WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and s. 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486.4(1), read as follows:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section … 163.1, …

486.6 (1) Every person who fails to comply with an order made under s. 486.4(1) … is guilty of an offence punishable on summary conviction.

Court Information

Between: Her Majesty the Queen

And: T.W.

Counsel:

• M. Cole, for the Crown
• M. Edwardh and D. Sheppard, for the Defendant

Heard: June 15, 2016

Reasons for Sentence

Justice Melvyn Green

A. INTRODUCTION

[1] T.W. is the 57-year-old single parent of a 12-year-old adopted son with special needs. He pled guilty to a single count of attempted possession of child pornography. Defence counsel properly acknowledges that Parliament and the courts treat such offences very seriously. Crown counsel, in turn, fairly acknowledges the mitigative impact of T.W.'s antecedents and personal circumstances. Counsel's shared realism is reflected in the procedural and substantive approaches they adopted to the proper resolution of this matter. The Crown proceeded by way of summary conviction. Both parties agree that an appropriate sentence include a period of incarceration followed by a very lengthy term of probation and accompanied by a number of ancillary orders intended to ensure the sustained protection of the community. Their sole dispute turns on the duration of the custodial portion of the sentence. Crown counsel urges a sentence of six months. The defence suggests that a fit disposition is a sentence of 30 days, served intermittently and while T.W.'s son is at special needs summer camps.

[2] Counsel have conscientiously sought to narrow the areas of possible contention. They have filed an "Agreed Statement of Fact". In addition, I am in receipt of a thorough psychiatric assessment, materials relevant to the offender's medical circumstances, approximately a dozen candid and personal letters positively attesting to the offender's character, and several reports pertaining to T.W.'s son's needs, treatment and education. In addition, both counsel have provided me with very helpful memoranda of law.

B. THE EVIDENTIARY RECORD

(a) The Offence

[3] The offender worked in the audit division of a branch of the Ontario Public Service. He had been so employed for 24 years when, in May 2014, institutional cyber security detected his attempts to access pornographic websites at his workplace. The majority of the flagged search strings related to lawful adult pornography. However, a small number reference "girl" and "boy" (including "father/son" and "incest") in sexual contexts. Most but not all of the images and videos were blocked by corporate IT filters. Of 1,219 images recovered during the investigation, only 13 were clearly those of youths, generally in a naturist environment. None of the young persons who appear in the photographic images were engaged in sexual activity. T.W.'s employment was suspended in June 2014 and terminated in January 2015.

[4] T.W. was arrested on March 24, 2015 for the offences of attempting to access and attempting to possess child pornography. He was released on a recognizance with sureties after two days in remand custody.

[5] A search warrant was executed at T.W.'s home the day of his arrest. Forensic investigation uncovered 108 "chat logs" of online text-based conversations through much of 2014. The content of these brief exchanges was primarily adult sexual activity with children between the ages of seven and thirteen. While T.W. sometimes presented an active persona in these chats, the representative samples entered as exhibits universally read as shared fantasies with like-minded anonymous adults rather than as biographical accounts.

[6] As T.W. had full parenting responsibilities for his son A., the Children's Aid Society was contacted in mid-2014. The CAS, in turn, contacted the Toronto Police in early January, 2015. In short order, A. was privately interviewed by the CAS and the police. A., then about 11, indicated that he had never been inappropriately touched by his father or had photos taken of him unclothed. He had twice seen his father viewing naked adults on a monitor, but these were brief accidental viewings as he peered into his father's room on his way to or from the bathroom in the middle of the night.

[7] T.W. was subject to several exceptional stressors during the offence-related period. His mother, who had been the "rock" in his life, died in early 2013. He had lived with HIV for 25 years. His growing social isolation and the challenges of single-handedly raising a special needs child with increasingly difficult behavioural problems also took their toll. T.W. saw his online activities as an escape mechanism from the losses and pressures in his life.

(b) The Offender

[8] T.W. is a middle-aged single gay man. He was diagnosed with HIV in 1989. His HIV is presently controlled through a daily antiretroviral cocktail of eight different medications. His viral load has been undetectable for approximately ten years. Further, T.W. is being closely monitored for prostate surgery. He rarely drinks alcohol and does not use drugs other than those medically prescribed.

[9] T.W. is an accredited chartered accountant who worked in banking and as a sole practitioner before joining the public service. He has no prior involvement with the criminal justice system. T.W. adopted his son A. when A. was about 18 months old, in 2005. A. was then, and remains, nearly blind in one eye. They live together in a downtown Toronto condo.

