CITATION: R. v. Jonat, 2019 ONSC 1633
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Her Majesty the queen, Crown
AND:
henning jonat, Accused
BEFORE: S.F. Dunphy J.
COUNSEL: Jennifer Stanton, for the Crown
Devin Bains, Pam Zbarsky, Sean Biesbroek and Natalie Simpson, for the Accused
HEARD at Toronto: February 28, 2019
REASONS FOR DECISION (Sentencing)
1Mr. Jonat was convicted by the jury of one count of possession of child pornography, five counts of making child pornography available to others and one count of making child pornography. He is before me today for sentencing following submissions heard on February 28, 2019.
Circumstances of the offences
2Mr. Jonat came to the attention of an undercover officer of Toronto Police Services as a result of his use of a software platform that enables “peer to peer” transfer of files between users known as “Gigatribe”. After joining the software platform on February 27, 2011, Mr. Jonat established a username “Stinger6ex” and included a number of terms in his on-line profile that alerted other users to his interest in child pornography.
3Data extracted from Mr. Jonat’s computer illustrates the enthusiasm with which he sought out and entered into communication with other users whose usernames contained unambiguous indicators of their interest in hard-core pornography involving pre-teens, incest and the like. Using the Gigatribe platform, Mr. Jonat invited users with such contrived usernames as “Preteenpedo1001”, “Daddyndau5” or “Bipedofan” to join his expanding network of users. Once networked with such users, Mr. Jonat was in a position to share files with them and to receive files from them.
4Police monitoring of Stinger6ex’s activity on Gigatribe showed Mr. Jonat’s network of Gigatribe users to be a rapidly growing one. As his network grew, so too did the collection of hard core child pornography he made available to others to view and download. This reflects the bi-lateral nature of the exchanges on such networks and the active efforts of Mr. Jonat to expand his collection through contacts on his network.
5I shall not detail the means by which Mr. Jonat was ultimately discovered. It is sufficient to note that police were able to connect Mr. Jonat to the Gigatribe user known as Stinger6ex and obtained a warrant to search Mr. Jonat’s residence and any computers found therein. The warrant was executed on January 31, 2012. Among other things seized in the course of that raid were two computers – a laptop and a desktop - whose contents were subsequently searched.
6Mr. Jonat’s desktop computer contained two hard drives on which were found:
a. 730 images of child pornography;
b. 37 videos of child pornography; and
c. 18 transcripts of Yahoo! Messenger chat sessions whose contents constitute child pornography.
7Mr. Jonat’s laptop computer was found to contain four images that were also identified as child pornography.
8These images collectively form the foundation of the possession of child pornography charge for which Mr. Jonat was convicted by the jury. There is no issue that each of these images or videos were in fact instances of child pornography.
9Most but not all of the images identified as child pornography depict females apparently between the ages of seven and thirteen years of age. There was evidence of a degree of “curating” of the collection into themed folders. One such theme was the arranging of photos into “series” containing multiple images of the same child in different poses. Some of the photos consisted of thumbnail images of larger pictures that had once been on the computer but been deleted at some point.
10The videos include depictions of a young female (approximately 8) performing fellatio on an adult male, of an even younger female child being anally raped, other female children being digitally and anally fondled or close-up shots of their genitals. All of the videos had been deleted, but in a manner that made them readily recoverable by the user.
11In R. v. Chislette, 2018 ONCJ 218, S.N. Latimer J. adopted what a number of judges (including me) have found to be a very useful scale for categorizing images of child pornography by their degree gravity. The scale he adopted arose from a decision of the English Court of Appeal in R. v. Olliver, [2002] EWCA Crim 2766 as follows:
a. Images depicting erotic posing with no sexual activity;
b. Sexual activity between children or solo masturbation by a child;
c. Non-penetrative sexual activity between adults and children;
d. Penetrative sexual activity between children and adults; and
e. Sadism or bestiality.
12The sampling of images and videos found on Mr. Jonat’s computers contains examples fitting each of these five levels.
