Court File and Parties

Court File No.: Kitchener 2628/11 Date: 2012-10-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Daniel Robert Wright

Before: Justice G.F. Hearn

Heard on: June 5, 2012, August 16, 2012 and September 17, 2012

Reasons for Judgment released on: October 23, 2012

Counsel:

• Ms. Patricia Moore for the Crown
• Mr. Jonathan Shime for the accused Daniel Robert Wright

Hearn, J.:

Background

[1] On June 5, 2012 Mr. Wright entered pleas of guilty to one count of possession of child pornography and a further count of making available child pornography. The offences were alleged to have occurred between April 11, 2011 and May 9, 2011. The Crown elected to proceed summarily on both counts. It is noted with respect to the charge of possession of child pornography there is therefore a minimum period of imprisonment of 14 days. With respect to the offence of making available child pornography there is a minimum period of imprisonment for a term of 90 days.

[2] An agreed statement of facts was filed on June 5 and the matters were adjourned to August 16, 2012 for sentencing. A presentence report was ordered and on August 16, 2012 the court had an opportunity to view further exhibits including some of the material that had been located on Mr. Wright's computer which comprises the subject matter of the charges before the court.

[3] The matter came back before the court on September 17, 2012 at which time a further agreed statement of facts supplementing the statement that had been filed on June 5 was filed with the court. Thorough submissions were made by both counsel for the Crown and the defence and the matter then ultimately was adjourned to today's date for sentencing.

Circumstances of the Offences

[4] Marked as Exhibits 1 and 1A to this proceeding are agreed statements of facts with respect to the circumstances involving the charges before the court. The charges arise as a result of an investigation conducted by the Waterloo Regional Police Services during the month of April 2011.

[5] On April 11, 2011, Cst. Rhab of the Waterloo Regional Police used the "Child Protection System" computer program which allows the user to access records contained in peer to peer data bases to access records of logged IP addresses in Ontario. The officer was able to identify a computer associated with a particular address believed to be sharing several suspected child pornography files on the GNUTELLA file sharing network. I gather that particular network is known to be used to trade digital files of child pornography including still images and videos.

[6] On April 11, 2011, Det. Rhab established a direct one on one connection with the computer using the address provided, browsed the user and obtained a list of all the files the user was sharing. The officer was able to determine that the user was sharing 106 files and a further check of the hash values of each file showed that 105 of those shared files were suspected child pornography files.

[7] On April 18, 2011, the officer downloaded 11 suspected child pornography files from the user, viewed each file and determined that 7 of the files fell within the definition of child pornography as defined in the Criminal Code. Further investigation showed that that particular IP address had been identified as a download candidate for 212 child pornography files between April 24, 2010 and May 3, 2011.

[8] Upon reading the file names the officer noted several of the files had names consistent with child pornography. The officer then used a publicly available internet website to determine that the internet service provider for the subject address was Rogers Communication Incorporated. The officer then was able to determine the name and the address for the user of that particular IP address between April 18 and April 23, 2011 was Mr. Thomas Wright who lived in Waterloo. Mr. Wright is the father of the accused, Daniel Wright, and at the time they lived at the same address together.

[9] A search warrant was granted with respect to the residence of the accused and on May 12, 2011 that warrant was executed. No one was home at the time of the execution of the warrant, but during its execution 3 laptops, 2 storage devices, a computer tower and other items were seized. Two of the laptops, one being a black laptop and one being red, were determined to belong to the accused, Daniel Wright.

[10] Thomas Wright, the father, was interviewed on May 12 and denied downloading child pornography from the internet. He advised that the two laptops that had been seized by the police belonged to his son, Daniel.

[11] On May 13 a preview was conducted of the hard drives from one of the two laptops seized from the residence and 10 images of child pornography were identified. That same day with the assistance of counsel, Daniel Wright surrendered to the police and was charged with the matters before the court. He was then released on a promise to appear and an undertaking.

