Her Majesty the Queen v. Schulz
[Indexed as: R. v. Schulz]
Ontario Reports
Court of Appeal for Ontario
Watt, D.M. Brown and Huscroft JJ.A.
June 29, 2018
142 O.R. (3d) 128 | 2018 ONCA 598
Case Summary
Charter of Rights and Freedoms — Search and seizure — Exclusion of evidence
Police obtained a warrant to search an accused lawyer's residence for electronic devices and documents that might contain evidence of child pornography offence. The warrant contained special provisions to protect solicitor-client privilege. The trial judge found that police violated s. 8 of the Charter by delaying report to justice, failing to make request to detain seized devices for more than 90 days, failing to seal six devices which contained no relevant information, failing to take detailed notes of examination of sealed devices and failing to return devices which did not contain offence material to accused. The trial judge reasonably decided to exclude only six unsealed items for which no extension to detain was obtained and devices on which no offensive materials were found.
Criminal law — Sentencing — Child protection order — Internet limiting terms
Accused convicted of possession of child pornography. Accused argued at trial no s. 161 order should be made as having adduced evidence presenting at low end of risk of recidivism. Trial judge imposed ten-year prohibition order under s. 161(1)(d) of Criminal Code which contained terms limiting accused's access to Internet. Accused's appeal from Internet limiting terms dismissed. Possession of child pornography being one of risks that s. 161(1)(d) was enacted to prevent. No basis for interfering with trial judge's discretionary determination that s. 161 order appropriate. Internet limiting terms appropriate despite lack of evidence that accused contacted or attempted to contact children.
Facts
The accused, a lawyer, was convicted of possession of child pornography. The police obtained a search warrant to search his residence for electronic devices and documents that might contain evidence of child pornography offences. The warrant contained special provisions to protect solicitor-client privilege.
The trial judge found that the police violated the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms in the following ways:
There was a one-month delay in making a report to a justice under s. 489.1(1)(b)(ii) of the Criminal Code and a failure to apply under s. 490(2) for an extension of time beyond 90 days to detain the seized items;
The police failed to seal six of the seized devices (which contained no relevant information), as required by the search warrant;
A year after being ordered to return to the accused seized devices which did not contain offensive materials, the police had not yet done so;
A police officer failed to take notes of his search of the unsealed seized devices.
The trial judge found that none of the breaches resulted from bad faith conduct, save for the failure to return the devices on which no offensive material was found, and that there was a strong societal interest in the adjudication of the case on the merits. She concluded that the violations did not warrant exclusion of any evidence under s. 24(2) of the Charter other than the six unsealed items for which no extension was obtained and the devices on which no offensive materials were found.
The accused was sentenced to 45 days' imprisonment, to be served intermittently, followed by three years' probation. A ten-year prohibition order was made under s. 161(1)(d) of the Criminal Code which contained terms limiting the accused's access to the Internet. The accused appealed his conviction and the terms of the s. 161(1)(d) order.
Decision
Held: The conviction and sentence appeals should be dismissed.
The trial judge's s. 24(2) findings were amply supported by the evidence and were not unreasonable.
The accused presented a psychological report indicating that the accused was at low risk for sexual recidivism. He argued that given the strict terms of probation which also limited his access to e-mail and the Internet that no s. 161 order was required. The possession of child pornography causes a grave risk to children and it is one of the risks that s. 161(1)(d) of the Code was enacted to prevent. The accused possessed a significant amount of child pornography. The possession of child pornography poses a grave risk to children. An order under s. 161(1)(d) limiting the accused's access to the Internet was appropriate in spite of the facts that the accused was a first offender and that there was no evidence that he contacted or attempted to contact children. The trial judge considered the relevant factors and crafted an order that reasonably attempted to minimize the risk the accused posed to children and that responded to his specific circumstances.
Judgment
APPEAL from the conviction entered by G.M. Miller J. of the Superior Court of Justice on March 23, 2016 and from the sentence imposed on May 31, 2016.
