R. v. Oakey, 2011 ONCJ 404

Citation: R. v. Oakey , 2011 ONCJ 404 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SHAUN OAKEY Before Justice P. Harris Reasons for Judgment released on August 4 th , 2011 Alan Spiegel ...…............................................................................................. for the Crown Andrew Furgiuele ...................................................................... for the accused Shaun Oakey 1 P.J. HARRIS J. :— Shaun Oakey has entered guilty pleas to charges of both possessing and making available child pornography.

These offences occurred sometime between and including December 31 st , 2009 and January 5 th , 2009, a six day period. The Crown had elected to proceed by

summary conviction. Under s. 163.1 (4) of the Code, possession of child pornography when proceeded with by

summary conviction, is punishable by imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for term of fourteen days. The making available of child pornography in this case (s. 163.1(3)) attracts a maximum sentence of eighteen months and a minimum of ninety days. 2 Crown counsel has suggested that imprisonment for 15 months would be appropriate as a global sentence for both offences followed by probation for 3 years. In addition he has requested: • 1. An order pursuant to s. 161 of the Criminal Code limiting Mr.

Oakey's access to and contact with persons under 16 years of age for 10 years, • 2. A DNA order, • 3. An order compelling Mr. Oakey to comply with the Sex Offender Information Registry Act for 10 years. 3 Counsel for Mr. Oakey has suggested that concurrent imprisonment on both counts for the period of 90 days (served intermittently) is appropriate followed by 3 years probation. He agrees with the DNA and s. 161 orders and the Sex Offender Information Registry Act compliance period.

THE FACTS OF THE OFFENCES 4 The agreed statement of facts of this case has been filed as Exhibit 1 and states as follows: Agreed Statement of Facts On January 5, 2010, Yahoo filed a report with the National Centre for Missing and Exploited Children (NCMEC) in the United States. Yahoo advised the NCMEC that on January 4, 2010, a Yahoo user had posted several images to a “Flickr” account. Flickr is a subsidiary of Yahoo and is a web-based program that allows users to post photographs to a page that can be accessed by Internet users.

Yahoo reported that on January 5th, 2010, the individual with the username “sykotod” posted 39 photographs to their Flickr account. Yahoo suspected that some of these images constituted child pornography. Yahoo deactivated the Flickr account on January 5 – approximately 24 hours after the photographs were posted. The NCMEC forwarded the complaint to the National Child Exploitation Coordination Centre (NCECC) in Ottawa which in turn alerted the Child Exploitation

Section of the Toronto Police Service. The TPS confirmed that 20 of the 39 images constituted child pornography. The Toronto Police obtained the IP addresses used to create the Flickr account and upload the photographs. The Internet Service Provider was identified and the provider gave the TPS the customer name and address information linked to the IP addresses. The TPS identified Mr. Oakey as the subscriber. On May 20, 2010, the TPS executed a search warrant at Mr. Oakey’s home. Mr. Oakey lives at the address and was in the residence when the police arrived.

He immediately agreed to provide an audio statement and admitted that he found the images on another person’s Flickr account, saved them and reposted them to his account. He also advised that he had since deleted these images

from his hard drive. Mr. Oakey was arrested. At 51 Division, he again co-operated with the police by providing a video statement. Hesaid that he did not set any security protocols on his Flickr account which means that anyone who accessed his Flickr account couldaccess the child pornography. It is unknown whether anyone accessed Mr. Oakey’s account during the approximately 24 hour period inwhich the account was active and had child pornography visible on it. The TPS seized and searched Mr. Oakey’s computer as well as a portable hard drive and a USB drive.

They searched for bothaccessible images and inaccessible images. An Accessible Image is one which is easily located by the average user (i.e. at the beginningof a file containing the impugned image). Additionally, it was not marked as Deleted, or found within forensic locations such as LostFolders or Recovered Files or in the Internet Cache containing images that were not necessarily saved by the user. Accessible Moviesare ones which can be located by any computer users with a minimum of effort.

