R. v. Schacter, 2019 ONCJ 154

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3) , read as follows: 486.4

(3) Child pornography. — In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. Schacter, 2019 ONCJ 154 DATE: March 25, 2019 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — STEPHEN JOSEPH SCHACTER Before Justice Susan M. Chapman Sentencing Hearing: February 2 and 28, 2019 Reasons for Sentence released on March 25, 2019 G. Gaganiaras................................................................................................. Counsel for the Crown J. Kappy......................................................................................................

Counsel for the Accused Chapman, J.: Introduction [ 1 ] In Reasons for Judgment dated May 31, 2018 I found Mr. Schacter guilty of the offence of possessing child pornography. After the execution of a search warrant at his premises, a number of devices were found containing many images of young boys in various states of undress, 37 of which I specifically found to constitute child pornography. [ 2 ] Prior to the sentencing hearing, I received some materials from defence counsel including the report of Dr. Shukri Amin, medical records and letters of support. The Crown opposes the admission of Dr.

Amin’s opinion on risk of recidivism on the basis that he is not qualified to provide such an opinion. In the alternative, the Crown argues that the opinion is entitled to no weight. The cross-examination of Dr. Amin took place on February 2 and the submissions of counsel on sentence were heard on February 2 and 28. I reserved my Reasons for Sentence to today. Overview of The Facts The Employment Centre Incident [ 3 ] On November 6, 2015, at approximately 11:30 a.m., Mr.

Schacter walked into the Lawrence Square Employment & Social Services where he proceeded to access images from a USB device that he brought with him on one of the publicly accessible computers. One of the staff at the centre testified at trial that as a result of a conversation she overheard, she approached Mr. Schacter and stood right next to him, perhaps within 2-3 inches, on his right side. Though she was standing so close to him, Mr. Schacter did not appear to notice her as he was focused on what he was looking at on the computer.

She testified that she observed the accused opening up different files on the computer and looking at three separately opened photos during the time that she observed him. She was only able to describe two of the photos that she saw:

1. A young boy with dirty blond hair in the style of Justin Bieber (though a bit longer and parted to the side), in his underwear, wearing a sport jersey on top, just standing in a posed position with his arms down. She estimated the age of the child to be eight years old. The photo appeared to be professionally taken. 2. The second image was of the same boy, again posed in a professional looking photo with an artificial backdrop, with a faint and forced smile, wearing only a shirt and underwear.

He was posed with his hand on his hips and his elbows pushed backwards. [ 4 ] This same witness testified that she was shocked and upset by the images she saw as she has a son about the same age as the child depicted. As she stood there, a security guard, also approached and stood next to her. At this time the accused started closing up the files on the computer. The security guard testified that he walked past the accused two times. On both occasions, the male “minimized the screen almost immediately”.

He further testified that he observed the accused “looking at images of a Caucasian boy around the ages of 8 – 10 years old wearing underwear only.” He saw that the accused “scrolled through two pictures where the child was in [sic] an inappropriate posing position”. [ 5 ] The supervisor at the employment centre was directed towards the accused after being alerted by staff that an individual in the employment centre had been viewing images that they felt were disturbing. The supervisor and another staff member approached the male and asked to speak with him in an interview booth.

The accused indicated that he was deleting family pictures that belonged to his friend. They asked him to leave and reported these events to the police. [ 6 ] Of course, we do not know that the images Mr. Schacter was carefully examining that day at the employment centre are the very same ones that I have found him guilty of possessing on a later date and at his home, though they sound suspiciously similar. However, the images of young boys Mr. Schacter was viewing in this very public place did significantly upset several members of the public who saw him doing it.

They testified before me at trial and were clearly very disturbed by what they saw. At a minimum. This conduct demonstrates Mr. Schacter’s ongoing interest in young boys in various states of undress and a brazen decision to observe them in a public place, an employment centre that has a play area for children. The Residential Search [ 7 ] Following the incident at the employment centre, the police sought and obtained a search warrant for Mr. Schacter’s home. The officers found three USB keys inside a desk, located in Mr. Schacter’s bedroom.