Martin Schulz, acting in person.
Grace Choi, for respondent.
The judgment of the court was delivered by
D.M. BROWN J.A.:
I. Overview
[1] The appellant, Martin Schulz, a lawyer, was convicted of one count of possession of child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge sentenced him to 45 days' imprisonment, to be served intermittently, three years' probation and a ten-year prohibition order under s. 161(1)(d). Terms of the probation and prohibition orders limited the appellant's ability to access the Internet and e-mail.
[2] The appellant appeals his conviction. He also seeks leave to appeal the terms of the probation and prohibition orders that limit his access to the Internet.
[3] For the reasons set forth below, I would dismiss the appellant's appeal from conviction. I would grant him leave to appeal the Internet-related terms of the probation and prohibition orders but would dismiss the appeal.
II. The Conviction Appeal
A. The trial application to exclude from evidence seized materials
[4] Based on information obtained from Bell Canada about subscriber information associated with a particular IP address, the police obtained a warrant to search the appellant's residence for electronic devices and documents that might contain evidence of the offences of possession of child pornography and making available child pornography.
[5] As the appellant is a lawyer, the warrant contained special provisions to protect solicitor-client privilege. They included the appointment of a referee to ensure that the search and review of seized documents were conducted in ways that would protect solicitor-client privilege. The warrant also required the police to place all seized items, unread, in a package and seal the package until further order of the court.
[6] The search warrant was executed on August 16, 2012.
[7] On February 11, 2013, the Crown obtained an order, unopposed by the appellant, from Hourigan J., as he then was, specifying the method by which a designated examiner could copy and review the contents of the seized devices for offensive materials (the "examination order"). The order required the examiner, before filing a report of his review with the court and making available copies of the seized devices, and working with the referee (if necessary), to ensure no privileged information was released to the Crown or police.
[8] The appellant, who was represented by counsel at trial, applied to exclude all evidence found on the seized devices on the ground the search had been conducted in a manner that infringed his rights under s. 8 of the Canadian Charter of Rights and Freedoms. The appellant challenged the validity of the seizure, detention and examination of the seized devices on numerous grounds:
(i) the police obtained the appellant's IP subscriber information without a warrant;
(ii) no report was made under s. 489.1(1)(b)(ii) of the Criminal Code until one month after the execution of the search warrant;
(iii) no request was made under s. 490(2) to detain the seized devices for more than 90 days;
(iv) the police failed to seal all seized devices, leaving unsealed six devices (though they concluded these contained no relevant information);
(v) the examiner failed to conduct his examination of the devices in strict compliance with the examination order;
(vi) the police failed to return to the appellant seized devices that did not contain any offensive materials;
(vii) the police failed to take detailed notes of their examination of the seized devices; and
(viii) a police officer improperly took screen shots of directory structures from the examiner's copies when preparing to testify at an anticipated discovery hearing.
[9] On the application before the trial judge, the appellant's counsel acknowledged that if obtaining the IP subscriber information without prior judicial authorization was the only Charter breach, the decision of the Supreme Court in R. v. Spencer, [2014] 2 S.C.R. 212, 2014 SCC 43 pointed to the admission of the evidence. However, he submitted there were multiple s. 8 breaches, the cumulative effect of which required the exclusion of the evidence pursuant to s. 24(2) of the Charter.
[10] In comprehensive reasons, the trial judge addressed each of the appellant's allegations regarding a breach of his s. 8 Charter rights. She found that:
(i) the failures of the police to file a report pursuant to s. 489.1(1)(b)(ii) for one month and to apply under s. 490(2) for an extension of time beyond 90 days to detain the seized items infringed the appellant's s. 8 rights;
(ii) the failure of the police to seal six seized devices, as required by the search warrant, rendered their subsequent search unauthorized by the warrant and therefore a breach of s. 8;
(iii) the method and scope of review employed by the examiner was reasonable, did not breach the examination order "in any way", and did not violate the appellant's s. 8 rights;
(iv) the failure of the police to return seized devices that did not contain offensive materials was a "clear and deliberate violation" of the examination order;
(v) the failure of a police officer to take notes of his search of the unsealed seized devices amounted to a violation of s. 8 of the Charter, but the paucity of notes in respect of his review of devices described in the examiner's report did not violate s. 8; and
(vi) the officer's taking screen shots of the directory structure from the examiner's copies did not constitute a search because the material already had been made available to the police pursuant to a court order and the officer simply made a copy of the material in order to present evidence in the proceedings.