Inaccessible images are those which are deleted by the user or found within folders which record the content of internet site visitsby automatically mirroring the site and storing it within the internet cache. The TPS found the following in their search: • On the computer hard drive (Exhibit 1), the TPS found 14 accessible photographs that constitute child pornography and 18photographs which constitute child nudity. There were no accessible movies that constitute child pornography. There were also 855inaccessible images of child pornography and 149 images of child nudity.

There were 59 accessible adult pornography movies on thecomputer and 124 photographs of adult pornography. • On the Flickr account, there were 39 images. Approximately 20 of those images met the Canadian Criminal Code definition ofChild Pornography. They depicted children approximately 8 years old engaged in explicit sexual activity or in picture where theirgenitalia were the focus of the image.

Most of these images were cartoon depictions of child pornography. • On the USB drive, there were 7 pictures that constitute child pornography, all of which were anime and were found to beinaccessible and appear to have been deleted. • On the external hard drive, there were 18 pictures that constituted child pornography and 14 images of child nudity, all of whichwere inaccessible and appear to have been deleted. “An Image Analysis Report more specifically detailing the nature of the images will be provided as an exhibit on sentence”. (Exhibit 3on sentence) _____________________(End of Agreed Statement of Facts)________________________ 5 On May 20, 2010, Mr.

Oakey’s residence was searched and three forms of media were subsequently investigated. According to thespreadsheet filed as Exhibit 2, on his iMac computer, there were 14 accessible child pornography (“c.p.”) images and 18 images of childnudity that “did not meet the strict definition of child pornography”. In addition there were 855 inaccessible (deleted) c.p. images, and 1inaccessible (deleted) c.p. video. On the Time Capsule (external hard drive) there were no accessible images and 18 inaccessible(deleted) c.p. images.

On the Thumb drive (USB storage device) there were no accessible c.p. images and 7 inaccessible (deleted) c.p.images. The Image Analysis Report (Exhibit 3) describes inaccessible files as those which have been deleted, placed inside another fileor were residing in an unallocated space. 6 The inference I draw from the I.A.R. is that files that are marked “deleted and inaccessible” are only recoverable through the useof “forensic software” or specialized knowledge of computer retrieval systems and considerable effort.

The only way to render the filesabsolutely inaccessible would be to erase every file on the hard drives or crush all the computer systems. It would be sheer speculationon my part to infer that Mr. Oakey deviously purported to abandon files while secretly hiding them in obscure locations on his harddrive. The only reasonable and logical inference that can be drawn from the circumstantial evidence of where the images were found isthat the inaccessible images had been discarded and abandoned sometime in the past without any future intent to recover them (R. v.Arcuri 2001 SCC 54 , [2001] 2 S.C.R. 828 (SCC).

Consequently, the total child pornography images from all media sources are:14 accessible images, 873 inaccessible images, and one inaccessible video according to Exhibit 2.

While the discrepancy isinconsequential for sentencing purposes, it should be noted that Exhibit 3 reports that the three forms of computer media noted abovecontained 32 accessible c.p. images and 862 inaccessible c.p. images for a total of 894 c.p. images. 7 Besides the c.p. image inaccessibility issue, which I will return to later, counsel advised that 97% of the total of 894 c.p. imagesfrom all accessible and deleted/forensically retrieved sources were animé or computer generated drawings that did not involveinterference with any human child subjects.

In referencing the nature of this material, I have not failed to appreciate the moral baseness atthe heart of these utterly repulsive drawings; it is simply noteworthy that s. 718.01 (abuse of a person under the age of 18 years) wouldnot be engaged in respect of the possession and “making available” of only animated images, the vast majority of the collection (see R. v.Lazore [2008] O.J. No. 4545 (Ont.C.

J) at para. 30). 8 At the risk of failing to adequately document the full extent and range of the depravity contained in the c.p. images located on thethree forms of computer media, both accessible and inaccessible, it may suffice to offer an overview of the “collection”. The smallnumber of images that depicted real children depicted only boys ranging in age from approximately 8 years of age to 16 years of age. Theanimated images depicted both boys and girls ranging in age from “infant to approximately 16 years of age”.