In a very brief preview of one of the USB keys, officers observed that Mr. Schacter had a very large and organized collection of images of pre-pubescent boys in various states of dress. Two images observed were of a prepubescent boy, approximately 10 years old, lying back wearing only underwear. The boy’s legs were spread apart and his genital area was at the forefront of the image. The outline of the child’s penis was clearly visible in both pictures. As a result, Mr. Schacter was arrested and charged with possession of child pornography. [ 8 ] Officers investigated the contents of the USB keys further.

Thousands of pictures of young boys were found on various devices belonging to the accused during the search of his residence on December 16, 2015. Detective Constable Manherz testified that he would classify the images into three categories: a. Child pornography (which the officer defines as a sexualized picture of a child, intended to stimulate an audience, where the sexual organ is the main focus); b. Child erotica (a sexualized picture of a child, intended to stimulate an audience)/ age difficult (the age of the person depicted is not clear from the image); and c.

Everything else. [ 9 ] Upon further investigation of the contents of the USB keys, officers identified 148 images of what they classified as category 1, child pornography. Of those 148 images, 95 of the images were accessible to any user of the USB key. Fifty-three of the images were not accessible. And of the 148 images, 47 were unique images and 101 were duplicates. The Images [ 10 ] In this case, the images in question do not involve outright nudity. For that reason, the accused was charged with, and ultimately convicted of, the offence as defined in s.163.1(1)(a)(ii). In convicting Mr.

Schacter of the offence, I was satisfied beyond a reasonable doubt that Mr. Schacter was found to be in possession of visual images that depict, as their “dominant characteristic”, “a sexual organ or anal region of a person under the age of eighteen years”, for a “sexual purpose.” [ 11 ] Upon their investigation of the contents of the USB keys found in Mr. Schacter’s home, officers identified 148 images they classified as child pornography. Of those 148 images, 95 of the images were accessible to any user of the USB key. Fifty-three of the images were not accessible.

Of the 148 total images, 47 were unique images and 101 were duplicates. [ 12 ] In a document labelled Exhibit 5B, D.C. Manhurst sets out detailed descriptions of 37 of the images found on an USB device in the accused’s residence. The document was filed with the court as representative of the personal opinions of the officer only and not as any sort of expert opinion evidence. That being said, I have reviewed the descriptions of the images provided by the officer as against the images themselves and I find the detailed descriptions to be entirely accurate, with very few and minor exceptions as outlined below.

Accordingly, Exhibit 5B can be consulted as factually accurate descriptions of the images located at the accused’s residence and categorized by the officer as child pornography, as opposed to child erotica/age difficult. [ 13 ] The images collected by Mr. Schacter are photographic representations – namely photographs of young boys. It is clear from looking at the images that the children are under the age of 18 years. The vast majority of the children appear to be between the ages of 8 and 12 years old.

In this case, 148 total images (47 unique images) are all of sexualized poses: legs spread and hips thrust out towards the camera in a provocative manner, lying on their backs with their legs spread. The images are professional photos. In all the images the focus is on the boy’s pose. The viewer’s eye is drawn to the penis or groin area.

[ 14 ] A couple of the images are representative of the overall collection [1] . For example, the first image identified in Exhibit 5B, is that of a prepubescent male, approximately 12 years old, wearing a black bikini brief Speedo bathing suit. The male is leaning back on his right elbow, his right leg appears to be in a pool and the left leg is bent up. The child’s legs are slightly separated and the outline of the boy’s penis is evident [2] against his left leg. This same image appears in 9 different places on the accused’s USB devices. [ 15 ] Image 32, described on page 10 of Exhibit 5(

b) and found on an USB drive located in the accused’s home, contains an image of a prepubescent male, based on the absence of body hair and the lack of muscular development in his thighs, dressed in a white shirt, blue shorts and white underpants. The boy, who is sitting with his legs splayed, is only visible from the navel area to just above his knees. The child’s underwear is clearly visible through the bottom of his shorts and he is experiencing an erection. The erection, which is outside of the shorts, is pushing against the underwear and the outline of the head of the boy’s penis is visible.