[11] The trial judge conducted an analysis under s. 24(2) of the Charter in which she considered the breaches of s. 8 on an individual basis and then cumulatively. Applying the principles in R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, to each of the breaches, the trial judge excluded from evidence only (i) the six unsealed items for which no extension to detain was obtained under s. 490(2); and (ii) the devices on which no offensive materials were found. The trial judge noted, at para. 206 of her reasons for her ruling on the Charter motion, that "[t]he result of an individual s. 24(2) analysis of each of the s. 8 breaches would result in the exclusion of evidence of little value to the prosecution of these offences".
[12] In considering the cumulative effect of the s. 8 breaches, the trial judge concluded that none of the breaches resulted from bad faith conduct, save for the failure to return devices on which no offensive material was found. While acknowledging that there were "clearly serious failures" in the conduct of the police, she stated: "I do not find that there was an overall pattern of conduct on the part of police which would impact public confidence in the administration of justice": at para. 208. The trial judge recognized the appellant had a high expectation of privacy in respect of all of the seized items. However, there was a strong societal interest in the adjudication of the case on the merits. Taking into account all of the factors, the trial judge found that "to exclude all of the evidence obtained in the execution of the search warrant would bring the administration of justice into disrepute": para. 212.
B. The grounds of appeal
[13] In his factum, the appellant identified the following grounds of appeal from his conviction:
(i) the trial judge erred in finding that the examiner's searches complied with the examination order and did not violate s. 8 of the Charter;
(ii) the trial judge erred in finding that the failure of the police to keep detailed notes in respect of devices described in the examiner's report did not violate s. 8 of the Charter;
(iii) the trial judge erred in concluding the officer's taking of screen shots of examiner's copies did not constitute a search; and
(iv) the trial judge erred in her s. 24(2) analysis by placing undue weight on the nature of the charges against the appellant, viewing the conduct of the police in a more favourable light than warranted, and not finding that the cumulative effect of the s. 8 violations warranted the exclusion of the evidence.
[14] In respect of the last ground of appeal, the appellant seeks leave to file fresh evidence.
C. Analysis
The trial judge's s. 8 findings
[15] In his factum, the appellant did not make specific submissions in respect of his first three grounds of appeal. In oral argument, the appellant repeated his position that the examiner did not comply with the examination order.
[16] I am not persuaded by this submission. The trial judge's interpretation of the examination order was a practical and reasonable one. Her assessment that the examiner's conduct fell within the scope of the examination order was reasonable and well-grounded in the evidence.
[17] As to his other s. 8 grounds of appeal, the appellant has not identified any error in law or misapprehension of the evidence by the trial judge. Accordingly, I would not interfere with her findings.
The trial judge's s. 24(2) findings
[18] The appellant's main submission on his conviction appeal is that the trial judge erred in her assessment of the seriousness of the s. 8 infringements that she found. The appellant submits the overall misconduct of the police was more serious than the trial judge found.
[19] In support of that submission, the appellant moved for leave to file fresh evidence on the appeal.
[20] In an affidavit in support of that motion, the appellant deposed that notwithstanding that the trial judge had ordered on February 19, 2016 that seized materials which did not contain offensive materials be returned to the appellant pursuant to s. 20 of the examination order, as of September 25, 2017 the police had not returned those materials to him. The appellant contends that this evidence is relevant to the issue of the seriousness of police misconduct regarding their treatment of the seized materials.
