Court Information
Court: Ontario Court of Justice
Reasons for Sentence Released: May 29, 2015
Parties
Between:
Her Majesty the Queen
— AND —
Benjamin Levin
Before the Court
Justice: Heather McArthur
Counsel for the Crown: A. Dellandrea and P. Garcia
Counsel for the Offender: C. Ruby and G. Chan
McArthur, J.
A. Introduction
1Mr. Benjamin Levin is a 63-year-old man who, until recently, appeared to have it all. He had achieved tremendous professional success. He looked forward to a future where he would continue to lecture, write, and consult, enjoying the prestige and income that comes with such pursuits. He was respected by friends and colleagues and was considered a leading authority on education. He had a loving wife and three grown daughters who treasured him.
2Mr. Levin also had a hidden, dark side. Unbeknownst to his friends, colleagues and family, he had become deeply immersed in a deviant and depraved on-line world. He collected images of child pornography. He frequented chat rooms devoted to topics of incest and the sexual exploitation of children. As a result of his forays into this insidious realm, where the sexual abuse of children was not only accepted but celebrated, Mr. Levin came to the attention of three undercover officers. He wrote a story detailing the violent sexual abuse of a child, while engaged in an internet chat with one officer. He counselled another officer, posing as a young mother, to sadistically sexually assault her eight-year-old daughter.
3Mr. Levin was charged with a number of offences as a result. He ultimately pled guilty before me to one count each of possession of child pornography, making child pornography and counselling the indictable offence of sexual assault.
4The present case is a challenging one. What is the appropriate sentence for a man such as Mr. Levin, who has done so much good in his life, and yet has committed such serious offences? As noted by the Ontario Court of Appeal in R. v. Hamilton, [2004] O.J. No 3252 at para. 87, sentencing is a very human process. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender.
5I propose to start my reasons by setting out the facts surrounding the offences and Mr. Levin's background. Next, I will address the positions of the Crown and defence. I will then outline the relevant sentencing principles before turning to my analysis of what I view to be the appropriate sentence.
B. Circumstances of the Offence
6In 2010, Mr. Levin created a profile on the website called "M", which described itself as an alternative sexual lifestyle networking site. Among the discussion groups offered were chat rooms labelled "incest" and "teens". In his "M" profile, Mr. Levin described his gender as "couple" and his sexuality as "nothing is taboo". He added to that, "couple, both in late 50's, 3 grown daughters" and "love to chat with other parents and daughters". Mr. Levin frequently visited the incest chat room where he spoke with other users.
7In August 2012, Detective Constable Blackadar was conducting an online undercover investigation into the website, posing as a sexually submissive, young single mother with a sexual interest in children. Mr. Levin initiated a discussion with her and asked her how old her children were. She said that she had two daughters, aged 8 and 14. Mr. Levin had a sexualized discussion with respect to these children, in which he normalized the sexual touching of the girls by their mother. Mr. Levin claimed to have sexually abused his own daughters and other children when they were as young as 12. He encouraged Blackadder to do the same. Despite Mr. Levin's claims, there is no evidence that he ever had sexual contact with a child.
8In December, 2012, another undercover officer, Detective Constable Johnson, was also patrolling the "M" website. She was posing as a single mother with three children, aged 12, 8 and 5. Between December 3, 2012 and January 2013 Mr. Levin engaged in a text-based chat as well as in on-line discussions with the officer. Mr. Levin normalized the subject of sexual touching of children and told the undercover officer that he and his wife had been sexually active with their own daughters. Mr. Levin told the officer that he hoped his daughters would "share" their own children with him and his wife. Levin expressed his desire to have sexual intercourse with the three children Johnson claimed to have. Mr. Levin also introduced another "M" user to the undercover officer and they had a three-way chat in which they talked about the sexual abuse of their children.
9Between January 29, 2013 and July 4, 2013 Mr. Levin also had a series of text-based chats with Officer Gray, a covert internet investigator for Internal Affairs in New Zealand. Gray posed as a single woman interested in incest fantasies. In his talks with Gray, Mr. Levin claimed to have sexually abused children as young as 12 years old and expressed his desire to sexually abuse more children in the future. He talked about knowing other fathers who were sexually active with their own children. Mr. Levin told Gray that he had been in contact with parents, relatives and other adults he had met online who had told him that they were sexually abusing children.
10Mr. Levin sent a number of pictures to Gray. One of them showed a close-up of the face of a crying child, her face smeared with black makeup. Mr. Levin said he found this image "hot", and opined that the girl may have been crying because she was "used somewhat roughly by her mother's lover". Another showed a female under the age of 18, clothed in a short skirt and black top, covering only her breast area. She was bound, with her hands behind her back, ankles restrained with handcuffs, a leash hanging down the front of her body and a gag in her mouth. An adult woman was standing over her. Mr. Levin commented on this photo to Gray, stating: "mmm, so hot to imagine a mother doing that to her girl to please her lover".
11Sometime between June 17 and June 21, 2013, at Gray's request, Mr. Levin created a written story detailing the violent sexual assault of a 10-year-old girl. The story featured Gray's persona abusing a young girl with the help of the girl's mother.
12On June 12, 2013 Blackadar logged onto the "M" website using a different undercover profile. This time she pretended to be a mother sexually attracted to her eight-year-old daughter. Blackadar contacted Mr. Levin using the 'mother' persona and the two had a sexualized chat regarding her daughter. The 'mother' expressed an interest in finding someone to guide her on making sexual contact with her child. Mr. Levin provided instruction on how to get the young girl "used to" sex. Levin told the 'mother' to expose her daughter to pornography, to be nude and to masturbate in front of her daughter.
13In later chats, the 'mother' told Mr. Levin that she had followed his instructions and had shown her daughter images of pornography. She also told him that she had sexually assaulted the girl as a result of the instructions he gave. The 'mother' told Mr. Levin that she had feelings of guilt and hesitation at hurting her own child, yet she also took pleasure from it and desired to do more. Mr. Levin continued to provide instruction, telling the 'mother' to "play" with the girl to "prepare her for being fucked". He encouraged her to continue to sexually assault her on a regular basis by penetrating the child digitally and with sexual implements. He also instructed her to spank her daughter, emphasising that it was important to make the child cry. He asked the 'mother' if she would hurt her child to "please" him.
14Mr. Levin also spoke about prospective sexual acts between Mr. Levin, the 'mother' and her child. The theme of the discussions was the sexualisation of the child for the purpose of being used sexually, both by her mother and Mr. Levin as their "master". When the 'mother' said she did not want her daughter to get hurt, Mr. Levin responded by saying "oh it will hurt her some….. probably more than a little". In another chat, Mr. Levin spoke of the 'mother' seeing her daughter cry, as Mr. Levin anally penetrated the child with his penis.