Reviewing the vast majorityof c.p. images on the iMac computer that were inaccessible, approximately 17% involved graphic animated depictions of childrenengaged in profoundly disturbing situations including the following: extreme sexual violence including death and dismemberment, analrape, torture, bondage, forced object penetration, forced oral sex, bestiality involving children. There is bondage and torture withassociated text describing sexual brutality. There were 3 animated images of infants involving adult males and oral sex.

One is left towonder whether this animated gratuitous sexual violence could be any more reprehensible. The most that could be said is that thedefendant had taken steps to discard and eliminate (for all intents and purposes) almost all of it from his computer files.

9 In addition to possessing the c.p. images described above, the defendant uploaded 39 images to a website called www.flickr.com on January 5 th , 2010, and those images were available to other internet users accessing that website, with the defendant’s permission, until the account was deactivated by Yahoo twenty-four hours later. This activity resulted in the “make available” charge. According to Exhibit 3, 18 of the 39 images were consistent with the definition of child pornography.

Seven of the images could be described as animated child pornography and the remaining 11 images were real photographs of actual naked boys who were displaying erect penises. The 7 animé images depicted aggravating features such as violence, forced anal penetration, bondage and torture involving sexual abuse in dungeon-like settings committed by adult males on prepubescent boys. THE PRESENTENCE REPORT 10 Shaun Oakey is a 51 year old free-lance book editor. He has been self-employed for 25 years and has worked for Random House, Double Day and Harper Collins Publishing. Mr.

Oakey reports that he is considered a very valuable asset and a well-regarded editor in the field today. He studied creative writing for 2.5 years at the University of Victoria but did not graduate because he left to accept a job offer as an editor. 11 His early life was marked by turmoil between his parents who divorced when he was 10 years old. He and his older brother were subsequently raised by his father in what he calls an “emotionally repressed” environment. He has had no contact with his brother for 30 years. He is taking counselling for low self esteem and self worth. 12 Mr.

Oakey has been involved in a long term same sex relationship with an older male “who remain supportive of the offender despite his charges”. They appear to enjoy a strong relationship and consider themselves life partners. 13 The defendant has a very supportive network of pro-social individuals in his life all of whom described the offender as a hard- working, good-natured, respectful individual according to the probation officer. He indicated that all of Mr.

Oakey’s contacts paint a picture of someone who had a lapse in judgment and describe these offences as isolated incidents in which the offender has taken full responsibility and the necessary steps to address this situation. “From all accounts Mr. Oakey was presented as a personable, likeable, kind and humble individual”. 14 Mr. Oakey has no criminal record and does not appear to suffer from any substance abuse issues. The investigating officer was contacted and described the offender as being cooperative and forthcoming during the investigation.

In conclusion, the pre-sentence report could be said to be very positive and the author states that Mr. Oakey presented as cooperative, providing information freely and readily. The only cautionary note expressed was whether the offender will continue to act out in the same offending pattern. In spite of his concern, the author of the pre-sentence report felt that his problems could be addressed with adequate and well-placed treatment/counselling. REPORTS FROM MENTAL HEALTH AND MEDICAL PROFESSIONALS 15 Dr. Julian Gojer, forensic psychiatrist and pre-eminent expert in respect to sexual offending, has assessed Mr.

Oakey. He reports that Mr. Oakey presents as a slightly anxious and depressed man in respect to whom there was no evidence of thought disorder substance use disorder, major mental illness, delusional or bizarre ideas. He states he was very remorseful and has good insight into his inappropriate behaviour. Dr. Gojer reports that the defendant does not test as being aroused to children in his laboratory and has had no prior “hands on sexual contact” with children. (Dr. Gojer acknowledges that this testing by itself is not a good predictor of risk). At present, Mr.

Oakey is receiving psychiatric counselling to address his developmental issues, self-esteem problems and is attending group counselling for gay sex offenders under the supervision of his colleague Dr. Sheridan who is assisting to help Mr. Oakey understand his offending and develop a relapse prevention plan. Dr. Gojer describes Mr. Oakey as a contrite man who is taking the necessary steps to ensure he does not reoffend. He considers him a low risk to reoffend or “engage in hands on contact with children”. In his letter dated May 31, 2011, he states that the likelihood Mr.

