COURT OF APPEAL FOR ONTARIO

DATE: 20000713

DOCKET: C33213

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v.
STEPHAN YAWORSKI (Respondent)

BEFORE: DOHERTY, ABELLA and MOLDAVER JJ.A.

COUNSEL: John McInnes
for the appellant

Dean Paquette
for the respondent

HEARD: July 11, 2000

On appeal from the sentence imposed by Herold J. on October 27,
1999.

E N D O R S E M E N T

[1] This case involved the widespread distribution over the
internet of child pornography which it is agreed was of the
vilest sort. In the course of this distribution, the respondent
acquired further child pornography which then became available
for distribution to others through his system. Without trying to
describe the technicalities, the respondent’s computer equipment
was such that once it was turned on, anyone could access the
pornography. The respondent was fully aware of this unlimited
access made available by him to, in effect, anyone in the world
who wanted the material.

[2] The respondent is not a pedophile and there was no pecuniary
gain involved here. It is not clear why he did what he did. It
would certainly appear that he had no appreciation of the harm
involved in the distribution of child pornography, although by
the time of sentencing it seemed that perhaps some appreciation
was developing.

[3] The respondent was a 20 year-old first offender. He plead
guilty to the charge, but tried to limit his culpability to the
bare minimum. He went so far as to falsely blame others for most
of the distribution.

[4] The trial judge recognized that this was an extremely
serious offence which would normally call for a sentence of 12 to
15 months. He was, however, moved to impose a sentence of 90
days and to delay the commencement of that sentence because of
the respondent’s intelligence, his academic achievements and his
desire to continue his education. The trial judge said:

My reasons for imposing a sentence which in other
circumstances might be considered by some and indeed
even by me to be completely inappropriate as being
on the low end of the parameters of custodial sentence
are Mr. Yaworski’s youthfulness, his involvement as a
first offender, neither of which would generate
necessarily a sentence at this low end, but also his
obvious intelligence and promise and the fact that the
sentence which I intend to impose will on the one hand
send a message that incarceration is inevitable but on
the other hand that in Mr. Yaworski’s case at least it
will not hopefully prevent him other than delaying him
by one semester from pursuing his degree and his post-
graduate degrees. It is that single factor alone which
in my view militates in favour of the sentence which I
have suggested I would impose. [Emphasis added.]

[5] We received fresh evidence tendered by the Crown and the
respondent’s reply affidavit to that evidence. This evidence
related to the appellant’s academic record and his academic
standing in the university as at the time of sentence. Those
issues are now the subject of criminal charges and we do not
intend to go into them in any detail. Nor do we intend to make
any findings of fact which would in any way be binding on other
courts. Suffice it to say that the trial judge was materially
misled (intentionally or otherwise) as to the respondent’s
academic achievements and his standing at the university at the
time of sentence. The respondent was not enrolled in university
at the time of sentence. He had also acquired only a handful of
credits despite having been at the university for parts of four
years.

[6] Taking into consideration the facts as we now understand
them to be, we see no basis for departing from the range of
sentence identified by the trial judge. Given that the
respondent has served the sentence imposed at trial, is engaged
and his wife to be is expecting a child, we would impose a
sentence of 12 months. The time already served by the respondent
will of course be taken into consideration in calculating the
amount of time he must still serve.

[7] The Crown application for leave to appeal is granted, the appeal
is allowed and the sentence is varied to one of 12 months. The
probation order made by the trial judge will take effect upon the
release of the respondent.

[8] A warrant for the arrest of the respondent may issue if
requested by the Crown.

“Doherty J.A.”

“R.S. Abella J.A.”

“M.J. Moldaver J.A.”