15On July 2, 2013 Mr. Levin told Gray in an online chat that he did not think that Blackadar's profile was "real". At no time, however, did he ever ask or suggest to Blackadar that either she or her daughter was fake. Nor was it explicitly suggested that their exchanges were purely fantasy. After his arrest, police searched Mr. Levin's computer and found a Word document he had created and labelled "aa3". The file contained a detailed compilation of information relating to approximately 1750 people with whom Mr. Levin had been communicating online on the subject of subversive sexual interests, primarily those related to sexual contact between parents and children. The document included details such as the ages of their children, and the particular nature of their sexual desires and proclivities with respect to children. Mr. Levin noted "fake" beside the names of some users, as well as annotations detailing the basis for his conclusion that the profile was likely not real. He made no such notations in relation to Johnson's, Gray's or Blackadar's profiles.
16Despite his comment to Gray, Mr. Levin knew that he might be wrong; the woman he was chatting with could, in fact, be a mother who was sexually interested in her eight-year-old daughter. Thus, as set out in the Agreed Statement of Fact, Mr. Levin displayed a conscious disregard of the substantial and unjustified risk inherent in his counselling of the 'mother' to sexually assault her child. He knowingly counselled the 'mother' to sexually assault her daughter while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of his conduct.
17On July 8, 2013 police arrested Mr. Levin and executed a search warrant at his home. Police discovered 79 files of child pornography, located on two laptops and an external hard drive. Of these, 15 images and 2 videos remained plainly accessible to Mr. Levin.
C. Circumstances of the Offender
18Mr. Levin is 63 years old. He has three brothers, with whom he is close. He had a good relationship with both his parents. His mother passed away in 2010 and his father died last year. Each of them suffered from dementia in their later years. Mr. Levin was described by one brother as "the strongest force holding the family together" as his parents aged, and the one who took on the greatest responsibility for their care. He managed their financial affairs, and was the main contact point for their caregivers and the nursing home. The declining health of his parents was difficult and stressful for Mr. Levin.
19Each of Mr. Levin's brothers has written a letter in support of their brother. They describe a man whom they know to be kind and gentle, a devoted family man and a "treasured brother and friend". Mr. Levin's nephews and nieces have also written letters of support. The letters confirm that none of them were ever abused by Mr. Levin.
20Mr. Levin has been married to his wife Barbara Wiktorowicz for more than 36 years. She wrote a letter of support, describing how fortunate she has always felt to have Mr. Levin in her life. She continues to love him and intends to support him in the future. They have three grown daughters. Each of Mr. Levin's daughters has written a letter supporting their father. They obviously love their father deeply. Mr. Levin's daughters have made it clear that Mr. Levin never sexually assaulted them, nor did he ever do or say anything sexually inappropriate to or around them.
21Mr. Levin has had an illustrious and distinguished career. At the age of 19 he was elected a school trustee and kept this position for three years. At 23, he became the Director of the Manitoba Education Research Counsel. After four years, he went back to school for his doctorate, having already obtained a Master's Degree in Education from Harvard.
22At the age of 31 Mr. Levin returned to work for the Government of Manitoba. He remained there for six years, two of which were spent as the Assistant Deputy Minister of Education. From there, he went to teach as a professor at the University of Manitoba, ultimately becoming the Dean of Continuing Education. At the age of 47 he became the Deputy Minister of Education for Manitoba. After three years he returned to the University of Manitoba to teach. Mr. Levin was appointed Deputy Minister of Education in Ontario at the age of 52. Three years later, he became a Professor at the Ontario Institute for Studies in Education (OISE) at the University of Toronto.
23Mr. Levin co-authored a number of important books on education. He was also awarded several prestigious honours. He received the Whitworth Award from the Canadian Education Association in 2003. In 2013 he received the Distinguished Service Award, the highest honour that can be bestowed by the Canadian Association for the Study of Educational Administration. Mr. Levin was also awarded the Canada Research Chair.
24Mr. Levin received many glowing letters of support from former colleagues and students. They describe a man who has made enormous contributions to educational systems in Canada and around the world. He was described by a past work associate as "one of the world's most outstanding educators over the past three decades". Yet another described him "as one of the most highly respected educational minds in Canada". Still another colleague described Mr. Levin as "one of the world's dominant professional figures in his field".
25Given his reputation, Mr. Levin was in high demand as a lecturer and consultant. Before his arrest, Mr. Levin was making 40 to 50 speeches a year across Canada and around the world. He wrote 20 to 30 papers and articles a year and was managing about a dozen research projects. These opportunities, along with the respect and income associated with them, disappeared as soon as he was arrested. Further, Mr. Levin was suspended from his position with OISE following his arrest on July 8, 2013 and formally resigned in March, 2014.
26Since his arrest, Mr. Levin has attended counseling with three separate doctors. About one month after his arrest Mr. Levin started counselling with Dr. Silver, a psychiatrist, and Dr. Doupe, a GP psychotherapist. He then began to see Dr. Gojer, for individual counselling as well as attending the sex offender therapy program he runs at the Manasa clinic. Mr. Levin voluntarily underwent phallometric testing with Dr. Kalia. His overall arousal was low and no diagnostically interpretable results were obtained. Dr. Gojer explained that this was not unusual, given Mr. Levin's age and erectile dysfunction issues.
27Dr. Gojer diagnosed Mr. Levin as someone who has a pedophilic interest in children. Based on the information provided by Mr. Levin, he said that he appeared to have an intense interest for three to four years. He explained that Mr. Levin's tendencies were not visually driven; he was more interested in stories and talking about sexual contact with children. Dr. Gojer said that Mr. Levin also had sadistic impulses that seemed interwoven with his pedophilic interests. He opined that Mr. Levin was on the extreme end of the sadomasochist spectrum as it relates to the sexual abuse of children.
28Dr. Gojer completed a psychiatric risk assessment and determined that Mr. Levin is a low risk to reoffend. Mr. Levin scored a 7 on the Hare's Psychopathy Checklist Revised (PCL R), which is a low score that one sees in the general non-offender population. Dr. Gojer also rated Mr. Levin using the SVR-20, a structured risk assessment instrument. Using the checklist of risk factors for sexual violence, Dr. Gojer determined that Mr. Levin is a low risk to reoffend. Dr. Gojer noted the lack of evidence that Mr. Levin had ever sexually abused any children. Dr. Gojer said that Mr. Levin has shown real insight. The work Mr. Levin has done in therapy supports how sorry he is for the harm he has caused; he is steadfast in his commitment to not reoffend.
29Crown counsel challenged Dr. Gojer's opinion in cross-examination by pointing out that the opinion was premised, in part, on the belief that Mr. Levin's activities were limited to the on-line world. Crown counsel noted that Mr. Levin had spoken on the phone to others who shared his sexual interest in children. The Crown also questioned Dr. Gojer about the fact that Mr. Levin had a face-to-face meeting in Amsterdam with a man with whom he had been talking about the sexual abuse of children. While Dr. Gojer agreed that this was concerning, he said that Mr. Levin told him that he did not discuss anything sexual with the man when they met. Thus, the meeting did not change his opinion that Mr. Levin was a low risk to offend.