This same image appears in five different locations on the devices located in the accused’s home. [ 16 ] All of these images were organized and categorized with names and folders. They are not organized by fashion style, but are organized by child. The images have watermarks on them suggesting that they are professionally produced. The images Mr. Schacter had on his USB keys only serve one purpose: to normalize and utilize the objectification of children as sexual objects for the purpose of sexual gratification. The sexual purpose of the images possessed by Mr. Schacter is evidenced in numerous ways: a.

The content of the images on the USB drive as described in Exhibit 5(b), including numerous organized and categorized folders where the images are found; b. The quantity of images found; c. The images are not the type of photographs that a parent would tend to have of their child innocently cavorting in his or her underwear or bathing suit. The images are professional photos of sexualized poses – legs spread and hips thrust out towards the camera in a provocative manner, lying on their backs or sitting up with their legs spread; d.

Many of the images found on the USB drives, that are not relied upon by the Crown as meeting the definition of child pornography, are still overwhelmingly sexualized images of young boys. [ 17 ] It was not necessary for me to find, as part of my reasons for conviction, that Mr. Schacter possessed child pornography for its obvious purpose, namely a sexual one. It is enough that there was knowing possession of images that meet the definition of child pornography and in some cases that might be for an innocent purpose, such as law enforcement.

But I make that finding now based on all of the evidence and for the reasons set out below. [ 18 ] The images in Mr. Schacter’s collection are clearly sexually exploitative of the children in them. Mr. Schacter was so carefully studying similar images at the employment centre that it took him some time to notice horrified staff gathering around him. The defence offer an alternative explanation for his possession of these images, namely that he is a collector of many things including images of young boys that make him nostalgic for the time when he got his first pair of fancy underwear as a child.

For reasons set out in greater detail below, I completely reject this explanation for his possession of the offending images and I find that Mr. Schacter possessed the images for their obvious and evident purpose, namely a sexual one. The Testimony of Dr. Shukri Amin [ 19 ] At the sentencing hearing, the defence called Dr. Amin as an expert witness in the area of risk of Mr. Schacter re- offending. He is a psychologist that has been treating Mr. Schacter on a weekly basis for two years. He has written a report in which he concludes that Mr. Schacter represents a very low risk of recidivism.

As well, he testified before me. [ 20 ] Dr. Shukri Amin received his Ph.D. in Clinical Psychology from the University of Windsor in 1975. I have reviewed his credentials as set out in his C.V. and report and as testified to by him. Most relevant, for present purposes, is the fact that he has been involved in doing parenting capacity assessments for the Catholic Children’s Aid Society since the mid 1980’s. As well, in the 1970s he worked for three years at the Ontario Correctional Institution.

He has appeared in court approximately five times a year in relation to his parenting capacity assessments and has done assessments for sexual dysfunction for other clinicians. It was Mr. Schacter’s sister, who is a colleague of Dr. Amin, that originally arranged for him to support and counsel her brother. [ 21 ] When he testified before me Dr. Amin clarified that, despite my having convicted Mr. Schacter of possessing child pornography, he is in fact innocent of those charges.

He offers this opinion though he had to admit that he has never actually seen the images in question, did not attend the trial, and didn’t appear to be overly familiar with my Reasons for Judgment. Dr. Amin also made clear that in his opinion Justice Corbett also got it wrong when he subsequently convicted Mr. Schacter of hands-on sexual offences in relation to a number of men who were children at the time [3] . Again, despite not attending that trial, or reading Justice Corbett’s final reasons, and being largely unfamiliar with what those allegations were, he still confidently offered the opinion that Mr.

Schacter is also innocent of those charges. Of course, because he is not guilty of any offence his risk of recidivism is very low. However, because he keeps getting wrongfully convicted of sexual offences relating to young boys, he is at high risk of being falsely accused of such offences, in the opinion of Dr. Amin. [ 22 ] In sentencing submissions, defence counsel suggested that Dr. Amin had not rejected the verdicts of the courts in arriving at his opinion on recidivism and that this fact should not diminish the weight that I attach to his opinion.

