Court File and Parties

Court File No.: Toronto Region

Date: 2015-04-17

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Aharonov

Before: Justice Carol Brewer

Heard on: March 18, 2015

Reasons for Judgment released on: April 17, 2015

Counsel:

Joshua Tupper, for the Crown

Corbin Cawkell, for the defendant, Michael Aharonov

Brewer J.:

Introduction

[1] On December 9, 2014, I found Michael Aharonov guilty of two counts of possessing child pornography. This judgment addresses the applicability of the Kienapple principle and my reasons for sentence.

The Circumstances of the Offences

[2] Michael Aharonov was employed as a security guard. He worked the 9:00 p.m. to 5:00 a.m. shift from Monday to Friday at a downtown building. His co-workers, Nigel Merritt and Nicholas DeFreitas worked the shifts from 5:00 a.m. to 1:00 p.m. and 1:00 p.m. to 9:00 p.m. During their breaks and in quiet times at work, the security guards watched movies that they brought to their workplace on USB drives and shared with each other. It was understood among the colleagues that they did not need to ask each other to view the movies that were brought to the workplace.

[3] The week before May 7, 2013, Merritt was sitting in the office with the defendant and complaining that there were no new movies and he was bored. Mr. Aharonov suggested that Merritt watch the movies the defendant had on a black 2 inch by 4 inch external hard drive. Merritt was under the impression that if the defendant's USB drive was present, he had permission to use it. However, Mr. Aharonov made it a practice to take his hard drive home each day.

[4] On May 7, 2013 DeFreitas was in the office with Merritt, who said that the defendant had left movies. When Merritt went on patrol, DeFreitas took the hard drive, which had been left on the top of the office computer and began to browse files. He stumbled across between 25 and 50 images of female children, between five and ten years of age, wearing diapers in sexually suggestive poses. One image was of a young girl in fuzzy pink pants with an adult male hand in her diaper. Another involved a little girl in a diaper with her legs propped up and spread apart. Mr. DeFreitas was disturbed by what he had seen and showed Merritt about six or seven images. Merritt described seeing pre-pubescent girls in diapers in sexual positions, such as one with her legs open towards the camera and another on her hands and knees.

[5] Nicholas DeFreitas contacted Detective Constable Lisa Belanger of the Toronto Police Child Exploitation Squad. He brought the hard drive to the police station and was interviewed by Detective Constable Belanger. The officer seized the black Nexstar external hard drive and obtained a search warrant to view it. She believed the hard drive to be the back-up for a computer. It contained the defendant's resume, some security videos and adult movies, such as films showing women changing each other's diapers. There were also movies and images that were consistent with the Criminal Code definition of child pornography, involving pre-pubescent girls in diapers. The videos and images appeared to depict the genital and anal regions of children for a sexual purpose.

[6] Detective Constable Belanger obtained a search warrant for the defendant's residence. On May 23, 2013 she and other officers attended at the Aharonov apartment. After arresting Mr. Aharonov and advising him of his rights, Detective Constable Belanger went over the search warrant with the defendant and explained to him why the police were there, including the fact that his colleagues had located child pornography on his hard drive, which had been left at work. Mr. Aharonov directed the officers to his bedroom. He explained that he had a computer "separate from his brother and mother and they were password protected." Detective Constable Belanger went over the file names she had located on the first hard drive with two technical officers and instructed them to let her know if they found any matching files. Eleven devices were seized from the defendant's bedroom, including a desktop computer and a Toshiba external hard drive. Also located in the defendant's bedroom were adult and child-sized diapers, along with baby wipes and baby powder.

[7] According to Detective Constable Belanger, images consistent with child pornography were found on the desktop computer and the Toshiba external hard drive seized from the defendant's bedroom, as well as the defendant's Nexstar external hard drive seized from Nicholas DeFreitas. Among the three devices were 38 videos, 33 of which were unique. All of the videos were found in parts of the devices that were accessible to any user. Also among the three devices were 3036 images of child pornography, 515 of which were unique. Of those images, 2096 were "recovered" forensically, or located in parts of the computer that were not accessible to the average user. Nine hundred and forty child pornography images were in readily accessible portions of the devices.

The Circumstances of the Offender

[8] Michael Aharonov is 24 years old. He is the youngest of three children, who were brought up in a close and happy family. He currently resides with his father and brother. His mother passed away in September 2013, while he was on bail. The defendant has experienced some depression over the loss of his mother and his conviction. Mr. Aharonov's family remain very supportive of him.

[9] The defendant has no criminal record.

