2003 MBCA 41, 2003 MBCA 41

IN THE COURT OF APPEAL OF MANITOBA Coram: Scott C.J.M., Hamilton and Freedman JJ.A. B E T W E E N : HER MAJESTY THE QUEEN ) S. E. Pinx, Q.C. ) for the Appellant Respondent ) ) G. A. Lawlor ) for the Respondent - and - ) ) Appeal heard: ) November 20, 2002 THOMAS WILLIAM WOROBY ) ) Judgment delivered: (Accused) Appellant ) March 28, 2003 HAMILTON J.A. 1 The appellant pled guilty to possessing child pornography. He was sentenced to pay a $10,000 fine and supervised probation for three years, subject to a number of conditions.

The appellant argues that the amount of the fine and the three-year probationary term is harsh and excessive punishment; that the discretionary conditions of probation are unreasonable; and that a condition allowing for warrantless searches violates his s. 8 rights under the Canadian Charter of Rights and Freedoms (the Charter ). BACKGROUND 2 As a result of a joint R.C.M.P., Brandon Police Service and Winnipeg Police Service investigation, computer equipment was seized from the appellant’s residence.

Through the use of forensic examination and computer analysis, 258 images of child pornography were located on the computer. The appellant was arrested and charged with possessing child pornography between April 1, 1999, and August 30, 1999. Upon his arrest, the appellant was cooperative and provided a statement to the police.

He was released on his undertaking with conditions, including a condition that he not be in the presence of anyone under the age of 18 and not have any Internet access, except at work and for work. 3 The appellant has no prior criminal record and there has been no alleged re-involvement of any kind since the sentencing hearing on August 14, 2002. He is 55 years old and lives with his wife. He earns his living as a computer technologist and is dependent on the Internet for work. 4 The discretionary conditions of probation imposed by the sentencing judge were: 1.

The appellant is not to be in the company of persons under the age of 18 years unless accompanied by another adult. 2. The appellant is to attend, participate and complete all counselling as directed by the probation officer. 3.

The appellant shall not use any computer nor maintain or use any account with any Internet provider nor access the Internet nor possess any electronic information storage device designed to be used with the computer unless required for the purpose of his employment to use his portable IBM 770 in the course of his employment on the employer’s premises between the hours of 8:30 a.m. and 7:30 p.m. (condition #3).

4. The appellant shall permit any and all searches of his computer and any computer at his place of employment and his residence to be conducted by the police, R.C.M.P. or Probation Services without a warrant for the purpose of ensuring compliance with the aforementioned condition in any matter deemed necessary by the police for the purpose of enforcement of the condition (condition #4). 5 On September 19, 2002, a judge of this court stayed condition #3 pending the outcome of this appeal and substituted the following condition as condition #3: 3.

The appellant is allowed access to, and the use of computers and computer equipment, and the Internet, for the purposes of his employment. 6 During submissions before us, the Crown conceded that conditions #3 and #4 were overly broad and should be amended to reflect the following: 1) the appellant should be restricted from using computers except for employment purposes; 2) searches of the appellant’s computers should be restricted to his residence; and 3) the appellant’s wife is not obliged to allow entry for searches in the appellant’s home.

Counsel for the Crown agreed that the revised wording of condition #3, as noted in para. 5 above, would be satisfactory if the word “only” was inserted so that condition #3 reads as follows: 3. The appellant is allowed access to, and the use of computers and computer equipment, and the Internet, only for the purposes of his employment. At the appeal hearing, counsel for the appellant advised that this revised wording addresses the objections of the appellant with respect to condition #3.

THE SENTENCE HEARING 7 The Crown and the defence counsel (neither of whom were counsel on appeal), made a joint submission to the sentencing judge that the sentence should be a fine and a period of supervised probation. Neither counsel made a submission as to the amount of the fine. Defence counsel stated he was “leaving the issue of the quantum of the fine to Your Honour to decide.” Crown counsel sought a “significant or substantial fine” and conditions of probation that were similar to those imposed for the appellant’s judicial interim release.

