Court File and Parties

Court File No.: 2311 998 11 5467 Date: February 26, 2013 Location: London, ON

Ontario Court of Justice

Between: Her Majesty the Queen -and- Ian Twigg

Counsel:

• Kinaghan for I. Twigg
• Tuttle for Crown

Before: Justice Jonathon George

Reasons for Decision on Sentence

Charge / Facts

[1] Mr. Twigg is charged with and has pleaded guilty to possessing child pornography in the form of images (photographs and videos), contrary to section 163.1(4) of the Criminal Code of Canada. On June 22, 2012 I heard some facts and made a finding of guilt. On the date sentencing submissions were made the facts were supplemented, and the court received into evidence a sampling of the images on DVD together with a written description of its content.

[2] The facts are summarized as follows. Mr. Twigg's efforts in accessing the images were traced to his IP address. This came to the attention of the police through online investigative efforts targeting initially an unknown person, who it was only later learned was Mr. Twigg. Through this, it was determined there were 556 unique files, some of which were categorized and some which were not. The investigating officer was able to view twenty of those files, including those depicting preteen incest, nine to ten year old females masturbating, and eight to ten year old females and boys holding each other's genitals. There were others.

[3] Following this, and upon receipt of subscriber information from Rogers, a search warrant was obtained and executed. This yielded further, and larger collections of picture files and videos, including those titled "child lover", and "she's 9 years old". As a result of this search some 1,064 pornographic images were located, as well as 2,173 child nudity images (not engaged in sex acts), and 206 child pornography videos. It was quickly determined that Mr. Twigg, who then lived alone, was the only person who had access to his computer. He ultimately provided an inculpatory statement wherein he described himself as a monster, while explaining this was a problem he has had since a young age which has never led to sexual offending, rather just an urge to view such videos and images.

Accused's Background and Personal Circumstances

[4] Mr. Twigg is 24 years old, and has no prior criminal record. I was told that prior to these events, he was an upstanding citizen who finished school and who has since, for the most part, been gainfully employed. I had the benefit of a pre-sentence report which adequately described Mr. Twigg's personal background and circumstances. It was a, generally speaking, positive report. In Mr. Twigg's early, more formative years, his home was somewhat dysfunctional in that he was exposed to domestic violence. The family situation stabilized to some degree when his parents separated. Mr. Twigg has a positive relationship with his mother, who has been significantly impacted by her son's behaviour. Defence counsel described it as her internal battle in supporting her son, maintaining her dignity in doing so, while at the same time struggling immensely to comprehend and reconcile what he has done. She has stood by her son and has attended court with him on most occasions.

[5] The report is clear in that Mr. Twigg accepts responsibility for his actions and is prepared to deal with whatever the consequences are. He is described as willing to address his sexual offending behaviour through counselling. Also, Mr. Twigg has been subject to relatively stringent bail terms since his release in January 2011, without incident. He has been residing with his mother. He is described as having no underlying addiction issues; however I was told that the consumption of alcohol and or ingestion of marijuana typically accompanied his viewing of the pornographic images.

[6] I received a report from Dr. Jose Mejia, a forensic psychiatrist. His report was prepared, and his opinion formulated, based on one interview with Mr. Twigg; the review of one letter from Mr. Twigg's mother; and after a review of the Crown brief synopsis. In reviewing the facts, and in detailing Mr. Twigg's family history and personal development, Dr. Mejia ultimately concludes that "…despite his seemingly happy and sociable outlook, he is quite solitary and an isolated individual." In learning of a previous diagnosis of ADD/ADHD, Dr. Mejia further concludes that "it is possible that driven by the sense of risk taking and sensation seeking actions that a man with ADD/ADHD has, he may have used pornography to masturbate in solitude and then explored into more daring environments with a certain sense of thrill and satisfaction…..the fact that the downloading of the images happened in such a short period of time suggests that he was caught in the early stages of this experimentation and despite his recognition of being sick in nature, his need to be stimulated by edgy and thrilling experiences and the consumption of marijuana, certainly obnubilated his judgment and sense of responsibility to society and caused him to download all of those images in an impulsive and careless period of his life." Respecting this, I note only that it is somewhat at odds with Mr. Twigg's initial explanation of his tendencies and currency of his proclivities.

[7] In Dr. Mejia's opinion Mr. Twigg's personality has no indication of predatory or psychopathic traits, nor does he meet the criteria for the diagnosis of pedophilia or any other paraphilic behaviours.

Position of Parties / Potential Charter Issues

[8] The Crown seeks a sentence of nine months jail to be followed by a probationary term. They seek as well an order that would require Mr. Twigg to comply with the provisions of the Sex Offender Information Registration Act. A prohibition under section 161 of the Criminal Code is also requested, which is discretionary. For DNA purposes, this is a primary designated offence.