30I confess to having great difficulty believing that Mr. Levin and this man did not talk about sexual things when they met. In a chat on June 21, Mr. Levin told Officer Gray that he and this man "perv together". Mr. Levin said he could talk to him about having sex with the man's daughter, and, since he had met the man in person once, "you never know". Given this context, I am highly suspicious of Mr. Levin's claim that nothing sexual was discussed at the meeting. I think it is probable that they did, in fact, talk about the sexual abuse of children. I cannot say, however, that I am satisfied beyond a reasonable doubt that this was so. Thus, I cannot rely on the Amsterdam meeting as an aggravating factor. I also am not prepared to find that the meeting undermines Dr. Gojer's opinion, and I accept that Mr. Levin presents as a low risk to reoffend.
31Mr. Levin spent the equivalent of 5 days in pre-sentence custody. He has been subjected to restrictive bail conditions for 21 months, in that his ability to access the internet has been seriously curtailed.
32Mr. Levin spoke at the end of the sentencing hearing. He expressed how sorry he was for what he had done, describing his actions as "shamefully wrong". He acknowledged how his behaviour victimized children. He said that his criminality will be a "source of lasting shame"; the "pain and remorse" he feels will remain with him for life. He confirmed his commitment to treatment, to ensure that that he will never reoffend. Having seen Mr. Levin in court, and having heard his comments, I accept that he is profoundly remorseful for his actions.
D. Position of the Parties
33The prosecution argues that a global sentence of three and half years is warranted. For the possession of child pornography and the making child pornography offences, they submit that the mandatory minimum sentences of six months and 12 months, respectively, should apply. They urge me to impose a two-year sentence on the counselling offence. They argue that all three sentences should run consecutively. The Crown is also seeking a s. 161 order for life as well as other ancillary orders.
34Defence counsel counter that two years is a just and appropriate sentence. They agree that I must impose the mandatory minimum sentences for the possession of child pornography and making child pornography counts. They submit, however, that such sentences exceed what Mr. Levin would have received if the Crown had proceeded summarily, which, it is argued, they would have done but for the counselling charge. This, they say, militates in favour of lowering the global sentence. They argue that the making child pornography sentence should be concurrent to the sentence imposed for either of the other two offences. Finally, defence counsel oppose the s. 161 order.
E. Relevant Sentencing Principles
35The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing "just sanctions" that reflect one or more of the traditional sentencing objectives: denunciation, general or specific deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done to victims or to the community and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
36The Criminal Code lists a number of principles to guide sentencing judges. The parity principle is set out in s. 718.2 (b), which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As noted in R. v. Mann, 2010 ONCA 342 at para. 17, the parity principle is not to be applied in an absolute fashion; given the highly individualised sentencing process, sentences imposed for offences of the same type will not always be identical.
37The totality principle is addressed by s. 718.2(c). A sentencing judge who orders an offender to serve consecutive sentences must ensure that the combined sentence is not unduly long or harsh. The cumulative sentence imposed must not exceed the overall culpability of the offender (R. v. C.A.M., [1996] 1 S.C.R. 500 at para. 42)
38The restraint principle is reflected in both ss. 718.2(d) and (e). As the court explained in R. v. Hamilton, supra, at para. 95, the restraint principle is of paramount importance where incarceration is a potential disposition.
39The fundamental principle of sentencing is the proportionality requirement, which is set out in s. 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As explained by Lebel J. in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 37, the principle of proportionality is intimately tied to the fundamental purpose of sentencing for two reasons:
First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
F. Analysis
(i) What are just and appropriate sentences for the possession of child pornography and making child pornography offences?
40The parties jointly submit that I should impose the mandatory minimum sentences of six months for possession of child pornography and 12 months for making child pornography. I should only reject a joint submission if it is contrary to the public interest and if it would bring the administration of justice into disrepute. I am satisfied that the suggested sentences are appropriate and I am prepared to accept what is being suggested.
41Given the joint submission, I would not usually set out a great deal of my analysis regarding the sentences for these offences. In the present case, however, defence counsel have argued that the mandatory minimum sentences exceed what Mr. Levin would have received had the Crown elected to proceed summarily. Such sentences, they say, are not consistent with the gravity of the offences and Mr. Levin's degree of responsibility. They argue that a truly just sentence would be about nine months lower than that required by the mandatory minimums on the two child pornography counts. This, they argue is essential to keep in mind when determining a fit and proportionate global sentence.
42I have two initial difficulties with the premise of the defence submission. First, it is unclear to me that the Crown would have elected summarily but for the counselling offence. In a number of reported decisions, the Crown elected to proceed by indictment in circumstances not that dissimilar from Mr. Levin's. (See for example, R. v. Sayre, [2009] N.B.J. NO. 269 (Q.B.); R. v. Nisbet, [2010] O.J. NO. 6258 (S.CJ.) aff'd 2011 ONCA 26, [2011] O.J. No 101 (C.A.); R. v. Burke, [2012] O.J. No.6588 (S.C.J.); R. v. Butters, [2014] O.J. No 5778 (C.J.); R. v. C.H., [2014] O.J. No. 4158 (Ont.C.J)) These cases seem to be in line with the Crown decision to elect by indictment in Mr. Levin's matter.
43Second, mandatory minimum sentences limit a sentencing judge's ability to craft an individualized sentence. As explained recently by McLachlin C.J. for the majority of the court in R. v. Nur, 2015 SCC 15, [2015] S.C.J. No. 15 at para. 44:
Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality.
44The main thrust of the defence argument in this area seemed to invite me to embark on a mathematical exercise, where I would simply discount the overall sentence to reflect what they say would have been the sentence imposed in the absence of the mandatory minimums. This approach seems to run counter to Nur. In the absence of an argument that a mandatory minimum would lead to a grossly disproportionate sentence, my sentencing discretion is constrained.
45That said, when dealing with multiple charges, only some of which attract mandatory minimum sentences, the relevant sentencing principles continue to apply. A judge still has the responsibility, within the applicable legal parameters, to craft a proportionate sentence. (R. v. Anderson, 2014 SCC 41 at para. 25) Thus, in light of the argument advanced by defence counsel, I will delve more deeply into what I view to be the right sentences for these offences than I normally would in light of the joint recommendation. I turn now to my assessment of the appropriate sentences.
46It is clear that in child pornography offences denunciation and general deterrence are the paramount sentencing considerations. (R. v. Nisbet, 2011 ONCA 26, [2011] O.J. No. 101 (Ont.C.A.) at para. 1, 3; R. v. E.O., [2003] O.J. No.563 (Ont.C.A.) at para. 7) The reasons for this seem self-evident. As explained by Lamer C.J. in R. v. C.A.M., supra, at para. 81:
…a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74 at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass."
Our society rightly views child pornography offences with revulsion. They are reprehensible crimes. Courts must clearly and unequivocally communicate society's condemnation of such offences through the sentences that are imposed.
