Her Majesty the Queen v. Inksetter

[Indexed as: R. v. Inksetter]

Ontario Reports

Court of Appeal for Ontario

Hoy A.C.J.O., MacFarland and L.B. Roberts JJ.A.

May 23, 2018

141 O.R. (3d) 161 | 2018 ONCA 474

Case Summary

Criminal law — Child pornography — Sentence — Fifty-one-year-old first offender pleading guilty at early date to possession of child pornography and making child pornography available — Size and nature of accused's collection extremely aggravating — Denunciation and deterrence being primary sentencing objectives — Sentencing judge imposing sentence of two years less one day followed by three years' probation on basis that accused would benefit from period of probation which would ensure that he received counselling — Sentencing judge erring in giving primary effect to principle of rehabilitation — Sentence varied to three years' imprisonment for possession of child pornography and three and one-half years concurrent for making child pornography available.

The accused, a 51-year-old first offender, pleaded guilty at the first reasonable opportunity to possession of child pornography and making child pornography available. His collection was one of the largest and worst that the police service in question had ever encountered. Psychiatric evidence indicated accused at very low risk for future child pornography offences and unlikely to be a pedophile. The sentencing judge imposed a sentence of two years less a day in jail, followed by three years' probation. He noted that a longer sentence could not include a period of probation, and found that probation would assist the accused as it would ensure that he received counselling. The Crown appealed.

Held, the appeal should be allowed.

The sentencing judge acknowledged that the paramount sentencing objectives for offences involving child pornography are denunciation and deterrence, but his reasons demonstrated that he failed to give those principles paramount effect. Rather, he erred in giving primary effect to the principle of rehabilitation. The offence of making available child pornography warrants a longer sentence than possession as allowing others to observe images contributes to the further victimization of children. The sentence was varied to three years' imprisonment for possession of child pornography and three and one-half years' imprisonment for making child pornography available.

APPEAL

APPEAL by the Crown from the sentence imposed by Doody J., [2017] O.J. No. 4390, 2017 ONCJ 574.

Lisa Joyal, for applicant (appellant).

Paolo Giancaterino, for respondent.

The judgment of the court was delivered by

HOY A.C.J.O.:

Overview

[1] The respondent, Mahlon Inksetter, amassed one of the largest and worst collections of child pornography that the Ottawa Police Service had ever uncovered. He was convicted of "possession" of child pornography and "make available" child pornography, contrary to s. 163.1(4) and 163.1(3) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The trial judge imposed a global, upper reformatory sentence of two years less a day in custody, followed by three years of probation. The Crown applies for leave to appeal sentence and asks that an increased sentence be imposed.

[3] Respectfully, I agree with the Crown that while the trial judge specifically acknowledged that denunciation and deterrence were the paramount sentencing objectives for offences involving child pornography, his reasons demonstrate that he failed to give them paramount effect and that his error had an impact on the sentence he imposed. It is unnecessary for me to address the other grounds for the appeal the Crown advances. I would grant leave to appeal sentence, allow the appeal and impose a global sentence of three and one-half years' imprisonment.

The Background

[4] The police identified 28,052 unique images and 1,144 unique videos of child pornography on the respondent's computer and various devices.¹ At that point, they halted their investigation, even though there were still 1.2 million other images and 40,000 other videos left to review and categorize. Detective Carr testified that the respondent's collection -- which was amassed over several years -- was among the top one or two most difficult collections she has ever had to review. Ninety-five per cent of the material depicted actual penetration and other explicit sexual activity. Some of the images of explicit sexual activity involved children as young as one-year old. The images included bondage and bestiality. The respondent organized his collection in hundreds of folders, named in a manner consistent with their contents.

[5] The material that the respondent downloaded was available to others via the Internet so long as it remained in the "shared" folder on his computer. On March 8, 2016, this folder contained 75 unique files which were child pornography. On April 18, 2016, it contained 167 unique files.

[6] The trial judge concluded that the volume of images and the number of children abused put the possession offence "among the most serious for circumstances of the offence of possession of child pornography". He characterized the contents of the respondent's very well-organized collection as "at the extreme end of the spectrum".

[7] He considered the circumstances of the respondent. He had no criminal record. He was 51 years of age and never married. His relationship with his ex-girlfriend had ended as she struggled with schizophrenia. He remained emotionally attached to her and continued to try to help her. Dr. Kingston, the psychologist whom the respondent began to see after the charges were laid, opined that the respondent's motivation in turning to pornography was to "numb out reality" -- a dysfunctional coping strategy for his feelings of lack of control over his ex-girlfriend's struggle with schizophrenia. The respondent's viewing of child pornography was accompanied by increasing marijuana use. Dr. Gray, the psychiatrist who carried out the respondent's sexual behaviours assessment under s. 21 of the Mental Health Act, R.S.O. 1990, c. M.7, concluded that a diagnosis of paedophilic disorder was unlikely. He and Dr. Kingston agreed that the respondent was at very low risk to commit a future child pornography offence.