[12] There was a more intensive examination of the two laptops conducted and as a result, on the black laptop which had a user account named "Dan", there was found to be installed peer to peer software known as "FROSTWIRE" with approximately 272 files being shared on the network. The indication was that that particular version of that software was last shut down on May 10, 2011 and had a total running time of 32 days. The black laptop contained 23 images of child pornography and 281 child pornography videos. The red laptop was also analyzed and found to have the same user account name "Dan" as well as the same peer to peer software "FROSTWIRE" with 101 files being shared on the network. That particular software had been last shut down on January 7, 2011 with the total running time of over 11 days. The red laptop contained 20 images of child pornography and 154 child pornography videos.

[13] The combined total of videos containing child pornography numbered 404 with 40 child pornography images. The videos ranged in length from 2 hours and 25 minutes to 24 seconds. It was agreed that the movies alone occupied a significant amount of hard drive space and such videos were all commercially made.

[14] Det. Rhab identified several movies or videos that he had never seen or categorized before and noted when giving evidence on August 16 that this was the largest collection of child pornography videos that the Waterloo Regional Police has ever seized.

[15] On June 5, Mr. Wright acknowledged that he was in possession of the materials on the two laptops and that those materials were made available to others through the peer to peer software "FROSTWIRE".

[16] On September 17, 2012 a further agreed statement of facts was filed indicating that the red laptop was Mr. Wright's old computer and "FROSTWIRE" had been installed on that particular computer, allowing for file sharing and there had been such making available child pornography as well as possessing it from April 2010 until January 7, 2011. Following January 7, 2011, that particular laptop was not used, but it was agreed that during the time noted, 101 child pornography videos were stored in the "FROSTWIRE" shared folder and would have been available to other users when "FROSTWIRE" was running.

[17] It was also agreed that the black laptop was a new computer used by Mr. Wright as of January 8, 2011. It is agreed that "FROSTWIRE" had been installed on that particular computer to allow for file sharing and Mr. Wright had used that computer to possess and make available child pornography between January 8, 2011 and May 10, 2011. At the time of the seizure of the laptop there were 23 images of child pornography and 281 child pornography videos located on that computer. 272 of those videos were stored on the "FROSTWIRE" shared folder at the time of the seizure and would have been available to other users when "FROSTWIRE" was running.

[18] On August 16, the court had an opportunity to view a small sampling of the video as well as the still images. The videos and photographs contain degrading and exploitive acts of what can only be reasonably described as extreme abuse of children. The images viewed by the court as well as filed as exhibits show a violation of the children in an extremely degrading and disturbing fashion. As noted in the case law, child pornography such as seized in this matter is not about sex from the perspective of the vulnerable victims. It is a matter of violence, abuse of power and vulnerability. On occasion the children appear to be detached and helpless and doing simply as they are instructed by off camera individuals who mistreat and abuse the children without any regard whatsoever for their wellbeing.

[19] Filed as Exhibit 6 as an illustration of that is a summary of 300 videos out of the 400 that had been reviewed by Det. Rhab from the items seized by Mr. Wright. That particular summary describes the length of such videos, the titles given and provides a short summary of the contents of the videos. The videos contain a wide variety of forms of sexual abuse involving children who range in age from 13 to 14 years of age to much younger including one video which shows an adult male pushing the head of his penis against the rectum of an infant. The videos effectively encompass every form of sexual abuse that could possibly be imagined involving children as one can readily see from the summaries provided in Exhibit 6. The images include activities between prepubescent males and females as well as children and adults, including actions on the part of adults with children which can certainly be described as disturbing and bordering on horrific. One example is a video which shows an 8 year old nude girl on a bed rubbing her vagina and a male inserting his fingers and masturbating the child and then inserting his fingers in her anus. Another video shows a 10 year old girl with her hands and legs bound with rope, wearing a mask and a dog collar and an adult male entering the picture. The male then takes part in various sexual activities and ends up ultimately inserting his penis in the girl's rectum. Some of the videos are also accompanied by sound which even more dramatically demonstrates the extreme abuse of the children that is taking place.

