DATE: 20010501

DOCKET: C33022

COURT OF APPEAL FOR ONTARIO

CHARRON, SHARPE and SIMMONS JJ.A.

B E T W E E N :

Lawrence Greenspon,

HER MAJESTY THE QUEEN

for the appellant

Respondent

• and -

John McInnes,

for the respondent

IVAN COHEN

Appellant

Heard: April 9 and 10, 2001

On appeal from his conviction by Justice Robert N. Weekes, sitting with a jury, on June 3, 1999 and from the sentence imposed on October 15, 1999

BY THE COURT:

[1] Following a trial by judge and jury, the appellant was convicted on several counts of distribution and possession of child pornography. He was sentenced to fourteen months’ imprisonment. He appeals against the convictions and sentence.

A. Convictions Appeal

[2] The appellant appeals his convictions on several grounds. In our view, it is only necessary to address some of the grounds in detail to dispose of the appeal.

1. Admissibility and use of evidence about two books found in appellant’s bedroom

[3] The appellant submits that the evidence describing two books found in his bedroom should not have been admitted at trial because its very limited probative value was outweighed by its prejudicial effect. Counsel argues that the error was compounded by Crown counsel’s cross-examination of the appellant about this evidence and by the trial judge’s failure to give a proper limiting instruction to the jury.

[4] The evidence about the books was limited. A police witness testified that he came across the books during a search of the appellant’s house. He described the books briefly, noting that one concerned sexual abuse of children at a day-care and the other appeared to be a book of fiction involving an adult male meeting or stalking a seventeen-year-old female. The books were not seized and not produced in evidence. The officer was not cross-examined on his recollections about the books. The appellant testified that the first book was about a court case in the United States and the second one was his wife’s.

[5] The Crown introduced this evidence to show that the appellant was interested in the general subject matter of child abuse and therefore the more likely occupant of his household to have authored the pornographic electronic communications that formed the basis of the charges. No objection was taken at trial to the admissibility of the evidence.

[6] We agree with the appellant’s contention that this evidence was of very limited probative value. We also agree that its potential prejudicial effect arguably outweighed its probative value. However, the trial is the appropriate forum in which to challenge the admissibility of evidence for the first time. In the absence of any objection at trial, we are not persuaded that the trial judge erred in admitting this evidence without a voir dire or that Crown counsel exceeded the bounds of permissible cross-examination.

[7] Although it would have been preferable for the trial judge to specifically instruct the jury that they should not use the presence of the books to reason from propensity, the failure to do so in the circumstances of this case did not amount to a reversible error. The evidence about the books was very limited and, when considered in the context of the whole trial, of relative unimportance. In this regard it is noteworthy that the defence did not request any limiting instruction nor did the defence object to the instructions that were given to the jury.

2. Failure to instruct the jury on alleged alibi evidence and other matters relevant to the defence

[8] The appellant contends that the evidence of one witness, Duncan Leggett, was in the nature of alibi evidence as on at least one of the occasions when an electronic communication was taking place, Mr. Leggett would have been in attendance with the appellant at his house. He submits that the trial judge erred in failing to deal with this important evidence in his charge. Counsel for the appellant also notes a number of other items of evidence which, in his submission, were important to the defence and should have been reviewed by the trial judge for the jury.

[9] We are not satisfied that the evidence of Mr. Leggett was in the nature of alibi evidence. There is no indication on the record that this evidence was treated by counsel as “alibi.” Rather, it would appear that Mr. Leggett’s evidence was just one of many other items of evidence relied upon by the appellant in support of his position that he was not the author of the communications in question. In these circumstances, it was not incumbent upon the trial judge to give any particular instruction to the jury with respect to this evidence. Indeed, if it had been treated as alibi evidence, the trial judge would have been required to instruct the jury to give the evidence diminished weight because of the absence of an alibi notice giving the police an opportunity to investigate the claim. The absence of such an instruction enured to the benefit of the appellant.

[10] We are also of the view that the trial judge adequately summarized the position of the defence and related it to the evidence in the case. The trial judge was not required to address every argument and every point in the evidence. Again it is noteworthy that no objection was made to the jury charge.