[8] The trial judge noted that the respondent pled guilty at the first reasonable opportunity and would likely lose his employment as a result of his convictions.

[9] The trial judge found that the respondent showed real remorse and insight and had accepted full responsibility for what he had done. He concluded that specific deterrence and rehabilitation had already been accomplished to a significant extent.

[10] Crown counsel submitted that the applicable range of sentence was three to five years of imprisonment and that in these circumstances an appropriate sentence would be four and one-half years of imprisonment. Respondent's counsel argued that the applicable range for possession of child pornography was nine months to four years, and a one-year term of imprisonment on each count, with the two terms to run concurrently, followed by a period of probation of between 18 and 24 months would be appropriate.

[11] The trial judge reviewed several sentencing decisions, including R. v. Dean, [2010] O.J. No. 5305, 2010 CarswellOnt 10882 (S.C.J.). In Dean, Ratushny J. sentenced Mr. Dean to the equivalent of three years for possession of child pornography in face of an applicable mandatory minimum of 45 days. (He was not also charged with making available child pornography.) Like the respondent, Mr. Dean pled guilty and was not a youthful offender and his collection of child pornography was large.

[12] In determining what sentence to impose, the trial judge concluded [at para. 72] that the appellant's situation was more like that of Mr. Dumais, in R. v. Dumais, [2011] O.J. No. 116, 2011 ONSC 276 (S.C.J.), another decision of Ratushny J. Mr. Dumais, like the appellant, "showed real remorse and insight, voluntarily attended assessment and therapy sessions, and accepted full responsibility for what he had done". Specific deterrence and rehabilitation had already been largely accomplished for Mr. Dumais. To address the need for denunciation and general deterrence, Mr. Dumais was sentenced to nine months in custody and a one-year term of probation, in the face of an applicable mandatory minimum sentence of 45 days.

[13] The trial judge acknowledged that the minimum imprisonment had been twice increased by Parliament and the appropriate range of sentence for these crimes has increased since Mr. Dumais was sentenced.² He also acknowledged that the appellant's collection was significantly larger and contained more vile images than that of Mr. Dumais and that Mr. Dumais was only convicted of possession, and not also of making available child pornography.

[14] At para. 75, the trial judge was clear why he did not impose a term of imprisonment of more than two years. He wrote:

If the sentence was greater than two years, it could not include a period of probation. In my view, probation will be of significant assistance because it will ensure that [the respondent] receive[s] counselling in emotion regulation and dealing with stress that was recommended by both Dr. Gray and Dr. Kingston. Furthermore, a period of incarceration followed by a lengthy probation will allow control and supervision of Mr. Inksetter for a longer period of time than would the 4[cents] year sentence sought by the Crown.

Analysis

[15] The trial judge justified [at para. 49] a reformatory sentence for offences that he described as "among the most serious for circumstances of the offence of possession of child pornography" by the fact that it permitted him to include a period of probation. In his focus on probation, the trial judge gave primary effect to the objective of rehabilitation rather than the objectives of denunciation and general deterrence. The trial judge's reasons demonstrate that this error in principle resulted in the imposition of a shorter term of imprisonment than would otherwise have been imposed.

[16] By enacting s. 718.01 of the Criminal Code, Parliament made clear that denunciation and general deterrence must be primary considerations for any offence involving the abuse of a child. Further, this court has repeatedly stated that denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography: R. v. F. (D.G.) (2010), 98 O.R. (3d) 241, [2010] O.J. No. 127, 2010 ONCA 27, at paras. 21-22, 30; R. v. Nisbet, [2011] O.J. No. 101, 2011 ONCA 26, at para. 3; R. v. O. (E.), [2003] O.J. No. 563, 169 O.A.C. 110 (C.A.), at para. 7; R. v. Stroempl, [1995] O.J. No. 2772, 85 O.A.C. 225 (C.A.), at para. 9.

[17] The courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence: R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at para. 6.

[18] Probation has traditionally been viewed as a rehabilitative sentencing tool. It does not seek to serve the need for denunciation or general deterrence: R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, at p. 87 S.C.R. Further, in this case the trial judge specifically viewed probation as a rehabilitative sentencing tool: he noted how it would assist in ensuring that the respondent continued to receive counselling. To the extent that probation was not intended as a rehabilitative tool, it was intended to address specific deterrence. The trial judge included a period of probation to achieve these objectives although he had found they had already been significantly accomplished.

