Her Majesty the Queen - v. -, 2013 SKPC 48

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 048 Date: March 15, 2013 Information: 44304868 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bruce Edward Karlenzig Appearing: M. Segu For the Crown I. Wagner For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] Mr. Karlenzig has entered a guilty plea to a charge of possessing child pornography between January 2, 2010 and July 12, 2012 contrary to s. 163.1(4) of the Criminal Code . [ 2 ] He came to the attention of the authorities as the result of a Toronto Police investigation into a company that was creating

[2] He came to the attention of the authorities as the result of a Toronto Police investigation into a company that was creatingand distributing child pornography. That investigation disclosed that the company had a web site on which consumers could browse catalogues of child pornography, preview trailers and either order actual DVDs or download digital copies. Like most on-line shoppingsites, the company accepted payment by credit card. Thousands of DVDs and commercial films were offered for sale.

Further, theinvestigation revealed that the company in question preyed on eastern European families, contracting with them to have their childrenfilmed engaging in the various acts depicted in the videos and in the still shots offered for sale. Over two years a profit of $1.6 millionwas realized by the company from the sale of this merchandise. [3] The company client list contained the name of the accused who purchased at least 20 items and had been given the benefitof ‘frequent customer’ discounts. This information was sent to the Saskatoon Police who then embarked on their own investigation.

Ultimately, three IP addresses were linked to the accused and a search warrant for his home and his computer was obtained. The searchwas executed on July 13, 2012 and over 1,000 DVDs were seized. These were previewed by the investigating officers who concludedthat 91 discs, containing 192 videos and 683 still images, fit the definition of child pornography. There was a total of 875 pieces of childpornography although the discs did include some duplication of ‘movie’ trailers. The search also turned up two homemade DVDs ofyoung boys playing in the residential complex where the accused lives.

He initially told police that the video was taken because therehad been some vandalism in the neighbourhood. Officers found no reports to that effect. The accused now says that he has norecollection of taking the video of the children playing. [4] When the laptop owned by the accused was checked, emails confirming his purchases were located. It was estimated that hespent approximately $2,700.00 on the offending material. [5] That material contained images of nude, or partially clad, young males with their genitalia and/or anal region exposed as wellas films of these children being penetrated anally.

Suffice to say that the Court was satisfied by submissions of counsel and from a briefviewing of the material seized, that this was child pornography. CIRCUMSTANCES OF THE ACCUSED [6] The accused is 57 years old and has no prior criminal record. He is a well educated man who has earned Masters Degrees inboth Arts and Continuing Education. He was employed by the Saskatchewan Teachers’ Federation and was responsible for research intocontinuing adult education. He has never taught or volunteered with children.

Upon being arrested, he immediately resigned from hisposition so as to avoid bringing embarrassment to his employer. He also told his family and friends about the charges. He attributes hisoffending behaviour to incidents which occurred when he was a child, but has not taken any steps to deal with these childhood issues. He says that he wants treatment and insight into his behaviour. He expresses remorse and wishes to make amends to society. CROWN POSITION [7] The Crown referred the Court to the following cases: R. v. Kwok, (ON SC), 2007 CarswellOnt 671, R. v.Davies, 2012 ONSC 6021, R. v.

Spencer, 2011 SKCA 144 and R. v. Justin Gryba (Sask. P.C. unreported) and suggests that anappropriate sentence for Mr. Karlenzig is 12 months incarceration followed by 3 years supervised probation. Further, the Court is askedto impose a DNA Order, a Sex Offender Registry Order for 10 years, a Forfeiture Order pursuant to s. 490.1 of the Criminal Code and athree year order pursuant to s. 161 of the Criminal Code. DEFENCE POSITION [8] Counsel for the accused referred the Court to R. v.

Brad Charles Hanna (unreported August 16, 2012) and suggests that aterm of incarceration in the range of 3-6 months, followed by 3 years probation would be a fit sentence in all of the circumstances. Noobjection was taken to the ancillary orders sought for Mr. Karlenzig. THE LAW

[9] Parliament, by legislating a minimum sentence of 45 days incarceration, with no eligibility for a community based sentencehas clearly sent a message that offences of this nature are to be treated seriously and that the conduct is to be soundly denounced by thecourts. This denunciation is not reserved just for those who produce, distribute or profit. As the Supreme Court of Canada pointed out inR. v. Sharpe, 2001 SCC 2 at para. 158: The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and tosociety.

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

And later at para. 169, the Court went on: ...Child pornography plays a role in the abuse of children, exploiting the extreme vulnerability of children. Pornography that depicts realchildren is particularly noxious because it creates a permanent record of abuse and exploitation. [10] In short, to access and collect child pornography is a far cry from a victimless crime. Further, like other illicit enterprises, theeconomic principles of supply and demand ultimately govern. As stated by Henderson J. in R. v. Bock, 2010 ONSC 3117 ,[2010] O.J.

