Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Mahlon Inksetter
Before: Justice P. K. Doody
Heard on: July 7, 2017
Reasons for Sentence released on: August 22, 2017
Counsel:
- Kerry McVey, for the Crown
- Paolo Giancaterino, for the defendant
DOODY J.:
Part 1: Introduction
1The defendant has pled guilty to one count of possession of child pornography and one count of making available child pornography contrary to section 163.1 of the Criminal Code.
2The defendant's computer and various devices contained a total of 133,266 images which qualified as child pornography. Of these, 28,052 were unique images. The rest were duplicates of those. He was also in possession of 3,032 videos which were child pornography. Of these, 1,144 were unique.
3The images were downloaded from the internet by a file sharing application. Once downloaded, the files were available for sharing with other internet users until they were removed from that application's folder and stored on another device or on another folder on the computer which was not accessible by the application. On March 8, 2016 the sharable folder on the defendant's computer contained 75 unique files which were child pornography. On April 18, 2016 it contained 167 unique files.
4The images and videos showed the most vile and depraved imagery imaginable, of children (mostly girls) ranging in age from 1 to 16 engaged in explicit sexual activity and posing images, the majority of which included penetration (vaginal, anal, and oral, by penises and objects), together with fellatio, cunnilingus, and bestiality.
5The issue which I must determine is the appropriate sentence for those offences.
6Defence counsel submits that a one year term of imprisonment on each count would be appropriate, with the two terms to run concurrently, followed by a period of probation of between 18 and 24 months.
7Crown counsel submits that the appropriate sentence would be 4 ½ years of custody.
Part 2: Law relating to sentencing for child pornography
(a) Statutory range
8The Crown having elected to proceed by indictment, the minimum sentence for each offence is one year's imprisonment. The maximum sentence for making child pornography available (or for transmitting, distributing, selling, advertising, importing, or exporting it, or possession for any of these purposes) is 14 years' imprisonment. The maximum sentence for possession of child pornography is 10 years.
(b) Purposes and principles of sentencing
9The fundamental purposes of sentencing, as established by s. 718, are to denounce unlawful conduct and the harm done to victims and the community caused by it; deter the offender and others from committing offences; separate offenders from society where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or the community; and promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
10The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
(c) Denunciation and deterrence are paramount sentencing objectives
11Paragraph 718.2(1)(ii.1), enacted in 2005, provides that it is an aggravating circumstance if evidence establishes that the offender, in committing the offence, abused a person under the age of eighteen years. [1] Section 718.01, enacted at the same time, [2] requires me to give primary consideration to the objectives of denunciation and deterrence when imposing a sentence for an offence that involved the abuse of a person under the age of 18 years. While Mr. Inksetter did not himself directly abuse children, there can be no doubt that thousands of children were abused so that the images and videos in this case could be created.
12The importance of denunciation and deterrence when sentencing for possession of child pornography was recognized by the Court of Appeal in R. v. Nisbet, 2011 ONCA 26 at paragraph 1:
Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.
13The Newfoundland and Labrador Court of Appeal recently explained how a sentencing court should approach a sentence to which s. 718.01 applied. In R. v. Branton, [2013] N.J. No. 408, Hoegg J.A. wrote:
24 The approaches taken by the Saskatchewan, British Columbia and Alberta courts of appeal [3] to the application of section 718.01 to a case involving the abuse of a person under the age of 18 can be described as requiring a court to give substantial weight to the objectives of denunciation and deterrence when weighing and balancing the objectives of sentencing that best reflect the facts of a case and the circumstances of the offender. I agree with this approach, but hasten to add that this does not mean that either denunciation or deterrence trumps other sentencing objectives. It does mean, however, that there must be a focus on ensuring that denunciation and deterrence are properly vindicated as sentencing objectives in the balancing exercise.
25 This focus on denunciation and deterrence requires an appreciation of these objectives in the context of the facts of the case being decided, which involves an appreciation of the seriousness of the particular offence and the offender's degree of responsibility. It also involves an appreciation of how and why denunciation and specific and general deterrence are important in the context of the particular case. For example, if the abuse is of a minor nature in circumstances which are unlikely to repeat themselves, the degree of emphasis given to deterrence and denunciation would be less. On the other hand, if the abuse is more serious and the offender has a history of committing such offences, deterrence and denunciation would require greater emphasis. In summary, giving "primary consideration" to the objectives of denunciation and deterrence requires a meaningful assessment of how the facts of the offence and the circumstances of the offender relate to denunciation and deterrence and an acknowledgement that substantial weight must be given to these objectives so that they are properly vindicated in the sentencing process.