47Moreover, significant sentences can serve to deter those who might become involved in such crimes. Mr. Levin told Dr. Gojer that he rationalized his criminality, thinking that while he might be "breaking the law, he was not really a dangerous person and the consequences, if he were caught would not be that serious". There may be potential offenders out there right now, who are thinking the same thing. Sentences for child pornography offences must be severe enough to let those potential offenders know that they are wrong; there will be significant consequences if they commit these repugnant crimes.
48Given the emphasis placed on denunciation and deterrence for these types of offences, mitigating factors personal to a defendant play a less significant role when determining the appropriate sentence. That said, due consideration must still be given to mitigating factors and the restorative objectives of rehabilitation, reparations and promotion of a sense of responsibility. (R. v. Folino, [2005] O.J. No. 4737 (C.A.) at para. 24; R. v. El-Jamel, 2010 ONCA 575, [2010] O.J. No. 3737 (C.A) at paras. 8, 19)
49In R. v. Kwok, [2007] O.J. No 457 (Ont. S.C.J.) at para. 7, Molloy J. set out a list of generally accepted mitigating and aggravating factors to consider in child pornography offences. Aggravating factors may include (i) a criminal record for similar or related offences; (ii) whether there 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 violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.
50Mitigating factors may include (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).
51The factors set out by Molloy J. did not purport to be exhaustive. There may well be other aggravating or mitigating features in any particular case. As always, the court must look at all relevant factors in determining a just and appropriate sentence. I turn now to an assessment of the aggravating factors in Mr. Levin's case.
52Starting out with the size of the collection. Mr. Levin possessed 15 still images and two short video clips that qualified as child pornography. This represents a very small collection compared to many of the reported decisions. While the fact that Mr. Levin had fewer images than seen in reported cases is not mitigating, it does mean that the size of the collection is not as aggravating a feature as in other cases.
53Cases of this nature involve courts in the "odious task" of drawing comparisons between offensive images. (R. v. Yau, 2011 ONSC 1009, [2011] O.J. No 720 (Ont.S.C.J) at para. 22) The nature of Mr. Levin's child pornography collection is not as aggravating as some of the reported cases, in that there are no infants or toddlers depicted. That said, a number of the images are highly disturbing. In R. v. Missions, 2005 NSCA 82, [2005] N.S.J No. 177, the Nova Scotia Court of Appeal referred to the English Court of Appeal decision of R. v. Oliver, [2002] E.W.J. No. 5441. There, the court referred to the five levels of child pornography as follows: (i) images depicting erotic posing with no sexual activity; (ii) sexual activity between children, or solo masturbation by a child; (iii) non-penetrative sexual activity between adults and children; (iv) penetrative sexual activity between children and adults; and (v) sadism or bestiality.
54Mr. Levin's child pornography collection spanned all five levels referred to by the court. Some images possessed by Mr. Levin showed children engaged in sexual contact with each other. A number of the images, and a video clip, depicted young girls performing fellatio on adult males or being ejaculated upon. One image showed a prepubescent child being vaginally penetrated by an adult male penis. Still another image showed an adult male penetrating a young girl, while straddling a different young girl who had his scrotum in her mouth. Three other children were visible in the background. Another image showed a girl being penetrated by a woman wearing a strap on dildo. A number of images depicted children in bondage. Having viewed the images, I can say without hesitation that the gravity of the offence committed by Mr. Levin is serious.
55Mr. Levin also distributed child pornography. Defence counsel strenuously argued against this point, noting that Mr. Levin did not plead guilty to the offence of distributing child pornography. But Mr. Levin sent an image of a bound girl, with a gag in her mouth and an adult woman standing over her, to Officer Gray. He commented upon the picture, saying, "mmm, so hot to imagine a mother doing that to her girl to please her lover". In oral submissions defence counsel agreed that this image qualified as child pornography. In my view, despite the lack of a guilty plea, it is proper to consider the fact that Mr. Levin distributed this image as an aggravating factor.
56Moreover, Mr. Levin's offending behaviour was not isolated or impulsive. Mr. Levin collected child pornography over two years. He saved the first image in March 2011 and the last just weeks before his arrest. During this same general time frame he chatted with any number of individuals about the sexual abuse of children. He compiled a list of over 1750 people with whom he had been communicating on-line on the subject of subversive sexual interests, primarily those related to sexual contact between parents and children. He wrote a story detailing the violent sexual assault of a 10-year-old girl. He encouraged someone professing to be the mother of an 8-year-old girl to sexually abuse the child. The offences are thus "symptomatic of an ongoing failure on his part to remain of good character during the years leading up to this offence." (R. v. Butters, supra, at para. 22)
57In terms of the making child pornography count, there are a number of aggravating factors. The offence arose in June, 2013, in a chat that Mr. Levin was having with an undercover officer posing as a young woman interested in the sexual abuse of children. This, however, was not the only time that Mr. Levin spoke with the 'woman' about the sexual abuse of children. For example, on January 28, Mr. Levin and the 'woman' spoke in graphic detail about the fictional sexual abuse of an eight-to-nine-year-old girl.
58Further, despite her professed sexual interest in children, the fictional woman also expressed some discomfort with the idea. On January 28 she said that she thought about it all the time but "was a bit too scared". On May 2, she said she had not had the "courage" to try anything. On May 31, she said she had always thought about meeting parents willing to share their children but had "been too scared". In my view, this context is important when assessing the seriousness of the offence. The story created by Mr. Levin centered on this woman helping a mother sexually abuse the mother's 10-year-old daughter. Mr. Levin's story sent the message, to someone who had expressed some reluctance, that sex with young children was acceptable. Mr. Levin had no way of knowing whether his story might give her the push she needed to overcome her hesitation and pursue her desires. Moreover, the story did not simply recount the sexual abuse of a child; it had additional sadistic aspects to it. The fictional child was subjected to violent and degrading sexual abuse.
59In terms of mitigating factors, Mr. Levin is 63 years old and has never been in trouble before. He has led a pro-social life and accomplished much. While he is not youthful, I agree with the reasoning in R. v. Butters, supra, at para. 21 that a demonstrated pro-social past can be as mitigating as the potential that youth holds for a pro-social future. Mr. Levin's pro-social history is a mitigating factor in sentence.
60Mr. Levin pled guilty, which is indicative of remorse, and I accept that he is genuinely remorseful. He has voluntarily entered treatment, shown some insight into his crimes and is deemed a low risk to re-offend. Mr. Levin continues to have the love and support of his family. This acceptance will be an important aspect of his rehabilitative efforts.
61Mr. Levin has already suffered for his crimes. His illustrious career is in tatters. He lost his job. His many opportunities to research, write, and consult have disappeared. His income has plummeted. Numerous organizations canceled their connections with him. He lost the respect of his colleagues, something that he worked hard to gain over a lifetime of work. The extent to which his crimes destroyed his professional reputation is reflected in the fact that the University website removed all mention of the research and publications that Mr. Levin and his team had done.
62Mr. Levin spent the equivalent of five days in pre-sentence custody and his ability to access the internet was severely restricted. As noted in R. v. D.L., [2014] O.J. No. 3167 (Ont.C.J) at paras.10-12, this sort of limitation can be a mitigating factor in sentencing.
