Court File and Parties

Date: 2013-10-31

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Clifford Lewis

Before: Justice Peter Harris

Reasons for Judgment released on October 31st, 2013

Counsel:

• Mr. Darren Hogan for the Crown
• Mr. William Thompson for the Accused

Harris J.:

[1] Guilty Pleas and Sentencing Framework

Clifford Lewis entered guilty pleas to charges of both possessing and making available child pornography. The possession offence occurred between the dates November 12th, 2011 and February 1st, 2012, a two and one-half month period. The "make available" charge was alleged to have taken place on November 12th, 2011. The Crown has elected to proceed by indictment and the mandatory minimum sentence under the Criminal Code for the indictable offence of making available child pornography is one year incarceration with the maximum sentence being 10 years incarceration (s.163.1(3)(a)). The mandatory minimum sentence for the indictable offence of possession of child pornography is 45 days incarceration with the maximum sentence being 5 years (s. 163.1(4)(a)).

[2] Crown and Defence Positions

Crown counsel has submitted that imprisonment for 36 months would be the appropriate global sentence for both offences. In addition he has requested:

1. An order pursuant to s. 161 of the Criminal Code prohibiting Mr. Lewis from knowingly placing himself in a position of trust with persons under the age of 16 years and prohibiting him from using the internet to contact or communicate with persons under the age of 16 years, for a period of 10 years.

2. A "D.N.A." order.

3. A section 109 order.

4. An order requiring Mr. Lewis to comply with the applicable provisions of the Sex Offender Information Registry Act for 10 years.

Counsel for Mr. Lewis has submitted that concurrent terms of imprisonment on both counts for a period of 18 months would address all of the applicable principles of sentencing, followed by a three year period of probation. He is in agreement with the imposition of three of the orders the prosecutor seeks, but not the s. 109 order.

THE FACTS

[3] Agreed Statement of Facts

The agreed statement of facts of this case has been filed as Exhibit 1 and can be briefly summarized as follows:

[4] Police Investigation and Search Warrant

On November 12, 2011, Det. Paul Krawczyk of the Toronto Police Service, was on the internet using an undercover account on an internet file-sharing service. At this time he was searching for individuals using the service who were prepared to share what might appear to be child pornography. An individual appeared in his contact list representing himself as "shanebry". After a brief online chat, the officer obtained a password to a directory called "New Movies" which contained 62 video files, many of which constituted child pornography. The same 62 video files remained available online with the use of the same password between the dates, November 12th to December 11th, 2011. The IP address of the "shanebry" computer was traced to a municipal address and on February 1st, 2012, a search warrant was executed at the residence of Clifford Lewis, and a computer was located which upon examination was found to contain 253 images and 297 video files of child pornography, including the above-noted 62 video files, in readily accessible areas of the defendant's computer.

[5] Nature of the Collection

The contents of the collection included:

• Images and videos of boys engaged in sex acts with each other, with young girls and with adult males;
• The sex acts included oral and anal sex;
• There is an image of an adult male urinating into the mouth of a boy who appears to be approximately 8 years of age.

[6] Online Communications and Chat Logs

A further examination of the computer revealed that the child pornography files were almost all obtained in the 12 months prior to the execution of the search warrant. Moreover, an investigation of the chat logs on the computer disclosed that the defendant had been communicating online with a number of users and had posed as an individual who had previously molested children and expressed a continuing interest in molesting children in the future. (See Exhibit 4 on sentencing). However, there is no evidence that he ever engaged in any sexual contact or sexual communication with a child. Additionally, there is no way of knowing how often the defendant shared his password and allowed others to view the files in the "New Movies" directory.

DEFENCE SENTENCING MATERIALS

[7] Personal Background and Circumstances

Clifford Lewis was a 47 year old payroll supervisor with a leading Canadian accounting and advisory service at the time of his arrest. He had held this position for 5 years and following his arrest he was terminated from the firm. He was detained in pre-trial custody for 8 days before his release and when employment insurance benefits ran out, he was forced to sell most of his possessions to pay for costly anti-viral medications to maintain his health and manage his immunity system. He is currently in receipt of Ontario disability benefits and living with his surety having given up his apartment following his arrest. It is safe to say that these charges had had a profoundly life-altering effect on the defendant.