[10] Mr. Aharonov has a secondary school diploma. After graduation, he obtained employment as a security guard, working in that capacity for three to four years. His position immediately prior to his arrest was with Paragon Security, where he had been employed for about a year. Mr. Aharonov had moved from part-time to full-time work shortly before these charges were laid. After the hard drive containing child pornography was located at his workplace, the defendant was given the option to resign or be fired. After electing to resign, Mr. Aharonov found a temporary position in merchandising that lasted two weeks. For some time, Mr. Aharonov was unemployed. Prior to working for Paragon Security, the defendant was employed by Safe Tech Alarm Systems. As of April 28, 2014, he was still employed by that company, but took no steps to be placed on their roster, as he was afraid of violating his bail conditions.

[11] The terms of the applicant's recognizance included the following conditions:

• not to access, possess or use any devices capable of storing any digital images;
• not to possess or use any device capable of accessing the Internet, except under the direct supervision of his brother or his father; and
• not to be within the presence of any person under the age of 16 unless under the direct supervision of his brother or an adult approved in writing by his brother.

Mr. Aharonov felt stressed, paranoid and "frozen" by the condition requiring him to have no contact with a person under the age of 16 years, unless directly supervised. As a consequence, he chose not to seek employment. However, the defendant never told anyone of the impact of his bail conditions upon him. When this problem was brought to the attention of the Crown during his testimony in a delay application on April 4, 2014, a consent bail variation was arranged. The condition was altered to preclude the defendant from being alone with any person under the age of 16 unless under the direct supervision of his surety or an adult approved in writing by his surety.

[12] Thereafter, Mr. Aharonov obtained a further position as a security guard. He resigned in January 2015 as his security licence had expired and he was unable to renew it due to these convictions. The defendant's dream of being a police officer was dashed by his convictions. He intends to find work or attend a community college once his sentence is served.

[13] Dr. Gojer saw Mr. Aharonov. The defendant, who did not testify at trial, advised the doctor that he has no sexual attraction to children or to diapers. Mr. Aharonov maintained that he has a drawer of diapers in his room for use for his bedwetting problem. The defendant, who has never had any sexual experiences, underwent phallometric testing but his overall arousal levels were too low to be interpreted. Given that Mr. Aharonov maintains his innocence, Dr. Gojer concluded that no further clarification of whether he has a sexual deviation was possible.

The Kienapple Principle

[14] In R. v. Kienapple, [1975] 1 S.C.R. 729, the court gave effect to the fundamental principle that no person may be convicted twice for the same criminal wrong. The rule provides that there should not be multiple convictions for the same "delict", "matter" or "cause": R. v. Meszaros, 2013 ONCA 682 at ¶30. In order for Kienapple to apply, there must be both a sufficiently close factual nexus and a sufficiently close legal nexus between the two offences in the circumstances: R. v. Meszaros, ibid.

[15] Whether there is a sufficient factual nexus turns on whether both offences were committed on the basis of a single set of underlying facts. The court must be satisfied that the same act of the accused grounds each of the charges.

[16] I find that the factual nexus requirement is not met in this case. The two charges of possession of child pornography took place on different days and in different places. I appreciate that the child pornography on the external hard drive was a back-up copy of that contained on defendant's computer. However, I believe that the same act does not ground each of the charges. The underlying act in relation to the possession of the child pornography on the computer was downloading it from the Internet, whereas the underlying act with respect to the external hard drive found at the workplace was the copying of the child pornography from the defendant's computer onto the hard drive.

The Position of the Parties

[17] It is common ground that there is a mandatory minimum sentence of six months in this case. On behalf of the Crown, Mr. Tupper is seeking a sentence of 15 to 18 months incarceration and three years probation. Mr. Cawkell takes the position that the minimum sentence is appropriate, less credit of four months for the 12 months he was subject to restrictive bail conditions, leading to a final sentence of two months to be served intermittently.

Analysis

The General Principles

[18] Section 718 of the Criminal Code provides, in part, that "the fundamental purpose of sentencing is to contribute … to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of [six] objectives". Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be tempted to commit similar offences, rehabilitation, and the promotion of a sense of responsibility in the offender. Whatever sanction is imposed "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": section 718.1.

[19] How much emphasis is placed on each of the sentencing objectives will vary according to the nature of the crime and the circumstances of the accused. However, with respect to child pornography it is clear that the paramount goals of sentencing must be denunciation and deterrence. In R. v. E.O., [2003] O.J. № 563 (C.A.) at ¶7, Cronk J.A. stated:

Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deter others from the commission of the offence, and reflect the gravity of the offence.

[20] Clearly, the making or distribution of child pornography gives rise to a greater need for denunciation and deterrence than does simple possession. Yet, the role that possessors play in fuelling the production of the material cannot be overlooked. In R. v. Stroempl, [1995] O.J. № 2772, the Court of Appeal held:

The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors such as the appellant instigate the production and distribution of child pornography -- and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place.

