) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 6174

CITATION : R v AM, 2013 ONSC 6174 COURT FILE NO.: 304-12 DATE: 2013-10-04 CORRECTED DECISION RELEASED : 2013-10-09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – A.M. Accused ) ) ) ) ) ) ) ) Guy W. Roy, for the Crown William G.

Beach, for the accused ) ) HEARD: October 4, 2013 CORRECTED ORAL DECISION ON SENTENCE In paragraph [44] of the original decision dated October 4, 2013, the third sentence was amended to read: “ The answer to that question lies in the realm of speculation, something which need not be undertaken in order to determine an appropriate sentence. ” In paragraph [53] of the original decision dated October 4, 2013, the first sentence was amended to read: “ There will be an order under s. 161 of the Criminal Code for a ten year period prohibiting you from: ” Cornell j.: Overview [ 1 ] On March 12, 2013, I found A.M. (“A.M.”) guilty of two counts of possession of child pornography, one count of manufacturing child pornography and one count of making child pornography available.

After hearing submissions from counsel on August 26, 2013, I am now called upon to impose sentence. Factual Background [ 2 ] A detailed review of the factual background can be found in my decision which was rendered on March 12, 2013. For sentencing purposes, I will now set out the salient background information. [ 3 ] At the time of his arrest, A.M. had been in a common-law relationship with T.S. for approximately six years. V.L. is T.S’s daughter.

The conviction for manufacturing child pornography involved a finding that A.M. took a topless photograph of V.L. while she slept. [ 4 ] A.M. is very knowledgeable about computers, having operated his own computer business for approximately 14 years. The work involved in this business included computer repair.

[ 5 ] A.M. gave evidence that he downloaded “Limewire” and “Shareaza” which are known to him as peer to peer software programs designed to allow file sharing between computer users. He also downloaded “Recuva”, a program designed to be used to recover deleted information or images. He also gave evidence that he used a program known as “Evidence Eliminator - Department of Defence One”, a program designed to erase files to such an extent that they could not be recovered even by the use of recovery programs.

He testified that he downloaded and used these programs during the course of his computer repair business. [ 6 ] V.L. was born in March of 1996. She had nightmares about her biological father entering the apartment through her bedroom window. To provide V.L. with some sense of security, A.M. installed a surveillance camera in her bedroom when she was 12 or 13 years of age. The wireless feed from the surveillance camera was received by A.M.’s computer in the living room.

V.L. testified that it was removed when she was 13 or 14 after the police attended at the apartment as a result of a complaint filed by a passer-by. The Investigation [ 7 ] As a result of routine surveillance of the internet, Constable Ramsey of the Greater Sudbury Cyber Crime Unit detected a local computer operating on the Gnutella Network, a network which allows for file sharing. On May 20, 2010, Constable Ramsey was able to download two videos entitled “Little April” and “Abby Winters”. These videos depicted child pornography.

It took approximately seven hours for these downloads to be complete. [ 8 ] During the course of the investigation, it was determined that the I.P. address 174.92.29.43 from which this download occurred belonged to A.M.. Forensic Analysis [ 9 ] A search warrant was issued and executed on March 2, 2011, at the apartment which was occupied by A.M.. During the course of the search, a number of items were seized including computers from the living room and bedroom, a cell phone, a video camera, and various hard drives. The police then conducted a forensic analysis of the items which had been seized.

The user account name entered on the M.D.G. computer found in the living room was “A.M.”. The three other user accounts found on that computer are all accounts created by default. The Image Analysis Report prepared for A.M.’s computer revealed a total of 141 images which were categorized as child pornography. As a result of some duplication of these images, it was determined that there were 53 images of child pornography.

It was also determined that there were 139 images which the police were unable to access as they had been deleted or could not be easily located. [ 10 ] Each of the 53 unique photos was reviewed at the trial. A representative sample of these images would include an adult woman engaged in fellatio on a teenage boy, photographs of pre-pubescent males and females, a naked female infant with her vagina exposed, and what can only be described as a toddler involved in sexual intercourse.

There were also two photographs of V.L. with her breasts exposed as she was sleeping in her bedroom. [ 11 ] An Image Analysis Report was also prepared for the cell phone which was seized. The evidence indicates that this cell phone was owned by A.M..

The forensic analysis of this phone revealed that there were two images of child pornography, one image of child nudity and a video depicting anal intercourse with a female child who appeared to be 10 or 11 years old. [ 12 ] The forensic analysis of A.M.’s phone revealed two images which were accessible, an adult woman engaged in fellatio on a teen boy and a pre-pubescent girl involved in masturbation. These images were also found on A.M.’s computer and were accessible on both devices.

