Court File and Parties

Court File No.: Halton, 10-2542 Date: February 10, 2012 Ontario Court of Justice

Between: Her Majesty the Queen — and — Waleed Ahmed

Before: Justice Frederick L. Forsyth

Heard on: July 25, 2011 and February 1, 2012

Reasons for Sentence released on: February 10, 2012

Counsel:

• Harutyun Apel and John Dibski for the Crown
• Brendan Neil for the accused Waleed Ahmed

Reasons for Sentence

F.L. FORSYTH, J.:

[1] Guilty Plea and Sentencing Issues

[1] On July 25, 2011, Mr. Ahmed entered a plea of guilty to a single count of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code of Canada. The Crown proceeded summarily and the maximum sentence available is therefore 18 months imprisonment. There is a minimum sentence of 14 days imprisonment. The only issue before this court is the appropriate quantum and mode of service of imprisonment for Mr. Ahmed. Both the Crown and the defence are in agreement with respect to a period of probation that will follow the imprisonment and with the terms that should be included in that order.

[2] The Crown also seeks a lifetime order pursuant to s. 161 of the Criminal Code as well as a 10 year SOIRA registration pursuant to s. 490.013(1)(a) of the Criminal Code. In addition, the Crown seeks a DNA order. This charge is subject to the primary designation category for DNA orders.

[3] Mr. Ahmed was also charged with a second count pursuant to s. 163.1(3) on which the Crown did not proceed.

1.0: The Relevant Facts

[4] On August 2, 2010 while conducting undercover operations members of the Halton Regional Police Service – Internet Child Exploitation Unit, identified a computer (the accused's) which contained suspected child pornography using Internet Protocol address 24.150.210.85. This IP address had an active connection to an internet file sharing program called LIMEWIRE.

[5] A direct connection was then established between the undercover officer's computer and the accused's computer.

[6] A file list was obtained from the shared folder of the accused's computer which contained 17 images and 1 video that had titles indicative of child pornography. Eight of these files were downloaded immediately.

[7] On August 2, 2010, the undercover officer viewed 8 files obtained directly from the computer at IP address 24.150.210.85 and confirmed 7 files to be child pornography as defined by the Criminal Code, and 1 file to be "age difficult" and therefore could not be classified as child pornography.

[8] This shared folder, along with its contents of child sexual abuse images, was available to anyone on the internet to download and view. A description of two of the files is as follows:

FILENAME: Two 13 yr. Old Little Girls Gets Cum In Face ... kiddy child ddoggprnLolitain(illegal_preteen_underage_lolita_kiddy_child_incest_xxx_porno_gay_fuck_young_naked_nude_little_gir.mpg

This file is a video approximately 40 seconds in duration. There are two young females naked, one appears to be approximately 13 years of age while the other appears to be approximately 9 years of age. They are being made to touch and kiss each other while an adult male masturbates. The adult male eventually ejaculates on the two young girls faces.

FILENAME: Lucifer's Pedos Collection 3-2~Dick (Illegal Preteen Underage Lolita Kiddy Child Incest 666 Porno Gay Fuck Young Naked Nude Little Girls and Boys.jpg

This is a black and white still image with the focus on the vaginal area of a young female approximately 9 years old, and she is being touched on the vagina by a nude young boy who is approximately 9 years old as well.

[9] A Law Enforcement Request for Account Information Regarding a Child Sexual Exploitation Investigation was sent to Cogeco Cable Incorporated for IP address 24.150.210.85.

[10] On August 5, 2010 subscriber information was received from Cogeco Cable that Naveed Ahmed 1518 Sixth Line Unit 32, Oakville Ontario is the account holder of the above mentioned IP address.

[11] On August 11, 2010, a search warrant for this residence was executed by members of the Halton Police I.C.E. Unit as well as the Technological Crime Section.

[12] The accused is the eldest son of the subscriber and was residing with his parents, 10 year old sister and twelve year old brother.

[13] The accused admits to being in possession of child pornography but is adamant that it was out of sheer curiosity and stupidity and not due to any sexual attraction he feels for children.

[14] The IP address that was located on the accused's computer matched the IP address that the undercover officer downloaded from.

[15] Further, the LIMEWIRE program that the accused was using assigns a unique string of 32 alpha-numeric characters, which is commonly referred to as the "GUID" (Globally Unique Identifier).

[16] Investigators have confirmed that the GUID on the accused's laptop and the GUID that the undercover officer logged while connected directly to the IP address which was supplying the child pornography files is an exact match.

Background Information on the Accused

[17] Mr. Ahmed was 19 years of age at the time of his arrest. He has no previous criminal record. A pre-sentence report was ordered. It reveals that the offender emigrated to Canada from Pakistan three years ago. He described his parental upbringing as excellent, and although he initially was afraid to speak to his mother about this charge he did openly discuss it with his father and eventually with his mother. Both parents are solidly supportive of him in the face of this serious sentencing process. He is presently enrolled at Niagara College in their Business Administration program in which he began his classes on September 6, 2011.