63Mr. Levin has also been the subject of an enormous amount of public shaming. Given his profile, the case received a great deal of publicity. Even the simple act of asking friends for support letters attracted the attention of the press. The Crown received over 100 letters from members of the public labelling Mr. Levin a "monster", and calling for a long jail sentence. A sampling of some of the vitriolic public commentary accompanying news stories on this case displays the disdain which many people feel for Mr. Levin.
64Despite the notoriety of his case, many friends and former colleagues provided letters of support. Given the heavy publicity surrounding Mr. Levin's attempts to obtain these letters, in my view they are entitled to great weight. The letters provide glowing descriptions of Mr. Levin; he is a man who is loved and admired by many. He has close family and deep friendships. The fact that Mr. Levin continues to have the support of so many people is mitigating and will assist him on his path to rehabilitation.
65The letters also drive home Mr. Levin's extraordinary achievements in his chosen profession. As the author of one letter said, Mr. Levin was considered "one of the three wise men of education". Mr. Levin has clearly made significant positive contributions to the field of education and I take that into consideration as part of his mitigating pro-social background.
66That said, in my view Mr. Levin's background as a leading expert in childhood education is a factor that renders his moral blameworthiness particularly high. It is an understatement to say that Mr. Levin would know that the young victims in the images he possessed were not getting the best start in school, let alone life. Indeed, he told Dr. Gojer that he knew that the children in such images were being harmed. Despite this knowledge, Mr. Levin continued to indulge his criminal interest in the sexualisation of children. (See R. v. Burke, 2012 ONSC 6997 at para. 32)
67What then is a just and appropriate sentence for the possession of child pornography offence? In my view, even if the Crown had proceeded summarily, six months is the proper sentence for this offence. A review of reported cases in the area suggests that the range of sentences has been gradually increasing. Perhaps this is because the introduction of mandatory minimums has increased the sentences for these offences overall. Or it may be reflective of the "learning curve" that the Courts have been on with respect to the prevalence and perniciousness of child pornography. (See R. v. D.G.F., 2010 ONCA 27, [2010] O.J. No. 127 (Ont.C.A.) at paras. 21-22) In either case, a sentence of six months for Mr. Levin's offence is in-line with sentences received in more recent cases. (See for example R. v. Butters, supra; R. v. Dumais, 2011 ONSC 276, [2011] O.J. NO. 116 (Ont.C.J.) at para. 23; R. v. Burke, supra) More importantly, in my view a six-month sentence is commensurate with the gravity of the offence and Mr. Levin's moral blameworthiness.
68Turning to the making child pornography offence. There are relatively few reported decisions dealing with sentences for written pornography. Defence counsel relied heavily on R. v. Yarmchuk, [2009] A.J. No. 682 (Prov.Ct.) in arguing that I should find that the 12-month mandatory minimum was much higher than warranted. In my view, however, there are some difficulties in relying on the Yarmchuk decision. There, the sentencing judge commented that he had no evidence that written child pornography could stimulate desires in a way that placed real children at risk. Indeed, he said he had evidence to the opposite effect from the defence expert. This led the sentencing judge to treat the offence as less serious. In the present case, however, I heard evidence from Dr. Gojer that written child pornography was harmful because it could create behaviours in the receiver who might act on it. Dr. Gojer also said that Mr. Levin was aware that child abuse stories can be fuel for those inclined to sexually abuse children. This is an important distinguishing factor between Mr. Levin's case and the Yarmchuk decision.
69In addition, in Yarmchuk the sentencing judge accepted the expert evidence that the defendant had no pedophilic tendencies. That can be contrasted with Dr. Gojer's opinion that Mr. Levin is someone with a pedophilic interest in children. Importantly, Mr. Yarmchuk's story did not have the violent and sadistic elements of Mr. Levin's.
70What then is a just and appropriate sentence for Mr. Levin for the making child pornography offence? In my view a 12-month sentence is the right sentence in light of the aggravating and mitigating factors in this case. It properly addresses the paramount sentencing objectives of denunciation and general deterrence. And, importantly, it accords with the seriousness of the offence and Mr. Levin's moral culpability.
(ii) What is a just and appropriate sentence on the counselling to commit the indictable offence of sexual assault?
71The prosecution argues that two years is the appropriate sentence for the counselling offence. The defence counters that one year is the right sentence.
72I have already outlined a number of mitigating factors in my analysis with respect to child pornography offences. They apply equally here. Mr. Levin is 63 years old and has never been in trouble before. He has led a pro-social life and accomplished much. He has the love and support of his family and many friends. He has paid an enormous price for his crimes already; he has lost his job, his reputation, and, given his public profile, he has been subjected to intense and at times vitriolic public shaming. He pled guilty, which is indicative of remorse, and I accept that he is genuinely remorseful. He has voluntarily entered treatment, and is deemed a low risk to re-offend.
73There are a number of aggravating factors as well. Mr. Levin counselled someone posing as a mother to sexually violate her daughter. In so doing, he "urged the destruction of one of our society's core values: the trust between parent and child and the expectation that the parent will protect the child from harm". (R. v. Fisher, supra, at para. 17) Mr. Levin encouraged her to disregard her feelings of guilt and hesitation at hurting her own child and instead counselled her to do "whatever feels good to you".
74Mr. Levin used his wife and daughters in his insidious attempts to normalize the sexual exploitation of children. He spoke fondly of sexually abusing his daughters with the participation of their mother. I accept that Mr. Levin did not actually assault his children. But he used them as sexual props in his perverse chats. He wove a tale of a history of incest enjoyed by all; a ploy used to encourage another person to feel free to commit the same vile acts. Mr. Levin betrayed his family in his quest for sexual thrills.
75Mr. Levin's counselling to commit sexual assault was not impulsive or isolated. For several weeks he encouraged a mother to abuse her young child. When the 'mother' reported back that she had abused her daughter as directed, Mr. Levin at no time stopped to say, "What are you talking about? This is all just a fantasy, right?" Instead, there was a back and forth, as Mr. Levin took on a role as a deviant mentor, suggesting that the mother commit yet more invasive and disturbing assaults.
76Further, during this time frame the 'mother' also wrote about things that seemed far removed from fantasy: details like the child getting sunstroke, or having the stomach flu or giving a gift to the teacher on the last day of school. In my view, these kinds of mundane specifics should have led Mr. Levin to question whether the situation was real. Yet, Mr. Levin did nothing to ensure that a potentially real, innocent eight-year-old girl was unharmed. To the contrary, Mr. Levin continued to up the ante on the sexual abuse he suggested be perpetrated on the child.
77Defence counsel argued that it would be wrong to view the above as aggravating features of this case; rather, they argue that it is simply illustrative of the recklessness that grounds the guilty plea. In my view, however, the many times that Mr. Levin failed to clarify whether the situation was real, despite the context calling out for such inquiry, is aggravating. It is indicative of a high level of recklessness. Or to put it another way, Mr. Levin's behaviour displayed significant intentional risk taking.
