Court Information

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Stephen Lane

Before: Justice Carol Brewer

Heard on: June 2, 2011 and January 21, 2013

Reasons for Judgment released on: February 6, 2013

Counsel:

• Patricia Garcia, for the Crown
• Adam Weisberg, for the defendant, Stephen Lane

Reasons for Judgment

Brewer J.:

The Offence and Guilty Plea

[1] On June 2, 2011, Stephen Lane pleaded guilty to one count of possessing child pornography between April 6 and 7, 2010.

[2] After hearing submissions on January 21, 2013, sentencing was adjourned until today.

The Circumstances of the Offence

[3] Mr. Lane has been a long time customer of Silverio Ferrari, who owns "The Computer Hospital". On April 6, 2011 the defendant dropped off his computer with Mr. Ferrari, complaining that it was extremely slow and needed an upgrade. During a routine examination for viruses and spyware, Mr. Ferrari found a directory that was filled with thumbnail images. The images appeared to be of naked young boys in some nature scenes and some images of naked young boys on a bed. In the directory were files named "Two Boys Playing House" and "Eleven Year Old and Six Year old", as well as a number of files with the word "pre-teen" in the titles. Mr. Ferrari contacted police to report what he had found. The computer was seized and held for a search warrant.

[4] An analysis of the computer, conducted pursuant to a search warrant, revealed a total of 3,610 images of child pornography and 191 movie clips involving child pornography. The device also contained 10,498 images of child nudity and 128 movies with child nudity, together with adult pornography and other images and movies. Among the images were a child bound and kneeling with his mouth and eyes covered; two boys engaging in fellatio; a child sitting on a toilet with his penis exposed; and various depictions of boys posed while naked. Of the images, 93.88% were photos that were focussed on a child's genitals; 2.79% involved oral sex; 1.57% depicted masturbation; 1.36% involved anal penetration and 0.39% showed vaginal intercourse. One video clip showed three boys masturbating and performing fellatio on each other. Another movie involved a girl stripping, kneeling and fellating an adult. A third film depicted a child being masturbated and subjected to anal intercourse by an adult. The sexual acts shown in the films were described as 28.66% involving a focus on the child's genitals; 28.66% depicting masturbation; 21.34% involving anal penetration; 19.51% showing oral sex and 1.83% depicting vaginal intercourse.

The Circumstances of the Offender

[5] Stephen Lane is 68 years old. He is the eldest of two children, who were brought up in a stable and happy family environment. He currently shares a home with his younger brother, Gerald.

[6] The defendant has an Honours degree in English and psychology, as well as a teaching degree. Mr. Lane worked as an English and history teacher at the secondary school level from 1968 to 1972. He then secured a position with Prentice Hall Canada, where he worked for 19 years, initially as a sales representative, then a product developer and ultimately as an editorial director. From 1991 to 1993 the defendant operated CDC Inc., a publishing company, as an entrepreneurial endeavour. He is currently retired.

[7] Mr. Lane has a long history of volunteer work in the community. Between 1992 and 1994, the defendant was a tutor and classroom assistant at various educational facilities. He was a Big Brother for 10 years. Mr. Lane volunteered at the Humber River Regional Hospital for 9 years, initially assisting at orientation sessions for new volunteers and later being in charge of conducting those sessions. He coached baseball for 8 years and hockey for 11 years. The defendant was the convenor of a baseball league for 3 years and of a hockey division for 2 years. Mr. Lane was the co-founder of the Weston Baseball Association, where he held the roles of vice-president and then president, as well as managing various baseball teams. The defendant has been a lector at his church from 1971 to 1972 and 2003 to 2010. There is no suggestion of any impropriety in Mr. Lane's volunteer work with young people.

[8] After a period of house arrest in relation to this charge, and some time to recover from radiation treatments, Mr. Lane sought to resume his volunteer work. He was unsuccessful in obtaining volunteer work at five organizations, as he was candid about the charge on which he was going to be sentenced. However, he was able to contribute to the community by volunteering at the turkey drive for the Second Harvest. Further, the defendant has been assisting with the preparations for weekly community suppers at the Weston King Neighbourhood Centre since August 2012. As of January 31, 2013, Mr. Lane began assisting with the weekly community supper at St. John's Anglican Church.