14This is the approach implicitly approved of by the Ontario Court of Appeal in R. v. Schan, [2002] O.J. No. 600, in which the Court allowed the offender's sentence appeal and reduced the sentence for possession of child pornography to 18 months conditional. The Court held that, although the offence required deterrence and denunciation, the sentencing judge had erred by not focusing to a greater extent on the particular circumstances of the case before her. The appellant had downloaded the images from the internet for his own use and did not distribute any of the material. The charges had caused the appellant's marriage and relationship with his children to end, and he had suffered serious depression and had attempted suicide.
(d) Changes in sentencing for child pornography
15I cite Schan not to suggest that the sentence imposed would be appropriate today, but to explain that giving primary consideration to the principles of denunciation and deterrence does not mean either ignoring the circumstances of the offence and the offender or not considering the other purposes and principles of sentencing.
16It is clear that a conditional sentence would not be appropriate in this case, even if it were available. [4] As Feldman J.A. wrote in R. v. D.G.F., 2010 ONCA 27:
21 Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately: see, for example, R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Kwok. A number of relatively lenient sentences had been imposed in cases where child pornography was downloaded or distributed, there was no sexual abuse or making of child pornography involved, and there were many mitigating circumstances: see for example, R. v. Schan (2002), 155 O.A.C. 273; R. v. Weber (2003), 175 O.A.C. 138; R. v. Kim (2004), 181 O.A.C. 88. However, in cases that involved making child pornography and child sexual abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell; R. v. Gramlick (1995), 100 C.C.C. (3d) 270 (O.C.A.); R. v. R.W., [2001] O.J. No. 2810.
22 Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.
17Prior to November 1, 2005, there was no minimum sentence for either possession of or making available child pornography. On that date, the Criminal Code was amended to provide for a minimum sentence of 45 days (with the maximum of 5 years remaining the same) for possession of child pornography where proceedings were by indictment. The same amending statute established a minimum sentence of one year for making child pornography available (with the maximum of 10 years remaining the same) where proceedings were by indictment. [5]
18In 2012, the Code was amended to increase the minimum sentence for possession of child pornography to 6 months (with the maximum of 5 years remaining the same) where the proceedings were by indictment. [6] The sentence for making child pornography available where the proceedings were by indictment was not changed.
19In 2015, the Code was amended yet again to increase the minimum sentence for possession of child pornography to 1 year from 6 months and the maximum sentence to 10 years from 5 years where the proceedings were by indictment, and to increase the maximum sentence for making child pornography available to 14 years from 10 years where proceedings were by indictment, leaving the minimum sentence at 1 year. [7]
20As Arbour J. noted at paragraph 75 of R. v. Morrissey, 2000 SCC 39, [2000] 2 S.C.R. 90, mandatory minimum sentences must be read consistently with the general principles of sentencing and, in particular, the principle of proportionality – that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Consequently, when Parliament enacts a minimum sentence, the effect is that it acts as an inflationary floor, raising the range. This is particularly true, in my view, where the low point of the pre-amendment range was lower than the new mandatory minimum.
(e) Sentencing ranges for these offences
21The principle of parity – that, as s. 718.2(b) states, "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" – requires me to consider sentences imposed by courts for this and similar offences in other cases. In conducting this analysis, however, it must be remembered that, as the Supreme Court of Canada held in R. v. Lacasse, 2015 SCC 64 at paragraph 60, sentencing ranges are primarily guidelines, and not hard and fast rules. Wagner J. wrote at paragraph 58 of that case, on behalf of the majority of the Court:
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit.
22Determining the appropriate range requires primary consideration to be given to decisions of the Court of Appeal.
23D.G.F., cited above at paragraph 15, is a 2010 case which included not only possession of child pornography, but also distributing child pornography, 3 counts of making child pornography using the offender's 4 year old daughter, and 2 counts of sexual assaults on that daughter. The offender transmitted a live feed to an internet pedophile chat room of him sexually assaulting his daughter together with other images of his daughter's genitals and rectum and him sexually assaulting her. He possessed 3,454 child pornography images and 58 child pornography videos, some of which included bondage and explicit sexual activity. The offender was 35 years old and had no criminal record. He expressed profound remorse, regret, and shame. There was no psychiatric or psychological assessment. He pled guilty. The sentencing judge imposed a 4 year sentence. The Court of Appeal held that the sentence was manifestly unfit and sentenced the offender to 7 years' imprisonment, the term sought by the Crown at the original sentencing. But for the original Crown submission, upon which the offender relied in making his guilty plea, the Court of Appeal would have imposed a higher sentence.