No. 2277 (S.C.J.) at para. 31: Those who wish to possess child pornography encourage the sexual abuse of children and encourage the recording of this abuse byproviding an audience or a market for those that produce child pornography. Therefore simple possession of child pornography is a veryserious offence. If the court can deter or reduce the market for child pornography the court may in turn effectively reduce the sexualabuse of children. [11] I have had an opportunity to review and consider the submissions of very able counsel as well as the following cases: R. v.Bock (supra), R. v. Kwok (supra), R. v.

Davies (supra), R. v. Benson, 2012 SKCA 4, and R. v. Lorenz, 2012 SKQB 391. [12] As with every offence, there is a range of sentence which depends on the particular circumstances of the offence and of theaccused. Every case turns on its particular facts and a consideration of any relevant aggravating and mitigating factors.

In Kwok (supra)at para. 7, Malloy J. does the following synopsis of those factors and says: ...However, an analysis of the case law does reveal an emerging consensus on the relevant factors to be taken into account...Generallyspeaking, any of the following are considered to be aggravating factors: (

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

v) the extent to which the offender isseen as a danger to children (including whether he is a diagnosed paedophile who has acted on his impulses in the past by assaultingchildren); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children forprofit as opposed to collecting it from free downloads from the Internet. Generally recognized mitigating factors include: (

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

v) whether the offender is willing to submit to treatment and counsellingor has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has alreadysuffered for his crime (for example, in his family, career or community). [13] The Court in Kwok accepted that the appropriate range of sentence for possession of child pornography was 6 to 18 monthsincarceration. It should be noted that this was a range established prior to the legislated minimum of 45 days. Mr. Kwok was 29 yearsold and had no prior convictions.

His collection consisted of approximately 2,000 still images of child pornography and 60 childpornography video clips on the accused’s computer. Officers also found graphic chat room conversations discussing the abuse of

children. A guilty plea was entered after some evidence was called at trial. The accused sought the help of a psychologist before the plea was entered; it was noted that the accused chose a psychologist who did not have any particular expertise in sexual deviancies. The Court concluded that the remorse of the accused seemed to be tied to the impending consequences for his action, rather than for the actual offence. He was sentenced to 12 months incarceration with 3 years probation to follow. [ 14 ] R. v.

Lorenz (supra) , written after the mandatory minimum sentence was legislated, helpfully canvasses a number of sentencing decisions from Saskatchewan, including several which were unreported. From the decisions which I have reviewed, the range of sentence now falls between the minimum 45 days and 2 years less a day for possession of child pornography. Sentences at the upper end of the range appear to be reserved for those offenders with large collections of child pornography and those also convicted of distributing or making available their personal collections.

Indeed penitentiary terms have been imposed for making such material available to others. [ 15 ] I was advised by counsel that in Hanna (supra ), the size of the collection in issue was comparable to that of this accused but the material was found in a digital form as opposed to DVDs. Mr. Hanna had also engaged in some chat room sharing. He had no prior criminal record. Mr. Hanna had children in his home at the time of the offence which spanned a 6 day period.

In that instance, the Court acceded to a joint submission of 9 months incarceration followed by 3 years probation. [ 16 ] In Benson (supra) , a global sentence of 15 months was imposed for making available child pornography along with three months concurrent for possession of child pornography. A search of two computers owned by the accused revealed a number of files, some of which contained child pornography, as well as the file sharing programs, LimeWire and FrostWire.

It was the sharing of the pornographic material which attracted the greatest censure from the Court. [ 17 ] In Davies , supra, the Ontario Superior Court imposed a sentence of 15 months incarceration followed by 2 years probation. The accused in that instance possessed a collection considered to be of moderate size and the nature of the child pornography was considered to be in the “middle” range. This collection was stored on discs that others in the residence could readily access. The accused volunteered with youth and was found to have a high degree of culpability.

He was 52 years old, had no prior convictions and was found to have little insight into the nature of his offending behaviour. [ 18 ] In R. v. Matthew Spencer , the accused was acquitted in the Court of Queen’s Bench on a charge of distributing child pornography but convicted of simple possession of some 400 pieces of child pornography. He was sentenced to 9 months incarceration for the possession. An appeal with respect to the acquittal on the distribution charge was taken to the Saskatchewan Court of Appeal and a new trial ordered: 2011 SKCA 144 .

No appeal was taken with respect to the 9 month sentence of incarceration. SENTENCE [ 19 ] In determining an appropriate sentence, the Court is bound by the purposes and principles of sentencing as set out in s. 718 to s. 718.2 of the Criminal Code . Briefly stated, the purpose of sentencing is to contribute to the respect for the law and a just and safe society by imposing sanctions for criminal conduct.

