Court of Appeal for Ontario

Date: 2002-02-20 Docket: C36525

Re: Her Majesty the Queen (Respondent) v. Gregory Schan (Appellant)

Before: McMurtry C.J.O., Catzman and Abella JJ.A.

Counsel: Bruce F. Simpson, for the appellant Kenneth L. Campbell, for the respondent

Heard: February 15, 2002 Released Orally: February 15, 2002

On appeal from the sentence of Justice S. March dated June 1, 2001.

Endorsement

[1] In this case, the essence of the offence of possession of child pornography was the downloading of images from the internet. The trial judge quite properly described the images as vile and disgusting. There was, however, no evidence of any distribution by the appellant of these images.

[2] In passing sentence, the trial judge recognized that there are a number of mitigating factors, including a guilty plea, the fact that the appellant was co-operative with the police and that the "accused had taken very significant steps to deal with the problems that give rise to the charge".

[3] The trial judge focussed on the horrific and repulsive nature of the photographs, the number of them and stated that "the substantial amount does have a significant effect on my decision".

[4] In referring to the case law, the sentencing judge focussed on the evils of child pornography and we share his concern that "some pedophiles use child pornography in ways that put children at risk".

[5] While we also agree with the trial judge that the offence requires deterrence and denunciation, we are of the view that the trial judge erred in principle in not focussing to a greater extent on the particular circumstances of this case; namely, that the appellant downloaded the images from the internet for his own use and further that he did not distribute any of the material.

[6] As a result of these charges, it would appear that the appellant's marriage has ended, as well as his relationship with his two children. He has suffered serious depression and has attempted suicide.

[7] In our opinion, if there had been a greater emphasis on the specific circumstances of this offender, there would have been a greater consideration of the appropriateness of a conditional sentence.

[8] In the result, we are of the opinion that a conditional sentence should be imposed and that the conditional sentence be for a period of 18 months. The terms of the conditional sentence should reflect the strict terms imposed by this court in R. v. Cohen, 2001 ONCA 3862, [2001] O.J. No. 1606 (Ont. C.A.).

[9] The application for leave to appeal is granted and the sentence is varied accordingly but we would not interfere with the terms of the probation order.

"R. Roy McMurtry C.J.O."

"M. A. Catzman J.A."

"R. S. Abella J.A."