The analysis indicated that these pictures were created on October 8, 2010, and last viewed on February 14, 2011. [ 13 ] Three videos were found on the cell phone, all of which had been deleted. These videos were accessed and last viewed on July 18, 2010. Although the videos had been deleted, the police were able to locate them using a recovery program. The video was part of the same movie, but had been split into three parts. It was entitled “p.t.h.c.Laura.anal.8y.o.mpg”. This video depicted a female who appeared to be about 10 or 11 years of age being subjected to anal intercourse.

Video Downloads [ 14 ] As previously mentioned, the investigation began when the police were able to download two videos depicting child pornography from A.M.’s computer using the Shareaza file sharing program. The first video was entitled “Abby Winters – Intimate Moments – Chantalle.avi” (“Abby Winters”). This video depicted a pubescent female aged fourteen to sixteen having small breasts, small hips, and minimal pubic hair. She is removing her clothes and is being directed to masturbate by the person holding the camera who then digitally penetrates the female’s vagina.

The second video was entitled “FTV.girls-LittleApril-Teen Dark Studio Solo.mps” (“Little April”). This video was taken in a young girl’s bedroom, as evidenced by the number of teddy bears which were present. The young girl was wearing braces and appeared to be 14 to 16 years of age. She also had small breast development and small hips. She removes her clothes and masturbates for the camera. [ 15 ] Constable Ramsey testified that a Globally Unique Identifier (“GUID”) is assigned to a computer that has downloaded a file sharing program using the Gnutella Network.

During the course of the investigation, it was determined that the GUID for A.M.'s I.P. address was the same GUID from which these two videos were accessed and downloaded by the police. Search Terms [ 16 ] A

summary of the Shareaza search terms which were entered in A.M.’s computer was prepared and summarized in Exhibit 31. This Exhibit runs to nine pages. A representative sampling of the search terms include “school girl rape”, “teen topanga”, “nubiles bed pussy”, “p.t.h.c. daughter”, “my.promiscued.daughter”, “p.t.h.c. step-daughter”, “p.t.h.c.pedo.land” and “p.t.h.c.6.yo, p.t.h.c.7.yo, p.t.h.c.8.yo, p.t.h.c.9.yo, p.t.h.c.10.yo, p.t.h.c.11.yo, p.t.h.c.12.yo and p.t.h.c.13.yo”. In addition, searches were conducted for “hidden cam” and “hidden camera”.

A.M. admitted that he typed in all of the search terms which are found on the nine pages which comprise Exhibit 31. He also acknowledged that he knew “p.t.h.c.” was associated with child pornography, but thought that it meant “pathetic” rather than “pre-teen hard core.” When asked why he would use such search terms, he offered the explanation that he did so to protect

himself by deleting any child pornography that was downloaded as a result of such searches. A.M.’s Background [ 17 ] A pre-sentence report was prepared. A.M. is the second of four children born during his parents’ nine years of marriage. The oldest child died at five months of age from “SIDS” (Sudden Infant Death Syndrome). [ 18 ] The father suffered from depression. He was physically and mentally abusive. The family lived on welfare as the father was unable to maintain employment. A.M.’s mother contacted the Children’s Aid Society to seek assistance to protect the children.

When A.M. was five years of age, his father died from a self-inflicted gunshot wound. A.M. blamed his mother for his father’s death. [ 19 ] The Children’s Aid Society records indicate that A.M. came into care on a full-time basis at age seven and remained in care until age eighteen. These records indicate that the offender “suffered from a lack of consistent parenting and abuse which left him with a poor self-image and behaviour issue”. He was expelled from school in July 1992.

Due to his limited intellectual and social skills, the Society began an application for a disability pension, however, during this process A.M. refused to attend an interview with the pension office. His ward-ship was terminated as A.M. would not follow any direction or plan developed by the Society. [ 20 ] A.M. did not continue with his education beyond grade nine because of a learning disability. His performance in school was poor.

Subsequent attempts to pursue college programs were unsuccessful as A.M. withdrew before they had been completed. [ 21 ] A.M. has been in receipt of Ontario Disability Support Program payments since December 2000. [ 22 ] A.M. has had a lifelong problem with depression and anxiety. There is no suggestion of alcohol abuse nor is there a history of illegal drug use. [ 23 ] A.M. has been residing with his mother and step-father since April 2011. [ 24 ] A.M. has a dated criminal record for convictions entered between 1991 and 1994 for unrelated offences.

Victim Impact Statement [ 25 ] A victim impact statement was obtained from A.M.’s step-daughter, V.L. This statement indicates the devastation which has been caused as a result of A.M.’s conduct. The following excerpt from her statement indicates how she has been affected: The offence created such an impact on my life; I have so much anger and hostility and cry myself to sleep at night almost every day. The year of the offence, I found myself wanting to end my life. I had become a “cutter” and ended up in Kirkwood. Now I have a psychiatrist and I am taking pills for my nerves; and sleeping pills.