Oakey suffers from pedophilia is low. 16 Dr. Darren Higgins has provided a report that confirms that Mr. Oakey began taking counselling just after he was charged and has attended regular sessions since June 1, 2010. Dr. Higgins states that Mr. Oakey is trying to understand psychological reasons for his offending and believes he has made progress and is committed to make changes in his behaviour and coping strategies. 17 Both Dr. Peter Sheridan, Psychologist, and his practice supervisor, Dr. Nathan Pollock, Psychologist, provided reports concerning Mr.

Oakey’s progress in sex offence treatment at the Manasa Clinic. Dr. Sheridan states that Mr. Oakey has attended 18 group counselling sessions and has realized substantial gains in treatment. He says he accepts responsibility, expresses remorse and remains committed to resolving psychological problems which contributed to his inappropriate behaviour. Dr. Sheridan states that with continued treatment the risk for future misconduct is considered low. He asserts that should Mr.

Oakey receive a custodial sentence, he would do best in a comprehensive residential treatment program such as the one available at the Brampton Ontario Correctional Institute. 18 Dr. Pollock has prepared a treatment progress letter on Mr. Oakey. He has been participating in group psychotherapy sessions with Dr. Peter Sheridan under his direct supervision. Based on Mr. Oakey’s earnestness in counselling, his insight into his behaviour, his favourable clinical presentation and his commitment to exploring and resolving his psychological problems in ongoing treatment, Dr.

Pollock considers him a low risk for reoffending in a manner similar to the index offences. 19 Dr. Bernard Zinman, Director of the Mount Sinai Centre for Diabetes and Professor of Medicine, University of Toronto, outlined the health risks Mr. Oakey faces with a custodial sentence. Mr. Oakey was diagnosed with Type 1 diabetes at 10 years of age and currently takes self-administered insulin shots to control it four times a day. He must do self-monitoring of his blood glucose levels four times a day in order to adjust his insulin intake and avoid hypoglycaemia.

He must also know the carbohydrate content of his food in order to

properly adjust his insulin doses and he requires ready access to absorbable carbohydrates (glucose tablets) in order to treat hypoglycaemia should it occur. Failure to maintain adequate diabetes control could result in acute complications including risk of long- term disability. In addition, Mr. Oakey requires daily medication to control his cholesterol, medication to control his blood pressure, and medication as part of thyroid replacement therapy. REFERENCE LETTERS 20 Richard Salter, a member of the legal profession for the past 30 years, and Mr.

Oakey’s landlord, expresses the view that the current charges Mr. Oakey faces are completely out of character, and he would have no hesitation in allowing his grandsons to continue to visit Mr. Oakey and his partner. He states that Mr. Oakey has made an outstanding contribution to their living environment and reports that he is held in high esteem by many Canadian authors. He asserts that Mr.

Oakey is prepared to take responsibility for his behaviour and will not make the mistake again. 21 Alan Kazmer, a retired advertising director and former Associate Professor at The Ontario College of Art and Design University, is Mr. Oakey’s surety and he believes Mr. Oakey’s serious lapse in character was an isolated and singular event. As a member of the Board of Directors for their apartment building, he states Mr. Oakey has acted with wisdom, grace, tolerance and understanding and reports that Mr.

Oakey has conducted the balance of his life in an exemplary manner. 22 John Gaylord, 58, social worker with the AIDS Committee of Toronto, has been Shaun Oakey’s partner and spouse for the past 18 years and states they have had shared a loving, fulfilling and respectful life together. They have spent the past 9 months in deep discussion and have experienced the gamut of emotions including frustration, bewilderment, sorrow, and anger. Nonetheless, Mr. Gaylord says he will support his partner and do what he can to ensure that he never offends again.