However, I reject this submission and point to the following statements made by Dr. Amin during the course of his testimony that belie it: o In relation to the hands on sexual offences that Justice Corbett has convicted Mr. Schacter of, albeit following the preparation of Dr. Amin’s written report but prior to his testimony in court, he stated: o “I don’t think they did take place”;

o He does not place much weight on the verdict of the court because “I also know that I have much more information and might interpret it in a totally different way”; o When cross-examined on the significance of a finding of guilt by Justice Corbett, he testified “I agree he was found guilty but I don’t believe he has committed them [the offences]; o When asked in cross-examination whether he considered the findings of fact in the court in this case, he testified that he was not overly familiar with them but that in any event “you make it sound like that’s truth – the transcript – but you’ve got to remember, I’ve been to court many times and there are many times when the court’s distort the facts”; o In relation to Mr.

Schacter’s conviction for the offence of possessing child pornography, Dr. Amin agreed that he has not seen the actual images in question but nonetheless stated: o That he does not accept the verdict of the court because “I know more than the court about his personality development”; o “I’ve come to a conclusion based upon my overall impression of what was going on”; o “I don’t see him as guilty but I see him as very very naïve and socially inadequate”; o That Mr. Schacter was “burnt” by the conviction; o And “yes, I do doubt the findings of fact” from both courts. [ 23 ] In his report, Dr.

Amin concludes that Mr. Schacter possessed a big collection of young boys in bathing suits and the like because he is a compulsive collector and these particular images remind him of a time when he was happy, when he got his first fancy underpants as a child. Dr. Amin agreed that Mr.

Schacter told him that the images make him “feel good” but does not agree that they demonstrate an attraction to young boys. [ 24 ] Other reasons why I attach no real weight to his opinion include the following: o He testified that he has no training in sexual violence because one only gets this sort of training if one works in the criminal sphere and he does not. He also testified that he does not know of anyone that has such training and “I don’t know that it exists”.

He has certainly never published or taught in the area of sexual deviance and/or risk of recidivism in sexual offences; o He testified that “in treatment I don’t interrogate people, don’t question it” and he was first and foremost treating Mr. Schacter; o Mr. Schacter is a religious man and therefore is telling him the truth when he denied [to Dr. Amin] committing these crimes; o His opinion is almost entirely reliant upon a “personality assessment” of Mr. Schacter based on the patient’s self-reporting and not more objective diagnostic testing.

He seemed to suggest that he didn’t do the diagnostic testing in this case because he was treating Mr. Schacter and testing retards treatment; o In relation to phallometric testing in particular Dr. Amin suggested that it might produce a false positive in some people and “I can see why he [Schacter] did not want to go”; o Mr. Schacter did not testify at trial or on sentence and his self-reporting of information to Dr. Amin is therefore not forensically tested and provides a shakier evidentiary foundation for the opinion heavily reliant upon it; o Not only did Dr.

Amin not accept the verdict of the courts but he also appeared to be indifferent to the allegations and the evidence [4] . He also suggested that if a woman had committed similar acts to those Justice Corbett has found to have taken place “it wouldn’t be given any thought”; o He does not agree that a sexual crime against a child is one involving physical harm; o Even if Mr. Schacter was guilty of the crimes he has been convicted of, and he says that he is not, according to Dr. Amin there is only a “possibility” that that would impact on his opinion of risk. The Terms of Interim Release [ 25 ] Mr.

Schacter spent one day in custody before being released on bail in December of 2015 in relation to these charges. Then when he was charged with the hands on offences in relation to several children he entered into a new recognizance of bail on February 24, 2016 which contained stricter conditions including house arrest. Those terms were later varied in July of 2017 with the deletion of the house arrest term. I take the strict terms of his bail into account in imposing sentence in this case to some extent, as elaborated upon below. Mr. Schacter’s Background [ 26 ] Mr.