She also emphasized the importance of denying Internet access to the appellant and the need for the appellant to attend counselling. 8 The Crown did not contest the defence submission that there is no evidence that the appellant received sexual gratification from these images, and that the five-month period over which the images were viewed was an isolated incident of curiosity. 9 The Crown explained that the joint submission for a fine was agreed to before the sentencing decisions for possessing child pornography in R. v. Sharpe (2002), 91 C.R.R. (2d) 235, 2002 BCSC 423 , and R. v.

North (2002), 165 C.C.C. (3d) 393, 2002 ABCA 134 , in which conditional sentences were imposed, followed by supervised probation. The sentencing judge accepted the joint submission. 10 During the course of the hearing, there was an extensive and complicated dialogue among counsel and the judge with respect to the wording of the conditions pertaining to computer and Internet access and the appellant’s needs for work purposes, both at his place of employment and at home.

The Crown urged the judge to include wording to allow the authorities to search the appellant’s computers as a means to enforce the access condition. In response, defence counsel advised the judge that the appellant “has no reservation about that. They can check all they want. It does not really matter.” This was later confirmed during the hearing.

The judge had evidence from the expert police witness called by the Crown at the sentencing hearing, that the ability of the police to monitor Internet use is difficult and the best way to do so is by way of random access to the appellant’s computers at his work and home. 11 When fine-tuning the wording of the conditions, defence counsel questioned the appropriateness of a warrantless entry of the appellant’s workplace. He did not question the warrantless entry of the appellant’s home.

The appellant, through his counsel, was concerned about the appellant not being able to control compliance by his employer with condition #4. The sentencing judge was aware of the importance of wording the conditions so as not to deny the appellant the ability to earn a livelihood. 12 Before setting the amount of the fine, the sentencing judge asked defence counsel what was the appellant’s yearly income. She learned that it was $35,000.

She then made the following comments with respect to the amount of the fine: I will attempt to accomplish the very urgent need for denunciation and deterrence through the imposition of what I consider to be a punitive fine. … . . . . . . The fine attempts to address, … the issues that we have already spoken of, deterrence and denunciation. I am dealing with somebody who makes $35,000 a year. I think a significant and substantial fine must be imposed. I appreciate the fine that I am about to impose will have an effect on the accused’s lifestyle, and I intend it to. … .

13 With respect to defence counsel’s submission in regard to time to pay, the sentencing judge responded in this way: $100 a month is not acceptable, and I intend this fine to have some effect on the accused. I intend that it should serve as specific deterrence, and I intend that it should send a message of general deterrence. I have followed the joint recommendation from counsel. I followed the joint recommendation, but this is a fine that will affect him.

He may have to change his lifestyle a bit. 14 After the sentencing judge instructed defence counsel to have further discussions with the appellant about how he proposed paying the fine, defence counsel advised that the most the appellant could pay was $250 monthly. The sentencing judge made further enquiries with respect to the appellant’s family financial situation. She then stated: Let me tell you what I was thinking about when I considered and analyzed the amount of the fine. The Crown told me he has pled guilty to having 258 images of child pornography. . . . . . That is a lot of victims.

I want him to think for a long time about those victims. And every month, when he makes a payment, and every month when he makes a financial sacrifice in some way, shape or form or works extra hours or whatever he has to do to make that payment, I want him to think about each and every one of those little children in those 258 images. And to anybody else who is thinking of owning child pornography, I want to send the same message. That is why the fine is significant and substantial. He has his freedom.

Both counsel have recommended to me jointly and strongly and I found it to be an appropriate recommendation, both counsel have recommended to me that I leave him with his freedom, and I have. But while he is enjoying his freedom, I want him to be thinking about the consequences to those kids, and I want it to have an effect and an impact, and it is supposed to hurt. That is why the significant fine. I have no idea what child pornography costs over the Internet. I don’t know whether the officers can even give me some kind of an idea. Apparently, he was using his VISA card. . . . . .