[8] Character Evidence and Psychiatric Evaluation

Mr. Lewis has no criminal record and a solid work history for many years, including a 13 year period of employment with a leading Camera retailer. He was born in Cape Breton, Nova Scotia and although never married, he has been involved in several long term relationships. Exhibit 3 on sentence is a book of materials that contains: (a) a general psychiatric and "sexological" evaluation of Mr. Lewis; (b) a personal handwritten expression of remorse and awareness of the harm to children these materials represent and a description of his isolation and depressive state of mind when these offences occurred; and (c) a collection of 11 letters from family members, friends and business associates attesting to his otherwise good character, loyalty, selflessness and kindness to others. Mr. Lewis enjoys the respect of many individuals and much family and community support. I am told by counsel that he is willing to undertake a sex-offender treatment program and would have done so prior to plea but for the inability to pay for such services.

[9] Psychiatric Evidence and Risk Assessment

According to Dr. Derek Pallandi, the forensic psychiatrist who performed the evaluation, the phallometric testing that Mr. Lewis underwent was not indicative of pedohebephillia (an erotic attraction to those underage). While this testing is not conclusive, for various reasons expressed, the possibility of pedohebephillia was less likely. There was no evidence of mental illness or substance abuse. The indication was that the child pornography represented about 5% of his pornography collection. The following was the doctor's prognosis based on his evaluation:

"Clinically, Mr. Lewis is not known to have perpetrated any contact offences against children, he is a pro-social individual, he has accepted responsibility for his behaviour and demonstrates what I believe to be a reasonable degree of insight into his activities and is willing to undertake management of these. In this regard, clinically he represents a low risk… of recidivism…. and a low rate of escalating to "hands-on offending."

THE LEGAL FRAMEWORK

[10] Fundamental Purpose of Sentencing

Section 718 of the Criminal Code provides that: 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.

[11] Primary Consideration for Offences Against Children

Section 718.01 of the Criminal Code: 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.

[12] Proportionality

Section 718.1 of the Criminal Code: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[13] Sentencing Principles

Section 718.2 of the Criminal Code: 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,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

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

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence;

(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.

LEGAL PRINCIPLES OF SENTENCING IN CASES INVOLVING CHILD PORNOGRAPHY

[14] Paramount Sentencing Principles

There is no question that the paramount sentencing principles in respect to the scourge of child pornography are deterrence and denunciation. The prevalence of the offences of possession and distribution of child pornography are of immense concern both to this court and to the community. Parliament has amended the punishment for such offences to require significant minimum jail terms and to remove the possibility of a conditional sentence for these crimes. Notwithstanding the requirement of a minimum jail term, the Court must balance the above-noted sentencing principles while maintaining a primary emphasis on deterrence and denunciation. In any event, the court will not lose sight of other sentencing objectives, principles, and factors such as proportionality, rehabilitation and restraint.

[15] The Paradox of Child Pornography Sentencing

The reality at the heart of these cases is the following paradox: the harm to vulnerable children contained in these images is obvious but the additional harm created by downloading, viewing and making them available is indeterminable ─ with any precision ─ and accordingly the proportionately appropriate sentence for an individual who uses these loathsome images is relatively incalculable. What additional harm does each additional viewing add to the harm already committed against the child? Or should the child pornography consumer share some of the blame for the harm previously done to the child? One manifestation of that contradiction can be seen in the vastly different positions on sentence taken by experienced counsel in this case. The fact is we don't really know how harmful these individuals are. In the final analysis, the sentencing jurist can only strive to identify the correct balance of sentencing principles while placing appropriate emphasis on deterrence and denunciation. The recent case of R. v. Thurairajah 2008 ONCA 91 provides some guidance: (at paras. 26 and 28)

"Trial judges are given a very wide discretion to determine the appropriate disposition in each case. In exercising that discretion, Parliament provides guidance by way of the broadly worded objectives and principles in Part XXIII of the Criminal Code. Trial judges must apply those objectives and principles to the specifics of each case and, in the exercise of their discretion, fashion a sentence that is tailored to the circumstances of the offence and the circumstances of the offender....."