13The search also uncovered transcripts preserved on Mr. Jonat’s computer of 18 “Yahoo! Messenger” chat sessions that occurred between May 3, 2011 and October 13, 2011. Mr. Jonat engaged in each of these chat sessions under the username “Stinger6ex” often giving fictitious personal details (e.g. pretending to be from Sweden or pretending to have daughters). The parties agreed that these transcripts contained instances of child pornography as such term is defined in the Criminal Code. By way of brief summary:
a. In two of the transcripts, Mr. Jonat chatted with individuals who identified themselves as under-age girls (14 years of age in one case, 16 years of age in the other). Both of these chat sessions involved Mr. Jonat seeking to persuade the girls in question to send pictures of themselves and contained detailed and highly sexualized dialogue;
b. Most chat sessions entailed an exchange of photographs by both parties, frequently accompanied by discussion of the parties’ sexual experiences with young children, access to young children, age group preferences and similar matters;
c. One chat session involved an extended fantasy role-playing by both parties involving the sexual assault of a young child;
d. Several chat sessions featured “Singer6ex” referencing sexual experiences with young female relatives (there is no evidence that these statements were other than the product of fantasy); and
e. Many chat sessions feature specific requests for more child pornography or contain commentaries regarding pictures already exchanged.
14The making child pornography charge for which Mr. Jonat was convicted is based upon these transcripts found on Mr. Jonat’s computer. While not every one of the chats in fact constituted “child pornography” under the Criminal Code, there is no doubt that most of them did (including those referenced herein).
15The making available child pornography charge arises from the folders of images made available by Mr. Jonat through his “Stinger6ex” Gigatribe account on-line when accessed by undercover police officers on September 30, 2011, October 3, 2011, October 7, 2011, November 28, 2011 and November 30, 2011.
16Over time, the number of people in Mr. Jonat’s Gigatribe network able to access and download photos from Mr. Jonat’s computer grew and as did the number of folders and the variety of photos made available by him to his network. While not all folders or images shared were child pornography, numerous explicit child pornography images were made available for download to the undercover officers on each occasion. Those images included images of pre-pubescent boys giving or receiving fellatio and pre-pubescent girls being vaginally penetrated.
Circumstances of the offender
17Mr. Jonat is 54 years old and has no prior criminal record. He immigrated to Canada from Germany as an adult in 1999.
18At the time of his arrest in 2012, Mr. Jonat had not acquired Canadian citizenship. Given the number and nature of the offences for which he has been convicted as well as the length of the sentence to be imposed in this case, it is highly likely that he will be the object of a removal order under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and be deported by the immigration authorities as soon as his sentence has been completed.
19Mr. Jonat married in 2007. The couple have three young children, all born (in Canada) after Mr. Jonat’s arrest in 2012.
20Mr. Jonat has no other family living in Canada. His elderly father and a brother continue to live in Germany. His spouse is also a German citizen and has indicated that she is likely to move the family to Germany where she has family support available to her if Mr. Jonat is incarcerated (as will be the case here).
21At the time of his arrest on January 31, 2012, Mr. Jonat lived with his spouse in Toronto and was employed in a local IT firm specializing in networks. The conditions of Mr. Jonat’s release relating to internet access were such that Mr. Jonat has been placed on unpaid leave from that job since his arrest. He has managed to start-up and carry on a consulting business in related areas despite his release conditions with a degree of success that reflects well upon him.
22There is no previous history of psychological issues. There are no indications of drug or alcohol abuse. In short, Mr. Jonat appears to have been at all levels a respected professional making a good living and – judging by outer appearances at least – an upstanding member of the community.
23Mr. Jonat was released from custody shortly after his arrest. I ordered him detained on February 7, 2019 following his conviction by the jury by reason of his lack of family connections in Canada, the likelihood of his deportation and the likelihood that he would not in any event be permitted by child welfare authorities to reside under the same roof as his children. Mr. Jonat is entitled to a total of 57 days of pre-sentence custody.
Applicable sentencing principles
24The principles of sentencing set forth in s. 718 and following of the Criminal Code are well-known and need not be repeated here. It is now clear that denunciation and general deterrence must be viewed as the primary principles of sentencing in offences involving child pornography: R. v. Inksetter, 2018 ONCA 474 at para. 16 . Of course, the existence of “primary” principles does not imply “exclusive” principles. Parliament has directed judges to examine and consider all of the relevant circumstances when fashioning a just sentence. This includes having due regard to the principles of rehabilitation, proportionality and the principle of totality among others. However, in weighing each of these considerations, Parliament has directed that the primary considerations are those of deterrence and denunciation.
25The present case highlights both the true nature of the evil being combatted by s. 163.1 of the Criminal Code and the fallacy of viewing such offences as being passive in nature without direct victim impact.
26In a pre-internet world, the ability of people inclined towards pedophilia to find like-minded individuals, share experiences, cultivate their fantasies and seek access to victims was naturally constrained by the isolation imposed by their relatively small numbers and by the very great fear of the consequences of discovery.