At any rate, he had money for child pornography, so that disposable income that he had for child pornography can go to pay a fine now. You have told me about his financial circumstances, and he is by no means a wealthy or well-off person, and I think that what he has suggested, what you are suggesting is an appropriate length of time for him to pay the fine. It is what he has said he is capable of. I am satisfied that on his income, I will give him the 30 months to pay it in full. I am not going to have him leave it to the end to pay it.

He is going to pay the first $5,000 within 12 months and then to be paid in full within the 30 months that you have asked for. The sentencing judge was aware that the appellant would be registering for the fine option program. 15 Finally, with respect to the three-year term of probation, the sentencing judge considered the “backlog at Probation Services” and the time required for the appellant to become registered in and complete the counselling that was ordered.

DECISION 16 The appellant argues that the $10,000 fine is harsh and excessive in that it is not proportionate to his culpability and all of his personal circumstances. Further, he says that the sentencing judge erred when she based the fine on what he earned. While acknowledging the need for the fine to be punitive, the appellant distinguishes his offence from those of more egregious circumstances and points out that it is important to distinguish between possession and distribution pornography offences. In support of these

arguments, the appellant referred to a number of decisions involving first offenders that pre-dated the Sharpe decision, including: R. v. V.P.S ., [2001] B.C.J. No. 930 (QL), 2001 BCSC 619 (fine $1,000), and R. v. Lowes , 1997 CanLII 22795 (MB PC) , [1998] 5 W.W.R. 147 (Man. Prov. Ct.) ($5,000 fine for distributing child pornography plus two years of supervised probation).

The appellant argues that a more appropriate fine would be in the range of $1,500 to $2,500. 17 The Crown simply says that the sentencing judge did not err in imposing the fine that she did and referred the court to several decisions that imposed sentences of incarceration (conditional and otherwise) for possession of child pornography by first offenders. See R. v. Stroempl (1995), 1995 CanLII 2283 (ON CA) , 105 C.C.C. (3d) 187 (Ont. C.A.); R. v. Schan (G.) (2002), 2002 CanLII 41613 (ON CA) , 155 O.A.C. 273; and R. v. Cohen (I.) (2001), 2001 CanLII 3862 (ON CA) , 144 O.A.C. 340.

While these cases support an argument for a sentence of incarceration, they do not respond to the issue of the amount of the fine raised by the appellant. 18 The fundamental purpose and principles of sentencing set out in ss. 718 , 718.1 and 718.2 of the Criminal Code (the Code ) apply to all sentencings, whether the sentence is by way of a fine or imprisonment.

For the purposes here, it is important to be reminded that Parliament specifically noted in s. 718.1 that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” and that in s. 718.2 ( b ) “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” This encapsulates the principle of parity; the notion of equal justice, and the fundamental principle of justice that like cases should be treated alike, subject always to the reality that sentencing is an “inherently individualized process.” See R. v.

M. (C.A.) , 1996 CanLII 230 (SCC) , [1996] 1 S.C.R. 500 at 567. 19 With the exception of

summary conviction offences and some driving offences, the Code provides no guidance with respect to the maximum or minimum amount of fines. So, how does an offender’s financial circumstances affect, if at all, the determination of a fit and just fine? We know that Parliament is concerned with an offender’s ability to pay a fine as evidenced by Parliament’s direction to judges in this regard in s. 734(2) of the Code : Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this

section only if the court is satisfied that the offender is able to pay the fine or discharge it under

section 736. As well, s. 736 allows for the offender to discharge the fine or part of it through the fine option program, and s. 734.7(1) states that a court cannot issue a warrant of committal for default of a fine unless it is satisfied that the offender had no reasonable excuse for paying the fine or discharging it through the fine option program. 20 Are the financial circumstances of an offender relevant to the determination of a fine, other than in regard to the offender’s ability to pay the fine imposed?