"The sometimes competing principles that must be weighed by the trial judge in the exercise of his or her sentencing discretion can give rise to difficult problems for trial judges. This trial judge was faced with just such a problem. On the one hand, the circumstances of this offence cried out for a significant jail term. On the other hand, the respondent's personal circumstances strongly suggested that incarceration was unnecessary."

[16] Balancing Competing Principles

This Court is faced with just such a problem. On the one hand, the circumstances of these offences and the minimum sentencing provisions of the Criminal Code demand a relatively significant jail term. On the other hand, the Mr. Lewis' personal circumstances strongly suggest that incarceration beyond the required minimums is unnecessary.

AGGRAVATING AND MITIGATING FACTORS

[17] Aggravating Factors

The aggravating factors are few in number but relatively serious. The significant number of utterly repulsive images and videos requires me to assign aggravating weight to both the possession and more importantly to the sharing of this vile material and allocate proportionate correctional values, in accordance with s. 718.1 of the Code. In terms of relative depravity and violence, the collection can be said to be fairly typical of this genre. The propagation of potential child endangerment in the form of molestation-promoting chat-room discourse is an additional aggravating factor.

[18] Mitigating Factors

In terms of mitigation, Mr. Lewis is before the court on a serious matter as a first offender. In Mr. Lewis' case, even with the necessary emphasis on denunciation and deterrence, I consider rehabilitation to be very much a factor given, his plea, the remorse he has expressed which I accept as sincere, and his motivation to undertake sex-therapy in or out of custody. He did not purchase the child pornography and is not considered a danger to children. He is otherwise of good character. The defendant has shown insight into his problem and has suffered the loss of employment as well as economic and social status. In many ways, the charges have already had an extremely damaging effect on his enjoyment of life. On the basis of his solid family and community support, I believe he will have the determination and commitment to rehabilitate himself. Dr. Pallandi has stated that clinically, he represents a low risk to reoffend.

ANALYSIS

[19] Distribution vs. Possession

There is little doubt that the making available distribution of child pornography gives rise to a greater need for denunciation and deterrence that does mere possession. Still the role possessors play is fuelling the market must be considered carefully. In R. v. Stroempl, 1995 105 C.C.C. (3d) 187 at page 191 the Ontario 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."

[20] Gravity of Possession Offence

In R. v. E.O., 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 reflect the gravity of the offence."

[21] Relevant Case Law

I have also reviewed other decisions of the Ontario Court of Appeal such as: R. v. Lisk; R. v. Cohen; R. v. Schan; R. v. Webber; R. v. Kim; R. v. Ewing, [2007] O.J. No. 1710; R. v. D.G.F. 2010 ONCA 27; and R. v. Nisbet 2011 ONCA 26.

[22] Sentencing Comparability

Even though denunciation and deterrence are the paramount principles of sentencing in this case, Mr. Lewis' sentence "should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" according to s. 718.2(b) of the Code. The latter principle inevitably requires a sentencing court to compare the circumstances of one case against the circumstances of others in which sentences for the same offence have been imposed.

[23] Quantity and Acquisition of Material

The issues involving the quantity of material and whether the "collection" of child pornography was purchased require some discussion. What is noteworthy about these sentencing criteria (See R. v. Kwok for factors effecting sentence) is that using file-sharing or peer-to-peer (P2P) programs, anyone can search for and then download photos, videos, music, games or software – which in most cases are copyright protected ─ in massive quantities in very short periods of time depending on bandwidth, the numbers of individuals offering to share the same files, the files the receiver is willing to share, computer speed, and an assortment of other variables. In the daily global exchange of billions of electronic images the issue of whether an image or video is purchased or not is mostly irrelevant because the type of acquisition is more a function of one's age and computer expertise. Equally, the number of images acquired, is often a function of number of computers sharing the same file, and the file receiver's bandwidth, computer speed and hard drive storage space. If an individual thoughtlessly leaves a file-sharing download running overnight, that person could conceivably acquire thousands of illegal images and videos. It seems that moral culpability should have just as much to do with (a) How long the possessor has the images and videos in an accessible file on his/her computer; (b) How often the possessor makes the child pornography available to different users. In the instant case, Mr. Lewis had many of the files in his possession for about a year and controlled access to his "private collection" by way of a password. It was therefore impossible to determine how often he made the 62 files in the "New Movies" directory available, and is consequently only charged with a single "sharing" to the investigating officer.