27Modern technology has considerably blunted both restraints. The internet has largely defeated the former isolation of pedophiles. Once scattered individuals are now able to find each other. In doing so, they acquire the strength and far greater potential for harm of what amounts to nothing less than a virtual support group from a world-wide community unified by shared illicit interests in the exploitation of children. It has also blunted their fear of discovery by cloaking their activities in the apparent anonymity of the internet and the potential complexity of cross-border law enforcement.
28The result has been a virtual fire-hose of pornographic images of victimized children spewed across the internet. These images are collected and added to by participants, spawning imitators in their thousands. Chat groups and peer-to-peer platforms proliferate by which pedophiles encourage each other either to violate children to whom they have access or to encourage others to do so and share pictures of their exploits. A veritable barter economy has grown around the collecting of these pictures and videos. There are numerous instances of such trading to be found in relation to Mr. Jonat’s on-line activities. The currency of trade in this “economy” is not money but the possession of tradable pornographic material – the fresher and the more extreme the better. In this fashion barriers constraining the once isolated individual from progressing from voyeur to active perpetrator are eroded and the numbers of harmed children grows exponentially.
29Once images or videos are circulated, the degradation of these children becomes both permanent and global. Images once distributed through this informal network can never be truly eliminated from circulation. The harm is both acute and perpetual. The growing numbers of victims – most unidentified - suffer from wounds that are continually re-opened and harm that can manifest itself over decades.
30The Court of Appeal in Inksetter, R. v. D.G.F., 2010 ONCA 27 and R. v. J.S., 2018 ONCA 675 has recognized the role technology is playing in encouraging and facilitating the production of child pornography where innocent children “become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators”: D.G.F. at para 22.
31There is nothing passive or innocent about this pastime. The social imperative of repressing this crime plainly justifies the primacy given to denunciation and general deterrence that I am applying here.
Position of the parties - Crown
32The Crown seeks a custodial sentence of five years less pre-sentence custody. In addition, the Crown seeks:
a. A DNA order pursuant to s. 487.05 of the Criminal Code;
b. A lifetime SOIRA order pursuant to s. 490.012 of the Criminal Code;
c. An order pursuant to s. 160(1) (a) through (d) of the Criminal Code (with particular language sought in relation to use of the internet to which I shall revert); and
d. An order of forfeiture in respect of the computers and cell phones seized pursuant to s. 164.2(1) of the Criminal Code.
33The Crown urged me to give consideration to the community impact statements filed in this case. I shall refer to those statements further below.
34In support of the five year sentence the Crown asked me to impose, the Crown noted the presence of some of the most serious forms of child pornography in Mr. Jonat’s collection, including images depicting bondage and bestiality involving children, and including images of penetrative sexual assault of very young children. The Crown also pointed to the presence of a deleted collection of “Pedo Bear” cartoons as an aggravating feature in that these images seek to use humour to normalize the abuse and sexual assault of children. I was also urged to find that the curating of Mr. Jonat’s collection and his participation in the distribution of child pornography are aggravating factors.
Position of the parties - Defence
35The defence submits that an appropriate global sentence would be a reformatory sentence in the range of 18 months to two years less a day (less pre-sentence custody). The defence takes no issue with the ancillary orders sought by the Crown subject only to resolving certain concerns regarding the conditions attached to the s. 160(1) order and the forfeiture order.
36The defence submitted that Mr. Jonat’s collection was on the smaller side when compared to many of the precedents cited and contained a relatively smaller portion of the “extreme” child pornography and the making child pornography charge refers to the less serious conduct of producing only written texts. There is no allegation that Mr. Jonat had a history of abuse of children nor was commercial or pecuniary gain pursued. I was asked to consider the degree to which Mr. Jonat has already suffered for his crime by reason of the damage to his career, the social stigma he must now deal with and the delay in bringing this matter to a close even if not amounting to a s. 11(b) Charter breach. I was urged to consider as well the high likelihood that Mr. Jonat will be deported as a mitigating feature of this case and the fact that Mr. Jonat did exert himself to make the trial more efficient by giving timely admissions of fact that preserved the jury from the necessity of viewing more than a small fraction of the child pornography present in this case.
37The defence urged me not to consider the lack of expressed remorse or insight into the nature of his offences as an aggravating feature of this case. Mr. Jonat is entitled to pursue his rights of appeal and should not be required to compromise these in order to plead for a lower sentence.
38I shall review briefly the principal cases cited by the defence that I have found relevant to my task of sentencing.
39In R. v. Carlos, 2015 ONSC 8085, M. Donohue J. imposed a sentence of three years concurrent on one count of possession of child pornography and one count of making child pornography available. The collection made available on line was a comparatively small one (12 videos in a shared folder and further 47 videos either incomplete or unable to be opened but with suggestive titles) many of which had been deleted. The court specifically considered the likely deportation of the offender as a mitigating circumstance while non-compliance with bail conditions was an aggravating circumstance. A sentence appeal was dismissed: 2016 ONCA 920.