Commentary on this issue usually arises in the context of the argument that a fine will have a less punitive effect on a wealthy offender. The most generally accepted view is that the wealth of an offender alone should not be used to increase the amount of a fine. For example, see the following excerpt from the

article of D. A. Thomas, Sentencing -- The Basic Principles ,

Part II , [1967] Crim. L.R. 503 at 523: [T]he ability of the offenders to pay is relevant only as a mitigating factor, reducing the amount which might be fixed by reference to the gravity of the offence alone; it would be inconsistent with basic tariff principles to impose a heavier fine than can be justified on the basis of the offence, on the grounds of the offender’s wealth.

Thus, while there may be discrimination between offenders of different financial standing in respect of similar offences, this discrimination is the result of mitigating the fine imposed on the less affluent offender, rather than by increasing the fine imposed on the wealthier man beyond the amount which can be justified by reference to the gravity of the offence. 21 The foregoing principle is articulated in the text of Clayton C.

Ruby, Sentencing , 5 th ed. (Butterworths: Toronto, 1999) at 267, para. 6.40: The law has never accepted the principle that the rich ought to be more severely punished merely because they are more able to pay.

In an area where we have no evidence as to the effect of penalties in a differential way, and all is speculation, it will be best to keep equality as the touchstone and keep the level of sentence within the means of both rich and poor, adjusting for hardship where required. 22 While the preceding commentary focusses on the relevance of the wealth of an offender, the principle can be explained in a more general way and may be stated as follows: when imposing a fine, the sentencing judge must determine the amount of the fine based on the degree of responsibility of the offender and the gravity of the offence, without regard to the offender’s financial resources, except for adjusting for hardship and the ability of the offender to pay the fine.

By this statement, I am not saying that other financial circumstances are not appropriate considerations in certain situations. For example, the value of property involved in a property offence or the amount of money earned from criminal activity may very well be relevant. In that there are no such financial circumstances here, I need not comment further in this regard.

I also wish to make it clear that my comments are restricted to individual offenders, as I have not considered what, if any, different principles may apply to corporate offenders. 23 I find support for the foregoing principle in the fact that Parliament has directed judges to consider the financial resources of an offender in the limited context of the offender’s ability to pay. In 1996, Parliament accepted many recommendations contained in the

1987 report Sentencing Reform: A Canadian Approach (Ottawa: Minister of Supply and Services Canada, 1986), and made many changes to the sentencing provisions of the Code . The 1987 report included commentary on alternative fine systems in other countries and recommended further study to assist the court in “the determination of equitable fines on offenders of varying means so as to maximize equity of impact” (Recommendation 12:19).

Considering the sweeping changes which were made to the sentencing provisions of the Code , if Parliament had intended to make fines proportional to the offender’s wealth or lack thereof, Parliament could have specifically indicated this, as has been recently done in England.

Halsbury’s Laws of England, Powers of Criminal Courts (Sentencing) Act 2000 ( 2000 c 6 ) 4 th ed., vol. 12, 2002 Reissue, Criminal Law, which came into force on August 25, 2000, provides that the court must take into account the financial circumstances of an offender prior to imposing a fine and that these circumstances may have the effect of increasing or reducing the amount of the fine (s. 128(3)). 24 The sentencing judge was correct to note that denunciation and deterrence were of prime importance for the offence of possession of child pornography.

As has been stated in many recent cases, the possession of child pornography, without distribution, is a serious crime that requires denunciation and deterrence. The child victims must be protected from being victimized time and time again by those who view their images. Therefore, it was appropriate that the sentencing judge sought to punish the appellant by a substantial fine. But she erred in imposing a fine of $10,000 for two reasons.

By the sequence of events at the sentencing hearing and her words, I can only conclude that the sentencing judge determined the amount of the fine based on the appellant’s income. In doing so, she erred in principle. Secondly, even if she had not erred in this way, the fine is simply harsh and excessive, when I consider the cases (albeit very limited in number) in which fines have been imposed, and the degree of responsibility of the appellant and the gravity of his offence.