Circumstances of the Offender

[20] A presentence report has been prepared and marked as Exhibit 4 to this proceeding. Also filed as Exhibit 3 are a series of letters from various individuals including Dr. Pollock with respect to Mr. Wright. Marked as Exhibit 5 is an updated report from Dr. Pollock dated July 28, 2012.

[21] The presentence report sets out the background of Mr. Wright. He has just recently turned 23 years of age and at the time of the offences was 22 years of age. He is the younger of two children and his parents are both loving and supportive.

[22] As a youth, both while in public school and in high school he encountered feelings of isolation and depression and struggled with an eating disorder, a good deal of which he kept hidden from his parents. Although he describes his parents as positive and supportive, he has found it difficult to speak to them about some personal issues and seems to have been more open with Dr. Pollock as evidenced by Dr. Pollock's letters.

[23] At the time of the offences he was a university student attending Wilfrid Laurier in Waterloo. He had been involved in two relationships, one in high school and one at the time of the offence. Both relationships ended, the most recent apparently following the charges being laid that are currently before the court. He reports that he was the victim of sexual abuse occurring over the course of two summers when he was abused by an older child. He had not disclosed the sexual abuse to anyone, but has since shared his victimization with not only his family members, but also Dr. Pollock. The recent disclosure of the sexual abuse by Mr. Wright has apparently prompted a further police investigation involving the alleged offender with respect to that matter.

[24] Mr. Wright continued with his post secondary school education until June of 2012, but is several courses short of receiving his degree which he intends to ultimately complete through distance education. He is receiving financial assistance currently from his parents, but has worked as a lifeguard and other tasks during summers and has the hope of working in the computer science industry once he obtains his degree. He acknowledges some limited experimentation with controlled substances in his first year of university and also the use of cannabis on a rather frequent basis from 2006 to 2010. Alcohol does not appear to be a factor for him.

[25] Mr. Wright's focus over the past year has been to comply with the terms of his release, attend therapy appointments and completing the courses for which he has registered.

[26] He acknowledges seeing a counsellor during his first year of university to help him cope with feelings of depression although that counselling discontinued. He was prescribed antidepressants and continues to take such medication. The tenor of the report and as one might reasonably expect, given Mr. Wright's youthful age, his lack of prior involvement in the criminal justice system and his otherwise positive antecedents, show the charges here have caused Mr. Wright a good deal of stress and concern.

[27] He acknowledged to the probation officer that he first started viewing child pornography videos when he was 11 years of age. He found that he was initially shocked by what he saw, but he continued to seek out and download various videos and images. He reports there was only sporadic viewing of the material until about 8 months prior to his arrest when Mr. Wright acknowledged that he was viewing child pornography daily. He also indicates that he was using substances at the time with a view to "numbing him" somewhat to what he was watching. He has written a letter to the court describing why he continued to view the child pornography and those reasons are set out within the presentence report as well. He expresses remorse and indicates he is "especially horrified of the way that my actions may have motivated others to abuse children". He indicates he has a profound feeling of sadness towards exploitation of children and regrets and is remorseful for the part he has played in it. He also speaks to his own issues of abuse and the emotional turmoil that he has undergone in the past three years struggling with depression. He provided some insight into why he was motivated towards child pornography indicating he felt desperate and depressed and it was a way to distract himself from those particular issues. He does indicate however that the use of the pornography to help him as he puts it control his anxiety and depression, effectively made him feel increasingly "dissociated and horrible".

[28] Although there is a relatively positive presentence, there are concerns raised with respect to Mr. Wright's candid acknowledgement to the probation officer that he became aroused when viewing the videos and images. However, that arousal is not the sole reason for him being involved in the activity. The author of the presentence report indicates as well there has been no phallometric testing in this matter and that is a concern, although clearly Mr. Wright is addressing his issues in a positive fashion through therapy.