24Justice Feldman, writing for the Court in D.G.F., referred to R. v. Kwok, [2007] O.J. No. 457, in which Justice Molloy of the Superior Court had imposed a sentence of one year's imprisonment followed by 3 years of probation. Mr. Kwok had changed his plea to guilty mid-trial after some particularly damning evidence had been heard. He had over 2000 images and 60 videos of children being sexually violated. Many were graphic depictions of actual rape by an adult male of a small child, and of children – including little babies - under the age of five. He went on internet chatrooms frequented by pedophiles and distributors of child pornography. He made his computer and the child pornography it contained freely available to his multiple roommates. He was a 29 year old first offender. He had lost his job as a result of the charges. Other than the offence before the court, Mr. Kwok had been a person of good character. He had been accessing child pornography since he was 14 years old. Justice Molloy was not satisfied that he had any real insight about the nature of his attraction to child pornography or that he was genuinely remorseful. Although he had sought psychiatric treatment, she found that it was not directed towards his problems with child pornography. Justice Molloy sentenced Mr. Kwok to 12 months imprisonment followed by 3 years' probation.
25Feldman J.A. noted at paragraph 28 of D.G.F. that the circumstances in Kwok "were not at all similar" to those in D.G.F. She did not suggest that the range of 6 to 18 months identified by Justice Molloy in that case was inappropriate. Nor was Kwok on the list of 3 cases identified by Justice Feldman at paragraph 21 of D.G.F. in which "relatively lenient" sentences had been imposed. In those three cases, decided in 2002, 2003, and 2004, the Court of Appeal had upheld conditional sentences.
26In R. v. Nisbet, 2011 ONCA 26, the year after D.G.F. was decided, the Court of Appeal dismissed a defence appeal against a 6 month sentence for possession of child pornography involving 28 images and 43 videos showing children aged between 4 and 14 years old involved in various sex acts with other children and with adult males, including masturbation, fellatio, and both anal and vaginal intercourse. The sentencing judge had held that the most important sentencing consideration was general deterrence. The Court, composed of Feldman, Moldaver, and MacFarland JJ.A., held that the sentencing judge had committed no error in principle and that the sentence imposed was not inappropriate. It stated, in a brief oral judgment:
Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.
27In R. v. Saliba, 2013 ONCA 660, the Court of Appeal dismissed a defence appeal from the trial judge's imposition of a 2 ½ year sentence for possession of child pornography, to be served consecutively to a 2 year sentence for sexual activity with a girl under 16. The Court held that both convictions merited "significant" jail terms, consecutive sentences were appropriate, and the totality of the two sentences was within the range.
28In R. v. Tweedle, 2016 ONCA 983, the Court of Appeal dismissed a defence appeal from a sentence of 20 months for convictions for possession of child pornography and making child pornography available. His computers and equipment held 29 videos and 431 images of child pornography, as well as chat logs in which someone using the offender's name discussed his strong interest in child pornography and abusing children. The Court held that the 20 month sentence was "well within the appropriate range, took into account the relevant mitigating and aggravating factors, and was not demonstrably unfit."
29In R. v. Carlos, 2016 ONCA 920, the Court of Appeal dismissed the offender's appeal from a sentence of 3 years for possession of child pornography and making child pornography available. He was convicted after trial. He was in possession of 50 videos of child pornography. The police downloaded a number of videos from his IP address through a file-sharing program. He had conducted hundreds of searches for child pornography on an almost daily basis over a 5 month period. He had not been compliant with the house arrest which had been imposed as a condition of bail. He had no criminal record and had been steadily employed. A psychiatrist concluded that he was at very low to low risk for re-offending. He was likely to be deported following his sentence. [8] The Court of Appeal found that the sentence was within the range, and that "there is no basis to interfere with her decision on this issue to which considerable deference is owed."
30Decisions from trial courts in this province show a wide range. I will refer to only some examples.
31In R. v. Lysenchuk, 2016 ONSC 1009, Shaw R.S.J. imposed a 9 month sentence, to be followed by 3 years' probation, for possession of child pornography. The offender had 5,920 photographs and 588 videos involving pre-pubescent and early pubescent children. Mr. Lysenchuk was 65 years old, with no criminal record. He had been employed with the same company for 38 years and had no alcohol, drug or mental illness issues. He had been assessed as at low risk to offend in a sexual manner involving contact with or direct visualization of children and a low to moderate risk to re-offend in the sphere of pornography. He had expressed remorse, was embarrassed and remorseful, had shown insight into his conduct, and had stated his willingness to participate in sexological treatment.