78Mr. Levin also encouraged the 'mother' to use violence in her assaults. He told her to spank the child. He emphasised that it was important to make the girl cry. The sadistic overtones to the counselling adds a disturbing dimension to the offence.
79In support of their position that 12 months is the right sentence, defence counsel relied on two cases. The first is R. v. Fisher, 2007 NBPC 15, [2007] N.B.J. No 129 (N.B.P.C.). Mr. Fisher engaged in a chat with an undercover officer posing as the father of a four-year-old daughter. He asked the officer to perform various sexual acts on the young child and report the details. He also asked if the father would allow him to perform "disgusting and unnatural acts" upon the girl if he were there. Upon his arrest he was found to be in possession of 128 still images and 14 videos of child pornography. The sentencing judge imposed a sentence of 12 months for the counselling and eight months concurrent for the possession of child pornography count.
80Defence counsel argue that the facts in Fisher are more serious than in Mr. Levin's case, as the judge rejected the defence submissions that the counselling offence was "the embodiment of a sexual fantasy" and that Mr. Fisher did not intend anyone to be hurt. Since Mr. Levin was "simply reckless", and did not intend for anyone to be hurt, they argue, he is less morally blameworthy than Mr. Fisher.
81I have some difficult in accepting the defence submission. It is true that at paragraph 8 the judge rejected the submission that Mr. Fisher did not intend that anyone be hurt. That said, overall his reasons seemed to be premised on recklessness. For example, the trial judge noted, "…the accused had no way of knowing, and obviously did not care, whether the little girl existed". Thus, I do not see that aspect of Fisher as being much different from Mr. Levin's case.
82Further, the counselling in Fisher took place over a shorter period of time than in Mr. Levin's case. Moreover, unlike Mr. Levin, Mr. Fisher did not suggest sadistic sexual abuse. Each of these factors renders Mr. Levin's case more serious than Mr. Fisher's.
83More importantly, in my view, there is little distinction between the moral blameworthiness of an offender who thinks that the person he or she is chatting with is real, and that of an offender who is not sure if the person is real, yet nonetheless persists in counselling criminal activity. While Mr. Levin "thought" the person he was chatting with was "fake", he knew he could be wrong. Mr. Levin knew that the person he was chatting with might be real, and that an actual, eight-year-old girl could be repeatedly sexually assaulted at his direction. He didn't care. Mr. Levin recklessly pursued his own selfish, sexual urges, all the while knowing an innocent young child could be abused as a result. Mr. Levin's moral blameworthiness is extremely high.
84The second case relied upon by the defence is R. v. Meikle, [2008] OJ No.3686 (Ont.C.J.) Mr. Meikle had an internet chat with an officer posing as a father who was sexually abusing his eight-year-old daughter. Meikle encouraged the officer to have sexual intercourse with his daughter on her ninth birthday and suggested a number of sexual things that the officer should try with the young girl. Upon his arrest, Mr. Meikle was found in possession of 66 child pornography images and 50 child pornography videos. He also had a blog in which he offered advice to pedophiles on how to "come out" and how to tell their friends about their sexual interest in children. The sentencing judge imposed 12 months for the counselling count and six months consecutive for the possession of child pornography.
85Defence counsel argues that the Meikel case is more serious than Mr. Levin's, since the sentencing judge could not accept that Mr. Meikle was a low risk to offend. They also argue that Mr. Meikle's blog is an aggravating factor in sentencing which is missing from Mr. Levin's case. Thus, they submit that Mr. Levin should not receive a sentence in excess of the 12 months imposed in that case. I see three problems with the position of the defence.
86First, the Crown in Meikle only asked for a 12-month sentence. The sentencing judge expressed his view that a "significantly longer sentence could well have been appropriate", but determined that he would not exceed the sentence being sought by the prosecution.
87Second, I do not accept that Mr. Meikle's case is more serious because he authored a blog. It does not appear that the blog talked about abusing children; rather it gave advice on how to "come out" as a pedophile. Nor was there any information on how many people accessed the blog. In Mr. Levin's case, he created the "aa3" document detailing approximately 1750 people with whom he had been communicating on-line, primarily on the subject of sexual contact between parents and children. Of course, I do not have evidence of what exactly was discussed with all of Mr. Levin's contacts. That said, the details contained in the "aa3" document, and the chats Mr. Levin had with the three undercover officers give a sense of what would be discussed. Even assuming that Mr. Levin did not talk about the sexual abuse of children with all of those listed in the document, he still had contact with a large number of people in which he talked about the sexualisation and abuse of children. To me, that is at least as serious as the blog kept by Mr. Meikle.
88Third, in my view the gravity of the counselling offence is much higher in Mr. Levin's case than in Meikle. Mr. Meikle had one chat with the undercover officer, which lasted about two hours. The counselling part of the chat took only a few minutes out of the two hours. Meikle did not encourage the officer to treat the child sadistically or violently.
89In contrast, Mr. Levin counselled the 'mother' over a period of a number of weeks to sexually abuse her daughter. Mr. Levin would give direction; the 'mother' would report back and then ask for further guidance on how to sexually abuse her child. Mr. Levin counselled the 'mother' to use violence in abusing her daughter, emphasising that it was important to make the child cry. He suggested that the mother penetrate the child with implements. The length of time over which the counselling took place, the fact that his response reports that the girl was being abused was to encourage even more sexual exploitation of the child, and the sadistic aspects to his counselling all render Mr. Levin's case more serious than Mr. Meikle's.
90What then is a just and appropriate sentence in Mr. Levin's case? In my view, the 12-month sentence being suggested by the defence fails to sufficiently address the sentencing principles of denunciation and deterrence. On the other hand, the two-year sentence advocated by the Crown ignores the many mitigating factors in this case. Balancing the aggravating and mitigating factors, I conclude that a sentence of 18 months is fit and proportionate. Such a sentence gives powerful voice to the paramount sentencing principles of denunciation and deterrence, while still giving due consideration to Mr. Levin's rehabilitative potential. An 18-month sentence is appropriate in light of the gravity of this offence and Mr. Levin's degree of responsibility.
91I turn next to an assessment of whether the sentences should be consecutive or concurrent.
(iii) Should the sentences be consecutive or concurrent?
92A key issue in this matter is whether the sentences should be consecutive or concurrent. If consecutive, then Mr. Levin will receive a global sentence of three years. If concurrent, his sentence would be reduced to between two to two and a half years.
