R. v. Speers, 2017 ONCJ 922

CITATION: R. v. Speers , 2017 ONCJ 922 DATE: November 28, 2017 Information No. 17-0546 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. EDWARD ALEXANDER SPEERS R E A S O N S F O R S E N T E N C E DELIVERED BY THE HONOURABLE MR. JUSTICE S. LATIMER On November 28, 2017 at Kitchener, Ontario

APPEARANCES C. Jennison Counsel for the Provincial Crown A. Maini Counsel for Edward Speers ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Exam. Cr- Re- WITNESSES : in-Ch. exam. exam. EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE

Transcript Ordered:......................... December 13, 2017 Transcript Completed:....................... January 29, 2018 Ordering Party Notified: ................... February 5, 2018 TUESDAY NOVEMBER 28, 2017 R E A S O N S F O R S E N T E N C E LATIMER J. (orally) Edward Speers has pled guilty to the offence of possessing child pornography on November 28, 2016. His computer appears to have contained an application relating to Pinterest which caused images to be uploaded to a central server located or having a connection to the United States. These images were suspicious.

Pursuant to American legislation and protocol, Pinterest’s system transmitted the images to a centre known by the acronym NCMEC which looked at the related IP information; saw it came from Canada; referred the material to NCECC, which is run by the RCMP who then further transmitted it to the Waterloo Police Service. Officer Tyler Shipp took carriage of the investigation and executed a search warrant at the subscriber’s residence which Mr. Speers and his wife live at. He was arrested on January 27, 2017. There were seizures of digital devices. Those devices were subject to forensic analysis.

The result is that 71 images did meet the Canadian definition and four videos that also meet that definition of child pornography were located. This plea is an acceptance that Mr. Speers had knowledge and control of those images and videos. On an earlier occasion I saw a representative sample. I appreciate the efficiency and manner in which the parties dealt with the issue. I do not propose, in the circumstances, to go exhaustively through these images. I have seen them. They are described on Exhibit 2.

Suffice to say, in the United Kingdom there is a decision called Oliver that developed a categorical scale of the significance of the images. This is a scale that has been adopted by trial and appellate courts in this province and in Nova Scotia. The images possessed by Mr. Speers land in Category 4 on that scale - Category 5 being the most significant. It is a scale of one to five. ( R v Oliver [2002] EWCA Crim 2766 ) The particular scale I refer to is found at paragraphs 9 and 10. Category 1 through 5, 5 being the

most significant, most aggravating images; 1 being the least. This is a plea, I accept at an early opportunity given the things that have to happen in these sorts of cases. Mr. Speers, through both his conduct in court and the material that I have received and reviewed, demonstrates a man who, remorse is a soft word, seems rather horrified by his conduct and the implication of that conduct. I accept that entirely. As he said to me, the thought of child abuse that relates to these images horrifies him and will never leave his conscience. I think that is very well said, sir.

I note as well – this is part of Exhibit 4 – that he has done counselling through a gentleman, Bruce Taylor. He is described as “one of the most committed clients I’ve ever worked with.” The sentencing range for this offence has escalated considerably in the last decade as Mr. Maini remembers and Ms. Jennison may as well. There was a time when conditional sentences were available. There was a time when the mandatory minimum sentence is much lower than it is today.

I do not propose to go through the legislation, but I note in DGF [2010] ONCA 227, Justice Feldman, speaking for the Court, does an excellent job of describing why the range has gone up, both statutorily and at common law with regard to these offences and frankly, it is for the reasons Mr. Speers addressed himself. We have become aware of the impact on children across the globe that this conduct promotes. In all of the circumstances I think the parties should be commended by reaching a resolution that meets everyone’s interests and the interests of the principles of sentencing. I will sentence Mr.

Speers to 180 days. I will endorse on the warrant that he should be seen immediately by the medical wing for assessment and treatment and he will be bringing with him a list of medications and doctors’ letters. I am obligated and it is entirely appropriate that I make a DNA data bank order. It is a primary designated offence and I will do so. I believe that will be done today in the courthouse. Further, under the SOIRA legislation and the Code I am obligated, sir, to make an order for ten years that you will become part of that data bank and you will receive that documentation today.