32In R. v. John, 2017 ONSC 810, Woolcombe J. imposed a sentence after trial of 10 months imprisonment (less credit for house arrest on bail) and 2 years' probation on two counts of possession of child pornography. The offender had 89 videos and 50 unique images that were child pornography. They showed girls aged from 4 to 10 being penetrated anally or vaginally by an adult penis or sex toy, together with oral sex with girls as young as 2 or 3. The offender was a 31 year old first offender with a spotty employment record who had been suffering from and been treated for depression for the past six years. He had received some psychotherapy, but had not been assessed by a psychiatrist or psychologist, and there was no evidence of his likelihood of re-offending. Nor was there evidence as to his insight, if any, as to his offence.
33In R. v. Johnson, an unreported decision of this court on Nov. 18, 2015, Webber J. sentenced the offender to 12 months in custody after a plea of guilty to one count of possession of child pornography. 622 images and 20 movies of child pornography were found on his computer. They showed sexual activities, including fellatio, bondage, anal and vaginal intercourse, forced sex, group sex, and explicit violence, with boys and girls as young as 3 and 4 years of age. The offender was 53 years old, and lost his job as a result of the charge. He voluntarily submitted to the sexual behaviours assessment at the Royal Ottawa Hospital, and was diagnosed as a pedohebephile in partial remission. He voluntarily attended and took part in treatment, to which he had responded quite well. He was deeply remorseful and accepted full responsibility for his conduct. He had supportive family and friends and had had candid discussions with his wife, children and others about his conduct. Justice Webber noted that the appropriate sentencing range was between 9 months and 4 years.
34Three cases, R. v. Dumais, 2011 ONSC 276, R. v. Dean, [2010] O.J. No. 5305, and R. v. Lynch-Staunton, 2012 ONSC 218, all decided by Ratushny J. of the Superior Court, are illustrative of the range of appropriate sentences for these offences.
35In Dumais, Justice Ratushny sentenced the offender to 9 months of incarceration and 1 year of probation after he had pled guilty to possessing child pornography. He had 170 images and 44 movies of child pornography, depicting fellatio, penetration and voyeurism of intimate parts of young female bodies. The minimum sentence in 2009, the date of the offences, was 45 days imprisonment and the maximum sentence was 5 years. Mr. Dumais was 39 years old, with no prior criminal record, no history of suffering any kind of abuse, no problems with anger, drugs, alcohol, significant medical illnesses or sexual dysfunctions. He had been a respected elementary school teacher for 8 years. He claimed that he had downloaded the materials out of curiosity, did not want to hurt children, and had never wanted to engage in sexual relations with a child. He was attending the Sexual Behaviours Unit at the Royal Ottawa Hospital and a psychiatric assessment, together with test results, showed that he was primarily aroused by adult women in consensual sexual scenarios. A psychiatrist placed him in a "low risk" category to re-offend.
36Justice Ratushny noted the significant mitigating factors in this case, including a guilty plea at the first reasonable opportunity, no prior record, support of family and friends, compliance with strict bail conditions for 21 months, voluntary attendance for the sexual behaviours assessment, compliance with the psychiatrist's recommendations, attendance at ongoing therapy sessions, expression of sincere remorse, and acceptance of full responsibility for what he had done. She found that punishment, specific deterrence and rehabilitation had already been accomplished and did not require any more incarceration of Mr. Dumais. However, denunciation and general deterrence are paramount considerations and the enormity of the crime required more punitive consequences so as to denounce and deter others.
37In Dean, decided 3 months before Dumais, Justice Ratushny sentenced the offender to 3 years (less pre-sentence custody) after he pled guilty to possession of child pornography. His computer contained 1,061 videos and 288,742 pictures (of which 30,764 were unique images), depicting a wide range of sexual depravity, including children between the ages of 2 and young teens, and depicting sexual activity between children and other children, adults, foreign objects and animals. Mr. Dean explained his possession of child pornography as research for a study on child abuse. He denied obtaining gratification from viewing the images. He refused to admit culpability. Justice Ratushny found that he had a complete lack of appreciation of why possession of child pornography is a serious criminal offence. As she put it, "He should be horrified that he has participated in the continued sexual abuse of children. Instead, he persists in his 'self deceptive enhancement'".