I hate myself a lot and feel very guilty; I have no more self-esteem or even self-worth. My hygiene has played a terrible part since the offence; I always feel dirty and am disgusted with myself. I have major trust issues now. I feel like I am being judged when out in public. Every single day I struggle with my life and wonder if I am ever going to feel safe and secure “about me” again. Position of the Crown / Defence [ 26 ] It is the position of the Crown that the total sentence should range from 18 to 24 months in jail.

In addition, the Crown asks for three years of probation on strict conditions, a SOIRA registration for life, a s. 161 prohibition order for a period of ten years, an order for a DNA sample as well as a forfeiture order for the cell phone, computers and associated paraphernalia which were seized at the time of the search. [ 27 ] Defence counsel suggests that a review of the case law indicates that a jail term of 12 to 18 months would be an appropriate sentence. Criminal Code Provisions [ 28 ] The fundamental purpose and principles of sentencing are set out in s. 718 of the Criminal Code of Canada as follows: 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. R.S., 1985, c. C-46, s. 718 ; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6. [ 29 ] S. 718.1 of the Criminal Code requires that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[30] I am also to be guided by the sentencing principles contained in s. 718.2 of the Criminal Code 8 which, among other things,requires me to take into account any aggravating or mitigating circumstances relating to the offence or the offender, and to impose asentence which is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Sentencing Objectives and Principles [31] A review of the case law makes it clear that the primary objectives of sentencing in child pornography cases are denunciationand general deterrence: see R. v. Kwok, [2007] O.J.

No. 457, at para. 6; R. v. Smith, [2008] O.J. No. 4558, 2008CarswellOnt 6783 at para. 9; R. v. Vasic, [2009] O.J. No. 1968 at para. 16; and R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 atpara. 39. [32] S. 718.01 of the Criminal Code specifically provides that denunciation and deterrence are the primary objectives in a case ofthis nature. That

section reads as follows: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. [33] The harm caused by the production, possession, and distribution of child pornography is now no longer open to question ordebate.

Although the person viewing this material was not necessarily involved in the physical abuse of the child, the fact remains thatas long as there is a market for this type of material, innocent children will continue to be subjected to this devastating form of abuse. Society’s disgust and disapproval of this type of conduct is reflected in the relatively recent amendments to the Criminal Code whichmandate a minimum sentence of one year with the maximum sentence extended to ten years. [34] The harm involved in offences of this nature is summarized by McLachlin C.J. in R. v.

Sharpe, 2001 SCC 2, [2001] 1 S.C.R.45 at paras. 94 and 158: 94 … Possession of child pornography increases the risk of child abuse. It introduces risk, moreover, that cannot be entirely targetedby laws prohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution ofchild pornography cannot catch the private viewing of child pornography, yet private viewing may induce attitudes and arousals thatincrease the risk of offence. Nor do such laws catch the use of pornography to groom and seduce children.

Only by extending the law toprivate possession can these harms be squarely attacked. …. 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 andto society. 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. Aggravating / Mitigating Factors [35] Crown counsel points to the fact that these offences constitute the abuse of persons less than 18 years of age.

That fact aloneis an aggravating factor in accordance with s. 718.2 of the Criminal Code. [36] There was a violation of the trust involved in the step-parent relationship by virtue of A.M. taking the topless photograph ofhis step-daughter while she was sleeping.

Although the taking of this photograph is not the most egregious example of the production ofchild pornography, the contents of the victim impact statement make it abundantly clear as to the devastating effect that it has had onA.M.’s step-daughter. [37] A further aggravating factor involves the fact that A.M. was involved in the distribution of child pornography through the useof file sharing software. [38] The final aggravating factor consists of the fact that the sexual activities depicted in the pictures and videos are extremelydisturbing.

These include images of a naked female infant with her vagina exposed, a toddler involved in sexual intercourse, as well as avideo depicting anal intercourse with a female child who appeared to be 10 or 11 years old. [39] There are a few mitigating factors. Unlike other cases of this nature, the police were only able to download two videos. Apart from this, A.M.’s collection was small by any objective standard and most of the collection had been deleted. [40] The pre-sentence report indicates that A.M. was not prepared to accept responsibility for his involvement in these offences.

At the time of sentencing, A.M. indicated that he was prepared to accept “partial responsibility because it was on my computer”, and “Ihave remorse and regret for my involvement in all of this”. [41] There was no suggestion that A.M. has sought any treatment or counselling to try and prevent a repetition of this deviantbehaviour. Appropriate Sentence Considerations [42] There can be no doubt that this was a devastating experience for A.M.’s step-daughter.