[21] The respondent opposes the motion, primarily on the ground that the appellant has not met the cogency requirement for the admission of fresh evidence on the appeal: R. v. Manasseri (2016), 132 O.R. (3d) 401, 2016 ONCA 703, at paras. 202-203 and 205, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 513. The respondent submits that the continued detention of the items in issue resulted from an arrangement between counsel, which was disclosed to the trial judge at the May 31, 2016 sentencing hearing.
[22] I accept the respondent's submission. The transcript of the sentencing hearing discloses such an arrangement. Given that arrangement, the appellant's proposed fresh evidence has no bearing on the issue of the police's handling of the seized materials. I would dismiss the appellant's motion for leave to introduce fresh evidence.
[23] In considering the appellant's main submissions regarding the trial judge's s. 24(2) findings, one must recall that deference is the standard of review applied to the three-pronged assessment conducted by a judge under s. 24(2) of the Charter. "Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review. But where the relevant factors have been overlooked or disregarded, a fresh Grant analysis is both necessary and appropriate": R. v. Cole, [2012] 3 S.C.R. 34, 2012 SCC 53, at para. 82 (citations omitted). See, also, Grant, at para. 86.
[24] As I understand the appellant's submissions, he contends that the trial judge (i) failed to attach sufficient severity to the s. 8 violations she found the police had committed, especially in view of the appellant's claim of solicitor-client privilege over many of the seized materials; and (ii) placed undue weight on her findings that the police did not act in bad faith.
[25] I am not persuaded by the appellant's submissions. The trial judge considered the proper factors: she conducted an individual Grant assessment of each s. 8 violation and then applied the Grant factors collectively to the infringements. She gave detailed reasons for her findings.
[26] As her reasons disclose, the trial judge was alive to the fact that some of the seized devices contained materials over which solicitor-client privilege was asserted. She noted that (i) the failure to seal six items involved devices over which no privilege was claimed; (ii) the failure to take notes involved those same devices; and (iii) no search of the seized items occurred during the period prior to the filing of the s. 489.1(1) report or before the examination order was made. There is no suggestion in the record that the police seizure of the devices or the subsequent review and report by the examiner resulted in the disclosure of any privileged information to the police or the Crown. As well, the appellant acknowledges that the Crown did not seek to adduce any privileged information.
[27] The s. 24(2) findings made by the trial judge found ample support in the evidence. None were unreasonable.
[28] Consequently, I see no basis for interfering with her conclusion to admit certain of the seized materials into evidence. I would dismiss the appellant's appeal from conviction.
III. The Sentence Appeal
A. The issue stated
[29] As noted, the appellant was sentenced to 45 days' imprisonment, to be served intermittently on weekends, and three years' probation. Although the parties disagreed about the length of probation, they agreed on the terms of probation, including the term limiting the appellant's use of devices to access the Internet or e-mail, which he now challenges on appeal.
[30] The Crown also sought a ten-year prohibition order under s. 161(1)(a)-(d) of the Criminal Code. Orders made under s. 166(1)(a)-(c) can limit where an offender may go, whom he may contact and the type of employment he may undertake. Section 161(1)(d) authorizes the court sentencing a person convicted of the possession of child pornography to make an order prohibiting the offender from "using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court". The Crown sought an order under s. 161(1)(d) containing similar limitations on Internet and e-mail access as found in the probation order.
[31] Defence counsel opposed the imposition of any s. 161 order. He argued one was not necessary given the evidence showing the appellant presented a low risk of recidivism, together with the serious probation terms imposed. However, in the event the court imposed a s. 161 order, defence counsel submitted the terms concerning computer use should be the same as those in the probation order.
[32] Defence counsel sought a two-year term for probation. The sentencing judge disagreed, ordering probation for three years. However, the sentencing judge otherwise imposed the terms of probation agreed upon by counsel.
[33] The sentencing judge did not make the orders under s. 161(1)(a)-(c) requested by the Crown. However, she did impose a ten-year order under s. 161(1)(d).