3. Other grounds of appeal

[11] The remaining grounds of appeal also relate to matters that were not raised or objected to at trial. Having considered the context in which these matters arose, we are satisfied that the failure to object at trial properly reflected the relative unimportance of these alleged errors. Consequently, we did not call upon the Crown at the hearing to respond to these additional grounds.

[12] The appeal against conviction is dismissed.

B. Sentence Appeal

[13] The appellant submits that the sentence of fourteen months’ imprisonment and three years’ probation is excessive and that the trial judge failed to give adequate consideration to the possibility of a conditional sentence. The respondent concedes that the sentence is "at the high end of the range" but submits that we should not interfere.

[14] In his reasons for sentence, the trial judge focused almost entirely on the need for denunciation and deterrence for this offence and, relying on the decision of this court in R. v. Lisk, 1998 4737 (ON CA), [1998] O.J. No.1456, held that it would not be appropriate to impose a conditional sentence.

[15] We share the concerns expressed by the trial judge about the need for a sentence that clearly denunciates the distribution of child pornography and deters those who might be tempted to engage in its dissemination. However, meeting those concerns should not exclude consideration of other relevant sentencing factors. Bearing in mind the deference owed to the trial judge in determining a fit sentence, it is our view that in the circumstances of this offence and this offender, the sentence imposed is excessive and reflects an error in principle justifying the intervention of this court. We arrive at that conclusion for the following reasons.

[16] First, the trial judge did not have the benefit of the decision of the Supreme Court of Canada in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449. In that case, it was pointed out, at p. 493, that conditional sentences are punitive sanctions capable of achieving the objectives of denunciation and deterrence and that they may be considered even where a sentence meeting those objectives is required.

[17] Second, the circumstances of this case are distinguishable from Lisk. That case involved an offender who distributed material in exchange for more child pornography. In the present case, the appellant responded to the invitations of under-cover police officers and sent the offending material with no request for payment or exchange. Moreover, the sentence upheld in Lisk was three months, significantly less that the fourteen-month sentence imposed here, and the court's refusal to intervene in that case does not preclude the use of conditional sentences for this offence in appropriate circumstances.

[18] Third, the circumstances of this offender are mitigating factors. The appellant was 44 years old at the time he was sentenced. He is married and lives with his wife and three children. He has no criminal record. He has been steadily employed in responsible positions and has supported his family. He has a supportive extended family and is involved in the synagogue he attends. The trial judge accepted psychiatric evidence that the appellant is not a pedophile. There is nothing to suggest that he is involved in the creation or production of child pornography or that he poses a threat to the community.

[19] Fourth, these proceedings have already had a significant deterrent effect upon the appellant. The arrest, trial and conviction of the appellant on these charges have led to what the trial judge described as "harassment" from the community. His two youngest children were, as found by the trial judge, "subjected to abuse from their peers and adults". The appellant and his family had to move to another community to escape. He has had to change his job twice and has suffered a significant decline in his income. As a result of these charges, he has spent time in jail, a total of just over two weeks’ pre-trial and post-trial custody. In our view, the sentence imposed by the trial judge failed to reflect the devastating effect these proceedings have already had upon the appellant and his family.

[20] Taking all these factors into account, it is our view that a sentence of fourteen months imprisonment reflects an error in principle that justifies the intervention of this court. The goals of denunciation and deterrence in the circumstances of this offence and this offender would be adequately met by substituting a conditional sentence of fourteen months on the conditions that he:

a) keep the peace and be of good behaviour;

b) appear before the court when required to do so by the court;

c) report to a supervisor within a week after the making of this order, and thereafter when required by the supervisor and in the manner directed by the supervisor;

d) remain within the Province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor;

e) notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

f) remain in his house at all times except as required for employment, medical treatment or dental care, religious observance, or attendance at children’s school events;

g) refrain from using the internet except as required by his employment;

h) perform one hundred hours of community service work, commencing within thirty days of this judgment, and to be completed within ten months at a rate of no less than ten hours per month;

i) not associate or hold any communication directly or indirectly with any person under the age of eighteen years except his own children, unless in the company of at least one other adult; and

j) make reasonable efforts to find and maintain suitable full-time employment.

[21] Consequently, leave to appeal the sentence is granted and the sentence appeal allowed accordingly.

(signed) “Louise Charron J.A.”

(signed) “Robert J. Sharpe J.A.”

(signed) “J. Simmons”

RELEASED: May 1, 2001

“LC”