[21] Similarly, the Supreme Court of Canada summarized the harm inherent in the possession of child pornography as follows in R. v. Sharpe, [2001] S.C.J. № 3 at ¶158:

The very existence of child pornography, as it is defined by s.163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanising and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticizes the inferior social, economic and sexual status of children. It preys on pre-existing inequalities.

[22] Indeed, Parliament has stated in section 718.01 of the Code, that when sentencing a person for an offence involving the abuse of persons under 18, the primary considerations are the objectives of denunciation and deterrence. Although Mr. Aharonov did not personally abuse any child in the commission of this offence, I must recognize that he contributed to the market that facilitates and perpetuates these crimes against children.

Aggravating and Mitigating Circumstances

[23] Section 718.2(b) of the Criminal Code states that in sentencing an offender, the court shall take into consideration the principle that "a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances." With respect to the circumstances that are most relevant in child pornography cases, the decision of Molloy J. in R. v. Kwok, [2007] O.J. № 457 (S.C.J.) is particularly helpful. Her Honour provided the following list of aggravating factors:

1. a criminal record for similar or related offences;
2. involvement in the production or distribution of the material;
3. the size of the collection;
4. the nature of the collection (including the age of the children involved and the relative depravity or violence depicted);
5. 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
6. whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it as free downloads from the Internet.

[24] In this case, a number of the aggravating factors are inapplicable. Mr. Aharonov has no criminal record. He had no involvement in the production or distribution of the child pornography. His collection of child pornography was downloaded from the Internet.

[25] The defendant's collection of pornography was not large. It consisted of 38 videos and 940 images in readily accessible portions of his devices. The nature of the collection is lower on the scale of depravity, to the extent that it did not involve sexual assaults, bondage, group sexual activities, bestiality or other violence.

[26] It appears that Mr. Aharonov was inclined to carry his collection of child pornography with him, to the extent that he took the risk of bringing his hard drive with the material on it to his workplace, which led to its discovery.

[27] Apart from the commission of the offences before the court, there is nothing in the defendant's background that suggests he poses a danger to children. Dr. Gojer's report is neutral on this point.

[28] In R. v. Kwok, supra, Justice Molloy also noted the various factors that have generally been viewed as mitigating in child pornography cases:

1. the youthful age of the offender;
2. the otherwise good character of the offender;
3. the extent to which the offender has shown insight into his problem;
4. whether he has demonstrated genuine remorse;
5. whether the offender is willing to submit to treatment and counselling or has already undertaken such treatment;
6. the existence of a guilty plea; and
7. the extent to which the offender has suffered for his crime (for example, in his family, career or community).

[29] Mr. Aharonov is a 24 year old first offender. He is a high school graduate, who has had gainful employment, subject to his understanding of his bail conditions. The defendant has the unflagging support of his family.

[30] In light of his position that he did not commit these offences, Mr. Aharonov is precluded from relying on remorse or insight as mitigating circumstances. However, the fact that he continues to maintain his innocence cannot be converted into evidence that he lacks remorse or insight: see, e.g. R. v. Valentini et al., 132 C.C.C.(3d) 262; R. v. Giroux, 207 C.C.C.(3d) 512; R. v. C.B., 2008 ONCA 486.

[31] The defendant lost his job at Paragon Security and, subsequently, his security guard's licence as a result of these offences. He has no prospect of being a police officer in light of the convictions. At the time of his delay application, I concluded that Mr. Aharonov's period of unemployment resulted from his own choice not to seek work, as the terms of his recognizance did not prevent him from pursuing some form of employment away from children. Further he took no steps to raise his concerns about his recognizance with Crown counsel or the court until the delay application, which led to a variation of the terms of his release order. While the conditions of the recognizance were relatively strict, they did not include a house arrest term, as was the case in R. v. Downes, [2006] O.J. № 555 (C.A.). Nonetheless, I view this as a significant mitigating factor in assessing the sentence to be imposed on the defendant.

The Appropriate Quantum of Sentence

[32] Counsel have provided me with a wide array of cases, to demonstrate the entire range of sentencing for offences such as these. Some are clearly distinguishable from this case, such as judgments where the Crown had elected summary proceedings, where the defendant pleaded guilty, where the accused had a criminal record or where there were charges in addition to possession of child pornography.