[9] Mr. Lane has no criminal record. Letters of support, attesting to his good character, were filed from friends, family, his priest and a volunteer coordinator with whom he works. All of the letters are written with an awareness of the charge to which the defendant has pleaded guilty.

[10] Mr. Lane's brother, Gerald, suffered a stroke on November 13, 2010. Stephen has been and continues to be his brother's primary caregiver. Although Gerald has returned to work on a modified basis, he still requires assistance in managing his daily living needs. With respect to business and other endeavours, Gerald is dependent on his brother for reminders, assistance and scheduling. It is the opinion of their family physician, Dr. Rodgerson, that while Gerald could cope if the defendant served an intermittent sentence, "the prospect of several months on his own" would be daunting to Gerald and "dangerous to his well being".

[11] Mr. Lane suffers from skin cancer. He had surgery to remove cancerous growths on his face and on his ear lobes in September 2011 and June 2012. The defendant underwent radiation from December 2011 to January 2012 and September to October 2012. He continues to be under observation at the Princess Margaret Hospital "because of the high risk of his developing other malignancies of his face and ears." His family doctor is monitoring his haematological status, which may deteriorate as a consequence of the radiation. His need for medical consultations will be on going, likely for several years.

[12] The defendant is actively involved in his church. Since his house arrest ended on November 2, 2010, the defendant has been attending services 5 times a week. He has also been meeting with his pastor 4 to 5 times a year for spiritual counselling.

[13] Mr. Lane began taking psychotherapy sessions on March 8, 2011. By January 3, 2013 he had attended 32 sessions. When he began psychotherapy, Mr. Lane had a negligible understanding of pornography misuse, re-victimization and cognitive distortions. He had believed that pornographic images, even of children, were just pictures or videos and that no one is being harmed by viewing them. Through his sessions, the defendant has come to understand that child pornography is illegal; the children in pornographic images are victims; by viewing these images the children are being re-victimized; and the victims portrayed in the pornography have to deal with both short and long term negative consequences. He is now aware of his own list of high-risk factors and situations. Although Mr. Lane has no current desire to view child pornography, he understands the need to monitor himself in order to maintain a pro-social and healthy lifestyle by using appropriate coping strategies, such as avoidance and maintaining a structured way of living. According to Dr. Vitelli, the defendant does not present a significant risk to the community. Further, it is the doctor's opinion that, from a psychological standpoint, "a lengthy period of incarceration would exacerbate his mental health and negate any improvements gained, which would ultimately impair his ability to return to his current societal lifestyle."

[14] In July 2012 Mr. Lane underwent a psychological assessment with Dr. Georgio Ilacqua. Based upon a file review, clinical interview, observations and psychometric testing, it is the doctor's opinion that:

Mr. Lane presents with a low-moderate risk for involvement in future criminal activity. He lacks many of the features associated with recidivism, including: a history of substance abuse, financial difficulties, lack of appropriate social engagement, history of abuse and a history of prior criminal charges. Of note, as Mr. Lane is getting older, his risk of recidivism will continue to decline ….

Mr. Lane is currently participating in psychological intervention. He expressed that he has found his participation in treatment to have been beneficial to him. He acknowledges wrongdoing and desires to make amends for his actions. The defendant is highly involved in his church community and is receiving counselling with his minister as well. He volunteers weekly by assisting in a program that prepares meals for the less fortunate. He has articulated feasible plans for his future, is involved in suitable activities in his leisure time, and perceives to have an adequate and stable social support network.

The Position of the Parties

[15] On behalf of the Crown, Ms. Garcia is seeking a sentence of 9 months incarceration and 3 years probation, as well as a number of ancillary orders. Mr. Weisberg takes the position that the appropriate disposition is 90 days imprisonment to be served intermittently and one year probation.