[34] The probation and s. 161(1)(d) orders contain identical terms that limit the appellant's use of any device capable of accessing the Internet or e-mail and capable of storing data in a digital format. The terms state:
You shall be further limited to direct and indirect use of any device capable of accessing the Internet or email and capable of storing data in a digital format, including but not limited to computers, electronic media, digital or hard copy transport media or data, digital still or video cameras, camera phones, personal digital assistants, scanners as follows:
-- at your place of employment or as required for employment related purposes;
-- for the purpose of communicating with your legal counsel or, for the purposes of reviewing legal documents, or obtaining legal advice regarding ongoing legal and professional regulatory matters;
-- not to use a personal computer that does not have K9 protection software installed;
-- provide proof of installation of K9 protection on your personal computer(s) to your probation officer;
-- not engage directly or indirectly in the use of electronic media for the purpose of communicating with Internet websites commonly known as bulletin boards, whether interactive or static in nature; and
-- permit your probation officer, or a police officer requested by your probation officer to assist, access to your computer to ensure compliance with this Order, subject to reasonable precautions being taken to protect solicitor/client privilege respecting any client documents on those computers.
[35] The appellant seeks leave to appeal from these limitations contained in the probation and s. 161(1)(d) orders (collectively, the "Internet limiting terms"). He asks this court to vary them so that the prohibition on his access to the Internet would forbid access only to (i) any content that would be illegal under the Criminal Code; and (ii) any bulletin board, service or website that facilitates access to or makes available content that would be illegal under the Criminal Code.
[36] The appellant submits the Internet limiting terms are inconsistent with the evidence that he was at the low end of any risk to reoffend and tantamount to severing him from the Internet, which is an indisputable component of everyday life.
[37] The respondent submits this court should not interfere with the Internet limiting terms. The conditions of probation -- including the limits on computer use -- were the product of a joint proposal by counsel. The s. 161(1)(d) order was reasonable for the purpose of protecting the community and facilitating the appellant's reintegration into the community.
B. Analysis: The probation order
[38] The appellant seeks to vary the Internet limiting terms in his probation order.
[39] The only dispute at sentencing concerning the probation order was whether it should extend for two or three years; the sentencing judge imposed a three-year probation order. The specific terms of the probation order were agreed upon by Crown counsel and very experienced defence counsel. In those circumstances, I see no basis upon which to interfere with the terms of the probation order.
C. Analysis: The s. 161(1)(d) order
The statutory framework and purpose
[40] Section 161 of the Criminal Code was enacted in 1993. Amendments passed in 2012 added s. 161(1)(d). Section 161(1) reads:
161(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender 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, playground or community centre;
(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;
(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;
(c) having any contact -- including communicating by any means -- with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
[41] The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. J. (K.R.), [2016] 1 S.C.R. 906, 2016 SCC 31, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and the content of the order must respond carefully to an offender's specific circumstances: J. (K.R.), at paras. 48-49.
[42] This court, at para. 17 of R. v. Brar (2016), 134 O.R. (3d) 95, 2016 ONCA 724, summarized the Supreme Court's analysis in J. (K.R.) about the purpose of s. 161(1)(d):
In its analysis of s. 161(1)(d), the court addressed the need for such a provision. Section 161(1)(d) was enacted in 2012 to close a legislative gap created by rapid social and technological changes. Those changes have created a space for harmful behaviour not captured by the former iteration of s. 161, which allowed sentencing judges to prohibit offenders only from using computer systems to contact children directly. The new harmful behaviours now captured by s. 161(1)(d) include accessing and distributing child pornography and contacting other adults for the purposes of planning and facilitating criminal behaviour (K.R.J., at para. 107). With the broadened powers under s. 161(1)(d), the court is better able to monitor offenders' use of the Internet thereby limiting their opportunities to offend and preventing such behaviour (K.R.J., at para. 108).