[18] Initially he found it to be difficult to adjust socially to the Canadian high school environment. He often felt on the outside of his peer group members because of the difference between Pakistani culture and Canadian customs.

[19] He told the PSR writer that he first began to experiment on the internet by inserting random sexually contextual search words to "see if it exists" because in his former culture a person couldn't talk or think about sex and he couldn't even have a girlfriend without permission. He also said that he had become sexually aroused by watching adult sexually suggestive movies which motivated him to search for actual pornography on the internet. He admitted to having a huge collection of pornography images including images of animal sex, lesbian and gay sex, anal sex and group sex. He stated that always knew that having sex with a child was illegal but he didn't realize that simply viewing it would be illegal also. He claimed to have been disgusted by the child images and had intended to delete them after viewing but that he had forgotten to do so.

[20] Mr. Ahmed told the writer that he was not sexually attracted to children and was never sexually aroused by the pornographic child images. He did admit that in his opinion he had developed an addiction to adult pornography during the year previous to his arrest.

[21] He expressed deep remorse about his involvement with this illegal activity and related that he had written a school essay about the evils of sexually explicit subject matter in the media and its potential effect upon the vulnerable minds of young people.

[22] The PSR also relates that he has met with Giovanni Campisi, a social worker, on a number of occasions since November, 2010 to help him deal with the trauma of anticipated incarceration and his reliance upon pornography. Mr. Campisi told the writer that the offender has developed empathy towards the destructive victimization of women and children in the pornography industry. Mr. Campisi expressed the opinion that incarceration of the offender will "destroy this nineteen year old boy."

[23] The PSR also contains comments from the offender's family doctor about his depressed condition which arose out of this charge and she has treated him with medication. Both of his parents also spoke of his depressed and anxious mental state following the charges. His father sees his own role now as providing comfort to his son and to help him to learn from his mistakes. His mother feels that he has internalized the impact of child pornography upon its victims and he has told her that he has tried to imagine how he would feel if his own siblings were victimized. Related to that point the writer spoke to Lisa Potts, a Child Protection worker of the Halton CAS, who confirmed that she had investigated the offender's family to determine if his siblings were in any way at risk and she had concluded that such was not the case. In fact she described the family unit as "very religious, very co-operative, and a lovely family."

[24] In a rather unusual conclusion to the report, the author, probation officer Vanessa Silverman, stated "due to the tremendous support available to the offender by his family, given his expressed remorse for his actions and that he is already engaged in counselling to address his offending behaviours, I feel a period of community supervision is sufficient and appropriate to allow the offender the opportunity to continue his counselling and his education and to move forward from this situation."

2.0: Position of the Crown

[25] Mr. Apel informed the court that approximately 28 still images and 7 video clips would be provided to the court on the day of sentencing when the anticipated pre-sentence report would be returnable, in order for the court to be able to view that material. A pre-sentence report was requested and ordered by the court, with Mr. Apel indicating that in all likelihood, the Crown would be seeking a period of 12 months imprisonment.

[26] The pre-sentence report was returnable on November 4, 2011. However, the matter was then remanded to February 1, 2012 for the actual sentencing hearing to take place. On that day at the outset, on consent, the Crown filed as Exhibit 2, two documents from the Halton Regional Police case report on Mr. Ahmed's charges. The first document depicted case investigation results of his computer after it was seized by the police. The document reveals six categories of images and one category of corrupted images. The relevant portion of this exhibit is the first category, which is entitled "Child Pornography." There are two image totals connected with that category. The first is under the heading of "Unique Pictures" which are defined on the document as simply the total number of different pictures belonging to each category. The document explains that "unique pictures" are identified using the MD5 Hash algorithm. The exhibit reveals that there were 28 unique pictures of child pornography on the computer. The second category is described as "Total Pictures" and there were 314 in that category. These are the only relevant categories to this particular charge.

[27] Exhibit 3 was another aspect of the case report which is entitled "Basic Interpretation." This document consists of the same six categories and the corrupt designation category as are explained in Exhibit 2. In this case, once again, the relevant information is contained within the first category of Child Pornography, subdivided into "accessible" and "inaccessible" images. The term accessible is explained on the exhibit document as being:

An Accessible Picture is one which was found at the beginning of an entry from the original evidence. Additionally, it was not marked as Deleted, or found within forensic locations such as Lost Folder or Recovered Files. Accessible Pictures are ones which can be located by any computer user with a minimum of effort.