Analysis

The General Principles

[16] Section 718 of the Criminal Code provides, in part, that "the fundamental purpose of sentencing is to contribute … 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 [six] objectives". Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be tempted to commit similar offences, rehabilitation, and the promotion of a sense of responsibility in the offender. Whatever sanction is imposed "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": section 718.1.

[17] How much emphasis is placed on each of the sentencing objectives will vary according to the nature of the crime and the circumstances of the accused. However, with respect to child pornography it is clear that the paramount goals of sentencing must be denunciation and deterrence. In R. v. E.O., [2003] O.J. No. 563 (C.A.) at ¶7, Cronk J.A. stated:

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 reflect the gravity of the offence.

[18] Clearly, the making or distribution of child pornography gives rise to a greater need for denunciation and deterrence than does simple possession. Yet, the role that possessors play in fuelling the production of the material cannot be overlooked. In R. v. Stroempl, [1995] O.J. No. 2772, the Court of Appeal held:

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.

[19] Similarly, the Supreme Court of Canada summarized the harm inherent in the possession of child pornography as follows in R. v. Sharpe, [2001] S.C.J. No. 3 at ¶158:

The very existence of child pornography, as it is defined by s.163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanising and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticizes the inferior social, economic and sexual status of children. It preys on pre-existing inequalities.

[20] Indeed, Parliament has stated in section 718.01 of the Code, that when sentencing a person for an offence involving the abuse of persons under 18, the primary considerations are the objectives of denunciation and deterrence. Although Mr. Lane did not personally abuse any child in the commission of this offence, I must recognize that he contributed to the market that facilitates and perpetuates these crimes against children.

Aggravating and Mitigating Circumstances

[21] Section 718.2(b) of the Criminal Code states that in sentencing an offender, the court shall take into consideration the principle that "a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances." With respect to the circumstances that are most relevant in child pornography cases, the decision of Molloy J. in R. v. Kwok, [2007] O.J. No. 457 (S.C.J.) is particularly helpful. Her Honour provided the following list of aggravating factors:

1. a criminal record for similar or related offences;
2. involvement in the production or distribution of the material;
3. the size of the collection;
4. the nature of the collection (including the age of the children involved and the relative depravity or violence depicted);
5. 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
6. whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it as free downloads from the Internet.

[22] In this case, Mr. Lane is a first offender with no criminal record. He had no involvement in the production or distribution of the child pornography. He is not a danger to children - indeed, he has acted as a teacher, coach and mentor of children in the past with no suggestion of any impropriety. It appears that his collection was downloaded from the Internet.

[23] However, his collection of child pornography was a large one, consisting of 3,610 images, of which 3,078 were accessible, and 191 movie clips, of which 161 were accessible. Five percent of the collection was movies, as opposed to photographs. Among the collection of pictures, 93.88% were static images of nudity, with a focus on the child's genitals. With respect of the film clips, slightly over a quarter of the images were depictions of a child's genitals; a similar amount involved masturbation either alone or in groups; slightly under a quarter of the videos showed anal penetration and a similar amount involved fellatio. Only 12 of the movies showed an adult as a direct participant. Violence was not a significant feature of the collection: 5 images involved bondage and one video showed forced intercourse. The children appeared to be between the ages of 3 and 15.

[24] In R. v. Kwok, supra, Justice Molloy also noted the various factors that have generally been viewed as mitigating in child pornography cases:

1. the youthful age of the offender;
2. the otherwise good character of the offender;
3. the extent to which the offender has shown insight into his problem;
4. whether he has demonstrated genuine remorse;
5. whether the offender is willing to submit to treatment and counselling or has already undertaken such treatment;
6. the existence of a guilty plea; and
7. the extent to which the offender has suffered for his crime (for example, in his family, career or community).

[25] Mr. Lane is 68 years old with no criminal record. While a youthful offender may be seen as immature and be given recognition for his potential for change, an older offender should equally be given credit for an otherwise commendable life, with recognition for his many years free of a criminal record. In the defendant's case, it must be acknowledged that he has been gainfully employed all his life; has made a substantial contribution to the community through his volunteer work, both before and after this charge; and has the support of his friends, family and church.