[43] Given the discretionary nature of an order made under s. 161(1), an appellate court should not interfere absent an error in principle or the imposition of a prohibition that is demonstrably unfit and unreasonable in the circumstances: R. v. Q. (W.), [2006] O.J. No. 2491, 210 C.C.C. (3d) 398 (C.A.), at para. 25; and Brar, at para. 26.
The jurisprudence
[44] The appellant submits the Internet limiting terms imposed by the sentencing judge are unreasonable in that they exceed the scope of the s. 161(1)(d) order imposed by this court in Brar. That order restrained the offender from using the Internet for 20 years to access (i) any content that violated the law; and (ii) any social media sites, social networks, Internet discussion forums or chat rooms (or making a profile on any such service). In fashioning that order, this court drew upon the decision of the Quebec Court of Appeal in R. v. Perron, [2015] J.Q. no 2916, 2015 QCCA 601.
[45] In Perron, the Quebec Court of Appeal considered the reasonableness of a s. 161(1)(d) order in the context of convictions for sexual interference, invitation to sexual touching and luring. Offences concerning child pornography were not involved. The s. 161(1)(d) order imposed by the sentencing court prohibited use of the Internet for five years except under the supervision of an adult who was aware of the offences committed: at para. 35. On appeal, the Crown submitted that instead of a total prohibition on Internet use, the Court of Appeal should substitute a s. 161(1)(d) order that prohibited contact by means of the Internet with persons under the age of 18 years. The Court of Appeal agreed, and it modified the s. 161(1)(d) order to prohibit, for five years, use of the Internet to access illegal content, communicate with persons under the age of 18 years other than immediate family members, or access social media, such as Facebook.
[46] In Brar, this court set aside at para. 10 as demonstrably unfit and unreasonable a s. 161(1)(d) order that consisted of a 20-year prohibition on Internet use except when "at employment" and on the ownership or use of "any mobile device with Internet capabilities". In its place, this court substituted a 20-year prohibition order along the lines of that imposed in Perron.
[47] Mr. Brar pleaded guilty to counts of sexual assault, prostitution of a person less than 18 years of age and child luring. In substituting a less restrictive s. 161(1)(d) order, this court focused on several factors: (i) the initial order's restriction on the ownership of Internet capable devices fell outside the permitted ambit of a s. 161(1)(d) order; (ii) the order imposed would be particularly onerous on Mr. Brar's ability to secure employment given that it limited access to his place of employment, as well as in light of his occupational history as a computer science specialist and IT technician; (iii) modern life requires some form of access to the Internet for innocent purposes; and (iv) Mr. Brar did not pose many of the risks s. 161(1)(d) was designed to prevent, such as the possession or distribution of child pornography.
[48] Since Brar, s. 161(1)(d) has been considered by other appellate courts.
[49] In R. v. Miller, [2017] N.J. No. 115, 2017 NLCA 22, the accused entered a guilty plea to a charge of possessing child pornography. The sentence imposed included a s. 161(1)(d) order that prohibited Mr. Miller from using a computer to communicate with persons under the age of 16 years. The Newfoundland and Labrador Court of Appeal dismissed an appeal from that order. It held that in assessing whether an offender poses a risk to children for the purposes of justifying an order under s. 161, a sentencing judge is entitled to consider not only the results of relevant risk assessment tests, but also the facts and circumstances of a particular offence and/or offender: at paras. 21 and 27-28. The court concluded that the large volume of images, their violent content, the tender ages of the children depicted, and the period of time over which Mr. Miller had viewed the images demonstrated that he posed a risk to children, justifying making the s. 161(1)(d) order: at paras. 31-35.
[50] Finally, in R. v. Athey, [2017] B.C.J. No. 2032, 2017 BCCA 350, the offender pleaded guilty to possession of child pornography, the making of child pornography and sexual interference. The police had seized from the offender's devices child pornography consisting of approximately 2,300 still images and 27 videos. As part of the sentence, the sentencing court imposed a 20-year prohibition order under s. 161(1)(d). Unfortunately, neither the sentencing nor appeal reasons described the precise scope of the order. The British Columbia Court of Appeal reduced the duration of the prohibition order to ten years and modified the order to permit the offender "if his employment so requires it, to use the Internet or other digital networks on digital equipment provided by the employer during his working hours for purposes of his employer's business": at para. 51.