40The offender in Chislette was a 69-year old first time offender with an otherwise positive life. Mr. Chislette pleaded guilty to possessing and making available child pornography. He also recognized and actively sought treatment to address his paraphilia and was viewed by the trial judge a strong candidate for rehabilitation. The collection in question was a large one – 3,555 images and 2,155 videos. It is unclear how much of this material was distributed but Mr. Chislette distributed via email (to an undercover officer), Dropbox and through a Russian file sharing programme. The Crown sought an 18 month sentence while the defence sought 12 months. S.N. Latimer J.. imposed a sentence of 18 months in line with the Crown’s request while noting jurisprudence that would support a significantly longer sentence.
41In R. v. Davies, 2012 ONSC 6021, Spies J. imposed a sentence of 15 months for possession of child pornography. The collection – found in a box of CD’s located in a search of his bedroom – was moderate in size and was mostly in the “middle range” of images.
42In R. v. Tweedle, 2016 ONCA 983, the Court of Appeal dismissed an appeal by offender from a sentence of 20 months for possession and making available child pornography. The Crown did not appeal the sentence in question.
43In R. v. Wang, 2016 ONSC 5610, K.B. Corrick J. sentenced an offender to 9 months incarceration on two counts of possession of child pornography. The offender in question was 20 years of age at the time of the offence and had been living alone for the first time. The offences had occurred over a brief period of time prior to amendments to the Criminal Code imposing an increased minimum sentence. The charges arose from 38 images and five videos found on the offenders laptop and desktop computer which rose to the fourth level on the Oliver scale described above.
44In R. v. A.R., 2018 ONCJ 613, S. N. Latimer J. imposed a seven month and three month concurrent sentence for making child pornography and possessing child pornography. The child pornography in question consisted of the log of an on-line dialogue conducted via email. The Crown proceeded summarily and the trial proceeded entirely by agreed facts. The judge found that the gravity of the offence warranted a sentence “near or at the bottom of the present range for this form of conduct”.
45In R. v. Levin, 2015 ONCJ 290, H.A. McArthur J. sentenced an offender to a total of three years in prison following a guilty plea to one count each of possession of child pornography, making child pornography and counselling sexual assault. The charges arose from an on-line chat between the offender and an undercover officer that included role playing and counselling the commission of an offence. A search warrant revealed 79 child pornography files on the offender’s computer covering all five levels of child pornography identified in the Oliver scale. Mr. Levin’s case generated considerable publicity and thus public opprobrium. He was a first time offender, pled guilty and expressed remorse. While sentenced to three years globally, Mr. Levin received consecutive sentences of six months for possession, 12 months for making child pornography and 18 months for counselling (the latter being an offence not present in the present case).
Victim/Community impact statements
46The Crown found hundreds of degrading images depicting the abuse of children on Mr. Jonat’s computer in addition to 37 video files. Mr. Jonat was not alleged to have taken any of the images or video himself but was involved in distributing some of them through the Gigatribe platform that he used quite actively. Police have actually been able to locate and identify a small number of the victims of the crimes depicted on those images and videos. For perfectly understandable reasons, none of the identified victims have chosen to present victim impact statements in this case. In the vast majority of cases, however, the name and location of the victims remains unknown.
47Section 722.2(1) of the Criminal Code permits a statement “made by an individual on a community’s behalf” to be filed with the court describing the harm or loss suffered by the community as a result of the commission of the offence and its impact upon the community. The Crown has presented two Community Impact Statements for the court’s consideration in this case. Both were prepared by Ms. Monique St. Germain as General Counsel for the Canadian Centre for Child Protection, the first such statement being a general statement prepared by the CCCP and the second being a statement prepared on behalf of a specific group of survivors known as the “Phoenix 11”.
48The defence objected to the filing of these two statements. To the extent the statements contain statistical evidence that is relevant to sentencing, such evidence ought to be proved in the usual way. Overall the defence characterized both statements as advocacy pieces that either stated matters already well-established by the jurisprudence (as to which see Inksetter and cases cited therein) or are either not applicable or not in dispute in this case. The statements are both general in nature and do not apply specifically to Mr. Jonat or the circumstances of his offences.
49The Crown submits that these are precisely the sort of statements contemplated by the Criminal Code. The nature of the crime in this case is that the community most directly impacted by the criminal activity in question – survivors - is dispersed worldwide and difficult to identify and locate. The statements provide context enabling the court to appreciate the nature and gravity of the offences and their real impact on real people.