Under the "accessible" category, the exhibit lists 10 such pictures on Mr. Ahmed's computer. Under the "inaccessible" category, 304 pictures are listed. When I use the term "Mr. Ahmed's computer", I should point out that the actual owner of the computer was Mr. Ahmed's father, but it was made clear from the outset of this investigation that he had no complicity whatsoever in this offence. His son, the accused, was using his father's computer as a home computer himself.

[28] John Dibski, Esq., represented the Crown on February 1, 2012. After filing these exhibits, he informed the court that the Crown would not be introducing the still images and videos that had been mentioned by Mr. Apel on the day of the guilty plea. The Crown was content to rely upon the descriptive contents of the agreed statement of facts filed as Exhibit #1.

[29] Mr. Dibski confirmed that the Crown's position on sentence was a period of imprisonment of 12 months to be followed by three year's probation with appropriate terms. He permitted Mr. Neil to provide a number of documents which could be categorized as character evidence material accompanied by two reports by a social worker with respect to some counselling in which Mr. Ahmed has engaged since the commission of the offence. Therefore, although Mr. Dibski was providing his submissions to the court before Mr. Neil provided the defence submissions, he commented upon those particular social worker reports.

[30] Specifically, Mr. Dibski asks the court to find that it is significant that there is no psychological or psychiatric expert opinion available to the court on the issue of the level of risk that Mr. Ahmed may be subject to with respect to recidivism in offences of a similar nature. Although the social worker expressed an opinion that Mr. Ahmed is not a pedophile and therefore not in need of psychotherapy or psychiatric treatment to cure such a pathology, the Crown reminds the court that as a social worker, his opinion cannot be considered to be an expert medical opinion on those subjects. I will deal with those reports in more detail when I consider the defence position.

[31] The Crown submits that the pre-sentence report reveals a deep-seated problem, approaching an addiction on the part of Mr. Ahmed to pornography in general and, by inference, to images of child pornography. In large part, he relies upon Mr. Ahmed's own admissions to the pre-sentence report writer, to which I will refer later in my analysis.

[32] Mr. Dibski also submits that a careful scrutiny of the social worker's reports reveals that Mr. Ahmed minimized the number of times that he accessed child pornography when he was consulting with the social worker.

[33] The Crown also referred to page 5 of the pre-sentence report where the writer quoted the offender as saying:

I'm really sorry and since my time in custody, I came to know another side to it, and researched it, and I wrote a paper for school on sexual content in the media and how it should be banned ... I'm really sorry, there's no other way to say it. I'm not a threat to society, I'm not a menace. I saw my addiction to pornography and how it came to being is because of sex in the movies, it opens windows in children's mind as a subject or addition ... it's a whole new path, and if someone take it, it can lead to harm.

[34] That particular essay had been also filed by Mr. Neil with the court, for purposes of this sentencing. It is entitled "The Dark Side of Media" and was written by Mr. Ahmed in May or June of 2011 at the end of his school year, some nine months after he was arrested on this charge. Mr. Dibski's concern is that the contents of the essay, in his opinion, reveal no insight on the part of Mr. Ahmed into the criminality of his behaviour. Rather, argues the Crown, it seems that he blames the media and Internet form of media for potentially corrupting young people who can access these images rather easily on it.

[35] For these various reasons Mr. Dibski is strongly of the opinion that expert psychiatric or psychological counselling is needed for Mr. Ahmed and thus far, there has been none. Therefore, the Crown submits that while on probation, following what period of incarceration the court deems appropriate, there should be a condition requiring an assessment by CAMH and subsequent treatment or counselling if recommended by that assessment.

[36] Mr. Dibski relied upon some common-law precedents in support of his position for 12 months incarceration. He referred the court to the decision of Mr. Justice Peter Harris of the Ontario Court of Justice cited as R. v. Oakey [2011] O.J. No. 4116. In that case, the Crown submitted that Mr. Justice Harris was dealing with a first offender who had been found in possession of 894 child pornography images. He was charged with and was found guilty of one count under s. 163.1(4) and one count pursuant to s. 163.1(2) involving distribution. He had no record and there was an expert psychiatric report filed with the court indicating that Mr. Oakey would be at a low risk to re-offend. There was also counselling in progress with respect to Mr. Oakey even before the date of the sentencing. In the final analysis, Mr. Justice Harris felt that the sentence of nine (9) months jail to be served conventionally, was appropriate.

[37] The Crown also referred the court to the decision of the Ontario Court of Appeal in R. v. Nisbet 2011 ONCA 26, [2011] O.J. No. 101, released January 13, 2011. In that decision, the Court of Appeal, en banco, delivered the following endorsement:

1 Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.

2 The officers examined the appellant's computer over time and found a number of files which showed children aged 4 to 14 being depicted in all types of sexual activity with other children and adult males. Many of those files bore titles suggestive of child pornography.

3 The appellant argues that the sentence imposed was too high. We disagree. In our view, a sentence of six months was not inappropriate in all the circumstances of this case. A message must go out that this sort of conduct will not be tolerated. There is no error in principle and hence no basis for this court to interfere.

