 C.R.(5th) 85, 187 N.S.R. (2d) 1, 585 A.P.R. 1, 47 W.C.B. (2d) 231, at paragraph 75. [10]2010 ONCA 27, 250 C.C.C. (3d) 291, 259 O.A.C. 364, 98 O.R. (3d) 241, 72 C.R. (6th) 299 at paragraphs 20 - 22. [11][2008] O.J.

No. 2084, 2008 ONCJ 250, 77 W.C.B. (2d) 573. [12]Paragraph 43. [13]Paragraph 43. [14]2011 ABQB 310, 102 W.C.B. (2d) 71, [2012] A.W.L.D. 3608, [2012] A.W.L.D. 3592. [15]See paragraphs 48 - 62. [16]See paragraph 65. [17][2012] A.J. No. 229, 2012 ABCA 74, 522 A.R. 324, 544 W.A.C. 324, [2012] A.W.L.D. 3473, 102 W.C.B. (2d) 466. [18] [2011] O.J. No. 6335. [19] [2012] O.J. No. 2583, 2012 ONCJ 347, 101 W.C.B. (2d) 220. [20] See paragraph 24. [21] 2009 SKQB 12, 330 Sask. R. 51. [22] 2012 SKCA 4, 99 W.C.B. (2d) 526, 385 Sask.

R. 164, 536 W.A.C. 164. [23] See paragraph 41. [24] 2012 SKQB 330, 103 W.C.B. (2d) 1051, [2012] S.J. No. 546. [25] [2012] S.J. No. 620, 2012 SKQB 391, 402 Sask. R. 51, 103 W.C.B. (2d) 583, [2013] 2 W.W.R. 359. [26] R. v. Sinclair, 2004 MBCA 48, 184 Man. R. (2d) 1, 318 W.A.C. 1, 185 C.C.C. (3d) 569, 22 C.R. (6th) 319, [2005] 4 W.W.R. 662, 61W.C.B. (2d) 413. [27] 2012 ONSC 4100, 102 W.C.B. (2d) 515, 102 W.C.B. (2d) 515. [28] 2006 SKPC 98, 290 Sask. R. 43, 71 W.C.B. (2d) 531. [29] 2008 SKQB 174, 316 Sask.

R. 238, 79 W.C.B. (2d) 208. [30] 2009 ONCJ 305. [31] 2010 BCCA 34, [2010] B.C.W.L.D. 1426, [2010] B.C.W.L.D. 1427, [2010] B.C.W.L.D. 1434, 251 C.C.C. (3d) 198, 282 B.C.A.C.171, 476 W.A.C. 171. [32] 2010 ONSC 3117.

[33]2010 ABPC 183, [2010] A.W.L.D. 4460, [2010] A.W.L.D. 4452. [34]2011 NLTD 5 , 2011 NLTD(G) 5, 303 Nfld. & P.E.I.R. 240, 941 A.P.R. 240. [35]2009 ONCJ 404. [36]2012 ABCA 384, 539 A.R. 326, [2013] A.W.L.D. 562, 104 W.C.B. (2d) 908 [37]2010 CarswellOnt 10882.