[33] In assessing the Crown's position on sentencing, I have considered other cases in which sentences in the range proposed have been imposed. In my opinion, those decisions involve more serious cases of child pornography than the case at bar. For example:

• In R. v. Cuttle, [2010] O.J. № 1624 (C.J.) the offender was charged with three counts of possession of child pornography, two counts of making child pornography available to others and one count of making child pornography. The accused had amassed a collection of over 1300 child pornography images and 10 videos. The nature of the material was described as "horrendous". They included acts of oral sex, anal and vaginal penetration of children, ejaculation, and bondage and group activities including children with children and children with adults. The age of the youngest child appeared to be about three. On one date the police found 193 files of child pornography on the accused's file sharing network and on another occasion there were 246 files in his shared folder available to anyone on the Internet. Mr. Cuttle was 67 years old, with no criminal record. He had health issues related to two prior hip replacements. The court was not able to assess the accused's potential to cause future harm to children and was unable to find he had any insight into his crimes. A sentence of 18 months incarceration was imposed.

• In R. v. Guillemette, [2010] O.J. № 5307 (S.C.J.) the offender pleaded guilty to possessing child pornography and distributing it. He was in possession of 545 videos and 1392 pictures of child pornography, which depicted children ranging in age from three to twelve years. The accused also entered a chat room and sent a child pornography video to an undercover officer. He was 21 years of age; lived with his mother; and had attended for treatment of sexual behaviours. A sentence of 18 months jail was imposed.

• In R. v. Vasic, [2009] O.J. № 1968 (S.C.J.) the offender was charged with possession of child pornography and making available child pornography. He was in possession of 943 still images and 186 video clips, depicting violent assaults on infants and young children and oral sex to the point of ejaculation. The accused was a 19 year old first offender when the offences were committed. He had the unwavering support of his parents, girl friend and grandmother, as well as former employers and co-workers. As a result of these offences, Mr. Vasic lost his job and suffered physical abuse while in jail. The offender did not accept responsibility for his acts and agree to seek counselling until after sentencing proceedings had begun. A sentence of 19 months incarceration was imposed.

[34] Upon a review of the jurisprudence, I have found the case of R. v. Yau, [2011] O.J. № 720 (S.C.J.) to be particularly helpful. Mr. Yau was found guilty of possession of child pornography after a jury trial. Like the defendant here, Mr. Yau maintained his innocence. His collection of child pornography was smaller than that of Mr. Aharonov, consisting of 479 photos, 5 videos and 11 anime drawings. The majority of the images depicted young girls that were naked or partially naked but not engaged in any sexual acts, whereas some of the videos involved explicit sexual activity. Mr. Yau was 57 years old and had no criminal record. He was married for 34 years to a supportive wife. Absent credit for pre-sentence custody, Justice MacDonnell found that the appropriate sentence was ten months incarceration.

[35] Having taken into account the nature of these offences, the sentences meted out in similar cases, the aggravating and mitigating factors in this case and the principles of sentencing to be applied, I believe that an appropriate sentence on the child pornography charges is ten months on each count to be served concurrently, to be followed by three years of probation.

[36] The probation order is to contain the mandatory terms set out in section 732.1(2) of the Criminal Code and the following additional terms:

• Mr. Aharonov will report within two working days of his release from custody to a probation officer and thereafter as directed by his probation officer;
• live at an address approved of by his probation officer;
• possess no weapons as defined by the Criminal Code;
• attend and actively participate in any assessment, counselling or rehabilitative programs directed by his probation officer for sexual behaviours;
• sign any release of information forms or provide proof to his probation officer that he has attended at and successfully completed the above programs; and
• not possess any pornographic imagery or pornographic material.

[37] An order is made pursuant to section 161 of the Criminal Code for a period of 5 years prohibiting the defendant 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, school ground, playground or community centre, except in the direct company of another adult over the age of 21 years;

(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) having any contact or communication by any means with a person who is under the age of 16 years, unless in the direct company of another adult over the age of 21 years.

[38] Possession of child pornography is a primary designated offence for the purpose of the DNA provisions of the Criminal Code: section 487.04(a)(i.8). Accordingly, an order will go authorizing the taking of a DNA sample.

[39] Possession of child pornography is also a designated offence for the purpose of the Sex Offender Information provisions of the Code: section 490.011. Accordingly, Mr. Aharonov is to comply with the terms of the Sex Offender Information Registration Act for life: section 490.013(2.1).

[40] Pursuant to section 737 of the Code, there will be a victim surcharge of $400.

[41] The computer devices on which the child pornography was found are ordered forfeited pursuant to section 164.2(1) of the Criminal Code.

[42] Exhibits 7, 8 and 9 are to remain sealed pending any appeal of this decision. If no appeal is taken, they are to be destroyed after 60 days from today's date have elapsed.

[43] I am grateful to both counsel for their assistance in this case.

Released: April 17, 2015

Signed: "Justice Carol Brewer"