50Section 722.2(1) of the Criminal Code is intentionally vague as to the definition of the affected “community”. A form has been prescribed for the preparation and presentation of such statements which has been adhered to. The two statements are in form admissible.
51If I can admit them, should I do so?
52I find that both statements are indeed quite useful to provide context to understanding the unique nature of these crimes and the deep and lasting harm that they inflict. While I have no reason to believe that Mr. Jonat knew any of the actual victims of these crimes, these statements provide a means of gaining a deeper understanding of the deep and lasting impact upon such victims that his behaviour has contributed to inflicting.
53While it is true that recent appellate-level cases have expressed much of the same context and perspective as can be gleaned from the two statements, the additional context and colour provided by them is nevertheless valuable. I am fully capable of disregarding any irrelevant or unproved aspects of these statements. I have considered them both along with the appellate court guidance in gaining a deeper understanding of these offences.
54The “Phoenix 11” statement was prepared collectively by a group of 11 Canadian survivors of child sexual abuse. Their statement was prepared to reflect the perspective of the broader community of all affected victims of such child sexual abuse because the 11 members of the group are all members of that broader community. Among the messages conveyed by this statement:
a. “We are some of the children who are seen in those pictures and videos, and we are the ones who are struggling to survive our victimization every single day”;
b. “It both saddens and angers us that there are people who take pleasure from looking at our sexual abuse imagery … that there are people who claim not to understand that we are real people, with real feelings, and with real lives that have been taken from us”;
c. “the images and videos of our child sexual abuse are permanent markers of the most painful and traumatic experiences of our lives. It is a constant barrier to us healing and moving on with our life. The mere existence of our imagery is enough to invoke feelings of intense fear in each and every one of us”; and
d. “we keep being abused over and over by people who watch, seek out, and keep imagery of children being sexually abused”.
55I have no hesitation in concluding that these powerful statements are a fair representation of the very real pain and suffering that child pornography – its production, possession and distribution – inflicts upon those who have the highest claim to society’s solicitude and protection: our children.
Aggravating circumstances
56In my view, a just sentence must account for the following aggravating circumstances applicable in this case:
a. The fact that Mr. Jonat’s activities in relation to child pornography included not only possession but also its propagation and distribution over the internet;
b. That the offences involved the abuse and exploitation of children;
c. That the offences were not a spontaneous or “one off” event but occurred on a number of distinct occasions over a period of time and the collection of images showed signs of curating; and
d. The degree of depravity of the images and videos possessed by Mr. Jonat (measured on the Oliver scale, the collection included images and videos at each of the five levels of gravity).
57In a sense, the list of aggravating circumstances I have enumerated does little more than describe the evil being addressed by these provisions of the Criminal Code. However, within the bounds of the criminal conduct described in s. 163.1 of the Criminal Code there are gradations of seriousness. Mr. Jonat’s conduct in committing the offences for which the jury has convicted him clearly fall near the more serious end of that spectrum.
Mitigating circumstances
58In my view, a just sentence must also account for the following mitigating circumstances applicable in this case:
a. Mr. Jonat’s lack of any prior convictions;
b. The fact that Mr. Jonat effectively lost his prior employment due to his release conditions and will continue to face further stigma and loss of career opportunities going forward arising from his conviction and incarceration;
c. The fact that Mr. Jonat faces almost certain deportation; and
d. The fact that Mr. Jonat has been otherwise of good character.
59Some further elaboration on these considerations is in order.
60Mr. Jonat was working in the technology sphere at the time of his arrest. The conditions of his release regarding internet access made the continuation of his employment problematic and he has been on an unpaid leave from that position since shortly after his arrest in 2012. He has succeeded in fashioning a consulting career on his own pending trial. He will however lose that business as well due both to his incarceration and to the fact that he will very likely be deported upon completion of his sentence. Thus while Mr. Jonat has enjoyed his liberty while awaiting trial, the conditions of his release resulted in a tangible hardship upon him.
61The defence urged me to consider delay – albeit delay that did not amount to a s. 11(b) Charter breach – as a further, stand-alone mitigating factor citing R. v. Bosley, 1992 CanLII 2838 (ON CA). I have in effect done so in considering the impact upon Mr. Jonat’s career and professional reputation during the intervening seven years prior to his conviction. Even if a goodly portion of the delay was of his own doing, it is also fair to observe that the uncertainty with which Mr. Jonat has had to live these seven years has also exacted a heavy personal cost.