38She noted mitigating factors of a guilty plea, his otherwise good character and apparently law-abiding life, and a low risk of re-offending. The huge volume of the collection, his "curious" explanation for it (which she found had scant credibility) and his complete lack of insight and remorse were, however, aggravating factors which placed him outside the upper limit of the normal 6 to 18 month range of sentences.
39In Lynch-Staunton, decided 1 year after Dumais, Justice Ratushny sentenced the offender to 5 years (less pre-sentence custody) after he had pled guilty to both possession and distribution of child pornography. She allocated 3 years for distribution and 2 years consecutive for possession.
40The offender had engaged in online conversations and emails with an undercover police officer which had begun in a "family sex chat room" on the internet and progressed to emails at home and work. The offender distributed images and written materials which were child pornography, pictures of his penis, and stories of sex with adults and children, including incest, to the officer. He had 17 different devices on which was stored 2,097 pictures, 1,763 stories, and 574 movies, all of which were child pornography. All his pornography was organized into folder and file structures. These included separate "youth" folders which contained child pornography created and added to on different dates. His computers showed a long history of him accessing and referring to child pornography between 1998 and 2007. He was a very frequent user of internet newsgroups, forums, chatrooms, and family sex channels. He had chatted with over 700 different users in one forum. He sent others pictures of child pornography with the note that he had acquired them from "years of looking on news groups". In another message, he said that he was interested in having sex with daughters of some nudist friends aged 12 to 13. He had advocated and counselled incest and all kinds of sexual acts with children, including bestiality.
41The offender was 56 years old, with no prior criminal record. He had a good employment record, having worked for 12 years as a software programmer. He said that the material on his computer "wasn't pornography, it was erotic nudity". He described his online activity as simply an expression of his sexuality. He said he had engaged in online sex chats for years as part of a "study" of the reaction of early pubescent females to images and scenarios on the internet. He showed no remorse or regret for the victimization of the children in the material he had downloaded, saying "I'm a nudist. I download pictures." He saw himself as a victim. He refused to go through phallometric testing, saying that he had recently become more involved with his faith and being exposed to pornography would be contrary to the dictates of his church. Dr. Gray, of the Royal Ottawa Hospital Sexual Behaviours Clinic, did not find his expressed motivation and versions of events to be credible. He noted a progression of behaviour from more indirect contact with under-aged females to more and more direct involvement. He also noted that in many of the internet chats he had had with teens as young as 13 he appeared to counsel them to engage in sexual acts and sent some of them illegal pornographic material. Dr. Gray found the offender to be in either the lowest or second lowest of five risk categories for sexual re-offence with a potential for improvement with treatment.
42Justice Ratushny noted aggravating circumstances of the gravity of the offences; the offender's lack of insight into the harm he has caused; the possibility that he was an untreated pedophile; the focus on younger children in the pornography; the acts of violence of full intercourse and penetration; depiction of babies, very young children and incest; his dissemination of child pornography; his encouragement of illegal acts; and his extensive participation in chatrooms and encouragement of child pornography. She did not believe his explanations for declining phallometric testing around his motivation for gathering the pornography. The only mitigating circumstances she noted were the plea of guilty, although entered the day before the scheduled trial, and his absence of a criminal record.
43Justice Ratushny held that the normal sentencing range for possession of child pornography was between 9 months and 4 years of incarceration. I note that this was an increase from what she had held in Dean, decided 15 months earlier, of a range of 6 months to 18 months.
44This increase in sentencing range is consistent with the Court of Appeal's indication in D.G.F. in 2010 that the courts have been on a "learning curve" with respect to these offences. The increase in the range is also a reflection of the increase in the minimum sentence established by Parliament.
45I conclude that the range of sentences for these offences, particularly after the 2015 amendments which increased the minimum penalty for possession from 6 months to a year, is 1 year to 4 years. This, of course, is subject to the caveats about ranges which I have already dealt with.
(f) Aggravating and mitigating circumstances
46The exact sentence, of course, is dependent on the circumstances of the offence and the offender. That requires a consideration of the aggravating and mitigating circumstances present in this case. Justice Molloy of the Superior Court set out a thorough list of such circumstances in R. v. Kwok, [2007] O.J. No. 457 at paragraph 7. She wrote:
Generally speaking, any of the following are considered to be aggravating factors: (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. Generally recognized mitigating factors 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).
Part 3: Circumstances of the offence
47The images which Mr. Inksetter had in his computer system were of the worst kind of child pornography. They showed children in the most vile circumstances imaginable – bondage, oral sex, bestiality, fellatio, cunnilingus, and anal and vaginal penetration with penises and objects. The children involved were as young as 1 year old. I was shown 5 images and 5 videos. No purpose would be served by describing them here other than to say that they illustrated the terrible depths of depravity to which humans can descend.