93When determining whether sentences should be concurrent or consecutive, the court must look at a number of different factors. Do the offences arise from the same transaction or as part of a continuing criminal operation? Are the offences similar in terms of time, place, nature and victims? If so, concurrent sentences may be appropriate. Do the offences infringe different societal interests? If so, then consecutive sentences may be warranted. (R. v. Gummer, [1983] O.J. No. 181 (Ont.C.A.) at para. 13; R. v. Manning, [2007] O.J. No 1205 (Ont.S.C.J.) at paras. 19-22)
94The Crown argues that a proper consideration of the above factors militates in favour of consecutive sentences. The defence counters with three points. First, they submit that the offences all involve the same societal interest- the protection of children from sexual exploitation. Second, they argue that the offences were committed in the same time frame. Third, they argue that imposing the sentence consecutively will lead to a global sentence that is unduly long and harsh. For these reasons, they submit that the making child pornography sentence should be concurrent to the sentence imposed for either the possession or counselling offences. I will address each point in turn.
95In support of their first argument, defence counsel relied heavily on the decision of R. v. Skinner, 2011 ONSC 3412. Skinner was a 53-year-old man who had a consensual sexual relationship with a 17-year-old girl. He videotaped their sexual encounters three times without her permission. He kept the tapes in his possession for a period of time. When the girl said she was going to the police, he showed her the video clips and threatened to send them to her family and friends. Kelly J. convicted him of three counts of making child pornography, one count of distributing child pornography and three counts of possession of child pornography.
96At paragraph 14 of her reasons for sentence, Kelly J. made the following comment: "I find that the societal interests for all three offences before this Court are essentially the same: protection of children from sexual exploitation. As such, concurrent sentence are appropriate". Defence counsel argued that this comment supported their position. But this remark cannot be read in isolation; it must be considered in conjunction with the actual sentence imposed.
97Kelly J. held that the three making child pornography sentences could be concurrent to each other. She held that the three possession of child pornography sentences could be concurrent to each other. But, she held that the sentence for possession of child pornography should be consecutive to the sentence for making child pornography. Thus, in my view Skinner does not support the defence contention that the charges should necessarily be concurrent because the same societal interest is involved.
98Moreover, I find the argument that the sentences can be concurrent as the three offences all involve the same societal interests to be overly simplistic. I agree that all three offences to which Mr. Levin pled guilty exist to prevent the exploitation of children. All three offences thus share a similar over-arching purpose. But the offences seek to achieve that purpose by targeting different legally-protected interests. All thee offences seek to slay the same monster. But the monster of child sexual exploitation is a Hydra, and the various offences seek to strike off different heads.
99Criminalizing the possession of child pornography seeks to prevent those who would collect such vile material. The prohibition on making child pornography targets those who would create it. While both offences seek to prevent the sexual exploitation of children, they do so distinctly. As explained by McLachlin C.J.C. in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (S.C.C.) at paragraph 94:
Possession of child pornography increases the risk of child sexual abuse. It introduces risk, moreover, that cannot be entirely targeted by the laws prohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution of child pornography cannot catch the private viewing of child pornography, yet private viewing may induce attitudes and arousals that increase the risk of offence. Nor do such laws catch the use of pornography to groom and seduce children. Only by extending the law to private possession can these harms be squarely attacked.
100In the same vein, defence counsel note that pursuant s. 163.1(1)(b), written material that is classified as child pornography is that which "advocates" or "counsels" sexual offences with children. Counsel argue that this "completely overlaps" with the offence of counselling. They argue the same societal interest is involved and it is thus appropriate to have the making child pornography and counselling sentences run concurrently. In my view, however, while there are similarities in the language of the sections, the offences aim to protect different legal interests. For the making child pornography count, the section aims to prevent offenders from sending the message that "sex with children can and should be pursued". The section seeks to prevent the normalization of child sexual abuse and the dissemination of the offensive idea that children are sexual objects who are there to be abused by depraved predators. (R. v. Beattie, [2005] O.J. No 1302 (Ont.C.A.)) Children as a group are thus protected by the prohibition on making written child pornography. The counselling section exists to stop offenders from specifically advocating that a particular crime be committed. Individual children who are at risk of being victimized are protected. In my view the two sections protect different interests.
101That being said, there may be cases where the making child pornography and possession of child pornography offences are so closely linked that concurrent sentences are appropriate. Or situations where the making child pornography count and the counseling offence are sufficiently linked to warrant concurrent sentences. But there is nothing in the nature of the offences or the societal interests they protect which suggests that the offences should be concurrent as a matter of course. The decision must be made on a case by case basis, having regard to all the facts. (See R. v. W.Q., [2006] O.J. No.2491 (Ont. C.A.) at paras. 10-11) With this in mind, I turn now to defence counsel's second argument, which is that the sentences should be concurrent as the offences arose in the same time frame.
102Defence counsel points out that the images of child pornography were found in Mr. Levin's possession on his computers when he was arrested in July 2013. They note that the written child pornography was created in a chat sometime between June 17 and June 21, 2013, and the chats that gave rise to the counselling charge took place between June and July 2013. Given this close temporal proximity, they argue, concurrent sentences are warranted.
103There are some difficulties, however, with the defence submission regarding the time frame of the offences. The argument ignores the fact that Mr. Levin possessed images of child pornography over an extended period of time. Four still images and two video clips were saved on March 6, 2011, more than two years before his arrest. More images were saved in April 2012, November 2012 and March 2013. Only two images were saved in June 2013, the general time frame in which Mr. Levin made child pornography and counselled a sexual assault. Moreover, while the making child pornography and counselling offences may have occurred in the same general time frame, it cannot be said that both offences were part of the same ongoing enterprise. Both counts arose in entirely different chats, with different officers, involving different potential victims. In the counseling offence, the risk arose that an eight-year-old girl would be sexually assaulted as a result of Mr. Levin's direction; in the making child pornography count, a risk existed that an unknown child could be abused if the story moved the recipient to act upon her professed desires. In my view, there is an insufficiently close temporal and factual nexus between the offences to warrant concurrent sentences.
104I turn finally to the defence argument that the principle of totality militates against consecutive sentences. After reflecting on this matter at great length, I have determined that a three-year-sentence is not unduly long or harsh. In reaching this conclusion, I have considered the many mitigating factors in this case, including the fact that Mr. Levin is a low risk to reoffend and that specific deterrence would not require a sentence of this length. I have considered how difficult a three-year-sentence will be for a 63-year-old man such as Mr. Levin. I have kept the importance of restraint, both as a sentencing principle in its own right and as an aspect of proportionality, firmly in mind. Giving full force to the principle of restraint, in my view, denunciation and general deterrence demand such a sentence. Three years does not exceed Mr. Levin's moral culpability; it is a just and appropriate sentence having regard to the gravity of the offences and Mr. Levin's moral blameworthiness
105Thus, I sentence Mr. Levin to a global sentence of three years. He will receive six months on the possession of child pornography count, 12 months on the making child pornography count and 18 months on the counselling to commit the indictable offence of sexual assault. The sentences are to run consecutively.
106I will turn next to consider the applicable ancillary orders.
(iv) Ancillary Orders
107The Crown argues that I should order Mr. Levin to comply with ss. 161(a)(b)(c) and (d) for life. The defence counters that imposing s. 161(a) could interfere with Mr. Levin's rehabilitation, as the prohibition from attending public parks and similar areas will have an isolating effect. They argue against s. 161(d) on the basis that it will interfere with Mr. Levin's ability to work, which can assist in rehabilitation, and that it is too restrictive in a world increasingly dependent on digital technology. Overall, they argue that any s. 161 order is unnecessary because there is no evidence that Mr. Levin has ever had sexual contact with a child and he is a low risk to reoffend.