62It is clear that the likelihood of deportation following completion of a sentence is not a reason to apply a punishment that is outside of the range normally applicable having regard to the circumstances of the case: R. v. Hamilton, 2004 CanLII 5549 (ON CA) at para. 156. However, the fact that the offender will suffer the additional punishment of losing residency rights in Canada is a factor that has long been recognized as one that may be taken into account as a mitigating factor. This is an additional level of punishment that Mr. Jonat as a non-citizen is uniquely subject to. Furthermore, the risk of incomplete rehabilitation of an offender who is deported is not a risk imposed upon the Canadian public: R. v. G.W., 2017 ONSC 3149.
63Being an upstanding member of the community of otherwise good character is, unfortunately, a rather prevalent theme in sentencing decisions involving child pornography. More often than not, the offender has no prior record and the charges come as a shock and surprise to friends, family and colleagues alike. The obstacles to detection and suppression of this crime are such that the law is nevertheless forced to lean heavily upon the deterrent effect of exemplary sentences to secure its objects even where the opprobrium of having been caught is as great as is certainly the case with this class of crime. In this aspect at least, child pornography has a certain similarity to impaired driving cases.
Discussion of appropriate sentence
64Having reviewed the aggravating and mitigating circumstances, I think it is also appropriate for me to discuss briefly the circumstances that I consider to be neutral ones in this case.
65Mr. Jonat’s lack of demonstrated remorse and insight into his offences is clearly not an aggravating circumstance in this case so much as it represents the lack of a mitigating circumstance. By the same token, the fact that Mr. Jonat chose to plead not guilty and assert his fundamental constitutional right to a trial by jury cannot be considered as an aggravating circumstance. Obviously, the absence of a mitigating circumstance does not imply the presence of an aggravating circumstance and must not consciously or unconsciously be so considered. These are both neutral circumstances – nothing more and nothing less.
66Mindful of the “learning curve” that our courts have undergone in relation to this category of offence, I attach greater weight to the more recent sentencing guidance, and in particular recent guidance from the Court of Appeal, than I do to earlier cases. It is fair to observe that the more recent cases reflect generally a stiffer range of sentences, in turn reflecting a greater reliance upon the deterrent effect of exemplary sentences as I have noted earlier.
67Of the more recent Court of Appeal guidance, Inksetter is a very instructive case. The offender in Inksetter had accumulated a vast collection of images and videos – so vast indeed that it is almost inconceivable that he could have viewed more than a fraction of it himself. The police identified 28,052 unique images and 1,144 unique videos of child pornography before halting their investigation, even though there were still 1.2 million other images and 40,000 other videos left to review from among the seized material. The images and videos were sorted into appropriately-named folders. A portion only of Mr. Inksetter’s vast collection was made available to share with others on the internet through a “shared” folder. This folder contained 75 unique files identified as child pornography on one date (March 8, 2016) and 167 unique files when viewed just over a month later (April 16, 2016). The offender in that case entered a guilty plea at the first opportunity, showed real remorse and insight into his offences and accepted full responsibility for what he had done. While the trial judge had originally imposed a reformatory sentence plus probation, the Court of Appeal imposed a concurrent sentence of three years for the possession charge and three and a half years for the charge of making available child pornography.
68The present case presents both similarities to and differences from Inksetter. Mr. Jonat’s circumstances lack the mitigating features of a guilty plea and genuine remorse. His collection was certainly not as vast as that found in Inksetter, but the volume of images made available to others was quite comparable and Mr. Inksetter received a 3.5 year sentence for that offence. As well, Mr. Jonat’s case contains the additional feature of a conviction for making child pornography arising from the recorded Yahoo! Messenger internet chat sessions found on his computer.
69What then is a fit sentence in the particular circumstances of this case?
70Of the three types of child pornography offences before me, it is clear that the making available of child pornography is the most serious of them and must attract the most severe penalty.
71Distribution of child pornography adds fuel to the fire that Parliament is seeking to suppress. It encourages the production of still fresher and more extreme images and videos for further sharing and collecting, thereby encouraging the abuse of more children. It perpetuates the abuse of those who have been abused in the past by rendering the suppression and elimination of such images practically impossible – these are wounds that will never heal and that are re-opened every time a record of the abuse of a child is shared with a new user and stored on a new computer. Finally, it contributes to the sense of community among pedophiles that encourages and incites them to pursue their illicit desires instead of suppressing or treating them.