Material Filed on Behalf of the Accused

[29] A good deal of material in the form of letters and reports has been filed on behalf of Mr. Wright by counsel. The reports of Dr. Pollock indicate that he is a registered psychologist who has been seeing Mr. Wright since May of 2011. As of July 28, 2012, Dr. Pollock has met with Mr. Wright on 52 separate occasions.

[30] He notes the purpose of the therapy which has been focused on factors that could have contributed to Mr. Wright's involvement in child pornography. These factors according to the doctor include such issues as disruption in his family life, him being a victim himself of sexual abuse as a child, stress, loss and difficulty establishing and maintaining relationships. Dr. Pollock continues to see Mr. Wright and sets out in his letters the issues that Mr. Wright must address. The doctor notes Mr. Wright has made impressive gains in treatment and remains committed to identifying and resolving the issues which have contributed to his involvement with child pornography. Dr. Pollock notes that Mr. Wright has good insight into his problems as they relate to the use of pornography and is strongly motivated for treatment.

[31] Mr. Wright as noted has authored a letter to the court which the court has reviewed and finds quite insightful and compelling. There are also additional letters filed dealing with the character of Mr. Wright including letters from his mother as well as his father and friends of the family. Without exception, all the letters filed indicate the shock and surprise at hearing of Mr. Wright's involvement with the charges before the court. They speak to his otherwise good character and their experiences with Mr. Wright. They also provide further details of his background and describe him as a kind and gentle person who is extremely remorseful for his conduct.

Position of the Parties

[32] As noted previously, the Crown has elected to proceed summarily in this matter. It would appear also that both the Crown and the defence take the position that the sentences here should be concurrent to one another given the circumstances of the offences and the issue of totality. The Crown submits that a substantial period of custody is still required and that an appropriate disposition would be a sentence of custody in the range of 15 to 18 months with a period of probation to follow. The Crown also asks for ancillary orders including a DNA order, a s. 161 order and a registration order under the Sex Offender Information Registration Act.

[33] Counsel for the defence readily acknowledges that a period of custody is required but suggests that the appropriate range of sentence is one of 9 to 12 months to be followed by a period of probation.

Principles to be Applied

[34] Both counsel have provided various case law which sets out the range of sentencing with respect to matters such as that before the court and also the principles to be applied. The court has reviewed that case law, but also keeps in mind that the sentencing of an individual such as Mr. Wright is not an exact science and trial judges must retain the flexibility to do justice in individual cases. Each case is conducted as an individual exercise (see Regina v. Wright, [2006] O.J. No. 4870, para. 16; Regina v. D.D., 163 C.C.C. (3d) 471, para. 133, both decisions of the Ontario Court of Appeal).

[35] In Regina v. Hamilton, [2004] O.J. No. 3252, a decision of the Ontario Court of Appeal Mr. Justice Doherty noted at paragraph 87 as follows:

"Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and unique attributes of the specific offender."

[36] The principles of sentencing set out in the Code are set out in s. 718 to s. 718.2. Section 718 reads as follows:

"718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community."

[37] Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[38] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. Wright and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

[39] Section 718.2 sets out:

"718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and without limiting the generality of the foregoing,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

[40] Also of note, when dealing with offences against children s. 718.01 states:

"When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct."

[41] In dealing with the issue of denunciation, the objective of denunciation mandates that a sentence must communicate society's condemnation of the offender's conduct.

[42] As noted by Chief Justice Lamer in Regina v. M.(C.A.), 105 C.C.C. (3d) 327 at page 369:

"In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'"

[43] Further:

"The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code."

[44] I might note that I consider the principles set out in s. 718.01 to be applicable here fully appreciating the charges are possession of child pornography and making such child pornography available. In my view such offences do involve "the abuse of a person under the age of 18 years" even though Mr. Wright was not involved in the making of such pornography nor involved with the direct abuse of the child himself.

[45] The case law provided by counsel is of some assistance in determining the range of sentence to be imposed. That case law also establishes that the primary focus for sentencing and principles to be addressed in sentencing of matters such as that before the court is general deterrence and denunciation.