Schacter did not testify either at trial or at the sentencing hearing. However, much of his background is set out in his curriculum vitae, medical records and letters of support filed by the defence. It is clear that for most of his adult life he has been gainfully employed. Mr. Schacter was apparently a teacher at various Orthodox elementary day schools over the years including Eitz Chaim Schools of Toronto, United Synagogue Day School, Yeshiva Yesodie Hatorah Day School, etc. up until 2009 and not thereafter. Some of these are all boy schools.

None of these schools appear on his current c.v. but do appear on the work history document I was provided with at Tab 2 of the Defence sentencing materials. As of 2009 he spent two years as a private tutor and otherwise seeking employment. It would seem that he was no longer working as a teacher by the time of the events that gave rise to these charges as he was at an employment centre apparently looking for work.

Letters of Support [ 27 ] The defence also put forward a number of letters of support from members of the community. The first letter is from a high school friend who is a Rabbi living in Israel. He visits Mr. Schacter when he gets the chance to come to Toronto. In his “character reference” letter he refers to Mr. Schacter as intelligent, conscientious and hard working. It is not at all clear from the letter that its author is aware of the allegations much less the convictions or to who or for what purpose he is writing his letter. [ 28 ] Similarly, in a second letter another Rabbi attests to Mr.

Schacter’s good character and hopes it assists in “his case”. A letter from a third Rabbi makes no reference to the allegations or convictions but refers to Mr. Schacter as “a fine, upstanding citizen and an asset to our synagogue.” [ 29 ] In another letter, a married couple refers to their family’s long standing relationship with Mr. Schacter. They have 11 children and 26 grandchildren and describe him as an integral member of their family. He often attends their home for meals and goes with them to their cottage in Wasaga beach.

They say that “the serious allegations being levelled against him” are not consistent with the man that they know and that they have no concern about Mr. Schacter spending time with their children. In a similar letter from another family they attest to the fact that Mr. Schacter has always being willing to offer a helping hand in whatever way he could. They have 11 children and state that their children enjoy spending time with Mr. Schacter. Another family state that they have Mr.

Schacter for meals in their home and that he interacts “in a positive manner with our son and daughters.” In a similar letter from another family they state that Mr. Schacter has spent a great deal of time with their children and grandchildren, at home and on excursions, and that they do not believe he presents any danger to society or the public. [ 30 ] In short, none of the letters acknowledge the convictions and few acknowledge the allegations. Of those that do acknowledge the allegations, none of them accept them as true.

Not one of those letters refers to the convictions for either the child pornography offence or the hands on sexual abuse of children. When I suggested to counsel that these letters would be entitled to greater weight if these people knew of and accepted the fact of the convictions, counsel suggested that given the inflammatory nature of those convictions, he would be unlikely to secure letters of reference. This fact speaks to the little weight I can place on these letters in mitigation. [ 31 ] What these letters do demonstrate is that Mr.

Schacter has loyal friends in the community who hold him in high esteem and do not view him as capable of committing these offences. He is otherwise of good character. However, these references are somewhat double edged for Mr. Schacter because they also show the trust that so many people in the Orthodox community have put in him and continue to put in him including allowing him to socialize freely with their children in light of their acceptance of his denials of wrongdoing. The Medical Evidence [ 32 ] Over the years Mr. Schacter has experienced a number of physical and mental ailments.

These are some of the highlights of his medical history as described by his treating physician in various letters filed with the court. Mr. Schacter has arthritis in his left ankle and osteoarthritis in other areas of his body as well as back pain for which he takes acetaminophen. As well he has more recently been diagnosed with Crohn’s disease and IBS and takes several different medications to deal with his various ailments. He routinely gets severe nausea and migraines. He has suffered from anxiety and depression much of his adult life and has been in therapy since his early twenties.

Positions of the Parties [ 33 ] The Crown argues that a sentence in the range of nine (9) to twelve (12) months custody, followed by probation for three years and certain ancillary orders, is appropriate in this case.