72Mr. Jonat made available an extensive and growing collection of child pornography to his network on Gigatribe on five separate dates (September 30, 2011, October 3, 2011, October 7, 2011, November 28, 2011 and November 30, 2011). On September 30, 2011, Mr. Jonat’s network displayed 55 contacts. While only one folder was initially shared with the undercover officer on that occasion, he was given access to two more folders following a brief on-line chat session. The three shared folders contained 140 images in total. By November 28, 2011, Mr. Jonat’s network had expanded to 229 contacts. On that date, he shared six folders with an undercover officer. The image count in only two of those folders was 1,725. On November 30, 2011, ten folders were shared (no evidence was led at trial regarding the number of contacts or number of images in each folder on that last date).
73I do not wish to leave a misleading impression of the extent of Mr. Jonat’s distribution activities. Mr. Jonat appears to have shut down his participation in the distribution of child pornography through Gigatribe shortly after the last time his files were accessed by police on November 30, 2011 (he was arrested on January 31, 2012). While vestiges of the Gigatribe platform installation were found on his computer much had been deleted by the time he was arrested. Only some of the originally shared folders were still intact. Furthermore, it is also clear that Mr. Jonat’s collection contained a significant amount of pornography portraying adults only. The undercover officers did not download and analyze the entirety of each of the folders on-line. Only a representative sampling of files that appeared likely to be child pornography (selected based upon the thumbnails visible on-line) was downloaded for closer analysis and categorization. Nevertheless, it is apparent from the folder thumbnails and from the selected images downloaded that child pornography made up a very significant portion of the collection made available by Mr. Jonat on-line through Gigatribe on those five occasions.
74I also do not wish to overstate the probative value of the number of contacts in Mr. Jonat’s growing list of Gigatribe contacts. At least some of those contacts were undercover officers who had succeeded in persuading Mr. Jonat to add them to his network. Nevertheless, the trend in terms of the number of contacts in his network was upwards and materially so. I am not prepared to infer that more than a relative handful of these contacts were potentially undercover officers.
75While Inksetter involved a smaller number of shared images on the two occasions in evidence in that case (75 and 167 unique images respectively), the collection from which it was drawn was heavily weighted (95%) towards the fourth and even fifth most serious categories of child pornography on the Oliver scale referred to above. By contrast, while Mr. Jonat’s shared collection was larger and growing, I cannot find on the evidence before me that it approached the same level of gravity in terms of the depravity of the shared images. Of the images that were sampled by undercover officers on-line, most appear to have been in the second and third level of the five level Oliver scale. Only a minority of the shared images were in the fourth category and there is no evidence of any shared images in the fifth. Thus, while the volume of shared images in Inksetter may have been broadly similar (although Mr. Jonat’s activities were verified on five occasions compared to two in Inksetter), the quality of the images shared in Inksetter was more heavily concentrated on the most serious and depraved end of the Oliver scale.
76There is a danger in getting too focused on comparative sentencing. Each case has individualities and it is simply not possible to put a precise figure on each point of distinction to compare them. I cannot add three months for this factor and subtract four for that. This case is not Inksetter even if Inksetter has a number of points of similarity. I will be guided but not directed by it.
77I find that concurrent sentences of three years for each of the five counts of making available child pornography is a fit and proper sentence in the circumstances of this case.
78This sentence adequately reflects the priority that I must give to deterrence and denunciation and is proportional to the serious nature of these offences. It is well within the range of sentences meted out in similar cases, particularly the more recent cases. It is appropriately near the higher end of the range of sentences for making available child pornography in recognition of the number of instances of sharing and the relative degree of depravity of the images shared. It recognizes the mitigating factors of the punishment already suffered by Mr. Jonat in terms of the damage to his career during the years he has been on bail and the damage to that career that a further period of incarceration will entail. Finally, it recognizes that Mr. Jonat will almost certainly be deported as a result of this sentence.
79While the recorded occurrences of distribution were separate ones – and Gigatribe permits users to designate which users will see how much of which folder resulting in a degree of customization on each separate occasion – they all occurred on the same platform (Gigatribe) and over a comparatively brief period of time (two months).
80I am aware that Mr. Jonat joined Gigatribe in late February 2011, began building his network of contacts immediately and was seen to be sharing a number of folders as early as March 1, 2011. However, I am only taking into consideration for sentencing purposes the five actual instances of sharing where the jury has found beyond reasonable doubt that images of child pornography were made available to others by Mr. Jonat between September 30, 2011 and November 30, 2011.
81On the charge of possession of child pornography, I find that a sentence of 2.5 years (i.e. 30 months) is appropriate in all of the circumstances of this case. I have considered in particular:
a. The range applied in similar recent cases of which Carlos and Inksetter appear to me to be the most persuasive;
b. The size of the collection possessed;
c. The categorization of the collection (comprising images and videos in each of the five Oliver categories) including a number of videos and images falling within the two most serious categories showing penetration of very young victims, images of bondage and at least one of bestiality;
d. The aggravating circumstance of having distributed child pornography as well; and
e. The mitigating factors of Mr. Jonat’s likely deportation and the significant damage to his career already incurred and to be incurred by reason of his arrest and sentencing.