48It must be remembered that while these are images, they are of real persons, children who will be scarred forever by what they were forced to endure to produce this filth. As McLachlan C.J. wrote at paragraph 92 of R. v. Sharpe:
The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone.
49The size of the collection is material. While not the largest collection in the case law – there were more than twice as many images in Dean – its sheer volume (133,000 images and 3,000 videos), and the number of children who were abused to produce the images in the collection, put this offence among the most serious for circumstances of the offence of possession of child pornography.
50The collection was very well organized, with the images and videos stored in hundreds of folders, all named in a way which was consistent with the contents. This shows that Mr. Inksetter dealt with, and was aware of, the contents and images.
51Mr. Inksetter told Dr. Gray that in the last year he was much less careful about his internet activity and did not care if he was caught. He left applications on that would continuously download videos or images while he was out of town. He said he was only interested in viewing pornography of any sort when under the influence of marijuana, and was spending about $1,000 a month to buy marijuana.
52He denied contacting other people on the internet for the purpose of sharing illegal videos with them. He denied ever trying to contact an underaged person over the internet. He denied any sexual contact with an underaged person in his life. The Crown did not attempt to disprove any of these things.
53While the material he downloaded was available to other persons so long as it remained in the shared folder on his computer, he did not take any steps to actively distribute it.
Part 4: Circumstances of the offender
54Mr. Inksetter has a degree in Information Technology from Lakehead University. He has worked for the Canada Revenue Agency in the IT field since 2002.
55He has no criminal record.
56Mr. Inksetter is 51 years old. He never married. He told Dr. Jonathan Gray, the psychiatrist at the Sexual Disorders Clinic at the Royal Ottawa Hospital who carried out his sexual behaviours assessment, that he began to look at pornography as a result of the breakdown and emotional turmoil in his relationship with a woman with whom he was involved beginning in 1992. At the time, he was 27 years old. They moved in together in Ottawa shortly after the relationship began. Soon after, his girlfriend's mental health deteriorated. She was diagnosed with schizophrenia. Their sexual relationship came to an end. She became homeless. He remained emotionally attached to her and, over the years, came to her aid on a number of occasions as she lived in the street, became pregnant on three occasions, and had to be admitted to hospital at least once.
57In approximately 2000, while he was trying to help his estranged girlfriend, he started using pornography regularly, always in conjunction with marijuana, as an escape. He found that this caused him to feel "emotionally dead". He initially focussed mainly on adult pornography but he started to become bored with these images and he strayed to view other images that would make him feel "horrified". Over time, especially in the last two years, he started to look at child pornography out of curiosity. He also started looking at images which involved torture and beheadings. He said that he did so to develop a "morbid detachment" from reality, and that watching them made him feel "worse. I was punishing myself." He said that he was aware that they were depicting actual abuse or violence, but that he felt emotionally deadened with the marijuana.
58I was given letters from Mr. Inksetter's parents, sisters, friends, and present partner. It is clear from those letters that Mr. Inksetter has told all in his circle the circumstances of his offence. The letters speak of Mr. Inksetter's empathy, intelligence, and willingness to help others. They also speak of his clear remorse for what he has done and the efforts he is making to deal with it. I conclude that he has a very supportive network of family and friends.
59Shortly after these charges were laid, Mr. Inksetter started seeing Dr. Drew Kingston, who is the Senior Psychologist and Director of Groups and Program Evaluation at the St. Lawrence Valley Correctional and Treatment Centre, Integrated Forensic Program, Royal Ottawa Health Care Group. He has particular expertise in the area of atypical sexual interests and behaviour. I received two reports from Dr. Kingston.
60In his first report, dated October 27, 2016, he noted that Mr. Inksetter had seen him 20 times. He was remorseful about his past behaviour and extremely motivated to continue with counselling. He noted that Mr. Inksetter had demonstrated improved insight regarding his risk factors which precipitated his behaviour.
61Dr. Kingston told Dr. Gray that, in his opinion, Mr. Inksetter's primary motivation to collect and view the child pornography appeared to be "numbing out reality" as a dysfunctional coping mechanism for his feelings of lack of control over his ex-girlfriend's symptoms.
62In his second report, dated June 29, 2017, Dr. Kingston noted that Mr. Inksetter had seen him 41 times. He continued to be remorseful about his past behaviour and extremely motivated to continue with counselling. He had shown considerable improvement in his skills in addressing his specific risk factors in a more appropriate manner. He wrote:
Although I have targeted a number of treatment needs, Mr. Inksetter demonstrated considerable deficits in his ability to emotionally self-regulate in an appropriate and healthy manner. Indeed, this is one of the key etiological paths toward problematic internet use. Mr. Inksetter is now better able to monitor fluctuations in his mood and he has developed more effective coping strategies in regulating his affective states.
63Dr. Kingston shares Dr. Gray's opinion, which I will set out in more detail shortly, that Mr. Inksetter presents a very low risk to commit a future violent offence, contact sexual offence, or child pornography offence. He concluded that treatment was unlikely to reduce his risk any further, but counselling could benefit his skills with respect to emotion regulation and effective coping with stress.
64Dr. Gray conducted the sexual behaviours assessment under s. 21 of the Mental Health Act, to which Mr. Inksetter consented. He conducted a battery of tests, including questionnaires and interviews. Among those tests was one designed to measure the degree to which he may not have been honest in his responses to questionnaires. That test suggested that Mr. Inksetter was not consciously trying to portray himself in an over-positive light to test administrators and his responses could be taken as an accurate reflection of reality. Phallometric testing produced no positive evidence of his experiencing sexual arousal in response to situations involving prepubescent males or females.
65Dr. Gray concluded that "despite the presence of a large collection of child pornography in his possession, in my opinion a diagnosis of pedophilic disorder is unlikely for Mr. Inksetter." He also concluded that Mr. Inksetter's explanation for his behaviour – that by exposing himself to horrific material while emotionally deadened by the effects of heavy use of cannabis he was able to socially disengage – "has an air of reality".
66Dr. Gray did not recommend that Mr. Inksetter continue to be followed at the Sexual Disorders Clinic. He did, however, recommend that he continue treatment with Dr. Kingston after any period of incarceration. He wrote:
As explained above, it is my opinion that Mr. Inksetter's offences were not motivated out of a paraphilia, but rather a maladaptive coping mechanism to ongoing stressors. Therapy with a psychologist in the community could help Mr. Inksetter develop more functional ways of dealing with his emotional problems and I would recommend that he be required to see a counsellor on release from incarceration.
67I asked Mr. Inksetter whether he wished to say anything during the sentencing hearing. He told the court that he took full responsibility for his actions; that there was no excuse for his behaviour and he was deeply shamed by it; and that he wanted to apologize to the victims of the abuse which he had seen and who are re-victimized by the proliferation of the images over the internet. He said that he had been working with the psychologist for over a year now and wanted to continue this to better manage his mental state. He recognized the necessity to have better contact with his family.
68I was told by defence counsel, and accept, that it is likely that Mr. Inksetter will lose his job as a result of these charges and this sentence.
Part 5: Analysis
69In considering the list of aggravating and mitigating circumstances set out by Justice Molloy in Kwok, I note that: Mr. Inksetter did not have a criminal record; although he has been convicted of making child pornography available (which is an aggravating factor in the total sentence) he was not involved in producing or actively distributing the material (or discussing child pornography and related subjects on chat rooms or by other means on the internet); the collection was extremely large (and organized, indicating that it was carefully reviewed by the offender); the contents of the collection were at the extreme end of the spectrum, including the most vile acts imaginable with children as young as infants; he is not seen as a danger to children and has not assaulted children in the past; and he did not purchase child pornography (although there is no doubt that downloading "free" images from the internet contributes to the sexual victimization of children by adding to the demand).
70It is also an aggravating factor, as I have made clear, that these crimes involved the abuse of thousands of children, whose lives have undoubtedly been ruined by the depravity forced upon them.
71Mr. Inksetter has been of otherwise good character; he has shown insight into his crime; he has demonstrated what I find to be genuine remorse, not only to the court but to his psychologist; he has submitted to treatment for over a year and wishes to continue the treatment; he pled guilty at the first reasonable opportunity; and he will in all likelihood suffer for his crime by losing his job.
72Mr. Inksetter's case can be usefully compared to the trilogy of decisions of Justice Ratushny in Dean, Dumais, and Lynch-Staunton. Justice Ratushny sentenced Mr. Dean to 3 years in 2010, Mr. Dumais to 9 months in 2011, and Mr. Lynch-Staunton to 5 years in 2012. While Mr. Inksetter's collection was extremely large like Mr. Dean's, Mr. Dean showed a complete lack of remorse and insight into his offence. Mr. Dumais, like Mr. Inksetter, showed real remorse and insight, voluntarily attended assessment and therapy sessions, and accepted full responsibility for what he had done. Furthermore, unlike Mr. Lynch-Staunton, who Justice Ratushny sentenced to 2 years for possession and 3 years for distribution, Mr. Inksetter has not been a user of internet newsgroups, forums and chatrooms and has not advocated or counselled incest and vile sexual activities with children.