Therefore, the amount of the fine is reduced to $3,500 to reflect, as best one can in these circumstances, the principle of parity in sentencing. The appellant will pay the fine by monthly installments of at least $100 per month. In reaching these conclusions, I only considered the appellant’s financial resources in the context of reducing the required monthly payment. 25 I will now deal with the issues related to the probation conditions. As noted previously, the Crown agreed to amendments to condition #3 and condition #4. By the Crown’s concessions, a number of the appellant’s concerns have been addressed.

The appellant accepts that the revised condition #3 is reasonable. However, the appellant continues to challenge the reasonableness of condition #4, even with the amendments agreed to by the Crown. The appellant argues that the condition is not reasonable as it prima facie violates s. 8 of the Charter which, he argues, protects his residence from being subjected to unreasonable search and seizure. 26 The Crown argues that condition #4 is reasonable in the circumstances of this case in that it will protect society, particularly children. In support of its position, the Crown noted this court’s decision in R. v.

Bowman (B.L.) (2000), 150 Man.R. (2d) 130, 2000 MBCA 94 , in which one of the conditions of probation was to “grant [the authorities] access to [the offender’s] residence in order to search for the presence of pornography, particularly involving children” (at para. 19(6)). In that case, the court allowed the Crown’s appeal and replaced the conditional sentence of two years less a day followed by three years’ supervised probation with a sentence of two years’ imprisonment. The three-year probationary period remained.

I note that there was no discussion in that case about the reasonableness of the condition or the implication of s. 8 of the Charter . 27 It is common ground that the right to privacy of individuals in their homes is a highly protected right under the Charter . Search warrants based on reasonable and probable grounds are the normal prerequisite for these searches. See, for example, R. v. Feeney , 1997 CanLII 342 (SCC) , [1997] 2 S.C.R. 13, and R. v. Godoy , 1999 CanLII 709 (SCC) , [1999] 1 S.C.R. 311.

The appellant argues that condition #4 is unreasonable as it has removed the necessity of this judicial pre-authorization. 28 The appellant rightly points out there is a distinction between persons serving a sentence pursuant to a conditional sentence order and a person who is being supervised by way of a probation order. Those serving conditional sentences have a lower expectation of privacy as they are serving their sentences of incarceration in the community. But that is not to say that offenders who are on probation do not have a diminished expectation of privacy. In R. v.

Sywak (2000), 2000 CanLII 9834 (MB CA) , 145 Man.R. (2d) 132, [2000] M.J. No. 102 (QL), Helper J.A. emphasized that a conditional sentence is a sentence of imprisonment and that the imposition was partly punitive. She also stated (at para. 11): Clearly, the terms and conditions that may be imposed as part of a conditional sentence may be more intrusive of an offender’s privacy than the terms of a probation order. I agree with Hill J. in R. v. Forsyth , [1995] O.J. No. 4173 (QL) (Gen.

Div.) , when he wrote (at para. 33): Unbridled discretion in the executive branch to intrude upon an individual’s privacy is always, of course, a cause for concern. A probationer, in my view, has a diminished, but not non-existent, expectation of privacy. 29

Section 732.1(3) of the Code enumerates numerous optional conditions of probation that a court may prescribe in addition to the well-known compulsory conditions under s. 732.1(2) . These conditions include typical conditions such as reporting to a probation officer, abstaining from the consumption of intoxicants, performing community service and participating in treatment.

