WARNING

The court hearing this matter directs that the following notice should 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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.6 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

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen

Mr. N. Golwalla, for the Crown

— And —

S.L.

Mr. Z. Kerbel, for the Accused

Heard: September 4, 2012, January 17, 2013

Decision

NAKATSURU J.:

Overview

[1] The accused, S.L., pleaded guilty to one count of counselling to make child pornography and one count of counselling to transmit child pornography. The Crown elected to proceed summarily. A carefully crafted joint position on sentence was placed before me. This was achieved by the admirable cooperation of both counsel and after a number of judicial pre-trials. I acceded to the joint submission and S.L. was sentenced to a period of incarceration and probation.

[2] At the sentencing hearing, one issue arose that became a matter of dispute between the Crown and defence counsel. They did not agree whether a weapons prohibition pursuant to s. 110 of the Criminal Code was appropriate in this case. After hearing submissions, I ordered a three year weapons prohibition. These are my reasons explaining this decision.

Facts

[3] An agreed statement of facts on sentencing outlined the nature of the conduct by S.L. that constituted the offences. S.L. was an employee with a Toronto financial firm. The firm had policies dealing with the acceptable use of corporate technology. During the summer of 2011, S.L. engaged in sexual MSN chat conversations with several women over the internet while working at his job and using his employer's computers. This triggered the workplace internet security system. An internal investigation commenced. The police were notified and on August 26, 2011, S.L. was arrested.

[4] During the months of July and August of 2011, S.L. had MSN chat conversations with a single mother of six year old twins who resided elsewhere in the province of Ontario. Their text chats would go on for hours. These chat conversations were sexually explicit. S.L. and this woman would converse about sexual activity with each other, other adults and with children as young as six years of age. The transcripts of these MSN chat conversations were filed as an Exhibit on this sentencing proceeding.

[5] The following are samples of the messages exchanged. On July 19, 2011:

S.L.: You know any young slutty girls or know anyone who does?

Female: Got a friend in Mattawa that does stuff with young girls.

S.L.: Oh yeah how young?

Female: 12 – 19.

S.L.: Nice.

S.L.: Still fuckign them.

Female: Not all just plays with them, like oral and fingering them.

S.L.: Nice he got pics???

Female: No.

S.L.: He should take some so we can see them :)

Female: I keep bugging him for some.

S.L.: Keep on it then!!!

Female: I know.

S.L.: This may be out of line but...what about your daughter?? Just asking...you can say fuck off.

Female: Lol. I've got twin daughters, and have had a friend ask me about them too. But I wouldn't do anything with them or let anyone touch them.

S.L.: That's okay but twin daughter is kinky..you gotta admit.

S.L.: How old??

Female: They will be 6 next month.

S.L.: A little too young.

Female: Yeah.

S.L.: Would you take pics of them or is that off limits?

Female: Did before and they were asking why. So I wouldn't do it again.

S.L.: Tell me more about that sorry it sounds hot to me.

Female: About what?

S.L.: The pics.

Female: Friend mostly wanted their privates:

S.L.: I bet...they are nice. Did you send the pic?

Female: Yeah I did.

S.L.: Mmmm.

S.L.: I'd jerk off to that for sure!!!

Female: But that was last year.

S.L: Oh....

S.L.: Tell me about hwoyoutook it?

S.L.: Like did you say mommy needs to see something.

Female: It was always after a bath, said I'd take a pic to see if they have a rash.

S.L.: Good one!!!

[6] On July 25, 2011, the following MSN exchange took place:

S.L.: Trust me I'm SOOO glad I found someone who likes younger girls.

S.L.: Good to vent out and talk about it with someone (K)(K).

Female: Yup.

S.L.: Hopefully we can exchange photos once I figure out how lol.

Female: Lolya.

S.L.: I'm still dying to see that guys daughter LOL mmmm.

Female: I can see urpics if u email them to me, but for me to send it to u, I don't know.

Female: Lol.

S.L.: Can I send you pics whenever I often find them at night when no one is online you want me to just amil them to you?

Female: Sure.

S.L.: K. I'll send you some the enxt time I find sexy young ones.

Female: Sweet.

S.L.: I might have to go to an internet cafe one day at lunch so you can send me some on MSN cause I can't get them here.

Female: I wouldn't want my pics to saved a cafe computer for everyone to see though.

S.L.: Nonono I'd put them on a USB key then wipe the computer clean don't worry.