[9] The defence seeks a sentence of six months jail, and agrees that a period of probation should follow. They do not oppose the ancillary orders sought, but have expressed concerns over any term that prohibits him from accessing the internet.

[10] The chronology of resolution discussions in this matter requires some elaboration as, at least according to the defence, it should impact the length of any sentence. I was told that in the early stages there was a resolution reached in that upon Mr. Twigg pleading guilty there would be a joint position recommending a 90 day jail sentence. After the passage of time, and upon the assistant Crown who initially took this position leaving the local London-Middlesex office, some difficulties arose. Understandably, the Crown who then assumed carriage of the file was uncomfortable with the position and ultimately, after some intervention by a superior, moved from it. The defence had initiated a Charter application alleging an abuse of process, seeking a direction compelling the Crown to honour the prior agreement. After the filings, and some initial argument, the defence abandoned the application conceding, to my understanding, that it was unlikely the court would accept such a recommendation. They were right. At this point, the suggestion is it is still relevant and ameliorates against sentence in that it raised expectations, fostered uncertainty and assisted in delaying final resolution, all creating a prejudice to Mr. Twigg. I do note as well that these discussions did predate Mr. Twigg's guilty plea, although the facts disclose the Crown's amended position being communicated shortly after it was formulated.

[11] In response to this position the Crown quite rightly points out that at the time the Crown took its initial position the full extent and nature of the images was unknown. It suggests as well that the nine month sentence being proposed is at the extreme low end of the appropriate range and that it is, in part, a recognition of this matter's unusual progression.

Law / Analysis

[12] Sentencing is an individualized process. Facts and context guide the analysis, and the presence of any mitigating and aggravating features need to be balanced against each other. There is no formula, no chart, and no prescribed penalty (beyond in this case a mandatory minimum, which everyone agrees would be inappropriate). That is to say there is considerable latitude and discretion in crafting an appropriate sentence.

[13] Appeal Courts do provide some guidance and there can be no doubt that the principles of general deterrence and denunciation are paramount considerations. That, however, does not mean all other factors are to be ignored. For instance rehabilitation is still relevant, as is parity, proportionality, and the need to instil a sense of responsibility in an offender, to mention a few. The question is, to what extent and in what way does the paramount nature of denunciation and deterrence, impact sentence? The defence argues that taking everything into account, in particular the guilty plea, positive pre-sentence report, the unique circumstances that precipitated the plea, and Mr. Twigg's relative youth favour some lenience. The point being Mr. Twigg is going to jail and the impact of that will be real, and in all likelihood devastating. What does Mr. Twigg gain by piling on beyond what is only minimally necessary? What would society gain? I ask this rhetorically, recognizing that jail rarely serves any constructive purpose beyond separating a dangerous person from society, or as a last resort when all other non-custodial options have been exhausted. Mr. Twigg doesn't fit either of those profiles.

[14] The issue is whether a jail sentence of a certain length is necessary to send the appropriate message to the public. This question, to my mind, should be considered separate and apart from the notion of general deterrence which lies at its heart the idea that the sentence I impose here should attempt to dissuade like-minded individuals from committing similar crimes. General deterrence is a mandated factor; I must always turn my mind to it. I would say, however, that it's debatable how impactful this is. I question whether the science, or any one particular study, supports the effectiveness of general deterrence. If it were, jurisdictions which employ the death penalty, or those U.S. states which have three-strike laws would be the safest places on earth. We know that's not true. Having said that, recognizing the limited tools a sentencing court has, it is important that for what I'll term more serious offences, which this is, a clear denunciatory message needs to be sent. This is essential in order to instil public confidence in what we're doing. Beyond the questions just raised, the court must at least be seen to be discouraging this kind of behaviour.

[15] The Crown, at tabs two through seven of its case book, highlights cases and principles which are illustrative of sentences imposed in similar circumstances. None are binding authorities as courts of first instance, but are nonetheless helpful. The sentences seem to range anywhere from nine months to some well into the penitentiary range. I could go on at length about the similarities and distinguishing features in each, as compared to Mr. Twigg. I will, however, focus on the more general principles respecting the impact of child pornography on society and what should be achieved in the sentencing process.

[16] In R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.) at para. 158, Chief Justice McLachlin describes these kinds of offences and its inherent harm in this way:

The very existence of child pornography, as it is defined by section 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, dehumanizing 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.