He says, “We are loved by our friends and well regarded within our chosen professions”. He believes that with therapy, support and vigilance they will be able to rebuild their lives. 23 Mr. Gaylord states that because of Mr. Oakey’s work he will require access to a computer and the Internet. He recommends filtering software to ensure pornography will not be accessed and volunteers to check the browser history on the computer on a weekly basis. He believes Mr. Oakey is sincere in his commitment to ensure that he never offends again.

THE LEGAL FRAMEWORK 24 “Section 718 of the Criminal Code provides that: The fundamental purpose of sentencing is 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; (

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 and to the community. “Section 718.01 of the Criminal Code : 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.” “Section 718.1 of the Criminal Code : A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” “Section 718.2 of the Criminal Code : 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 offenceor 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 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 shall be deemedto be aggravating circumstances, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence; (

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 should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders.” 25 As noted in paragraph 8 above, the s. 718.01 principles may not be completely applicable to either the possession of childpornography or the “make available” charge to the extent that 97% of the c.p. files found on Mr. Oakey’s media were animé or computergenerated drawings and did not “involve the abuse of a person under the age of eighteen years”.

Still, that does not serve to amelioratethe seriousness of the mostly inaccessible animé collection which can only be described as horrific. LEGAL PRINCIPLES OF SENTENCING IN CASES INVOLVING CHILD PORNOGRAPHY: 26 Both counsel agree that the paramount sentencing principles in respect to the scourge of child pornography are deterrence anddenunciation. Further reference to case authorities on this point will not be necessary. The prevalence of the offences of possession anddistribution of child pornography are of great concern both to the court and to the community.

Parliament has amended the punishmentfor such offences to require minimum jail terms and to remove the possibility of a conditional sentence for suchoffences.

Notwithstanding the requirement of a minimum jail term, the Court is still required to exercise discretion in the allocation ofany greater period of imprisonment, in accordance with the primary emphasis on deterrence and denunciation in this case while notlosing sight of the other sentencing objectives, principles, and factors such as rehabilitation. 27 The reality at the heart of this case is that there is a fundamental clash of principles that works to militate against the achievement ofa “fine balance”.

One manifestation of that conflict can be seen in the vastly different positions on sentence taken by experienced counselin this case. The recent case of R. v. Thurairajah 2008 ONCA 91 , [2008] O.J. 460 (Ont.C.A.) provides some guidance: (atparas. 26 and 28) Trial judges are given a very wide discretion to determine the appropriate disposition in each case. In exercising that discretion,Parliament provides guidance by way of the broadly worded objectives and principles in

Part XXIII of the Criminal Code. Trial judgesmust apply those objectives and principles to the specifics of each case and, in the exercise of their discretion, fashion a sentence that istailored to the circumstances of the offence and the circumstances of the offender….. The sometimes competing principles that must be weighed by the trial judge in the exercise of his or her sentencing discretion can giverise to difficult problems for trial judges. This trial judge was faced with just such a problem. On the one hand, the circumstances ofthis offence cried out for a significant jail term.

On the other hand, the respondent's personal circumstances strongly suggested thatincarceration was unnecessary. 28 Similarly, this Court is faced with just such a problem. On the one hand, the circumstances of these offences cry out for a relativelysignificant jail term. On the other hand, the Mr. Oakey’s personal circumstances strongly suggest that incarceration beyond the requiredminimums is unnecessary. 29 Mr. Oakey is before the court on a serious matter as a first offender.

The case law suggests that a sentence of imprisonment for afirst offender should be imposed with restraint to properly balance general deterrence and denunciation with individual or specificdeterrence and rehabilitation. A prison sentence for a first offender (given the minimum sentence to be imposed), according to case law,should be of short duration and rehabilitation upon release should be reflected in the sentence imposed. In Mr.

Oakey’s case, even withthe necessary emphasis on denunciation and deterrence, I consider rehabilitation to be very much a factor given his insight and theinitiatives that he has taken. He has demonstrated remorse and with his solid family and community support, I believe he will have thedetermination and commitment to rehabilitate himself.