[38] Mr. Dibski also supplied the court with some collateral information expanding upon the rather brief endorsement of the Ontario Court of Appeal in Nisbet. This material comes from an excerpt from the Crown brief in that case. This collateral information also revealed that Mr. Nisbet had entered a plea of guilty to a single count of possession of child pornography covering a 14 day period. On three separate dates within that period, members of the London Ontario Police Service Cyber Crime Unit were successful in downloading 10 videos from the appellant's computer containing child pornography images. All of the videos depicted children, male and female, between the ages of 4 and 14 years of age involved in all manner of sexual activity such as fellatio, vaginal intercourse and anal intercourse with adult males, as well as with other children. On the date of his arrest, when Mr. Nisbet's computer was searched, a total of 28 images and 43 videos of child pornography were found to be among his collection.

[39] In addition, Mr. Dibski informed the court that in the Nisbet decision there was no psychiatric or psychological assessment available to the sentencing court with respect to whether or not Mr. Nisbet was suffering from pedophilia and Mr. Nisbet apparently refused the offer of the Children's Aid Society to have him engage in a treatment program under their supervision.

[40] Mr. Dibski also referred the court to a decision of Mr. Justice Gorman of the Newfoundland and Labrador Provincial Court in 2009, cited as R. v. W.A.E., [2009] N.J. No. 218. W.A.E., 55 years of age, had entered a plea of guilty to possession of child pornography. Police had found 476,704 pictures described as "child sexual abuse and other child images" on the accused's home computer and 158 on his computer at work. They also found 289 videos described as "child pornography", 94 of "child nudity", and 680 involving child sexual abuse videos. They also located a number of written documents containing text stories involving child pornography and incest. W.A.E. had no prior record but there was evidence from his daughter that he had been accessing child pornography "over the years." The Crown sought a period of imprisonment of 12 to 18 months. Mr. Justice Gorman expressed the point of view that the Crown's range was an inadequate reflection of the nature of the offence committed or the specific circumstances involved and found that the maximum penalty of incarceration was required, which was five (5) years, the Crown having proceeded by indictment. Mr. Dibski was careful to concede that he was not relying upon this decision as an example of parity of sentencing in accordance with s. 718.2(b) by comparison with the facts in this case of Mr. Ahmed.

[41] Indeed, my opinion of the purpose for which Mr. Dibski submitted the W.A.E. decision to this court is reinforced by comments made by Mr. Justice S.D. Brown of the Ontario Court of Justice in this region of Halton in the decision of R. v. Johnston [2009] O.J. No. 5697 at paras. 59 and 60. This was a decision which Mr. Dibski referred to the court primarily for the purpose of guiding the court's imposition of probation conditions which he will urge upon the court should be similar to those that were imposed by Mr. Justice Brown in the Johnston case and they are to be found at para. 91 of that decision.

[42] Mr. Justice Brown was dealing with the sentencing of Mr. Johnston following his convictions for invitation to sexual touching and sexual interference and a guilty plea to possession of child pornography. At paras. 59 and 60, after considering lengthy passages from Mr. Justice Gorman's decision in W.A.E. in connection with the significance of the introduction of a minimum period of imprisonment by Parliament for a conviction under s. 163.1(4), even where the Crown proceeds summarily, Mr. Justice Brown stated:

Gorman, J. found that the offences before him required the imposition of the maximum sentence (being five years imprisonment as the Crown proceeded by way of indictment) on a first offender. I find it uncomfortable to rely on a Judgment from which the Crown, Mr. Dibski, distanced himself in submissions from the sentence imposed in this case that he acknowledged to be exceedingly harsh and designed to attract appellate review more so than to address the required sentencing objectives.

What I am prepared to take from this, is that Parliament's elevation in the maximum sentences and the imposition of minimum sentences of imprisonment for these charges in 2005 sends a clear signal to sentencing judges that these offences should attract increased penalties generally and that the perpetrators of these offences are not and should not be candidates for conditional sentences.

[43] Of course, Mr. Justice Brown was dealing with more than a single count of child pornography and his ultimate sentence was 12 months of imprisonment, divided in the following fashion:

• 3 months for the single count of possession of child pornography;
• 4 months for invitation to sexual touching; and
• 5 months consecutive for sexual interference, for a total of 12 months globally.

[44] Mr. Dibski did specifically refer the court to para. 47 of the W.A.E. decision because Mr. Justice Gorman, therein, set out the principles that had been considered by the Ontario Superior Court of Justice in that particular case, R. v. Kwok, [2007] O.J. No. 457, as being the appropriate factors to be considered in imposing a sentence on a count of possession of child pornography. Obviously, the Crown could also simply have supplied me with the Kwok decision but I'm satisfied that para. 47 of W.A.E. accurately sets out the conditions that were discussed by Madam Justice Molloy. Those principles are as follows:

In R. v. Kwok, [2007] O.J. No. 457 (Ont.S.C.J.), the offender was sentenced to a period of one year imprisonment for the offence of possession of child pornography. The factors to be considered in imposing sentence were described in Kwok as follows:

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 counselling 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).