Those sanctions must address one or more of the following objectives: to denounce unlawful conduct, to deter offenders, to separate them from society where necessary, to assist in their rehabilitation, to provide reparation for harm done and to promote a sense of responsibility in the offender. A proper sentence must be proportionate to the gravity of the offence and the degree of culpability of the offender. Sentences should be increased or decreased to account for any relevant aggravating or mitigating circumstances.

The Court should impose a sentence which is similar to other sentences imposed on similar offenders in similar circumstances. Finally Parliament requires that denunciation and deterrence be given precedence in determining a fit sentence for offences which involve the abuse of persons under the age of 18 years. [ 20 ] I turn now to a consideration of the aggravating and mitigating factors pertinent to the case at hand. To Mr. Karlenzig’s credit, he has taken early responsibility for his offending behaviour and to that extent has expressed some remorse.

I do note however, that this guilty plea was entered in the face of a strong and cogent case. Second, Mr. Karlenzig is 57 years old and has no prior criminal convictions. Third, he has been a productive and contributing member of the community throughout his adult life. Fourth, he has demonstrated some insight into his deviant sexual preferences in the sense that he made a conscious choice in his career not to work with children, either in the classroom or as a volunteer. Fifth, he has expressed an interest in working with a therapist in order to gain further insights and to engage in treatment.

[ 21 ] This Court is, of course, also bound to consider any aggravating factors which might be present. In this instance, I note that the offence spans approximately 2 years and 6 months. In that time frame, Mr. Karlenzig spent a considerable amount of money purchasing DVDs containing child pornography and thus contributed to the business of victimizing children. The offending collection found in the possession of Mr. Karlenzig can be characterized as of a medium size; similarly, the content can be described as mid-range in that it is not the most depraved or intrusive, but neither is it at the lowest end.

It is also of concern that the accused had video footage of neighbourhood children at play without any explanation or justification for that possession. [ 22 ] After a careful consideration of the circumstances of this accused, the particular circumstances of the offence to which he has entered a guilty plea, the purposes and principles of sentencing as set out in the Criminal Code and the sentencing precedents to which I have referred, I am of the opinion that a fit sentence for Mr. Karlenzig is 1 year incarceration followed by three years of probation.

In coming to that conclusion, I am mindful that denunciation and deterrence must be the paramount concern of the Court in assessing an appropriate sentence. In Spencer (supra) , a 9 month sentence for possession of 400 pieces of child pornography, or approximately half of the collection involved in this case, was not disturbed. Further, in Hanna (supra), a 9 month sentence for the same offence in very similar circumstances was imposed.

Although the collection was similar in Hanna , the offence occurred over a much shorter period of time and there was no suggestion that the accused was purchasing child pornography but rather was accessing free downloads. This Court considers as aggravating that Mr. Karlenzig did financially contribute to the sordid business of creating child pornography through his purchases. [ 23 ] Mr. Karlenzig is therefore sentenced to 1 year incarceration to be followed by 3 years of probation on the following conditions: a. Keep the peace and be of good behaviour; b.

Report within 2 working days of release from custody to Probation Services and thereafter at the times and places and in the manner directed by the probation officer; c. Maintain a residence approved by the probation officer and not change that address without the express permission of the probation officer; d. Attend and participate in any sex offender treatment program as directed by the probation officer, and not give reason to be discharged early from any such treatment program to which you are referred; e. Not to reside in any residence where there is computer or internet access; f.

Shall not possess or use any device capable of storing data in a digital format, including but not limited to: computers, handheld devices, personal digital assistants (PDAs), cellular telephones, digital cameras, digital video cameras, or any device capable of accessing the internet, including a cellular phone, except for a standard use cell phone which does not have internet capacity, or unless you are required by an employer (other than yourself) to use a computer or other device that is owned and controlled by the employer, and being used in the course of your employment and only while on the employer’s premises, and with the informed consent of the employer and your probation officer; g.

Shall not maintain any account with an internet service provider; h. Shall not possess or access any pornography, or child erotica; i.

Shall submit to a search of your person, residence, vehicle or computer or computer-related device found in your possession, without warrant, by any peace officer checking to ensure compliance with the terms of this order. [ 24 ] Pursuant to s. 487.051 of the Criminal Code there is an order to provide a sample of DNA for inclusion in the DNA Data Bank. [ 25 ] Pursuant to s. 490.012 of the Criminal Code , there is an order to comply with the Sex Offender Information Registration Act , S.C. 2004, c. 10, for a period of 10 years. [ 26 ] A forfeiture order pursuant to s. 490.1 of the Criminal Code will be made in the form of the draft order filed with the Court. [ 27 ] Finally, there is an order in the wording of s. 161 of the Criminal Code , with the exception that the accused may attend the places prohibited if he is in the presence of a sober, responsible adult who is aware of this conviction.

____________________________ M.L. Gray, J