All psychiatric and psychological assessments suggest he represents a low risk toreoffend. 30 On the other hand, the significant number of utterly repulsive images of the animé variety, notwithstanding the fact the defendanthad taken steps to distance himself from almost all the c.p. files, requires me to assign aggravating weight to both the possession and

more importantly to the distribution of this vile material and allocate proportionate correctional values, in accordance with s. 718.1 of theCode. 31 There is little doubt that the distribution of child pornography gives rise to a greater need for denunciation and deterrence that doesmere possession. Still the role possessors play is fueling the market must be considered carefully. In Regina v. Stroempl, (ON CA), 1995 105 C.C.C. (3d) 187 at page 191 the Ontario Court of Appeal held: “The possession of child pornography is a very important contributing element in the general problem of child pornography.

In a veryreal sense possessors such as the appellant instigate the production and distribution of child pornography -- and the production of childpornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if thecourts, through the imposition of appropriate sanctions, stifle the activities of prospective purchasers and collectors of child pornography,this may go some distance to smother the market for child pornography altogether.

In turn, this would substantially reduce themotivation to produce child pornography in the first place.” 32 In Regina v. E.O. (ON CA), [2003] O.J. No. 563 (Ont.C.A.) the court noted: “Possession of child pornography is a crime of enormous gravity both for the affected victims and for society as a whole. For that reasonthe courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are generaldeterrence and denunciation.

Further, the offence of possession of child pornography requires the imposition of sentences whichdenounce the morally reprehensible nature of the crime, deter others from the commission of the offence and reflect the gravity of theoffence.” 33 I have also reviewed other decisions of the Ontario Court of Appeal such as: R. v. Lisk, (ON CA), [1998] O.J.No. 1456; Regina v. Cohen, (ON CA), [2001] O.J. No. 1606; R. v. Schan, (ON CA), [2002] O.J.No. 600); Regina v. Webber, (ON CA), [2003] O.J. No.3306; Regina v. Kim, (ON CA), [2004]O.J. No. 119; and Regina v. Ewing, [2007] O.J. No. 1710; R. v.

Nisbet 2011 ONCA 26 , [2011] O.J. No. 101 (Endorsement). AGGRAVATING AND MITIGATING FACTORS 34 Even though denunciation and deterrence are the paramount principles of sentencing in this case, Mr. Oakey’s sentence “should besimilar to sentences imposed on similar offenders for similar offences committed in similar circumstances” according to s. 718.2(

b) of theCode. The latter principle inevitably requires a sentencing court to compare the circumstances of one case against the circumstances ofothers in which sentences for the same offence have been imposed. 35 One of the most helpful decisions for this type of analysis was written by Molloy J. in R. v. Kwok, (ON SC),[2007] O.J. No. 457 (Ont.S.C.). She concluded that the following circumstances will be considered to be aggravating factors: (

i) a criminal record for similar or related offences; (ii) involvement in the production or distribution of the material; (iii) the size of the collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (

v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on hisimpulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit asopposed to merely collecting it by free downloads from the Internet. 36 Mr.

Oakey has no prior criminal record, there is no suggestion that he was involved in the production of any of the pornographicmaterial, even though there is evidence that he distributed it for a brief period; there is no evidence that he purchased it. His accessiblecollection is very small and his inaccessible “collection” is relatively modest in comparison to other child pornography cases. In Mr.Oakey’s case, the relative violence and depravity is high but given that it was composed - almost entirely - of fictional representations, atleast the harm to any individual child could be described as minimal.