S.L: I pride in having pictures no one else has!!

Female: Ah ok.

S.L.: Do you have any pics of young girls?

Female: No I don't.

S.L.: Aww :(

Female: Sorry.

S.L.: Would it be wrong of me to ask for pics of your girls? I don't want to cross any lines.

Female: Just the pic of my friend's daughter.

S.L.: Mmmm can't wait for that one been thinking of it for a while.

Female: I don't have naked ones of them.

S.L.: Would you take some?

Female: They'd be wondering why I'm doing it though.

[7] During these conversations, S.L. intentionally encourages the woman to make child pornography within the meaning of s. 163.1 and to transmit the child pornography to him.

[8] The police executed search warrants at the home of S.L. and his place of employment. The searches of these places which included the searches of the computers at his home and work, resulted in no pictures of child pornography being found.

[9] S.L. is a first offender. He is a well-educated man and was gainfully employed until the time of his arrest. A psychiatric examination of S.L. including phallometric testing indicated he was a low risk to re-offend.

The Issues and the Positions of the Parties

[10] The defence submits that there is no jurisdiction to order a discretionary s. 110 weapons prohibition in the case at bar. He argues that the offences of counselling to make and transmit child pornography are not offences in the "commission of which violence against a person was used, threatened or attempted" as required by s. 110(1)(a). The essential elements of the offences do not involve any element of violence. Furthermore, the facts of the case do not indicate that S.L. ever used, threatened, or attempted violence when he counselled this female to make and transmit child pornography to him. As a result, it is submitted that a s. 110 weapons prohibition is not available to a sentencing judge.

[11] Alternatively, the defence submits that if there is jurisdiction to impose one, one should not be ordered in this case. The materials filed on sentencing show that the offences committed by S.L. are truly out of character for a man with an otherwise unblemished past. There is no evidence of any personality disorder or other form of psychiatric dysfunction other than the diagnosis of pedophilia. Even that diagnosis is based solely on the facts of the MSN exchange that S.L. plead guilty to. The testing results did not reflect a sexual predilection to under-aged children. S.L. has no history of violence and has the support of his family. It is submitted that S.L. had intended to go hunting with his brother when he had served his jail sentence and the weapons prohibition would prevent him from doing so.

[12] The Crown argues that by its very nature, child pornography is an offence of sexual violence. S.L. in counselling a female mother of twin six year old daughters to make and transmit child pornography, has attempted and threatened violence. Thus, there is jurisdiction in the court to make a s. 110 order. The Crown relies on the case of R. v. Samery (2007), 219 C.C.C. (3d) 435 (Ont. S.C.J.). In that case, a breach of a no contact condition of a recognizance constituted an implied threat of violence and a s. 110 order was made in the circumstances. In addition, the Crown argues that some of the MSN chat conversations included references by S.L. of forced sexual acts upon under-aged children. This constituted some evidence of violence. In all the circumstances, it was appropriate in the best interests of the safety of young vulnerable children to make such an order.

Analysis

[13] To commence, it is useful to set out the text of s. 110:

110. (1) Where a person is convicted, or discharged under section 730, of

(a) an offence, other than an offence referred to in any of paragraphs 109(1)(a), (b) and (c), in the commission of which violence against a person was used, threatened or attempted, or

(b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and, at the time of the offence, the person was not prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing,

the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, consider whether it is desirable, in the interests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court decides that it is so desirable, the court shall so order.

[14] I note that s. 109 of the Criminal Code requires a mandatory weapons prohibition in certain circumstances. When the Crown elects to proceed by way of indictment, s. 109(1)(a) requires a mandatory order where the offender is found guilty of an indictable offence punishable by ten years or more, in the commission of which violence against a person was "used, threatened or attempted".

[15] In the case before me, the Crown elected to proceed summarily. Regardless, the threshold test for both indictable and summary offences in these two subsections, s. 110(1)(a) and s. 109(1)(a), remains the same to the extent that the offence must involve violence being used, threatened or attempted against a person.

[16] The defence argues that S.L.'s acts in this case do not amount to violence, used, threatened or attempted. As a result, it is submitted, there is no authority on my part to consider the s. 110 prohibition. The defence argues that the offences relate to child pornography and do not constitute any attempted or threatened act of violence.