Important for this decision is the residual probation condition provision found in s. 732.1(3) ( h ), which reads as follows: comply with such other reasonable conditions as the court considers desirable ... for protecting society and for facilitating the offender’s successful reintegration into the community. 30 Prior to the 1996 sentencing amendments, the residual probation condition provision was s. 737(2) of the Code , which read as follows:

… the court may prescribe as conditions in a probation order that the accused shall do any one or more of the following things as specified in the order, namely, . . . . . (

h) comply with such other reasonable conditions as the court considers desirable for securing the good conduct of the accused and for preventing a repetition by him of the same offence or the commission of other offences. This is now essentially the wording of s. 742.3(2 ) (

f) of the Code , the residual conditional sentencing condition provision, which reads as follows: The court may prescribe, as additional conditions of a conditional sentencing order, that the offender do one or more of the following: . . . . . (

f) comply with such other reasonable conditions as the court considers desirable, … for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences. 31 In R. v. Proulx , [2000] 1 S.C.R. 61, 2000 SCC 5 , the Supreme Court of Canada stated that “[p]robation has traditionally been viewed as a rehabilitative sentencing tool” (at para. 32), and that the residual probation condition clause was amended “to make clear the rehabilitative purpose of probation and to distinguish s. 742.3(2) (

f) from s. 732.1(3) ( h )” (at para. 34). The court said that “[w]hile … probation is primarily a rehabilitative sentencing tool, the evidence suggests that Parliament intended a conditional sentence to address both punitive and rehabilitative objectives” (at para. 23). Thus, probation is primarily a rehabilitative tool and is not to be used simply to punish the offender. Where a probation condition is not rationally connected to the offence, it will simply be punitive in nature and, therefore, unreasonable.

This principle can be seen in a number of cases involving sentences for non-driving offences where probation conditions were imposed prohibiting the offenders from driving. The conditions were struck as being unreasonable because they were not rationally connected to the offences and were simply punitive in nature. See R. v. Ziatas (1973), 1973 CanLII 1413 (ON CA) , 13 C.C.C. (2d) 287 (Ont. C.A.); R. v. Caja and Billings (1977), 1977 CanLII 2050 (ON CA) , 36 C.C.C. (2d) 401 (Ont. C.A.); and R. v.

Lavender (1981), 1981 CanLII 334 (BC CA) , 59 C.C.C. (2d) 551 (B.C.C.A.). 32 Condition #4 is certainly rationally connected to the offence here. It is intended to protect society by giving teeth to the condition that the appellant not access child pornography. One hopes it will as well assist the appellant in his rehabilitation. 33 But is condition #4 otherwise unreasonable? In R. v. J.J.L. (2001), 153 Man.R. (2d) 153, 2001 MBCA 21 , this court held that a probation condition will not be considered reasonable if it violates the Charter .

In J.J.L. , the sentencing judge imposed a condition of probation requiring the offender to take medication as prescribed by a psychiatrist. The court struck the condition. Helper J.A. stated (at para. 6): Parliament empowered a sentencing judge [under the Young Offenders Act and the Code ] to include in a probation order “ such other reasonable conditions”… .

These broadly worded provisions do not lead me to conclude that a sentencing judge is entitled to impose a condition as part of a probation order that contravenes provincial legislation or a provision of the Charter . 34 Therefore, when determining the reasonableness of a residual probation condition, compliance with the Charter must be considered. 35 There are not many reported cases dealing with the reasonableness of residual probation conditions involving searches. In R. v. Robillard , [2001] S.J. No. 847 (QL) (Q.B.), 2000 JCPA 13 , relied upon by the appellant, Milliken J., on a

summary conviction appeal for drinking and driving offences, held that a condition requiring the offender to submit to a search of his person, possessions, vehicle and residence at the request of any peace officer in order to ascertain whether he was in possession of alcohol or drugs, was unreasonable because it was contrary to s. 8 of the Charter . He also held that the condition was not rationally connected to the offence. The condition was deleted. 36 In R. v. Taylor , 2001 CanLII 20697 (MB PC) , [2001] M.J. No. 590 (QL) (Prov.

Ct.), Giesbrecht P.J., in a child pornography case, imposed a probation condition which permitted random searches of the offender’s residence. She stated that the offender was required (at para. 112):

… to submit to searches of your residence and of your property, which would include your truck, by the probation officer at reasonable hours, and I’m talking not the middle of the night but at reasonable hours in order to ensure that you are not in possession of any pornography. 37 She then considered the Charter implications of imposing the random search condition. She stated (at paras. 101-02): … On your behalf, [your lawyer] said, you have no difficulty with any of the suggested conditions and that you agree to all of the conditions of probation that have been suggested by the Crown.