[46] With respect to the case law, in Regina v. Stroempl, 105 C.C.C. (3d) 187 at page 191 the Ontario Court of Appeal noted:

"The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors such as the appellant instigate the production and distribution of child pornography -- and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place."

[47] Possession of child pornography contributes to the market for child pornography and, in turn, as noted in Regina v. Sharp, 2001 SCC 2, 150 C.C.C. (3d) 321 in the Supreme Court of Canada, drives the "production involving the exploitation of children".

[48] In Regina v. E.O., [2003] O.J. No. 563 the court noted:

"Possession of child pornography is a crime of enormous gravity both for the affected victims and for society as a whole. For that reason the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further, the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deter others from the commission of the offence and reflects the gravity of the offence."

[49] A review of the case law indicates there appears to be a trend focusing on the gravity of these types of offences. Recent case law illustrates that the 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. In Regina v. Kwok, [2007] O.J. No. 457 (.S.C.J.), Justice Molloy, when speaking of the principles of sentence to be considered with respect to child pornography crimes, noted at paragraph 52 as follows:

"Vast strides have been made by dedicated law enforcement officials worldwide to curb this ever-increasing Internet plague. However, catching the perpetrators and abusers after they have violated children and spread their pictures all over the Internet is not enough. Ways must be found to deter would-be pornographers. One way of doing so is by deterring those who are interested in acquiring the pornography. It is unlikely that anyone ever starts with creation of pornography, or distribution of pornography. The overwhelming majority will have started by simply looking at pornography created by someone else, then by swapping pornography with like-minded people, and only then moving on to actually creating the pornographic images for others by torturing and raping children in front of a camera. People who set about to access and collect pornography victimizing children must be made aware that the courts do not see this a minor, or victimless, crime. It is a reprehensible crime and must be dealt with severely for the protection of society as a whole and of its most vulnerable members, our children. It is crucial to deter people at the entry level from ever possessing child pornography. Perhaps by killing, or at least diminishing, the market for child pornography, the production side can also be curbed."

[50] In the same case Justice Molloy set out some factors that might be considered to be aggravating and generally recognized as mitigating. In paragraph 7 in Regina v. Kwok, the court stated the following:

"Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community)."

[51] The court also keeps in mind that Mr. Wright presents as a first time youthful offender so the court notes the principles set out in cases such as Regina v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643 and Regina v. Priest, 30 O.R. (3d) 538 (Ont.C.A.) as well as s. 718(2)(e) of the Criminal Code. Section 718(2)(e) states that imprisonment is a sanction of last resort and when imposed should be no longer than is minimally necessary to achieve the sentencing objectives set out in the Code. Effectively the court must consider if incarceration is required that such a term be as short as possible and tailored to the individual circumstances of an accused. The principle of restraint requires a sentencing judge to consider rehabilitation in determining the appropriate length of sentence.

Aggravating Factors

[52] The aggravating factors in this matter are as follows:

1. Mr. Wright had in his possession a significant collection of child pornography noted to be the largest such collection of videos seized to date by the Waterloo Regional Police. The items had been collected by Mr. Wright over a number of months and in particular by his own admission during the last 8 months prior to his arrest he was viewing such material daily.

2. The nature of the collection is such that it shows virtually every conceivable form of sexual abuse of young vulnerable victims ranging from infants to ages 13 and 14 years. Det. Rhab indicated that some of the videos seen had never been seen by him before. They were unique and indicate, given his experience with such material, the ongoing activity of this disgusting industry. Their "relative depravity" as described in Kwok, supra, is high as noted not only by the verbal description of the videos, provided by the Crown, but also from the material viewed by the court.

3. Although Mr. Wright did not actively promote the distribution or making of such child pornography directly, he did in fact make it available to others through peer to peer shared software. He then afforded others an opportunity to access the material.