[17] Despite counsel's able submissions, I do not accept them. To begin with, "violence" in ss. 109 or 110 is not defined. The word in its typical connotation means the use of physical force usually accompanied with anger or an intention to harm. Bodily harm is defined in the Criminal Code under s. 2 as a hurt or injury that interferes with the health or comfort of the complainant that is more than merely transient or trifling in nature. This definition is broad enough to encompass psychological harm: see R. v. McCraw, [1991] 3 S.C.R. 72. In McCraw, the Supreme Court of Canada could see no principle of interpretation or policy to exclude psychological harm from the scope of the offence of uttering a threat. Likewise, I see no reason why "violence" should not include acts of a similar nature for the purpose of ss. 109 and 110.

[18] A large and liberal interpretation should be given to ss. 109 and 110. While I concede that these prohibitions have a punitive as well as a preventative character, the state interest underlying these sections is not just significant but it relates to a heavily regulated activity. As Charron J. stated when she rejected a constitutional challenge to these provisions in R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895 at para. 9:

The state interest in reducing the misuse of weapons is valid and important. The sentencing judge gave insufficient weight to the fact that possession and use of firearms is not a right or freedom guaranteed under the Charter, but a privilege. It is also a heavily regulated activity, requiring potential gun-owners to obtain a licence before they can legally purchase one. In Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, this Court held that requiring the licensing and registration of firearms was a valid exercise of the federal criminal law power. If Parliament can legitimately impose restrictions on the possession of firearms by general legislation that applies to all, it follows that it can prohibit their possession upon conviction of certain criminal offences where it deems it in the public interest to do so. It is sufficient that Mr. Wiles falls within a category of offenders targeted for the risk that they may pose. The sentencing judge's insistence upon specific violence, actual or apprehended, in relation to the particular offence and the individual offender takes too narrow a view of the rationale underlying the mandatory weapons prohibition orders.

[19] At this point, I would like to discuss the case of R. v. Samery (2007), 219 C.C.C. (3d) 435 (Ont.S.C.J.), a very thoughtful decision on point by Wilson J. In Samery, Wilson J. on appeal upheld a five year weapons prohibition after the appellant pleaded guilty to a breach of his recognizance. The offence involved a breach of the condition to stay away from his matrimonial home and not to contact his wife. In breach of this condition, the appellant telephoned his wife and was present in the vicinity of the matrimonial home knowing that his wife was frightened of him. On appeal of the weapons prohibition imposed by the trial judge, the appellant argued that the terms "violence" or "threat of violence" had to be interpreted on a force-based model which looks at the potential or actual consequence of the violence or threat of violence. Wilson J. rejected this argument. She held that these provisions should be read broadly to promote public safety and to prevent potential harm from violence or the threat of violence. After reviewing the relevant case law, Wilson J. held that an implied threat of violence that foretells of potential violence to a person is sufficient for a sentencing judge to order a s. 110 weapons prohibition. Although the appellant did not use any force or threatened any force, his conduct amounted to criminal harassment and reasonably caused his estranged wife to fear for her and her children's safety. In the context of the weapons prohibition sections, there was no requirement for an explicit threat of violence. This implied threat of violence sufficed for the prohibition to be made.

[20] The appellant appealed further to the Ontario Court of Appeal: see R. v. Samery, [2007] O.J. No. 3510 (C.A.). In their brief endorsement, the Court rejected the appellant's argument that the conduct underlying the plea of guilty did not constitute a threat of violence. The Court agreed with Wilson J. that it was open for the trial judge to find that the appellant's conduct amounted to an implied threat of violence. The complainant had told the appellant he was frightening her and despite knowing this he persisted in his conduct.

[21] It is my view that the case of Samery and the purpose behind the weapons prohibition provisions support an expansive interpretation. I agree that for most cases, where the issue is whether the specific conduct in question meets the definition of violence, actual, attempted or threatened, this will involve a careful scrutiny of the particular facts of the case. However, in some cases, the offence itself by legal definition may meet this requirement. I find that counselling to make and transmit child pornography to be such offences.

[22] To continue with the analysis, it is self-evident that any offence involving the actual sexual abuse of children falls within the scope of s. 110: see R. v. Bosse (2005), 2005 NBCA 72, 201 C.C.C. (3d) 77 (N.B.C.A.). The sexual abuse of a child is an act of violence of the most heinous nature.

[23] In my opinion, contrary to the defence position, the offences relating to child pornography cannot be simply equated to sexual imagery of the nature prohibited under the Criminal Code. Just as words have power beyond the written page, these pictures and images have harm that transcends what is simply depicted.