108I will address this latter point first. In my view, public safety concerns militate in favour of making the requested prohibition order. Mr. Levin has been diagnosed as someone who has a pedophilic interest in children. While there is a low risk that Mr. Levin will reoffend, the flip side is that there is some risk that he will. And while the risk may be low, the consequences if that risk materialized are significant. In all of the circumstances, I am satisfied that it is in the interest of public safety make a s. 161 order.
109That said, the length of the order must take into consideration Mr. Levin's commitment to treatment and low risk of reoffending. Further, the prohibition order should be structured to allow Mr. Levin the opportunity to reintegrate into society and continue on his rehabilitative path, while still addressing public safety concerns. The issues raised by the defence can be dealt with by making certain exceptions. Thus, I am making the following s. 161 orders for 5 years:
110Pursuant to s. 161(a), Mr. Levin is prohibited from 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, playground or community centre, except while in the presence of an adult over the age of 21 years who is aware of his convictions. With this exception, and given the substantial support Mr. Levin has in the community, I do not believe that this condition will be unduly difficult or isolating for him.
111Pursuant to s. 161(b), Mr. Levin is prohibited from 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.
112Pursuant to s. 161(c), Mr. Levin is prohibited from having any contact, including communications by any means with a person who is under the age of 16, unless under the supervision of an adult over the age of 21 who is aware of his convictions.
113Pursuant to s. 161(d), Mr. Levin is prohibited from using the Internet or other digital network, unless he does so for the purposes of employment, education or under the supervision of an adult over the age of 21 who is aware of his convictions. I note that part of Mr. Levin's treatment plan is that his future use of the internet will involve keeping his wife aware of his activities and maintaining a transparent process through which she and others can see all such use. Thus, it is my intention that this prohibition will not only assist in public safety, but it will also help Mr. Levin on his rehabilitative path.
114Turning then to the remaining ancillary orders. Possessing and making child pornography are primary designated offences. Pursuant to s. 487.051 of the Criminal Code, I am making an order requiring Mr. Levin to provide a sample of his DNA to be added to the databank.
115Possessing and making child pornography offences are also designated offences for the purpose of the Sex Offender Information provisions set out in s. 490.011(a)(viii) of the Criminal Code. Pursuant to s. 490.012 I am ordering that Mr. Levin comply with the Sex Offender Information Registration Act for life.
116I have heard no submission suggesting that the victim surcharge would pose an undue hardship. As a result, I order Mr. Levin to pay the victim surcharge of $300. Pursuant to the Order in Council 2173-99, Mr. Levin will have 60 days to pay.
117Finally, pursuant to s. 164.2 of the Criminal Code, I am ordering forfeiture of the three devices on which the 15 images and 2 videos of child pornography were found. All other seized electronic devices should be returned.
Date: May 29, 2015
Signed: Justice Heather McArthur
Footnotes
1Mr. Levin was arrested on July 8, 2013 and released on July 10, 2013. There is no reason why enhanced credit would not apply, so he is entitled to credit of 5 days. (See R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 at paras.70-72)
2Two of the closest reported decisions are R. v. Burke, [2012] O.J. No.6588 (S.C.J.) and R. v. Butters, [2014] O.J. No 5778 (C.J.). Burke had 17 images and 24 videos. He received a six month sentence. Butters had 79 images. He received a sentence of eight months.
3Mr. Levin was the one of the major architects of the Manitoba program, K-S4 Agenda for Student Success, which focused on improving student learning outcomes, especially for those who traditionally have been less successful.
4Cases reviewed on this point include the following:
- R. v. Kwok, [2007] O.J. No. 457 (S.C.J.)
- R. v. Charron, [2007] O.J. No. 5128 (Ont. C.J.)
- R. v. Fisher, 2007 NBPC 15, [2007] N.B.J. No. 129 (Prov. Ct.)
- R. v. Meikle, [2008] O.J. No. 3686 (Ont. C.J.)
- R. v. Smith, [2008] O.J. No. 4558 (S.C.J.)
- R. v. Sayre, [2009] N.B.J. No. 269 (Q.B.)
- R. v. Connor, [2009] O.J. No. 6369 (S.C.J.)
- R. v. El-Jamel, 2010 ONCA 575, [2010] O.J. No. 3737 (C.A.)
- R. v. Nisbet, [2010] O.J. No. 6258 (S.C.J.), aff'd 2011 ONCA 26, [2011] O.J. No. 101 (C.A.)
- R. v. Duff, 2010 ONCJ 493, [2010] O.J. No. 4613 (Prov. Ct.)
- R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 (S.C.J.)
- R. v. D.G.F., 2010 ONCA 27, [2010] O.J. No. 127 (C.A.)
- R. v. Yau, 2011 ONSC 1009, [2011] O.J. No. 720 (S.C.J.)
- R. v. Somogyi, [2011] O.J. No. 253 (S.C.J.)
- R. v. G.R., [2011] O.J. No. 4989 (Ont. C.J.)
- R. v. Dumais, 2011 ONSC 276, [2011] O.J. No. 116 (S.C.J.)
- R. v. St-Amant, [2012] O.J. No. 6308 (Ont. C.J.)
- R. v. Young, [2012] O.J. No. 5449 (Ont. C.J.)
- R. v. Burke, [2012] O.J. No. 6588 (S.C.J.)
- R. v. Davies, [2012] O.J. No. 5359 (S.C.J.)
- R. v. Lynch-Staunton, [2012] O.J. No. 313 (S.C.J.)
- R. v. Pelich, 2012 ONSC 4100, [2012] O.J. No. 3262 (S.C.J.)
- R. v. Dumoulin, [2013] O.J. No. 3477 (Ont. C.J.)
- R. v. Theobold, [2013] O.J. No. 6149 (S.C.J.)
- R. v. C.H., [2014] O.J. No. 4158 (Ont. C.J.)
- R. v. T.K., [2014] O.J. No. 4155 (Ont. C.J.)
- R. v. Butters, [2014] O.J. No. 5778 (Ont. C.J.)
- R. v. Stoddart, [2014] O.J. No. 2674 (Ont. C.J.)
- R. v. D.L., [2014] O.J. No. 3167 (Ont. C.J.)
5The judge failed to provide any analysis as to why he imposed concurrent sentences.
6Although the judge rejected the argument that Mr. Fisher did not intend that anyone would be hurt, his reasons seem to be premised on a finding of recklessness. For example, the trial judge noted, "…the accused had no way of knowing, and obviously did not care, whether the little girl existed". (See R. v. Fisher, supra, at para.9)
7It seems that Kelly J's reference to the "three offences" must relate to the three occasions in which Mr. Skinner videotaped his sexual encounter with the 17 year old girl.