3.0: Position of the Defence

[45] Mr. Neil reminds the court that Mr. Ahmed did spend one day in pre-trial custody.

[46] Mr. Neil submits that when the court has carefully considered the factors set out in Kwok in the context of the totality of the circumstances in Mr. Ahmed's case, the court should be able to conclude that most, if not all, of those factors of a principled sentencing analysis enure beneficially to the sentence which Mr. Neil is asking this court to impose of intermittent service between the minimum period of 14 days and the maximum intermittent service quantum of 90 days imprisonment for Mr. Ahmed.

[47] Specifically, Mr. Neil submits that the factors that the court ought to consider to be mitigating with respect to the offender himself are the plea of guilty, the lack of any criminal record, the absence of any evidence of production or distribution, the relatively small size of the child pornography collection found on his computer, the opinion of the social worker that Mr. Ahmed presents as a low risk to re-offend, and the fact that Mr. Ahmed is perfectly willing to continue to take whatever counselling or treatment the court may order during a period of probation.

[48] There is also the fact, submits Mr. Neil, that there is no evidence that Mr. Ahmed 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, which is what the evidence in this case indicates. There is also the fact of his youthfulness and otherwise good character and the extent to which Mr. Ahmed has shown insight into his problem, as reported by his counsellor Mr. Campisi, and the significant degree of genuinely sincere remorse which he has shown in the opinion of both Mr. Campisi and also the writer of the pre-sentence report, Ms. Vanessa Silverman.

To a lesser extent but nevertheless still of some significance, Mr. Neil submits that Mr. Ahmed has already suffered to some extent for his crime in the sense that until he was able to obtain a bail variation he was unable to attend courses at Niagara College business administration program where it was necessary to be able to use a computer on campus. Once that variation was obtained, he was able to begin his studies on September 6, 2011.

[49] On the same subject, Mr. Neil refers the court to the remarks attributed to Dr. Noah Hanna which were contained in the pre-sentence report. Dr. Hanna was quoted as saying that she met with Mr. Ahmed following his arrest and discharge from custody and found him to be of "low mood, depressed ... he was not sleeping ... he clearly experienced trauma." In her opinion, he was clinically depressed and she prescribed Cipralex medication to decrease his anxiety and to assist him with any possible suicidal ideation. She quoted Mr. Ahmed as having told her that he was so tense that he couldn't sit still in one place when he was detained overnight and that he was constantly thinking about his time in jail and the closed walls. He told her that he even counted the bricks while he was waiting for his bail release.

[50] In addition, Mr. Neil refers the court to the section of the pre-sentence report that indicates that both of his parents expressed the point of view that Mr. Ahmed had become depressed and anxious after he was charged and that he was indeed traumatized by his short period of incarceration. After he was released, Mr. Ahmed Sr. said that his son could not even sleep in his bedroom and asked his father to sleep with him on the floor of the living room, which carried on for one week. During this week the father said that he was crying all of the time and seemed unable to sleep and was always agitated and stressed.

[51] With respect to the absence of any expert psychological or psychiatric opinion available to the court in this case, which would assess the relative risk factor concerned with Mr. Ahmed's possible recidivism in crimes of this nature, Mr. Neil submits that even the opinion of Mr. Campisi, the social worker, that Mr. Ahmed at this time, after the counselling he has been able to give him, presents as a low risk to re-offend, should be at least encouraging to the court, if not definitive, from a psychiatric or psychological expert opinion standpoint. Mr. Neil submits that that particular opinion and assessment can still be obtained while Mr. Ahmed is on probation by a court ordered condition of assessment by CAMH and then compliance with any treatment or counselling that may be found to be necessary in the opinion of the probation officer after that assessment is received.

[52] Mr. Neil explained that the only reason why Mr. Ahmed did not obtain a psychiatric or psychological opinion before sentencing was the fact that the family is somewhat impecunious and such reports, of course, when obtained privately are not covered by the provincial health insurance program. However, Mr. Neil submits that it is his understanding that once the court places an order for assessment in a probation order, if the funds cannot be provided privately, then the government will assist in helping Mr. Ahmed to comply with that probation condition. The point of this submission, argues Mr. Neil, is twofold: one, to ameliorate the submission of the Crown that the court should somehow impose a greater quantum of incarceration upon Mr. Ahmed because the court does not have a persuasive expert medical opinion on his lack of pedophiliac tendencies or an assessment of his risk to re-offend; and two, to explain that it wasn't because Mr. Ahmed did not take this matter sufficiently seriously to seek such an opinion. Mr. Neil submits that he sought the only assistance that the family could afford at the time and that he is perfectly willing to obey any condition that the court imposes with respect to future assessment or treatment.