There will be reporting and notification obligations on your part. Further, the parties agree that there will be an order under

section 161 of the Code for five years. This order will contain certain prohibitions and I know you are aware of this, sir. I am going to read it aloud and then you will receive this in a written order. I have to caution you in relation to SOIRA and to this order and to the probation order that you have to follow these conditions. If you do not, you could be charged criminally with non-compliance. You are prohibited from (

a) attending a school ground playground or public swimming pool except to attend a public swimming pool only immediately before, after or during designated adult swim times; (

b) seeking, obtaining or continuing any employment, whether or not the employment 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; (

c) being in the company of any person under the age of 18 unless that person is a family member and you have the permission of the lawful guardian of that child (who is aware of the conviction resulting in this order) and you have the written permission of your probation officer or for incidental verbal contact in a retail or similar environment related to a consumer transaction; (

d) using the internet or any similar communication service to (

i) access any content that violates the criminal law; (ii) directly or indirectly address any social media sites, social network, internet discussion forum or chat room or maintain a personal profile on any such service except to communicate with a family member utilizing an application or site that has been pre-approved in writing by the probation officer during the life of the probation order or pre-approved in writing by an officer assigned to the Internet Child Exploitation Unit of the Waterloo Regional Police Service once the probation order has expired and you will maintain your search history and provide it to any police officer upon request.

These are on consent. Further sir, there will be a one year period of probation. There are certain statutory terms that go along with every probation order. You will keep the peace and be of good behaviour. You will attend before the court when required to do so by either probation or by the court. You will notify probation of any change of address should you change your address. If you start working, let them know. I appreciate that may be not a circumstance but that is a mandatory condition so I have to tell you about it.

You will report two days following your release from custody to a probation officer and thereafter as directed by either the officer or anyone who is assisting in your supervision. You are not to be in the company or communicate directly or indirectly by any physical, electronic or other means with males or females under the age of 18 unless in the presence of the lawful guardian of that child and you have the written permission of your probation officer. Does that suffice? MR. MAINI: The difficulty, Your Honour, that was contemplated specifically with Ms.

Jennison in discussions is a situation where my client goes into a coffee shop and you know, we had talked the language involving incidental contact. What we ended up deciding to propose was two separate clauses. One with electronic contact, the other one being in the company of, to avoid the issue of incidental contact. THE COURT: That makes sense. I am going to follow your language. That makes sense upon review. So we are going to scratch, Mr. Clerk, what I just said under. Sorry, Ms. Jennison. Is there anything further you want to ... . MS.

JENNISON: Only that the other issue is that (inaudible) it limits the person that he can have the permission of the lawful guardian of to a family member so that he can’t be out getting the permission of a willing parent, like on a website called Motherless, not that there’s (inaudible) allegation but certainly, there are sadly some members of the community who allow their children to be involved in this kind of activity. This particular language suited counsel but also is very restrictive to family members only. THE COURT: Very good. So I’m going to follow the language under 7(4).

I will adopt points 2 and 3 on the draft order. You are not to be in the company of any person under the age of 18 unless that person is a family member and you have the permission of the lawful guardian of that child and you have the written permission of your probation officer. You are not to use any electronic device to communicate with a person under the age of 18 except a person who is a family member and you have the permission of the lawful guardian of that child and you have the written permission of your probation officer.

You are not to use any electronic device to access internet chat rooms or social network sites except to communicate with a family member utilizing an application or site for which you have pre-approval in writing from your probation officer to utilize and you maintain all search and message/communication history and provide it to a police officer upon request. You will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by probation and complete them to the satisfaction of your probation officer for sexological [sic] behaviours.

You shall sign any release of information forms that will enable probation to monitor your attendance and completion of any assessment, counselling or rehabilitative programs as directed. You will provide proof of your attendance and completion of any assessment, counselling or programs, as directed. **********