One only need refer to her victimimpact statement to gain some sense of how this incident has and will continue to affect her. [43] The voices of those children subjected to the abuse in the various images and videos which comprised A.M.’s child

pornography collection remain mute; however, no words or statements from such young victims are required as their anguish is all too readily apparent. [ 44 ] A.M. himself was exposed to abuse as a child and had what can only be described as a most unfortunate upbringing. It may well be that this is the explanation for his lack of empathy for the innocent children who were violated in the manufacturing of the pornographic material that he possessed. The answer to that question lies in the realm of speculation, something which need not be undertaken in order to determine an appropriate sentence.

The fact remains that no matter what his background or upbringing, there can be no excuse or rationale which will permit or condone this type of behaviour. [ 45 ] Both Crown and defence counsel acknowledged that denunciation and deterrence are the primary considerations in a case of this nature. [ 46 ] The cases relied upon by the defence all pre-date the amendment to the Criminal Code which substantially increased the range of sentence to be imposed.

This amendment makes it clear that harsher sentences are to be imposed for offences of this nature, and accordingly I find the cases cited by defence counsel to be of limited assistance. [ 47 ] After taking into account all of the sentencing factors, the question arises as to whether A.M. should be sent to a provincial institution or a federal penitentiary.

After giving the matter careful consideration, I am of the view that society is best served by having A.M. serve a total sentence of two years less a day, which will permit him to be subject to longer supervision in the form of a probation order for a three year term. Disposition [ 48 ] A.M., please stand up: Jail Sentence 1. On Count One of the Indictment that you did manufacture child pornography, I sentence you to two years less a day in jail. 2. On Count Three of the Indictment that you did make available child pornography, I sentence you to two years less a day, to be served concurrently. 3.

On Counts Two and Five that you did have in your possession child pornography, I sentence you to one year in jail, to be served concurrently. [ 49 ] I recommend that A.M. be placed at the earliest opportunity in the Ontario Correctional Institute in Brampton and that he be assessed and have access to whatever treatment programs might be available to assist in preventing A.M. from re-offending. Probation [ 50 ] Following your jail sentence, you are to be subject to three years of probation on the following terms and conditions: 1. Report to a probation officer as directed and be under their supervision. 2.

Take counselling and treatment as directed by your probation officer, including signing any release or information that will permit your probation officer to share and obtain information from your primary care physician, any other physician, assessors and/or treatment providers, and to obtain any and all assessments in their possession and control. 3.

You will not possess or use any computer or computer components, including any of the following: • Cellular telephones known as a Smart Phone or personal data assistants, such as an Android, IPhone or Blackberry or any cell phone equipped and activated with internet or web browsing capabilities. • Any computer peripheral such as web cameras. 4. You shall not maintain or use any account with an internet service provider. 5. You shall not access the internet from any public or private facility including public libraries, schools or cyber cafes. 6.

You will sign any release or information and provide a copy of your cell phone bill to your probation officer upon request to allow the probation officer to monitor your cell phone services. 7. You shall be permitted to use a computer while at work on your employer’s property and only a computer monitored by your employer. 8. You shall not possess any naked pictures, including naked pictures of children under the age of 18 and adult pornography. 9.

You will not be in the company of any youth or child under 16 years of age unless such person is a family member and/or the offender has the permission of the lawful guardian of that child and he has the written permission of his probation officer. Ancillary Orders [ 51 ] You shall provide a DNA sample in accordance with s. 487.051 (

a) of the Criminal Code of Canada . [ 52 ] Pursuant to s. 490.012 of the Criminal Code , I order that you be registered under the Sex Offender Information Registration

Act for life. [ 53 ] There will be an order under s. 161 of the Criminal Code for a ten year period prohibiting you from: 1. Attending a public park or public swimming area where persons under the age of 16 years of age are present or can reasonably be expected to be present, or a daycare centre, school ground, play ground or community centre; 2. Seeking, 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; 3.

Using a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years. [ 54 ] Lastly, there will be an order under s. 164.2 of the Criminal Code that the Samsung cell phone, the Lexar Micro Secure Digital Card (SD card), the MDG Tower Computer and the Western Digital and Seagate hard drives seized during the search shall be forfeited. Mr. Justice R. Dan Cornell Released: October 9, 2013 CITATION: R v AM, 2013 ONSC 6174 COURT FILE NO.: 304-12 DATE: 2013-10-04 CORRECTED DECISION RELEASED : 2013-10-09

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – A.M. Accused CORRECTED DECISION OF ORAL Decision on Sentencing Cornell J. Released: October 9, 2013