In addition, Mr. Neil refers the court to the section of the pre-sentence report that indicates that Lisa Potts, the Child Protection Worker of the Children's Aid Society of Halton, who was investigating this matter of Mr. Ahmed after his charge was laid, confirmed that the CAS investigated to determine if, in their opinion, Mr. Ahmed's siblings were at risk from him and they concluded that was not the case and they closed their investigation. In closing it she also supplied an opinion to the writer of the pre-sentence report that the family was "very religious, very co-operative and a lovely family."

[53] Mr. Neil also submits that the court should find that Mr. Ahmed has admitted openly to the PSR writer that he formed an addiction to pornography over a period of a year preceding his arrest and that he is probably correct when he is of the opinion that this addiction was related to the fact that he was exposed to sexually explicit entertainment readily available in this country that would not have been available in Pakistan. Mr. Ahmed's father certainly confirms in the PSR that it would not be possible in Pakistan to simply download pornographic images from an internet program. Mr. Neil asks the court to accept Mr. Ahmed's statement that he was exploring the internet pornography on a random basis and that he didn't realize that in so doing and downloading images that were readily available just to view them, was illegal.

[54] Finally, dealing with the school essay that was written by Mr. Ahmed, "The Dark Side of Media", and the Crown's submissions about its shortcomings in terms of revealing any insight by Mr. Ahmed into the seriousness of his criminal conduct, Mr. Neil submits that the essay was not written as a personal "mea culpa" with respect to these charges because he had not told anyone in his school administration about the fact that he was charged with such an offence. Mr. Neil asked the court to find that this would be a perfectly normal reaction for someone charged with such an insidious offence and that the essay was not written for any purpose of relating it to his personal dilemma. Mr. Neil asked the court to draw solace from the comments of Ms. Silverman, the PSR writer, Dr. Hanna, and Mr. Campski with respect to the obvious insight that Mr. Ahmed has now acquired into the criminality of his actions.

[55] Mr. Neil also provided the court with a series of precedent sentencing head notes and I will discuss one of them in my analysis.

[56] He also provided an employment letter and two letters of recommendation for his application to Niagara College from the offender's high school as well as proof of his current enrolment in the Niagara College Business Administration program. He lost his job when he was charged with the offence before the court. Mr. Neil also filed a letter of commendation from the Islamic Society of North America confirming the offender's volunteer work with the Mississauga branch of that organization in 2010.

[57] In reply, Mr. Dibski asked the court to note that the closing of the investigation by the CAS does not equate to an expert psychological or psychiatric opinion of no risk or low risk of recidivism from Mr. Ahmed in this same area of criminal offence. I will just say quite frankly that I have no trouble accepting that submission and I do not find that Mr. Neil made the submission that he did with the purpose of asking the court to find that somehow the closing of the file by the CAS equated to such an expert opinion.

[58] Finally, Mr. Dibski urges the court to reject the accused's position of being ignorant that his activity was not criminally illegal. Mr. Dibski asks the court to find that such a position is totally incredible and untenable with no air of reality attached to it when one looks at even the title descriptions of some of the images that he was downloading from the internet. At the very least, Mr. Dibski argues that Mr. Ahmed was wilfully blind and therefore obviously that makes him complicit in the criminal activity even on that type of analysis. Mr. Dibski simply urges the court to find that such a position being taken by Mr. Ahmed, even at this late date, suggests that perhaps he is still in some way internally minimizing the criminality of his behaviour.

4.0: Analysis

4.1: General Principles

[59] The long line of evolution of common law precedents, hallmarked by the Supreme Court of Canada decision in R. v. Sharpe (2001), 150 C.C.C. (3d) 321, has by now firmly entrenched as an essential element of the sentencing analysis in child pornography cases the principle that the very existence of child pornography is inherently harmful to children and also to society. In Sharpe, the Supreme Court stated that "the harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society."

[60] In R. v. D.D., [2002] O.J. No. 1061, Mr. Justice Moldaver, as he then was, speaking for the Ontario Court of Appeal, stated:

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objective of sentencing as proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, commonly known as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

[61] In 2005, Parliament codified these common law principles by the introduction of s. 718.01 into the sentencing scheme sections of the Criminal Code. That section provides:

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.

[62] In the same year, Parliament introduced a minimum sentence of imprisonment of fourteen days for an offence of possession of child pornography pursuant to s. 163.1(4) even when the Crown proceeds summarily, as in this case. This is an additional endorsement of the paramountcy of the sentencing principles of denunciation and deterrence in child pornography cases.