[24] Duration of Possession and Sharing

The size and period of time an offender has had a "collection" in his possession is usually relied on as an aggravating circumstance on sentencing, and accordingly, the burden is on the Crown to establish its general parameters (see s. 724(3)(e) of the Code). Additionally, It is not possible to select a proportionate sentence without some understanding of the legal regime in which these charges are found. For example, since the child pornography was first accessed and viewed under the previous legislative regime, the minimum sentence for the possession charge is therefore 45 days imprisonment. However, the "make available" charge of November 12, 2011, when proceeded with by indictment, requires a minimum sentence of one year imprisonment as a result of legislative amendments made prior to that date.

[25] Comparative Sentencing Analysis

The next step in the analysis involves a comparison with the facts in other cases. In R. v. Yau 2011 ONSC 1009, MacDonnell J. makes a very thoughtful comment which I adopt:

Inherent in the Crown's sentencing position is the submission that the nature of the material possessed by Mr. Yau calls for a more substantial jail term than the terms imposed on other offenders for the same offence. That submission necessarily engages the court in the odious task of drawing comparisons between the materials in this case and the material in others. It should be made clear, however, that in performing that task the court is not minimizing the great concern that all child pornography justifiably attracts. By its very nature, all child pornography is disturbing and repugnant.

[26] Mitigating Factors in Child Pornography Cases

Justice Molloy in R. v. Kwok, supra, also provided a list of factors considered to be mitigating in child pornography cases:

(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.

[27] Application of Mitigating Factors

Of the above seven factors, the second to the seventh all apply to Mr. Lewis. He is not youthful and consequently cannot claim that his offending is related to immaturity. He pleaded guilty and has exhibited remorse, insight and a willingness to be treated. There is considerable evidence that he is otherwise of good character and his reputation in his community has suffered dramatically by the fact of the charges.

ANALYSIS

[28] Sentencing Precedents

The determination of sentence requires a consideration of the sentences imposed on other offenders for possession and distribution of child pornography. The court has been referred to a number of sentencing decisions, the most relevant of which are the following:

(i) In R. v. Guillemette, [2010] unreported, (Ont. S.C.), the offender was in possession of 545 videos and 1392 pictures of child pornography which depicted persons ranging in age from three to twelve years. He also entered a chat room and sent a child pornography video to an undercover officer. Both the possession and make available charges were proceeded with by indictment. He was 21 years of age; he lived with his mother, and had attended for assessment and treatment for sexual behaviours. The Court imposed a sentence of 18 months (the mandatory minimum for the distribution offence was one year in prison).

(ii) In R. v. Smith, [2008] O.J. No. 4558 (Ont. S.C.), the offender was in possession of about 837 pictures and 147 videos of child pornography. He had used file-sharing software to share his collection on peer-to-peer networks. The possession and making available charges were proceeded with by indictment. The defendant was a 43 year old actor whose career was ruined by his conviction. The Court imposed a sentence of 21 months in prison.

(iii) In R. v. Kim, [2004] O.J. No. 119, the youthful first offender pleaded guilty to both possession and distribution of child pornography. He had exchanged material with other offenders on a two-for-one basis, he had over 12,000 images on his server, he had received between 5,600 and 6,400 images over an eight-day period, and he had sent out 2,800 to 3,200 images. In the opinion of the Court of Appeal, a substantial reformatory sentence was called for. However, in view of the fact that the offender had already served seven and a half months of his conditional sentence, the Court was reluctant to interfere and impose a period of incarceration at this stage.

(iv) In R. v. Lynch-Staunton [2012] O.J. No. 313 (Ont. S.C.) the offender pleaded guilty to possession and distribution over a four month period. The pornography was found on 21 computer hard drives and encompassed 2097 images, 1763 stories, and 574 child pornography movies. On the basis of a total accumulation of 12.1 gigabytes of data from all devices, a lack of remorse or insight and an unwillingness to undergo any type of assessment or treatment, the sentence imposed was five years imprisonment.