He is considered a low risk for reoffending and the likelihood hesuffers from pedophilia is low. Apart from the commission of the offence before the court, there is nothing in Mr. Oakey’s backgroundthat suggests that he poses a danger to children. 37 The issues involving the size and the nature of this “collection” of child pornography require some discussion. 38 The actual amount of pornographic material has been identified. The Crown submitted that inaccessible images are evidence of pastpossession and in accordance with s. 725(1) (

c) of the Code The court can take into account on sentence, evidence of other prior offencesthat could constitute the basis for a separate charge (see R. v. Larche 2006 SCC 56 , [2006] 2 S.C.R. 762 (SCC); R. v. Angelillo2006 SCC 55 , [2006] 2 S.C.R. 728 (SCC)). To the extent that the size of an offender’s collection and the period during which itwas possessed, is relied on as an aggravating circumstance on sentencing, the burden is on the Crown to establish its general parameters(see s. 724(3)(

e) of the Code). The Crown did not lead evidence that would permit any determination to be made in that respect. For

example, for sentencing purposes, I do not know when and for how long the now inaccessible possession was in actual use. It is notpossible to select a proportionate sentence without some understanding of these missing elements. For example, if the child pornographywas first accessed and viewed under the previous legislative regime, he could contend that conditional sentences were available and thathe faced no minimum sentence. 39 The following is a fair description of the most aggravating features of Mr.

Oakey’s child pornography files: there arefictional images of bondage, torture, rape and bestiality or other degradation involving children from the age of infants to 16 year oldsthat is beyond comprehension. The risks inherent in this animé or fictional material are that both adults and children viewing it can bedesensitized to harms inflicted on children who are vulnerable because of age inequality. 40 The next step in the analysis involves a comparison with the facts in other cases. In R. v. Yau 2011 ONSC 1009 , [2011]O.J.

No. 720, MacDonnell J. makes a very thoughtful comment which I adopt: [22] Inherent in the Crown’s sentencing position is the submission that the nature of the material possessed by Mr. Yau calls for amore substantial jail term than the terms imposed on other offenders for the same offence. That submission necessarily engages the courtin the odious task of drawing comparisons between the materials in this case and the material in others. It should be made clear,however, that in performing that task the court is not minimizing the great concern that all child pornography justifiably attracts.

By itsvery nature, all child pornography is disturbing and repugnant. 41 Justice Molloy in R. v. Kwok, supra, also provided a list of factors considered to be mitigating in child pornography cases: (

i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (

v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime. 42 Of the above seven factors, the second to the seventh all apply to Mr. Oakey. He is not youthful and consequently cannot claim thathis offending is related to immaturity. He pleaded guilty and has exhibited remorse, insight and a willingness to be treated.

There isconsiderable evidence that he is otherwise of good character and his reputation in his community has suffered by the fact of the charges. ANALYSIS 43 The determination of sentence requires a consideration of the sentences imposed on other offenders for possession and distributionof child pornography. 44 The court has been referred to a number of sentencing decisions, the most relevant of which are the following: (

i) In R. v. Berman, [2010] A.J. No. 1368 (Prov. Ct.), the offender made available two pornographic images involving pre-adolescentgirls to an undercover officer. There was evidence of deleted photos and partial downloads of child pornographic videos. He wasemployed with family and community support and was a low risk to reoffend. On the “make available” charge (by

summary conviction)the court imposed a sentence of 90 days. (ii) In R. v. Guillemette, [2010] unreported, (Ont. S.C.), the offender was in possession of 545 videos and 1392 pictures of childpornography which depicted persons ranging in age from three to twelve years. He also entered a chat room and sent a childpornography video to an undercover officer. Both the possession and make available charges were proceeded with by indictment. Hewas 21 years of age; he lived with his mother, and had attended for assessment and treatment for sexual behaviors.

The Court imposed asentence of 18 months (the mandatory minimum for the distribution offence was one year in prison). (iii) In R. v. Smith, [2008] O.J. No. 4558 (Ont.S.C.), the offender was in possession of about 837 pictures and 147 videos of childpornography. He had used file-sharing software to share his collection on peer-to-peer networks. The possession and making availablecharges were proceeded with by indictment. The defendant was a 43 year old actor whose career was ruined by his conviction. The Courtimposed a sentence of 21 months in prison. (iv) In R. v. Kim, (ON CA), [2004] O.J.

No. 119, the youthful first offender pleaded guilty to both possession anddistribution of child pornography. He had exchanged material with other offenders on a two-for-one basis, he had over 12,000 images onhis server, he had received between 5,600 and 6,400 images over an eight-day period, and he had sent out 2,800 to 3,200 images. In theopinion of the Court of Appeal, a substantial reformatory sentence was called for. CONCLUSION 45 Balancing the repugnancy of the material possessed and made available by Mr.