[24] R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 tells us that the very existence of child pornography as defined by s. 163.1(1) of the Criminal Code is inherently harmful to children and society. This harm exists independently of dissemination. In Sharpe a constitutional challenge was directed at the offence of possession of child pornography. The Court generally upheld the constitutionality of the provisions including the definition of child pornography although it read into the legislation two exceptions. In assessing whether the impugned provision was a reasonable limit to freedom of expression in a s. 1 analysis, the Court scrutinized the harm caused by the possession of child pornography. Parliament's objective was to prevent harm to children by prohibiting material that posed a reasoned risk of harm through the sexual abuse of children. The Court accepted that there were four ways that child pornography was linked to that harm: (1) child pornography promotes cognitive distortion by changing the possessors' attitudes in ways that make them more likely to sexually abuse children; (2) child pornography fuels fantasies and could incite offences in certain individuals; (3) the ability to possess child pornography makes it available for the grooming and seduction of children by the possessor and others; and (4) the production of child pornography is fuelled by the market for it by those who possess it.

[25] With respect to the actual harm suffered by children who are sexually abused in order to produce child pornography, I can do no better than re-iterate the words of our Chief Justice in Sharpe at para. 92:

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.

[26] In the case at bar, S.L. was found guilty of more than simple possession of child pornography. S.L. committed the offences of counselling to make and transmit child pornography. In other words, by the very nature of the offences, he is guilty of actively encouraging another to make and transmit child pornography. R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432 affirms that counselling includes but is not limited to procuring, soliciting and inciting. What is essential is an active inducement or advocacy, not merely the description of the commission of an offence. The case goes on to say at para. 29: "(t)he mental element or mens rea in counselling requires nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling."

[27] In addition to the harm to the child, the offences of counselling to make and transmit child pornography by definition involve the participation of others. This increases the scope of the harm. This point was recognized by Lebel J. (dissenting) in R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326 at para. 89:

The making and the distribution of child pornography entail a higher risk to the public and to children. The harms inherent in such offences are necessarily more serious and they always imply a relationship with third parties, that is, parties other than the victims themselves.

[28] In the context of the offences of counselling to make and transmit child pornography, I do not believe that it would work any injustice to the intent of Parliament nor to the facts of this or any other case where an offender is found guilty of these offences, to find that these harms as articulated in Sharpe is captured by the phrase "violence against a person was used, threatened or attempted." In other words, the very act of counselling to make and transmit child pornography is sufficiently inherently violent to support a weapons prohibition under ss. 109 and 110. No more than a finding of guilt is needed.

[29] While this is the primary basis for which I have concluded that I have the jurisdiction to make the s. 110 weapons prohibition order in S.L.'s case, there is another basis. The actual conduct of S.L. supports the finding that he implicitly if not expressly threatened to commit violence on under-aged children. In addition to the messages set out above, the transcripts of other MSN messages were made an exhibit on the plea for the purpose of sentencing. Amongst the texts between S.L. and the woman he was communicating with while he was at work, are exchanges where S.L. encourages the woman to take photographs of her young daughters to satisfy his sexual desires and his wish to engage in sexual acts with them. He persists in these requests despite the woman's refusal. He further speaks about wanting to have sex with girls who are 13. S.L. asks for photos of the woman's friend sexually abusing young girls. S.L. talks about drugging a young girl at a party in order to have sex with her. There is more that I will not detail. The defence submitted that these were merely fantasies on the part of S.L. However, after careful review of these messages, some seemed more than just fantasies. They appear to be attempts by him to see how far he could gain the cooperation of the woman in fulfilling the fantasies he was relating to her. In my view, these threats of sexual abuse against children made by S.L. do not end at the clearly defined border of imagination and fantasy. They are sufficiently real enough to constitute threats of sexual violence against children. There can be no other reasonable interpretation of them.

[30] Finally, I appreciate that the s. 110 order is discretionary. The only reason S.L. put forward in his objection to the imposition of the order is that he would like to go on a hunting trip with his brother when he is released from custody.

[31] I find that despite the positive evidence presented by the defence at sentencing, given the nature of the offences and his persistence and active encouragement of the woman in his attempts to secure child pornography that it is desirable in the interests of the safety of children that the order be imposed. At the same time, due to the positive rehabilitative factors relied upon by the defence, the order can be limited to a term of three years.

Released: April 16, 2013

Signed: