WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:
486.4 (3) CHILD PORNOGRAPHY — In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.4 (6) OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Toronto Region – Old City Hall
Parties
Between:
Her Majesty the Queen
— and —
Phillip Woolf
Judicial Officer and Counsel
Before: Justice H. Pringle
Heard: May 7, 2019
Reasons for Judgment Released: June 3, 2019
Counsel:
- Emma Evans, for the Crown
- Maya Borooah, for the Defendant
PRINGLE J.:
OVERVIEW
1Phillip Woolf has admitted possessing child pornography between May 9, 2017 and November 29, 2017. At the time he committed this offence, the summary conviction penalty was six months jail at a minimum and not more than two years less one day jail.
2The parties agree that, pursuant to R. v. John, 2018 ONCA 702, the mandatory minimum is no longer of any force and effect. Accordingly, the defence seeks a one-year conditional sentence and between twelve and twenty-four months of probation. The Crown seeks six months jail and thirty-six months of probation, as well as ancillary orders.
FACTS
3Mr. Woolf is a well-educated 66-year old man. Originally from South Africa, he left for Canada after his support of the anti-apartheid movement drew police attention. He educated himself in the art field, obtaining degrees from O.C.A.D. and University of Toronto. For over 20 years the defendant has been a respected educator at various colleges, including Seneca College. Support letters from Seneca describe him as "professional and collegial" with students and staff, and as an "exceptional faculty member who always put the needs of his students first." He is an artist whose works have been exhibited at Canadian and American art galleries.
4Mr. Woolf is also a sex addict, and more particularly is addicted to consensual sexual activity between adults. One of the forms this addiction took was obsessive consumption of adult pornography, beginning many years ago with print media and increasing with the advent of the internet. About three or four years ago, Mr. Woolf viewed child pornography on mass download sites like Tumblr. While adults remained his primary pornography interest, the defendant has admitted, to Dr. Rootenberg, seeking out images of girls in their early teenage years. He is not a pedophile, but his addiction caused him to act out in thrill-seeking manners, including viewing "under-aged porn of children aged 9-12".
5On May 10, 2017, Adobe Systems reported illegal content posted by the defendant onto Adobe Cloud. This illegal content, being two images of child pornography, resulted in the execution of a search warrant on the defendant's electronic devices. Sixty five unique images and four duplicate images were found on his Mac Book Air Drive. Other devices were either not searched or did not contain child pornography.
6Sixty-four of the unique images show female children either partially undressed or completely naked. Many of them show the vaginal and anal areas of these children. One image shows a naked pre-pubescent child performing fellatio on an adult male. This is the only image that shows any of the children interacting with an adult.
7The defendant surrendered himself into custody on February 13, 2018. He was released after a show cause hearing. Mr. Woolf has been compliant and law-abiding on bail. His surety, who has kept a watchful eye on the defendant's internet activity using the Covenant Eyes program, says "there has been absolutely no evidence of concern".
8There were immediate consequences to this arrest. Seneca placed him on leave and the defendant subsequently took early retirement. The fact of the charges became well-known, given a Toronto Police Service press release and a mass email sent to all Seneca employees. His marriage dissolved. It has been difficult to sell artwork, given that a Google search easily links up to the fact and nature of these allegations. Mr. Woolf has panic attacks, insomnia, and struggles with anxiety.
9A few weeks after the search warrant, the defendant began a six-week residential sexual addiction program at Bellwood Health Services. He completed this program successfully. One of his treating therapists described the defendant as "demonstrat[ing] great remorse and shame associated with his conduct, taking full ownership for his behaviour", "active and fully committed" to treatment, and demonstrating "humility, willingness to address his problem, insight, sensitivity and respect of others".
10After completing residential treatment, Mr. Woolf enrolled in an aftercare program. By early May 2019, he had completed 59 sessions. This enrolment is for one year, but the defendant is willing to continue it indefinitely. His aftercare therapist says the defendant is participating fully, consistently, and meaningfully in group sessions. Mr. Woolf has also met with his personal therapist, first weekly and now biweekly, for a total of 32 sessions. This therapist similarly reports the defendant's full commitment to understanding his behaviour and to recovery. His surety has been monitoring both the defendant's progress in counseling and his Internet activity. He describes the defendant as totally committed to rehabilitation.
11All the support letters are cognizant of the nature of this case. Each support letter speaks to the work the defendant is doing to address his criminal offending and his sex addiction. Each letter speaks to the remorse Mr. Woolf has expressed and the insight he has developed into his behaviour. One letter, from a fellow sex addict met in counseling, speaks of how the defendant has helped him make progress in his own recovery.
12The defendant has also undergone a full risk assessment by Dr. Rootenberg, a forensic psychiatrist. This assessment was fully informed by clinical interviews of the defendant and with collateral sources. It was directed towards assessing risk for violence and/or sexual offending in the future with a conclusion between a low risk of violent offence and a low risk, over the long-term, for future sexual offending in particular.
13Dr. Rootenberg concluded that "…Mr. Woolf's risk of recidivism is very low, given his acceptance of responsibility for his actions without attempting to externalize blame onto any other individuals, his active and forthright participation in treatment, his lack of antisociality or other personality disturbance, and his impressive community support network".
14Finally, letters from family and friends unanimously support the conclusion that the defendant is truly remorseful and that counseling has had a positive effect on him. When the defendant spoke to the Court, I similarly found his insight and remorse to be true and meaningful.
RANGE OF SENTENCE AND SENTENCING PRINCIPLES
15Ms. Evans, for the Crown, properly took the position that R. v. John applies to our circumstance. There is, therefore, no longer a mandatory minimum binding me in this case. The Court of Appeal for Ontario has, however, been quite clear on the controlling sentencing principles here. In R. v. Inksetter, 2018 ONCA 474, the Court observed that despite the abolition of various mandatory minimums, their enactment demonstrates Parliament's intent that child pornography offences be treated more seriously than, perhaps, they had been in the past.
16At para. 16 in Inksetter, the Court said the enactment of s. 718.01 shows Parliament's intent that "denunciation and general deterrence … be primary considerÂations for any offence involving the abuse of a child." At para. 17, the Court further instructed lower court judges that they "have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence".
17I find it impossible to reduce, to writing, the reasons why every sentence for child pornography offences must achieve general deterrence and denunciation. Jurists more articulate than me have repeatedly done so. The Court of Appeal said, in Inksetter at para. 22, that "Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2, the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis, 2012 ABCA 148, at para. 29, 'possession of child pornography is itself child sexual abuse'. The children depicted in pornographic images are re-victimized each time the images are viewed."
18I can only describe victims targeted for this type of offence as vulnerable. Vulnerable because of their age and size. Vulnerable because of their lack of power. Vulnerable because they come from fractured upbringings. Vulnerable because their abuser is a loved one or a family member. Vulnerable to trauma that will have lifelong echoes in their psyches and behaviour. Exploited, beaten, tormented, raped. If offences against this class of victims does not call for denunciation and general deterrence, I do not know what does.
19The decision of R. v. Lynch-Staunton, [2012] O.J. No. 313 (S.C.J) at para. 79, suggested a general range of sentence between 9 months and 4 years incarceration. Obviously this range, if correct post-John, would be adjustable in either direction to properly reflect aggravating and mitigating factors.
20Ms. Borooah correctly observed that sentencing jurisprudence, post-John, is still evolving. Many sentencing decisions were limited by the presence of a mandatory minimum floor, be it six months or one year. But some pre-John decisions I found helpful, to understand range, including:
R. v. Wang, [2016] O.J. No. 5582 (S.C.J.), an after trial sentencing where 9 months jail was imposed upon a 20-year old first offender who possessed 38 child pornography images and 5 child pornography videos. The images consisted of graphic sex acts between children and between children and adults, including one that simulated rape involving bondage. The defendant was of prior good character, had good rehabilitative prospects and was willing to take treatment. The Court rejected a sentence of 90 days jail as an insufficient general deterrent and insufficiently denunciatory;
R. v. Lysenchuk, 2016 ONSC 1009, where nine months jail was imposed upon a first offender, who was 65 years old and had no prior criminal record. He had possessed 5920 images and 588 videos. His risk of offending involving actual contact with children was low, and risk of committing a child pornography offence again was low moderate;
R. v. Speers, [2017] O.J. No. 6993, where a joint submission of one hundred and eighty days was imposed by Latimer J. on an early guilty plea. The offender possessed 71 images and 4 videos that fell on Category 4 of the Oliver scale, meaning penetrative sexual activity. He was committed to counseling and had genuine remorse;
R. v. Garcia, [2016] O.J. No. 4652, where eight months jail was imposed for possession of almost 40 000 images and 630 videos falling on the lesser end of seriousness. The offender was 28 years old, pled guilty, and had no criminal record;
R. v. Mahannah, 2013 OJ No. 6330, where the 50 000 sexually violent images were all anime and after significant up front work and a guilty plea, forty-five days jail was imposed on a 53 year old first offender.
21Helpful sentencing decisions post-dating the Court of Appeal's decision in John include:
R. v. Zhang, [2018] O.J. No. 4935, where ninety days intermittent was imposed on a youthful first offender. Although the sentencing judge assessed four months of jail as appropriate, it was reduced to 90 days to give effect to the principle of restraint. The offender had encountered the child pornography while searching for adult pornography, but looked at it and kept it. There were 7 images and a video kept, but despite the small number of images, the content of those images was terrible and included rape;
R. v. Schacter, 2019 ONCJ 154, where Chapman J. rejected a conditional sentence as not "adequately reflecting the principle of denunciation" and imposed 6 months jail plus probation. The offender had contested guilt at trial, had no remorse or insight, and had sought decidedly unhelpful counseling. The 148 images were at the lower end of the spectrum and did not include any actual nudity;
R. v. Morrison, 2019 ONCJ 262, where after guilty plea, Silverstein J. rejected a conditional sentence as inappropriate and imposed 100 days jail on a 59 year old first offender. The defendant was an alcoholic who suffered from depression. He had 11 unique child pornography images of young boys with genitals exposed and shared three of those images using Facebook;
R. v. Swaby, 2018 BCCA 416, where the mandatory minimum was struck down in B.C. and a conditional sentence imposed. The first offender had 400 videos and 480 images which fell into the category of serious in nature. But he also had significant cognitive impairment and was "child-like" in terms of his intellect, causing his moral culpability for the offence to be reduced. He was schizophrenic, had been diagnosed with major depressive disorder, and had expressed suicidal ideations. There was also psychological opinion evidence that this offender would suffer significant harm from incarceration.
AGGRAVATING AND MITIGATING FACTORS
22The aggravating factors here are:
The number of child pornography images kept. Certainly 65 images is not the larger number of images found in the case law, but when seen through the lens of 65 separate acts of victimization, it still aggravates sentence;
The nature of the child pornography images kept. The age of these children generally range, in my view, from about five years old to the early teenaged years. Most of the children exploited in these photos were posed to focus the camera on their naked vaginal and anal areas;
Many of these photos are extreme close-ups of the genitals of children who are far from puberty. One of these children, who appears to me to be about four years old at the highest, was forced to fellate the penis of an adult male who was taking the picture. A few of the children are garishly made up and have obviously been trained to pose and perform sexually for the camera. Others simply look sad, or distant.
23There is, I must observe, an absence of aggravating factors found in other cases. There was no evidence of production or distribution, no evidence that these images were purchased, and no evidence that the defendant poses any future risk to re-offend. I was unsure, at best, how long Mr. Woolf had been viewing child pornography, although he clearly possessed these 65 images for six months.
24Many factors must mitigate Mr. Woolf's sentence, too:
he pled guilty at an early stage, admitted this abhorrent criminal misconduct, and waived his right to a trial;
he is a first offender of prior good character;
he enjoys a wealth of community and family support, all of whom are providing this support with eyes open to the type of misconduct that Mr. Woolf engaged in;
he has expressed genuine remorse and demonstrated real insight, as evidenced in the meaningful and significant up-front commitment to therapy and in his participation in various risk assessment tests, and;
he has suffered for his crime, in the form of his marriage ending, his career ending, the loss of social status, and the loss of public dignity. I must confess the latter fact troubles me less, given that the details of his arrest will remain public on the Internet just as the invasive photographs of those children remain public on the Internet.
ANALYSIS
25The first two prerequisites for a conditional sentence are undisputedly met here, and I know that general deterrence and denunciation may be addressed by a conditional sentence. But in this case, I did not find a conditional sentence was consistent with the fundamental principles and purpose of sentencing. Before explaining why, let me add that after anxious consideration, I did conclude that community safety would not be endangered by the defendant serving his sentence in the community.
26The evidence has convinced me that Mr. Woolf has rehabilitated himself and does not need to be specifically deterred by any sentence. His personal lesson has been learned. He has no prior criminal record and has been successfully on bail without breach for over one year. I also find that his offending was not connected to any sexual interest in children, but rather the product of his sexual addiction and to risk-taking sexual behaviour in particular.
27But our Court of Appeal has instructed me that it is an unusual circumstance where child pornography offences would not be met by incarceration. I could not reconcile the factual details of his criminal offending with the need to impose an exemplary sentence and to denounce this specific type of conduct. The facts in Mr. Woolf's case, including his medical and psychiatric issues, differ greatly from those established in R. v. Swaby.
28In addition, s. 718(f) requires his sentence to acknowledge harm done to victims and community. There is nothing within my power that would redress the damage done to the children in these 65 pictures. But Mr. Woolf's sentence has to reflect this damage, and I can only properly acknowledge the harm done to those children by sending Mr. Woolf to jail.
29I recognize he did not take those pictures, or post those pictures, or disseminate those pictures. But there is no market for any of that without the consumer. As Molloy J. said in R. v. Kwok at para. 52, "It is crucial to deter people at the entry level from ever possessing child pornography. Perhaps by killing, or at least diminishing, the market for child pornography, the production side can also be curbed."
30While the nature of this offence requires jail, six months jail is excessive for this offender. I should add that the Crown position falls easily within an appropriate range. But six months of jail would not give proper effect to mitigating factors which were resoundingly proven. In particular, Mr. Woolf's recognition of the need for outside professional help, his remarkable progress in therapy, and his guilty plea mandate an exercise of restraint here.
31Considering the aggravating and mitigating factors, and balancing the principles of sentencing, I am imposing a sentence of ninety days jail on Mr. Woolf. This sentence may be served intermittently, to ensure he can continue to sustain himself financially. He will be taken into custody today, processed and released. He will then report to jail each Friday and be released every Monday until the completion of this sentence.
32In a moment I will require submissions on what time he can report to jail and what time he needs to be released for work purposes. He will be on probation during the week, while not in jail, and for one year after he completes the custodial portion of this sentence.
33The terms of this probation in relation to internet access are those set out in the Crown's draft order, with one exception. The defendant will not be required to provide his Probation officer with information to permit him or her to randomly monitor his email account. The "Monitoring Provision" condition, proposed on consent, adequately covers any concerns about internet misuse.
34Mr. Woolf will also be required to keep the peace and be of good behaviour, attend court when required to do so, notify the probation officer in advance of any change in name, address, employment or occupation, to report to probation no later than Friday June 7, 2019 and thereafter as required, and to follow the rest of the conditions as laid out in the draft order.
35Mr. Woolf will be required to provide a sample of his D.N.A. The order for forfeiture and disposition of property has been signed. I am making orders under s. 161(a) and (b) as per the wording in the Code. I am also making a s. 161(d) order which will prohibit internet access except in accordance with the wording of the Crown's draft order. The length of the s. 161 orders will be five years. Finally, the defendant will be required to comply with SOIRA, in Form 52, for a period of ten years.
Released: June 3, 2019
Signed: Justice H. Pringle