Oakey, and the need to deter, denounce andcondemn his conduct ― with all the factors that speak to the need to exercise restraint with a first offender with an impeccable reputationand community supports, demonstrated remorse, insight and motivation to take treatment, and most importantly, with a diagnosis thatsuggests he presents a low risk to reoffend ― it is reasonable to suggest that a total sentence in the range of nine (9) months is called for

on the basis of the sentencing precedents I have reviewed. 46 I come to that conclusion bearing in mind not only that virtually all of the images he possessed and distributed were fictional in nature but also that he took steps to eliminate virtually all of the images from regular use on his computer equipment. In addition great efforts have been made to finely balance sentencing principles in a result that is proportionate to both the size and duration of the possession and “make available” offences.

The size and nature of the images possessed (and the small number uploaded to Flickr) have already been identified. However, the duration of time during which the inaccessible images were available for viewing on Mr. Oakey’s computer equipment is completely unknown. It is not known whether the inaccessible images were readily available at some time during the period charged (6 days) or perhaps during a period 2 years before the period charged. If I am to sentence Mr. Oakey for inaccessible images on the basis of “prior crimes committed”, would I not have to know the date and duration of his offending?

Was his use a glimpse or a lifestyle? If his use of the inaccessible files was more than 2 years ago, at a time prior to the legislative changes, would he still face a minimum sentence? Would he be eligible for a conditional sentence? 47 The expert evidence concerning the inaccessible files cannot assist as to when the files were deleted or otherwise removed from regular use and how long they were accessible. As noted above, the Crown must prove aggravating factors on sentence and when or how long the images were accessible has not been established. Accordingly, in fairness, I cannot conclude that Mr.

Oakey used the now inaccessible images for anything more than a relatively short period of time. Consequently, the appropriate proportionate sentence for past child pornography possession offences (the inaccessible files) based on the number of images and (by inference) the relatively short duration of the actual use of the images, in combination with the 14 (or 32) photos of presently accessible child pornography on his computer media ― in terms of comparable case authorities ― would be a custodial period in the range of 2 to 3 months.

Applying the totality principle, I have determined that the appropriate deterrent/denunciatory sentence for the possession of child pornography offence will be two (2) months imprisonment. 48 As serious as the distributing offence is, and it is considerably more serious than the possession of child pornography because of the potential for opening the floodgates in this market for child abuse, I still find that Mr. Oakey is not in the same category as Mr. Kim, Mr. Guillemette, and Mr. Smith, above. Mr.

Oakey’s charge of “make available” did not proceed by indictment, and the Flickr images required his permission to view them. In other words, it was not a peer-to-peer file-sharing system in which any random browser could view every image he had on his computer. In addition, of the eighteen images posted, s even of the images could be described as animated child pornography and the remaining 11 images were real photographs of actual naked boys who were displaying erect penises.

While the 7 animé images depicted aggravating features such as violence, forced anal penetration, bondage and torture involving sexual abuse in dungeon-like settings committed by adult males on prepubescent boys, at least the computer generated images did not involve the abuse of a person under the age of eighteen years . In drawing comparisons between the material in this case and the material in others, I do not intend in any way to minimize the great concern that all child pornography justifiably attracts.

As a result of a delicate balancing of sentencing factors and being mindful of the primacy of denunciation and deterrence in this area of law as well as totality considerations, I have concluded that Mr. Oakey should serve a consecutive period of seven (7) months in prison on the “make available” charge. The total sentence for both offences is therefore nine (9) months. That will be followed by a period of probation for three years. 49 I further recommend that Mr.

Oakey serve his sentence at the Brampton Ontario Correctional Institute because of health, safety and access to sex offender treatment considerations. 50 I now invite counsel to address the Court on the S. 161 Order, the DNA Order, the SOIRA Order and the terms of the Probation Order. Released August 4 th , 2011 Peter Harris J.