The present case
[51] At the time she sentenced the appellant, the sentencing judge did not have the benefit of the Supreme Court's decision in J. (K.R.). Nevertheless, her reasons, when read as a whole, disclose that she considered the factors relevant to making a s. 161(1)(d) prohibition order -- that is, whether the order constitutes (i) a reasonable attempt to minimize the risk the offender poses to children; and (ii) a careful response to the offender's specific circumstances.
[52] Although Brar did not involve a conviction concerning child pornography, in that case this court indicated, at para. 22, that the possession of child pornography is one of the risks s. 161(1)(d) was enacted to prevent. Here, the appellant possessed a significant amount of child pornography. In her reasons, the sentencing judge observed that the appellant possessed some 101 images and 155 videos of child pornography. The material consisted of 45 unique images and 111 unique movies. As the sentencing judge stated, "[t]hose are 156 victimized children". The psychological assessment report prepared by Dr. Sandra Jackson noted that the files possessed by the appellant depicted pre-pubescent youth engaged in various sexual acts with adult males and other youth and some of the files involved very explicit images of child abuse.
[53] The possession of child pornography poses a grave risk to children. The sentencing judge specifically noted the case law that characterizes the possession of child pornography as an abhorrent crime that causes extreme harm: R. v. Nisbet, [2011] O.J. No. 101, 2011 ONCA 26, at para. 1; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 158 (concurring); and R. v. Lynch-Staunton, [2012] O.J. No. 313, 2012 ONSC 218 (S.C.J.), at para. 49.
[54] The risk the appellant poses to children by possessing child pornography arose from his use of devices that accessed the Internet. There was no evidence the appellant had contacted or attempted to contact children. Given those circumstances, the sentencing judge did not accede to the Crown's request to grant a prohibition order under s. 161(1)(a)-(c). Instead, she limited the order to the means by which the appellant posed a risk to children -- his use of the Internet.
[55] In fashioning the overall sentence, the sentencing judge also took into account the results of Dr. Jackson's risk assessment, which assessed him as a low risk for sexual recidivism.
[56] The specific conditions the sentencing judge imposed in the s. 161(1)(d) prohibition order, while strict, nonetheless carefully responded to the offender's specific circumstances. The conditions imposed by the sentencing judge permit the use of devices capable of accessing the Internet or e-mail not only at the appellant's place of employment, but also "as required for employment related purposes".
[57] Finally, one must recall that the dispute at trial regarding an order under s. 161(1)(d) concerned the need for such an order, not the scope of the order in the event one was made. The Crown sought a ten-year order containing terms set out in s. 161(1)(a)-(d). The Crown submitted the conditions to be attached to a s. 161(1)(d) order should mirror those in the probation order. Defence counsel opposed the imposition of any s. 161(1) order. In the alternative, he took the position that the only s. 161(1) condition that might be appropriate was s. 161(1)(d), with conditions that mirrored those of the probation order. In the result, the sentencing judge granted only an order under s. 161(1)(d), which limited the appellant's access to the Internet on the terms worked out by counsel.
[58] In those circumstances, I would not interfere with the sentencing judge's s. 161(1)(d) order. The sentencing judge considered the relevant factors and crafted an order that reasonably attempted to minimize the risk the appellant poses to children and responded to his specific circumstances.
[59] Although I would grant the appellant leave to appeal from the Internet limiting terms, I would dismiss his appeal.
IV. Disposition
[60] For the reasons set out above, I would dismiss the appellant's appeal from conviction. I would grant him leave to appeal from the Internet limiting terms, but I would dismiss his appeal.
Appeal dismissed.
End of Document