(v) In R. v. DGF [2012] O.J. No. 127 (Ont. C.A.) the offender pleaded guilty to seven sexual offences against children, including two counts of sexual assault of his four year old daughter, three counts of making child pornography using his four year old daughter, one count of possession of child pornography and one count of distributing child pornography. The accused had a massive collection of child pornography and the culminating event was a live sex assault of his daughter he transmitted by webcam to an internet chat room set up for pedophiles. The Court imposed a seven year sentence.

CONCLUSION

[29] Sentencing Decision

Balancing the repugnancy of the material possessed and made available by Mr. Lewis and the paramount need to deter, denounce and condemn his conduct ― with all the factors that speak to the need to exercise restraint with a first offender with an impeccable reputation and community supports, demonstrated remorse, insight and motivation to take treatment, and most importantly, with a diagnosis that suggests he presents a low risk to reoffend ― a total sentence in the range of fifteen (15) months is called for on the basis of the sentencing precedents I have reviewed. The Guillemette, Smith and Kim cases supra, appear to contain slightly more aggravating features and a careful extraction of the sentencing principles from those cases would suggest that a sentence in the range of fifteen months would be appropriate in the instant case. The Lynch-Staunton and D.G.F. decisions are clearly distinguishable on the basis of far more reprehensible conduct.

[30] Rationale for Sentence

I come to this conclusion partly because the most significant aggravating factor, the extent to which the images were shared with others ─ bearing in mind that the videos in the "New Movies" directory were password protected ─ cannot be determined. While the "New Movies" directory was available online during the one month period November 12th to December 11th, 2011, one does not know the extent and duration of his actual file sharing. He is charged with one instance of making this material available and that is the limit of his moral blameworthiness for sentencing purposes. I do not know whether his "sharing" was an irregular gesture or a lifestyle. In other words, it was not a peer-to-peer file-sharing system in which any random browser could view every image he had on his computer at any time. In making this distinction, I do not intend in any way to minimize the great concern that all child pornography justifiably attracts. A second major sentencing consideration is the extent he has suffered for this crime. The net effect of these charges has been to reduce his position in the community from self-sufficient financial management professional to that of a social assistance recipient and placed his health at risk. His employment prospects at present are currently almost negligible as a result of these charges. Indeed it is questionable whether the life-giving, antiviral drugs he requires will be available to him in prison.

[31] Contextual Factors

Additionally, the possession of this quantity of images and videos for about one year seems to coincide with the period during which he had separated from a long-term partner and was feeling isolated and depressed. Too often, the users of child pornography are lonely single men whose only social outlet is the internet, and adult pornography is often the gateway that leads to a process of desensitization and almost incomprehensible depravity in the acquisition of child pornography. Tragically, on one level, these damaged lifestyles have all the earmarks of conduct we classify as addictive behaviour without the societal recognition and the typical community treatment response as there is to the better known forms of addiction. Nevertheless, Mr. Lewis chose to indulge in these practices and according to the chat logs, appeared to enjoy his experience in this subculture. Applying the totality principle, I have determined that the appropriate deterrent/denunciatory sentence for the possession of child pornography will be four (4) months imprisonment, concurrent.

[32] Final Sentence

As serious as the distributing offence is, and it is considerably more serious than the possession of child pornography because of the potential for opening the floodgates in this market for child abuse, I still find that Mr. Lewis is not in the same category as Lynch-Staunton and D.G.F. As a result of a delicate balancing of sentencing factors and being mindful of the primacy of denunciation and deterrence in this area of law, I have concluded that Mr. Lewis should serve a period of fifteen (15) months in prison on the "make available" charge and four (4) months concurrent on the possession charge on the basis of totality considerations and the "same transaction" principle. The total sentence for both offences is therefore fifteen (15) months. That will be followed by a period of probation for three years.

[33] Institutional Placement Recommendation

I further recommend that Mr. Lewis serve his sentence at the Brampton, Ontario Correctional Institute or the St. Lawrence Valley Correctional Institute because of health, safety and access to sex offender treatment considerations.

[34] Ancillary Orders

I now invite counsel to address the Court on the S. 109 Order, the s. 161 Order, the DNA Order, the SOIRA Order and the terms of the Probation Order.

Released: October 31st, 2013

Justice Peter Harris