73I conclude that Mr. Inksetter's situation is more like that of Mr. Dumais than either Mr. Dean or Mr. Lynch-Staunton. I find that, as like Mr. Dean's situation, specific deterrence and rehabilitation have already been accomplished to a significant extent. Like Mr. Dean's case, however, denunciation and general deterrence are paramount considerations and the enormity of the crime requires more punitive consequences so as to denounce and deter others.
74Mr. Dean received a sentence of 9 months in custody. Since then, the minimum punishment for possession has been increased twice by Parliament and the appropriate range of sentence for these crimes has increased. Mr. Inksetter's collection was significantly larger than Mr. Dean's and contained more vile images. Furthermore, Mr. Dean was convicted of only possession of child pornography, not both possession and making it available as has Mr. Inksetter.
75If the sentence was greater than two years, it could not include a period of probation. In my view, probation will be of significant assistance because it will ensure that Mr. Inksetter receive the counselling in emotion regulation and dealing with stress that was recommended by both Dr. Gray and Dr. Kingston. Furthermore, a period of incarceration followed by a lengthy probation will allow control and supervision of Mr. Inksetter for a longer period of time than would the 4 ½ year sentence sought by the Crown.
Part 6: Conclusion: Sentence and ancillary orders
76In all of the circumstances, I conclude that an appropriate sentence for Mr. Inksetter on the possession of child pornography charge would be two years less a day in custody, to be followed by a period of probation of three years. On the charge of making child pornography available, I sentence him to one year in custody, to be served concurrently.
77The terms of the probation will include a requirement to attend and participate in assessment and counselling for deviant sexual behaviour, emotion regulation and stress, including continuing with counselling with Dr. Kingston.
78I asked counsel for submissions on an appropriate term of probation or a s. 161 order. They agreed that it would be appropriate to include a term in any such order that:
(a) Mr. Inksetter be required to provide access to his electronic devices to the Ottawa Police Service upon demand for the purpose of searching for material related to child pornography; and
(b) that he is not to possess and/or utilize any encryption capable software.
79Those terms will be part of the probation order, with the right of access to his electronic devices be given to either the Ottawa Police Service or the police service in the municipality in which he resides.
80A number of ancillary orders are appropriate.
81Possession of and making available child pornography are both primary designated offences within the meaning of paragraph (a) of the definition of that term in s. 487.04. Consequently I order Mr. Inksetter to
(a) provide a sample of his DNA for analysis and registration under s. 487.05(1); and
(b) comply with the Sex Offender Information Registration Act.
82Because the maximum terms of imprisonment for these two offences are 10 and 14 years respectively, s. 490.013(2.1) provides that the latter order is for life.
83I order that the computer and related equipment seized by the police, upon which was found the child pornography, be forfeited to the Crown under s. 164.2.
84I prohibit Mr. Inksetter, under s. 161, from:
(a) 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, schoolground, or playground;
(b) 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; or
(c) using the Internet or other digital network unless he:
(i) agrees in writing, before any such use, to provide access to his electronic devices to the Ottawa Police Service (or the police service in the municipality in which he lives) upon demand for the purpose of searching for material related to child pornography, and
(ii) does not possess and/or utilize any encryption capable software.
85I urge the Ottawa Police Service to use this authority to monitor Mr. Inksetter's use of computers and the Internet.
86The term of the s. 161 order is for life.
Released: August 22, 2017
Signed: Justice P. K. Doody
Footnotes
1S.C. 2005, c. 32, s. 25
2S.C. 2005, c. 32, s. 24
3R. v. K.M., 2012 SKCA 95, R. v. Allen, 2012 BCCA 377, and R. v. Archibald, 2012 ABCA 202
4Conditional sentences have been unavailable for possession of or making available child pornography since November 1, 2005 when a minimum term of imprisonment came into force for these crimes: S.C. 2005, c. 32, s. 7.
5S.C. 2005, c. 32, s. 7.
6S.C. 2012, c. 1, s. 17.
7S.C. 2015, c. 23, s. 7.
8See the trial judge's decision at [2015] O.J. No. 7757.