Having regard to the medical evidence filed by the defence, the Crown modified its position in oral submissions and agreed that something towards the lower end of that range, namely nine (9) months, would be appropriate. [ 34 ] The defence argue that the images in question are at the “edge of criminality” and that a conditional sentence of between three (3) and six (6) months duration is the appropriate sentence in this case to be followed by a period of probation. In relation to the production of these photographs, in his submissions Mr.

Kappy “pushed back against an assumed risk to children” in their creation and use. Findings of Fact [ 35 ] I completely reject the opinion evidence of Dr. Amin. Assuming without deciding that he is an expert in the area he was sought to be qualified, I place no weight upon his opinion concerning the likelihood of recidivism. Central to his opinion that Mr. Schacter represents a low risk of re-offending is his assumption that Mr. Schacter has been wrongfully convicted of both the child pornography charges and the so called “hands on” offences against children as found as fact by Justice Corbett. Dr.

Amin has conducted no phallometric or other testing of Mr. Schacter. His opinion is almost completely reliant on Mr. Schacter’s self- reporting of the facts and Dr. Amin’s assumption that because Mr. Schacter is a religious man he would not lie about such things. [ 36 ] In fairness, Dr. Amin is Mr. Schacter’s treating clinician. He had not originally intended to provide an opinion on risk of recidivism. Rather, he has been seeing Mr. Schacter as a patient for the purpose of treatment on a weekly basis for the past two years.

He admitted in his evidence that, given the therapeutic focus of his interactions with Mr. Schacter, he does not challenge Mr. Schacter’s account of events, including his implicit denials of wrongdoing. [ 37 ] Mr. Schacter is to receive credit for seeking out counselling in relation to these matters. Unfortunately, it would seem that he has managed to find a therapist that has apparently been reinforcing his cognitive distortions concerning the events leading to the convictions he now faces. Dr. Amin’s apparent acceptance of Mr.

Schacter’s comments to him on his reasons for collecting pictures of young boys in bathing suits, namely that it makes him (a 58 year old man) nostalgic for the time in his life when he got his first fancy underwear as a boy, is troubling. I find that there is no innocent explanation for Mr. Schacter’s possession of child pornography. I find

that he possessed child pornography for its obvious and evident purpose, namely a sexual purpose. [ 38 ] The defence argue that the images in question are at the “edge of criminality”. I accept that as far as child pornography goes, these are by no means the most graphic. They do not include outright nudity or the performance of sexual acts. However, they are also not the consensually taken pictures of a teenager by another teenager, or anime or anything of that sort. They are of real boys who are very young and are clearly being sexualized and exploited for the pleasure of people like Mr. Schacter.

Further, this was not a large collection compared with that of some offenders. I have found him guilty of possessing 37 distinct images of child pornography and they were found among many other photos quite appropriately characterized by Det. Manherst as child erotica. [ 39 ] I place little reliance on the letters of support filed on Mr. Schacter’s behalf in light of the apparent lack of either knowledge or acceptance of the facts of the convictions. I also reject the suggestion of defence counsel that the images in question do not evidence any harm to children either in their creation or their use.

Of course they do. The highest court makes that clear in Sharpe . The Law that Governs [ 40 ] With the agreement of both counsel, the sentencing in this matter proceeded on the basis that the mandatory minimum sentence statutorily mandated for an offence committed pursuant to s. 163.1(4) of the Criminal Code has been found to be unconstitutional by higher courts and that those decisions are binding upon me [5] . I therefore am proceeding on the basis that I am at liberty to impose an appropriate sentence without regard to the mandatory minimum sentence of 6 months custody. [ 41 ] In R. v.

John , 2018 ONCA 702 , the mandatory minimum sentence was struck down based on a reasonable hypothetical involving an 18 year old who fails to delete a “sext” from a friend’s 17 year old girlfriend that was sent to him without her knowledge. This instant case is distinguishable in many important respects from this reasonable hypothetical. In this regard, it is worth noting that the Court in John adopted the language of the same court in R. v.

Inksetter , 2018 ONCA 474 at para. 16 , making it clear that significant sentences remain appropriate, where at para. 41 it states: The mandatory minimum is entirely unnecessary.