[19] The respondent argues that, in this case, probation assists in filling the need for denunciation and general deterrence because the probation order includes a term requiring him to agree to provide access to his electronic devices to the Ottawa Police Service upon demand for the purpose of searching for material related to child pornography before using the Internet. The respondent says that this term, which was included as a workable alternative to a blanket prohibition on Internet use, permits a significant interference with his privacy rights.

[20] I reject this argument. As I indicate above, it is clear from the trial judge's reasons that his objective in imposing a long period of probation was not denunciation and general deterrence. Moreover, I do not accept that the possibility that such a term might be imposed in a probation order, and that, if imposed, police might search an individual's electronic devices, serves as a general deterrent or that its imposition meets the objective of denunciation.

A Fit Sentence

[21] As I have said, the trial judge's error in principle led him to impose a sentence of two years less a day to allow for the lengthy period of probation. I agree with the trial judge that the objectives of specific deterrence and rehabilitation were largely met before sentencing. In my view, having regard to the circumstances of the offence and the offender, a global sentence of three and one-half years' imprisonment for possession of child pornography and making child pornography available is required to satisfy the objectives of denunciation and general deterrence.

[22] Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 2001 SCC 2, the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis, [2012] A.J. No. 481, 2012 ABCA 148, at para. 29, "possession of child pornography is itself child sexual abuse". The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing and making available his vast and terrible collection to others, the respondent participated in the abuse of thousands of children.

[23] Over the past decade, Parliament has increased the legislated range of sentence for child pornography related offences. Most recently, in 2015, it amended the Criminal Code to increase the minimum sentence for possession of child pornography to one year and the maximum sentence to ten years, in all cases where the Crown proceeds by indictment. At the same time, the maximum sentence for make child pornography available was increased to 14 years. (The minimum sentence remains at one year.)

[24] I am aware that there is an appeal pending in this court in R. v. Cristoferi-Paolucci, [2017] O.J. No. 4341, 2017 ONSC 4246 (S.C.J.), challenging the constitutionality of the mandatory minimums for possession of, and making available, child pornography. However, even if the mandatory minimums are declared of no force and effect, Parliament's legislative initiatives signal Canadians' concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewed with some caution.

[25] As Feldman J.A. wrote in F. (D.G.), at para. 21, "[o]ver the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately". Even before these amendments, this court signalled that more significant sentences for child pornography-related offences were appropriate: R. v. H. (R.), [2012] O.J. No. 4230, 2012 ONCA 593; R. v. Saliba, [2013] O.J. No. 6002, 2013 ONCA 660.

[26] In F. (D.G.), at para. 22, Feldman J.A. noted that the incidence of child pornography appears to be increasing and expanding as technology becomes more sophisticated. The Crown's evidence at the respondent's sentencing reinforced this concern:

Child pornography is available to anyone now "at the touch of a button".

A person can now access a "peer-to-peer network" just as easily as they can access the Internet, and can search for child pornography on the "dark Web" just as easily as they can do a regular Google search.

Members of the Ottawa Internet Child Exploitation ("ICE") unit, on average, about once every week, learn of new applications in respect of child pornography crime that they never even knew existed.

There are so many reports of child pornography related crime coming into the Ottawa ICE unit that the police have to triage by how bad the child pornography is.

The images and videos keep getting more aggressive. The police are now identifying more images of "baby rape."

[27] A longer sentence on the count of "make available" child pornography than for the count of "possession" is warranted because by making images and videos he downloaded available to others via the Internet, the respondent contributed to the further victimization of the children depicted in the pornographic images. In my view, a sentence of three years' imprisonment on the count of "possession" of child pornography and three and one-half years' imprisonment on the count of "make available" child pornography, to be served concurrently, is fit in these circumstances, which include the early guilty plea and other mitigating factors identified by the trial judge.

Disposition

[28] Accordingly, I would grant leave to appeal sentence, allow the appeal and substitute a sentence of three years' imprisonment on the count of "possession" of child pornography and three and one-half years' imprisonment on the count of "make available" child pornography, to be served concurrently.

Appeal allowed.

Notes

¹ The police identified a total of 133,266 images and 3,032 videos of child pornography on the respondent's computer and devices before they halted their investigation. A large number of these images and videos were duplicates.

² The trial judge referred to Mr. Dean, rather than Mr. Dumais, in the relevant paragraph, para. 74, of his reasons. However, it is clear that this was an editorial mistake and his intended reference was to Mr. Dumais. Accordingly, I refer to Mr. Dumais.

End of Document