Some of the suggested conditions are restrictive, and I would say very restrictive of your freedom. One condition that is agreed to is that you not be in possession of pornographic material of any kind. A further suggested condition is that the probation officer be permitted to search your residence without reasonable cause, but at any time search your residence, at reasonable times, in order to ensure that you are not in possession of any pornographic material. Certainly by agreeing to such conditions, Mr.

Taylor is giving up one of his basic Charter rights, to be free from unreasonable search. … . 38 This case parallels the Taylor case, in that the appellant agreed to the authorities checking his computers and Internet access at his residence. While consents given at sentencings can be questionable in light of the heavy hammer of an alternative sentence, in my view the consent in the circumstances here was given freely through counsel on several occasions throughout the hearing, as more particularly described in paragraph 10 and 11 above.

Not only did counsel for the appellant advise the sentencing judge that the authorities could check the appellant’s computer, he was well aware of the warrantless entry to the appellant’s home and did not object. The appellant’s consent is the answer to any Charter arguments that the searches are not authorized by law. Notwithstanding the consent, the search envisioned in the condition must still be reasonable in the circumstances and in the manner that it is carried out.

Because possession of child pornography is an offence carried on behind closed doors and because evidence is easily deleted from the computer, a feature of randomness is essential and, therefore, reasonable. The search is limited to the appellant’s computers in his residence. That is reasonable. The search is unlimited as to the time of day or night. That is unreasonable. There must be limits on when the searches may occur. Search warrants are to be exercised during the day (defined in the Code as 6:00 a.m. to 9:00 p.m.), unless special authorization is obtained ( s. 488 of the Code ).

The same limit is reasonable in these circumstances. 39 For the foregoing reasons, the condition allowing for random searches of the appellant’s computers at his residence is reasonable, provided that the searches are restricted to between the hours of 6:00 a.m. and 9:00 p.m. Condition #4 shall now read as follows: 4.

The appellant shall permit any and all searches of his computers at his residence between the hours of 6:00 a.m. and 9:00 p.m. by the police, R.C.M.P., or Probation Services, without a warrant, for the purpose of ensuring compliance with condition #3. 40 Finally, the appellant argues that the maximum three-year term of probation is harsh and excessive, especially when the articulated reason for doing so was to ensure that the appellant receive the necessary counselling.

The appellant submits that maximum probationary periods are usually imposed in the most serious cases or where shorter periods of probation have not been adequate or successful. While the three-year term is lengthy, I am not persuaded that it is harsh and excessive, and I would not interfere with the sentencing judge’s discretion in that regard. CONCLUSION 41 Leave to appeal is granted. The appellant’s appeal is allowed in part. The fine is reduced from $10,000 to $3,500. Payment shall be by way of monthly payments of at least $100.

The term of probation is three years as ordered by the sentencing judge subject to the same conditions as ordered by the sentencing judge except that condition #3 and condition #4 are varied as explained in my reasons. For ease of reference, I will now list the discretionary conditions of probation: 1. The appellant is not to be in the company of persons under the age of 18 years unless accompanied by another adult. 2. The appellant shall attend, participate in and complete all counselling, as directed by his probation officer. 3.

The appellant is allowed access to, and the use of computers and computer equipment, and the Internet, only for the purposes of his employment. 4. The appellant shall permit any and all searches of his computers at his residence between the hours of 6:00 a.m. and 9:00 p.m. by the police, R.C.M.P. or Probation Services, without a warrant, for the purpose of ensuring compliance with condition #3 above. 42 In addition to the foregoing conditions, the appellant is required to report to the probation officer as ordered by the sentencing judge and, of course, comply with the mandatory conditions of probation.

__________________________ J.A. I agree: ________________________ C.J.M. I agree: __________________________ J.A.