This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography. [ 42 ] Though the Crown refers in her written materials to a 6 month “starting point” for sentencing offenders found to be in possession of child pornography, the Ontario Court of Appeal has consistently eschewed the notion of a starting point in sentencing and I therefore do not reply upon that principle in imposing sentence in this case.

I do acknowledge that there are plenty of cases that impose a six month sentence or higher for facts not entirely dissimilar to those that present themselves in this case. In John supra, the Ontario Court of Appeal upheld a sentence of 10 months imprisonment on an offender that possessed much more egregious child pornography and in greater quantity. However, the offender in that case was a 29 year old man who suffered from serious mental health problems, was highly remorseful and had made significant efforts towards rehabilitation.

In Inksetter supra the offender had an enormous collection of child pornography, involving overt sexual acts, that he shared with others. However, the 51 year old offender pled guilty to the offence, was highly remorseful and presented reliable evidence that he represents a low risk of recidivism. In R. v.

Robins, 2013 ONCA 65 , the offender received two years custody for his possession of a very large and very disturbing collection of child pornography and in this important sense the case is distinguishable from the one at present. [ 43 ] The defence point to a number of cases that they say support their position that a conditional sentence is appropriate in this case. I accept that a conditional sentence is an available disposition in this case, since there is no longer a mandatory minimum sentence.

A 21 month conditional sentence was imposed by Justice Nordheimer (as he then was) in the Superior Court in the case or R. v. Donnelly , [2014] O.J. No. 5287 . It was an unusual case in that Mr. Donnelly had strictly a commercial interest in editing child pornography that was at the lower end of the spectrum ie. no nudity or explicit sexual activity and was not possessing the imagery for a sexual purpose. He pled guilty to the offence and there was extensive psychiatric evidence led concerning the impact of incarceration. The Court of Appeal upheld that sentence.

Again, it is quite a different case than the one at bar. In Mahannah , [2013] O.J. No. 6330 , the offender was found to possess anime that met the definition of child pornography in Canada but not in California where the offender came from. He expressed real remorse and insight and received a 45 day equivalent jail sentence. Application in this Case The Mitigating Factors [ 44 ] In mitigation of sentence, Mr. Schacter is a 58 year old first offender. He has no doubt suffered greatly as a result of these criminal proceedings and the stigma that attaches to a conviction for possession of child pornography.

This is a hard fall from grace for Mr. Schacter. As well, it is clear that he has certain medical conditions that will make his time in custody more onerous than it would be for a healthier man. He has the love and support of many people in the community including a number of Rabbis and this is to his credit. This evidences his otherwise good character. Mr. Schacter was detained for one day in custody before being released on strict terms of bail and I take that into account in mitigation of sentence. However, I do not find that the forms of Mr.

Schacter’s release have resulted in an undue hardship that would warrant a significant mitigation of sentence. [ 45 ] Further, the child pornography Mr. Schacter was found to possess is by no means the worse kind sometimes seen in the courts and described in much of the case law. I would place the images at the lower end of the spectrum in that they do not include sexual acts, adult involvement with the children, bestiality, etc. They are, however, images of very young boys who are clearly being sexually exploited likely for commercial purposes.

Further, I found him to possess 37 unique images, which is a much lower number than is found in much of the case law referred to me by counsel. The Aggravating Factors [ 46 ] In aggravation of sentence, I find that Mr. Schacter possessed child pornography for a sexual purpose. He did so in the privacy of his bedroom at home, where the materials were found. But he also brazenly viewed similar imagery in public, leading to the

police investigation into this matter, and deeply upsetting some of the members of the public that observed him to be very focused on the sexualized imagery of young boys. It is noteworthy in the evidence that there was a play area for children in the very employment centre that Mr. Schacter chose to view sexualized imagery of young boys, making his conduct all the more inappropriate. [ 47 ] Though of course his decision to have a trial in this case is in no way aggravating on sentence, Mr. Schacter cannot rely on a plea of guilt in mitigation. However, Mr.