4. There is no phallometric testing in this matter, but there is a disturbing admission by Mr. Wright that he became aroused on occasion when viewing the material. Absent a risk assessment, it is effectively unknown at this time whether Mr. Wright is a danger to children otherwise. With respect to this issue the concerns of the court are tempered somewhat by the insight shown by Mr. Wright and his comments to the court and the counselling that is in place with Dr. Pollock.

5. Mr. Wright also faces a charge of making available child pornography. Although perhaps considered to be passive making available, Mr. Wright did offer through the sharing software such disturbing material to the public on the internet. The potential viewers of such material made available by Mr. Wright were therefore significant, compounding even further the harm occasioned to the victims.

Mitigating Factors

[53] The mitigating factors in this matter are as follows:

1. Mr. Wright is 22 years of age and comes before the court as a first time youthful adult offender.

2. Mr. Wright appears to be otherwise of good character. There are a number of letters filed and interviews were conducted by the probation officer of various collateral contacts all indicating their shock upon finding out about the charges before the court. Mr. Wright was thought of very highly and apparently still is by others. He was a good student, an athlete and was involved in activities contributing to others in a beneficial manner without issue.

3. Mr. Wright himself struggles with depression and isolation. He has kept these matters to himself for a considerable number of years, but is now beginning the disclosure process not only to Dr. Pollock, but also to his own parents. He effectively led a "secret life" involving the viewing of the child pornography which was found in his possession. He seems to recognize the harm that is occasioned by such material and his own personal experience of being sexually abused and the consequence that abuse has had on him. Given his firsthand knowledge of how victims of sexual abuse are impacted in later years and perhaps for life, he fully appreciates what might be in store for the young victims who are the subjects shown in the videos that he possessed and viewed.

4. Although perhaps not early pleas, pleas were entered within a reasonable period of time given the volume of material to be reviewed by counsel and the extent of the collection of child pornography found in the possession of Mr. Wright. His pleas are an indication of remorse and I am satisfied that he is otherwise remorseful and that that remorse is genuine and sincere.

5. Mr. Wright has willingly and voluntarily engaged in treatment programming and counselling well before the imposition of a sentence in this matter. He has been candid both with Dr. Pollock and the probation officer. He has insight into his conduct, struggles with understanding himself why he would become involved in such activity and is committed to ongoing counselling. The counselling to date has been extensive, productive and Mr. Wright presents as not only a suitable candidate for rehabilitation, but also as an individual who wishes very much to address the issues which have led to his being before the court.

6. Mr. Wright has suffered the humiliation and embarrassment caused by the matters being disclosed to his family and friends. It is a significant fall from grace for Mr. Wright with respect to these matters. He has a good solid support group within the community which coupled with his own insight bodes well for no reoffending.

7. These matters have been before the court in excess of a year. The stress and the strain of the proceedings and the charges themselves on Mr. Wright are shown in the material that has been filed. Also the court has had an opportunity to observe Mr. Wright on a number of occasions and it is obvious that he takes these matters very, very seriously.

Sentence to be Imposed

[54] This is a troublesome sentencing. The facts are extremely serious, the nature of the charges, the size of the collection and the making of the material available to others are all some of the aggravating features. Still Mr. Wright has done everything that the court and the community would expect following his arrest. He took the appropriate steps almost immediately thereafter to seek out counselling in order that he might have some understanding as to why he became involved in such activity. He continues to address those issues.

[55] Any period of custody is going to be difficult for Mr. Wright, but the court is of the view that it must send a message to others that possession of such material and making it available warrants a sentence well in excess of the minimum periods prescribed by the legislation. General deterrence and denunciation are primary factors to be considered and a significant period of imprisonment for the crimes before the court is appropriate even with the presence of mitigating factors.

[56] Considering all of those factors as well as the principles to be applied and taking some guidance from the range of sentences set out in the various case law I am satisfied that the appropriate sentence in this matter is a period of 12 months custody to be followed by probation for a period of 3 years.