[17] Mr. Twigg, and others like him, are the market for this most vile material. They collectively foster an environment which allows it to grow, which in turn motivates those who produce and distribute the images. That is generally the case, but what makes Mr. Twigg's circumstances most concerning are the nature and number of the images, photos and videos. This matter involves a substantial number of depictions which describe not just nudity, but degrading sex acts. This alone requires a custodial sentence far beyond the prescribed minimum penalty of 45 days jail.

[18] In the case of R. v. Cuttell, a 2010 decision of the Ontario Court of Justice, Justice Pringle sentenced the accused to 18 months in jail. The accused had over 1300 images and 10 videos. He had made the pornography available through a peer to peer file sharing network and copied some of it to CD's for personal use. Mr. Cuttell was 67 years old, married with children, and had no prior criminal history. The distinctions to Mr. Twigg are in the number and nature of the charges. Mr. Twigg has accepted responsibility relative to one count of possessing child pornography, albeit in significant quantities. Mr. Cuttell pleaded guilty to three counts of possession of child pornography, two counts of making child pornography available to others, and one count of making child pornography by transferring images from his computer onto CD's.

[19] In R. v. Dumais, a 2011 decision of the Superior Court of Justice, Justice Ratushny imposes a 9 month sentence with one year probation. In this matter there were a total of 170 images and 44 movies, which the court accepted were due to curiosity and not to satisfy sexual deviances. In my view, in both respects, the circumstances there are far different from Mr. Twigg's. Mr. Twigg possessed more images, and I'm prepared to conclude did so for a very different purpose than what was described by Justice Ratushny.

Conclusion / Orders

[20] As much as I would like to accept the defence position, I cannot. In the result, an eight month jail sentence is appropriate. In falling short of what could have been a sentence well into the mid to upper reformatory range, I have essentially exercised my discretion to give considerable weight to the mitigating factors and have placed some importance in the unusual circumstances surrounding these plea negotiations, accepting that it did have some detrimental impact on the process and did prejudice Mr. Twigg to some extent. This will be followed by 18 months of probation.

[21] Additionally, Mr. Twigg will be ordered to comply with the requirements of the Sex Offender Information Registration Act. That will be in effect for twenty years. A DNA order is made, and there will be an order of forfeiture for all computers and hard drives seized.

[22] Respecting the request for a prohibition order under section 161, I believe it is entirely appropriate. It will be made under subsections a, b and c, and will be in effect for ten years.

[23] As for probation, in addition to the statutory terms, Mr. Twigg will be required to:

1. Report within two working days of his release from custody, and thereafter as required.

2. Undertake any assessments and take such counselling that is recommended by probation, and not discontinue any recommended counselling without first obtaining the permission of probation. He will have to sign whatever consents or authorizations are necessary in order that his progress in counselling can be monitored.

3. Not be alone with any child under the age of 16 years, unless in the presence of a responsible adult.

[24] I have struggled with how to best address Mr. Twigg's ability to access the internet. On the face of it, and simply having regard to the facts, the Crown's request that there be a blanket prohibition makes sense. However, it is not realistic and is untenable in today's society. I agree with the defence position that to impose such a term would be to effectively ex-communicate Mr. Twigg from society and seriously inhibit his ability to upgrade his education, access some training programs, become employed, and to undertake the most basic tasks now expected of most everyone (i.e. banking). I am prepared to be creative in this regard, and am willing to hear from counsel further. For Mr. Kinaghan's benefit, I was intrigued by Justice Molloy's comments in the Kwok decision found at Tab 2 of the Crown's brief (R. v. Kwok, [2007] O.J. No. 457). In particular, on page 15, within paragraph 64, it states:

I was urged to make, and seriously considered making, an order that Mr. Kwok not be permitted to have access to the Internet other than for the purposes of employment and as supervised by his employer. This is a common provision in conditional sentences, bail orders and probation orders for crimes of this nature. However, increasingly, it is not possible to function effectively in our society without being able to use the internet, particularly email. This is especially so for people of Mr. Kwok's generation. Mr. Kwok may well wish to continue his education upon release from prison and he will certainly need to look for employment. It is difficult to find employment without using the Internet and email. It is impossible to pursue any course of study without the Internet. That said, unrestricted access to the Internet is obviously troubling. Accordingly, a compromise solution was reached. Rather than lose computer privileges entirely, Mr. Kwok has consented to a term of his probation order that law enforcement personnel may attend at his residence unannounced, and upon requesting same, shall be given access to any computer in his possession or control for the purpose of ensuring it has not been used to access child pornography. I would urge the relevant authorities to take steps to monitor this provision and ensure that Mr. Kwok is not using the computer for any purpose that violates the terms of his probation.

[25] I would entertain a provision like this, should Mr. Twigg consent. In any event, it will have to be addressed in some way.

Date: February 26, 2013

Justice Jonathon George