[63] Having said all of this, it still remains however for the sentencing judge to carefully weigh these paramount sentencing principles in conjunction with the totality of the particular facts of each case, and the specific aggravating and mitigating factors, both with respect to the commission of the offence and also regarding the offender as a person pursuant to s. 718.2 of the Code. Furthermore, although s. 718.2(d) and (e) have been effectively removed from the paradigm of the sentencing analysis in child pornography possession cases because of the statutory requirement to impose a minimum sentence of imprisonment, nevertheless the first youthful offender and first sentence of imprisonment common law sentencing principles must still be considered by the court in arriving at a fit and proper quantum of imprisonment, either in excess of or not in excess of the minimum prescribed period. See R. v. Priest (1996), 110 C.C.C. (3d) 289.

4.2: The Aggravating and Mitigating Factors

[64] In addition to considering the helpful factors which Madam Justice Molloy set out in R. v. Kwok (supra), I have also considered the summary of recognized aggravating and mitigating factors set out by Mr. Justice Casey Hill in his sentencing decision of R. v. Mallett, [2005] O.J. No. 3868 (Ont. S.C.J.) at para. 15:

15 Recognizing the non-exhaustive character of aggravating and mitigating circumstances in possession of child pornography cases, certain trends in the developing jurisprudence have emerged. Building on the helpful inventory identified by Kenkel J. in R. v. Parise, [2002] O.J. No. 2513 (Ct. J.), at para. 15, 18, the following features are worthy of consideration. As to aggravating features:

(1) evidence of production or distribution of child pornography

(2) evidence the offender is a pedophile with the attendant risk that the pornography may in some way be instrumental in the physical victimization of children

(3) a criminal record for related offences

(4) the degree of intrusion and repulsivity of any sexual acts depicted

(5) the very youthful age of the children photographed

(6) the larger the quantity of images possessed

(7) the manner of acquisition - simple receipt or non-commercial acquisition versus purchases, Internet site purchases, international connections.

16 As to pervasively-recognized mitigating factors beyond those which are the antithesis of the aggravating factors already discussed, the courts consider:

(1) the existence of a guilty plea

(2) the youthful age of the offender

(3) evidence of insight into any related psychological problem and a willingness to submit to counselling and treatment

(4) participation in counselling or treatment prior to arrest or before sentencing

(5) consequential impact of the criminal charge including loss of employment or reputation, effect on familial relationships, economic consequences, etc.

(6) especially onerous judicial interim release conditions

(7) pre-sentence custody.

[65] With respect to both the Kwok and Mallett factors I make the following findings in this case of Mr. Ahmed:

• There is no evidence of distribution such as Mr. Justice Harris had in R. v. Oakey (supra).

• There is no present indication that Mr. Ahmed is a pedophile and Mr. Campisi of the Halton Family Services expressed the opinion, strictly as an experienced social worker, in his April 8, 2011 updated report to his original January 18, 2011 counselling report, that "from a social worker's view, I do not see Waleed as a pedophile and in need of psychotherapy or psychiatric treatment to cure this pathology. It is my opinion that his siblings are not at risk being with Waleed and neither are other children."

• While I obviously agree with the Crown that a social worker's opinion of low risk to re-offend, or an absence of non-pedophiliac tendencies, cannot be given the same weight as the same opinion delivered by a psychologist or psychiatrist, I also agree with Mr. Neil that it cannot, and should not, be given no weight.

• I definitely find that Mr. Waleed, with the assistance of Mr. Campisi's counselling, has acquired a significant level of insight into the criminality of his behaviour and I am equally satisfied that he is beset with a considerably intense degree of deep remorse for his behaviour and he feels deeply the effect that it has had upon his family and also the potential effect that it could have, if left unchecked, upon the lives of other innocent children whom, he now realizes, are victimized and abused in order to produce the very images of child pornography which he had accessed. Furthermore, he has expressed his willingness to be psychiatrically or psychologically assessed with respect to specific pedophile pathology pursuant to a probation condition ordered by this court as an integral part of this sentencing ruling. I accept Mr. Neil's submission that it was only the family financial difficulties that prevented him from seeking such an expert opinion before being sentenced. Nevertheless, he did the next best thing by seeking assistance from Mr. Campisi's publicly funded services. All of this should assuage society's concerns to a large extent about the future behaviour of this young man.

• He is a youthful first offender facing a mandatory sentence of imprisonment. He experienced one day of pre-trial custody.

• The pornographic images which were described as the factual basis for this charge were, in my opinion, significantly intrusive into the dignity of the children exposed, and were also significantly repulsive. The children were also of a very youthful age, even in some cases pre-pubescent. The offender's manner of acquisition of the images was by means of non-commercial simple receipt, utilizing a downloading program known as 'Limewire' that he also used to access music.