[57] This sentence is meant not only to reflect the community's repugnance concerning such conduct and denounce same, but also to deter others who are of a similar mind. If one possesses child pornography or makes it available there will be serious consequences.

[58] I will make a strong recommendation that the sentence be served at the Ontario Correctional Institute in Brampton and that recommendation can be noted on the warrant of committal. This will hopefully allow Mr. Wright to continue with the appropriate counselling to help him deal with the issues that he must address.

[59] Following his release from custody, he will be on probation for a period of 3 years. The terms of the probation order will be as follows:

1. He will keep the peace and be of good behaviour.

2. He will appear before the court when required to do so by the court.

3. He will advise the court or his probation officer in advance of any change of name, address or employment or occupation. He will report within 2 working days of his release from custody to a probation officer and thereafter report at such times and places as the probation officer may require.

4. He will not possess or consume any drugs, except in accordance with a medical prescription.

5. He will not have in his possession any weapon, including any offensive weapon, ammunition, explosive substance or weapon as defined by the Criminal Code.

6. He will attend and take part in any programming, counselling or treatment that may be required by his probation officer particularly with respect to any areas of concern identified by the probation officer and he will provide proof of attendance and completion of such programming or counselling as required by the probation officer.

7. He will not associate, contact or have any communication either directly or indirectly with anyone specifically named by the probation officer.

8. He will not own or possess a computer or any similar communication device except for the purposes of his employment or education and then only in his workplace or place of schooling and in such circumstances as are specifically approved of beforehand in writing by the court or the probation officer.

9. He will not subscribe to access by any means whatsoever to any internet service or similar communication service except as may be required by the terms of his employment or education and then again only with the prior written approval of his probation officer or the court.

10. He will not have in his possession any child or adult pornographic material or any material depicting a person apparently under the age of 18 years naked or semi-naked and shall not attend at any business the primary purpose of which is providing access to the internet.

11. He will provide his probation officer with an authorization and consent permitting the probation officer to liaise directly with any counsellor or medical doctor under whose care he might be.

12. He will seek and maintain full time employment or if attending school or place of training, will provide his probation officer with proof of his attendance at such schooling and his participation in the programs undertaken.

Ancillary Orders

[60] There will be an order for a DNA sample to be taken in accordance with the provisions of the Criminal Code with respect to both offences.

[61] With respect to the s. 161 order, there will be an order under subsections (b) and (c) for a period of 5 years. Mr. Wright will be prohibited for that period of time from seeking, obtaining or continuing any employment whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards a person under age 16 years or from using a computer system within the meaning of subsection 342.1(2) of the Criminal Code for the purposes of communicating with a person under the age of 16 years. I decline to make an order under s. 161 (a) as there is nothing in the facts nor in the material filed in this matter to suggest that Mr. Wright has acted out in any way as a result of possessing the child pornography that he was found with and I am satisfied that an order under that subsection is not required.

[62] Mr. Wright will be required to report under the Sex Offender Information Registration Act for life. That is the result of the amendment to the legislation on April 15, 2011 which requires such a reporting term where a person is convicted of more than one offence set out within the legislation. As that is the case here, notwithstanding the Crown proceeded by summary conviction, there would be a required reporting term for life as Mr. Wright has been found guilty of both possession of child pornography as well as making it available.

[63] In summary then, there will be period of imprisonment on the count of possession of child pornography for 12 months to be followed by 3 years probation and the appropriate ancillary orders noted. There will also be a concurrent sentence of 12 months custody and 3 years probation on the charge of making such material available. DNA orders will issue as well as the s. 161 order.

[64] Finally, there will be an order for forfeiture as signed today with respect to the material seized from Mr. Wright's residence at the time of the execution of the search warrant.

[65] The victim fine surcharge will be waived on both counts and any other charges will be marked withdrawn. There will be as noted a strong recommendation on the warrant of committal that the period of imprisonment is to be served at OCI.

Released: October 23, 2012

Signed: "Justice G.F. Hearn"