[26] Mr. Lane entered a guilty plea at a fairly early stage in the proceedings. His comments made to me in anticipation of his sentencing showed remorse, contrition and a real recognition of the harmful nature of his conduct.

[27] The defendant suffered some humiliation and ostracization as a result of the publicity arising from his arrest on this charge. He spent 9 days in pre-sentence custody and 6 months under house arrest before the terms of his release were varied. He has been foreclosed from pursuing some volunteer work, even where there would be no contact with children, as a result of his disclosure of this offence in his applications.

[28] Mr. Lane has taken extensive counselling and psychotherapy. The defendant is committed to its continuation as he realizes that he will need to deal with this issue for the rest of his life. Mr. Lane is also receiving spiritual counselling. He has been assessed as a low-moderate risk of re-offending.

[29] Mr. Lane has on-going health issues arising from his skin cancer. The defendant and the family physician are concerned about his brother's ability to continue coping with his recovery from a stroke without Stephen Lane's help and support.

The Appropriate Quantum of Sentence

[30] Upon a careful review of the cases provided to me by counsel, I have found that the ones most comparable to the circumstances of this case are R. v. Young, [2012] O.J. No. 5449 (C.J.); R. v. Heffernan, [2012] O.J. No. 6262 (C.J.) and R. v. Bennett, [2006] O.J. No. 29 (C.J.). All involved offenders of otherwise good character who pleaded guilty to possessing child pornography; who had taken steps towards rehabilitation through counselling; and who were at low risk to re-offend. Indeed, in Young, the accused had a child with special needs who suffered when the accused was away from home. In each of these cases a sentence of 90 days imprisonment to be served intermittently was imposed.

[31] This is one of those cases where I believe that the principles of denunciation and general deterrence can be fully addressed through a 90 day intermittent sentence. I am satisfied that specific deterrence is not an issue in this case and that rehabilitation is well underway.

[32] I also believe that the circumstances of Mr. Lane's health are an unusual and significant factor that supports the imposition of a sentence which will permit him to attend medical appointments as well as caring for his brother.

[33] While I believe that probation may assist the defendant in maintaining his rehabilitative efforts, I do not believe that a term longer than one year is warranted in view of the efforts Mr. Lane has already made. The order is to include the mandatory terms set out in section 732.1(2) of the Code, and the following additional terms:

• During his intermittent sentence, Mr. Lane will attend at the custodial facility on time and in a sober condition;

• During his intermittent sentence and thereafter while on probation he will report as required to a probation officer;

• He will not possess any material that falls within the definition of child pornography set forth in section 163.1 of the Criminal Code, or that but for the age requirements would fall within those definitions; and

• He will continue counselling with Dr. Vitelli and Associates and sign releases to confirm his compliance.

Ancillary Orders

[34] An order is made pursuant to section 161 of the Criminal Code for a period of 5 years prohibiting the defendant from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre except in the direct company of another adult over the age of 25 years;

(b) 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 persons under the age of 16 years, except in the direct company of another adult over the age of 25 years; or

(c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.

[35] Possession of child pornography is a primary designated offence for the purpose of the DNA provisions of the Criminal Code: section 487.04(a)(i.8). Accordingly, an order will go authorizing the taking of a DNA sample.

[36] Possession of child pornography is also a designated offence for the purpose of the Sex Offender Information provisions of the Code: section 490.011. The propriety of such an order is not disputed. Accordingly, Mr. Lane is to comply with the terms of the Sex Offender Registration Act for a period of 10 years: section 490.013(2)(a).

[37] The computer on which the child pornography was found is ordered forfeited pursuant to section 164.2(1) of the Criminal Code. Exhibit 6 is to be sealed pending any appeal of this decision. If no appeal is taken, it is to be destroyed after 60 days from today's date have elapsed.

[38] I am grateful to both counsel for their assistance in this case.

Released: February 6, 2013

Signed: Justice Carol Brewer