82Turning to the charge of making child pornography, I find that the decisions of A.R. and Levin cited by the defence to be persuasive. There as here the pornography in question was in writing and – at least as far as can be told from the evidence led at trial – largely fictional. A.R. involved a “role playing” dialogue. At least one of the chat sessions upon which Mr. Jonat’s charge is based similarly involved role playing.
83The fantasy themes played out in the dialogues in this case involved incest, rape and other actions of extreme depravity to be sure. The tenor of the dialogues also involved an element of “normalizing” abuse of children, thereby offering a degree of encouragement to others to act upon their own fantasies. Two of the dialogues apparently involved underage girls but did not go so far as to involve luring (which would be an entirely different charge). While the behaviour in producing these written chats definitely warrants a sentence that reflects the need to deter and denounce, it does not approach the most severe end of the making child pornography spectrum where video and photographic recordings of the rape and abuse of children are made.
84In the circumstances of this case, I find that a sentence of nine months in jail is appropriate. It gives appropriate weight to deterrence and denunciation but reflects the relatively less serious (on the spectrum) nature of the offence in this case relative to others. It is also broadly within the range applied in A.R. and Levin.
85I have considered whether any of these sentences ought to be ordered to be served consecutively (I have already found that the five making available sentences are to be concurrent above). In my view, the totality principle guides me to the conclusion that concurrent sentences are appropriate in this case.
86As a first time offender facing deportation, a global sentence of three years appears to me to be a fit and proper sentence having regard to all of the offences for which Mr. Jonat has been convicted. Such a sentence gives appropriate weight to deterrence and denunciation and is well within the range that the most recent cases in particular have imposed. In Levin, Justice MacArthur imposed individual sentences that were lower in one case and higher in another than those that I am imposing here, but applied the sentences consecutively. While taking a slightly different route, I have arrived at a similar global conclusion in a case that presents broadly similar features when viewed on balance. There are aggravating and mitigating features present in this case not present in Levin and vice versa.
87I have given serious thought to the adequacy of the global sentence imposed by me here in light of the longer (3.5 years) global sentence meted out in Inksetter where the offender had pleaded guilty and showed remorse. On balance, I find that a slightly lower global sentence is nevertheless an appropriate one here having regard to the impact upon Mr. Jonat of the long delay in getting to trial, the circumstance of Mr. Jonat’s likely deportation, the relatively smaller size of his collection and the higher concentration of the most severe child pornography found in Inksetter.
Disposition
88Accordingly, Mr. Jonat shall be sentenced as follows:
a. Thirty months in custody for the one count of possession of child pornography (count one);
b. Three years in custody for each of the five counts of making available child pornography (counts two through six);
c. Nine months in custody for the one count of making child pornography (count seven);
d. Each of the custodial terms shall be served concurrently;
e. Mr. Jonat shall be entitled to credit for pre-sentence custody of 57 days credited at the rate of 1.5 times (total credit of 86 days);
f. A DNA order shall be made pursuant to s. 487.05 of the Criminal Code;
g. A lifetime SOIRA order shall be made pursuant to s. 490.012 of the Criminal Code;
h. An order pursuant to s. 161(a) through (d) of the Criminal Code shall be made subject to the conditions indicated below for a period of ten years; and
i. An order of forfeiture in respect of the computers and cell phones seized pursuant to s. 164.2(1) of the Criminal Code also modified as indicated below shall be made.
89The order pursuant to s. 161(d) of the Criminal Code prohibiting access to the internet will be subject to the written conditions as agreed between the Crown and defence authorizing Mr. Jonat to access the internet for purposes of his work. The order pursuant to s. 161(c) will be subject to conditions regarding Mr. Jonat’s supervised access to his own children, such language having similarly been agreed to in writing between the parties.
90The forfeiture order was subject to some negotiation between the parties as well. There was no issue that Mr. Jonat’s two computers (the laptop and the desktop including the two hard drives) that were found to contain child pornography should be subject to a forfeiture order. The defence did object to the laptop of Mr. Jonat’s spouse being subject to the proposed forfeiture order. The parties have worked out appropriate language that I have approved to enable the personal documents and photos of Mr. Jonat’s spouse to be returned to her. The computers are of little tangible value being more than seven years old at this point.
91Orders accordingly.
S.F. Dunphy J.
Date: March 18, 2019