• I find that the number of uniquely identifiable child pornography images that were found on the offender's computer, as evidenced by Exhibits 2 and 3 HRPS Case Reports was considerably smaller by comparison with the collections in R. v. Oakey (supra), R. v. W.A.E. (supra), and R. v. Kwok (supra).

• While I do acknowledge the disturbing fact that Mr. Ahmed had become addicted to adult pornography and indeed had a large collection of such images on his father's computer when he was arrested, nevertheless they are not an element of this charge, and I accept Mr. Campisi's report, as well as the offender's statement to the PSR writer, that he has been broken of that habit with the assistance of Mr. Campisi's counselling.

• With respect to the offender's position that he only began and continued to access child pornography out of a curiosity that was motivated by the stark contrast between his former sexually repressed Pakistani culture and our North American sexually open culture with respect to accessing sexually stimulating movies or images on the computer, I share the Crown's circumspection. I also agree with the Crown that at best he was wilfully blind to the probable criminality of viewing such images, even assuming that he had not read s. 163.1 of the Criminal Code, which, in my view, would be a sensible addition to the curriculum of our high school students. However, I must also say that this is where I find that Mr. Campisi has been of great assistance to this young man, and I am prepared to find that at this moment, specific deterrence is not a significant issue on this sentencing.

• Finally, I find that this charge has had a considerable impact upon the offender and also his family for the reasons I have already stated in my summary of the relevant factors in this sentencing.

5.0: Conclusion

[66] Having considered all of the above sentencing principles, both statutory and also common law, in the context of the totality of the circumstances of this case, I find that I cannot accept the Crown's position that a sentence of 12 months imprisonment would be a fit and just sentence in this particular case. To some extent, my finding on this point has been informed by the decision of the Ontario Court of Appeal, submitted by the Crown, of R. v. Nisbet, supra, in which the Court simply said that a sentence of 6 months imprisonment was not inappropriate on a count of possession of child pornography of 28 still images and 43 videos of young children between the ages of 4 to 14 depicted in "all types of sexual activity." I note that they did not state that such a sentence was at the very low end of the appropriate range as they sometimes do. Of course, I also realize that the factual underpinning for the trial judge's sentencing was not completely detailed by the Court of Appeal in this endorsement. However, apparently they were aware that Nisbet had refused to accept the offer of a CAS treatment program, a factor which I can only presume to some extent influenced the trial judge's decision.

[67] With respect to Mr. Neil's position that an intermittent sentence would not offend the principles of sentencing that apply to a charge of this nature, I can only say that such sentences are quite rarely imposed and no doubt should be rarely imposed. That is not to say, however, that they ought to be considered to be presumptively inappropriate either, always depending upon the circumstances of each case.

[68] Mr. Neil did provide the court with a head note summary of a decision of the Ontario Court of Justice cited as R. v. Kostas, [2008] ONCJ 224, O.J. No. 1856. I have located the full text report of that decision of Mr. Justice Hearn and I have referred to it. In that case, the offender was 18 years of age and a self-admitted pedophile. He had been collecting child pornography since 2006 and approximately 50 videos and 100 "extreme images" of child pornography. He had no record and had begun counselling with a social worker counsellor before his sentencing. He had also subjected himself to a psychiatric assessment by the renowned Dr. Stephen Hucker whose opinion was that Mr. Kostas was "sexually deviant and in need of an intensive treatment program specifically designed for sex offenders in order to manage his risk of re-offence." The Crown sought a term of imprisonment of 3 to 6 months. Mr. Justice Hearn found that the appropriate period of custody was 90 days to be served intermittently in order to allow Kostas to continue his counselling with his social worker uninterrupted. He also imposed a condition on a 3 year probation order requiring Kostas to attend and actively participate in any counselling or programming that may be recommended by his probation officer, specifically with respect to areas concerning sexually deviant behaviour.

[69] For all of these reasons, I find that the most appropriate balancing of all of the required sentencing principles in this particular case of possession of child pornography results in my conclusion that a sentence of 90 days of imprisonment to be served intermittently is the most appropriate and fit sentence, not only for the offender but also for society, because it will allow him to continue to pursue his counselling with Mr. Campisi and also to remain in his college education program, thus contributing to his self-esteem and eventual positive contribution to society. It is to be noted that 90 days is 6 ½ times the length of the minimum sentence of 14 days for this offence, which in my view adequately addresses the principles of denunciation and general deterrence that are paramount in a sentencing for possession of child pornography. I also, like Mr. Justice Hearn, intend to impose the maximum term of probation of 3 years and it will include a psychiatric assessment requirement.

[70] I will deal with the ancillary orders and the terms of probation after inviting further submissions from both counsel now that the quantum and manner of service of the custodial component of my sentence is known to them.

[71] I thank both counsel for their assistance in this always troubling area of sentencing in charges of this nature.

Released: February 10, 2012

Signed: "Justice F.L. Forsyth"