Schacter’s steadfast and long standing lack of insight into his offending behaviour makes it less likely that any treatment I order will be successful. At sentencing, Mr. Schacter told the court that he would never harm a child, and he seemed to appear to mean it. But again, this shows a lack of understanding of the nature of child pornography and the industry that produces it for the sexual gratification of people like Mr. Schacter. He is in deep denial. The possession of child pornography is inherently harmful, whether Mr. Schacter is prepared to accept that fact or not.

His failure to recognize this fact does not bode well for his rehabilitation. The principles of general deterrence and denunciation must be paramount in a case such as this. The case law is clear on that. It is universally accepted that simple possession of child pornography is a serious offence. By its very definition child pornography records the sexual exploitation of children. These children are victimized at the time of the creation of the pornography and re-victimized each time someone views those images. As Justice Molloy observed in R. v. Kwok , [2007] O.J.

No. 47 at para. 49 , albeit a case dealing with much more shocking imagery: “Collectors of child pornography seek to distance themselves from the direct physical and emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators.” [ 48 ] I have considered and rejected the idea of a conditional sentence being appropriate in this case. A conditional sentence would not adequately reflect the principle of denunciation in all of the circumstances of this case. Conclusion [ 49 ] Mr.

Schacter will be sentenced to 6 months in custody to be followed by three (3) years of probation on the following terms in addition to the statutory terms: • Not to possess or use any device capable of storing data in a digital format including, but not limited to: computers, handheld devices (Blackberry, etc.), personal digital assistants (PDAs), cellular telephones, digital cameras, digital video cameras, unless: o The use is under the continuous supervision of a person over the age of 21 years who is aware of the offender’s record and has been approved of in writing in advance by his probation officer. • Not to possess or use any device capable of accessing the Internet or composing, transmitting, or receiving electronic mail (emails), unless: o The use is under the continuous supervision of a person over the age of 21 who is aware of the offender’s record and has been approved of in writing in advance by his probation officer. • Not to subscribe to, or access by any means whatsoever, any Internet service or similar communication service except as may be required by your employment, and except for a standard use cell phone which does not have the capacity to access the Internet and then, only with the prior written approval of your Probation Officer, and upon providing all related subscription documentation to your Probation Officer as proof of the limitations and terms of service. • Even where written permission is obtained by the offender from the Probation Officer to possess any electronic device for the purposes stipulated therein, the offender shall: o Not be permitted to have an electronic mail (email) account without prior written approval of his/her Probation Officer; o Where approval for an electronic mail (email) is granted, the offender is permitted to have only one email account, which the offender shall not change or use to create any other email account(s), and; ▪ In addition, the offender shall: o Provide the Probation Officer with accurate, up-to-date information regarding his/her Internet Service Provider account.

This information includes, but is not limited to: the name of the Internet Service Provider, and the offenders account number and billing address; o Not use any electronic device to communicate with a person under the age of 18 years; o Not use any electronic device to access Internet “chat room” or “social networking sites: • Not possess or access child pornography; • Not be in the company of any person under the age of18 unless such person is a family member and the offender has the permission of the lawful guardian of that child and the written permission of the Probation Officer; • Attend for any assessment or counselling as directed by his Probation Officer and be amenable to such programming as recommended by his Probation Officer, specifically, but not limited to: o Attend at CAMH and take counselling as recommended by CAMH; o Attend counselling for sexual paraphilia, as directed by the probation officer [6] .

• Sign any releases required to allow your Probation Officer to monitor compliance with treatment or counselling.

In addition, there will be the following Ancillary Orders made: • An order pursuant to s. 487.04 requiring that a sample of the offender’s DNA beaded to the databank; • An order pursuant to s.490.012 requiring the offender comply with the Sex Offender Information Registry for life; and, • An order pursuant to s. 161 prohibiting the offender, for life, from: o Attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, play ground or community centre; o Seeking or obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; o Having any contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or o Using the internet or other digital network, unless the offender does so in accordance with the conditions set by this court.

Date: March 25, 2019 _________________________ Justice Susan M. Chapman