[10] T.W. began counseling with a psychiatrist in February 2015 – very soon after he lost his job but before his arrest. He continues to see his psychiatrist on a bi-weekly basis. Dr. Lisa Ramshaw is a respected forensic psychiatrist, staff member in the Forensic Services division of the Centre for Addiction and Mental Health, and a venerable expert in the assessment of risk. At the Crown's request, and with T.W.'s full co-operation, she conducted an assessment of T.W. Her report is predicated on a review of the police file, seized items, transcripts of T.W.'s and his son's police statements, T.W.'s psychiatrist's notes, clinical assessments of A., a number of character reference letters, and, of course, clinical observations of and substantive interviews with the offender.

[11] Dr. Ramshaw determined that T.W. has no major mental illness, psychopathy, personality disorder or substance abuse disorder. T.W. did not suffer from pedophilia. However, on the basis of T.W.'s self-reporting, he did exhibit "non-exclusive pedophilic/hebephilic interests". Following testing with several conventional risk-assessment instruments, Dr. Ramshaw concluded that T.W. was at "low risk" to commit similar offences and at "very low risk" to commit any child-related sexual offence or any offence involving violence. Dr. Ramshaw's assessment also addressed T.W.'s "protective factors", including his resilience, intelligence, age, current supports in the community and positive social influences, his secure attachments, concerns for others, pro-social values and behaviours, feasible plans, active problem solving, and his cooperation with supervision.

[12] Dr. Ramshaw and the many character reference letters speak to T.W.'s remorse and profound sense of guilt. The letters (including those from the offender's sisters) uniformly attest to T.W.'s parenting skills and commitment, the close and caring relationship between T.W. and his son, and the circle of support they both enjoy at their church (a source of many supportive letters) and in their broader community.

(c) The Offender's Son A.

[13] A. was diagnosed with a learning disorder and ADHD in 2011, when he was seven. He was assessed at Hincks Dellcrest Treatment Centre around 2012. The Toronto District School Board assigned A. to a fulltime special education class and recommended an intensive support program. A clinical evaluation in 2015 described A. as a boy with "multiple and severe processing deficits" who "has a hard time accepting limits or consequences, and is prone to becoming very upset when these limits or consequences are imposed". The same report described T.W. as "supportive and highly motivated to meet A.'s needs", and as a parent who is "resourceful and has consistently served as an advocate for A.". At T.W.'s initiative, A. has participated in many after-school activity programs, regularly attended summer camp, and travelled across Canada with his father.

[14] Following his release on bail, T.W. was required to reside in Toronto with one of his sisters. By then – indeed, since March of 2015 – A., through arrangements with the CAS, had been residing with T.W.'s second sister and her family in London, Ontario. Removed from his father, the familiarity of home and the support of a Special Education classroom, A. quickly decompensated, displaying troubling behaviour: aggression, defiance, running away, and eating disorders. As put by the doctor who had treated A. since he was an infant:

I know that the move to London where A. was in the care of his maternal aunt and her solidly middle class family was a disaster for A.. His previously difficult behaviours … were unmanageable for the family. A. is loved by and loves [his father] and only [his father] can manage his behaviour and only [his father] has worked tirelessly to give [him] a good life.

Subject to CAS supervision, and with the Society's consent, T.W. was granted temporary custody of A. in early June of 2015. A. has since continued to reside at his father's home. During the course of a number of multi-day visits to T.W.'s condo, his sister never witnessed a repetition of the frightening acting-out A. displayed while living with her family in London. A final resolution of a Protection Application under the Child and Family Services Act awaits disposition of the immediate criminal proceedings.

[15] A. is to begin grade 7 in a Special Education class at a new school this September. He will be bused to and from school. T.W. escorts A. to YMCA classes and to activities and counseling programs at a nearby therapeutic centre for children with mental health and learning disability challenges. Over the summer, A. is enrolled in a camp near Haliburton for children with ADHD and learning disabilities from July 3rd to July 30th, and in a second camp near Parry Sound for special needs children from August 9th to August 22nd.

C. ANALYSIS

(a) Introduction

[16] There are no legal precedents respecting the appropriate penalty for, as here charged, attempted possession of child pornography. Possession of child pornography carries a minimum sentence of 90 days imprisonment when, as in the instant case, the Crown proceeds summarily. On the basis of R. v. Gagne, 2011 QCCA 2157, counsel agree that the creation of the text-based chat-line conversations found on T.W.'s computer amount, in law, to "making child pornography", an offence that also carries a minimum sentence – six months or one year in jail, depending on whether the Crown proceeds summarily or by indictment. This latter charge, while available on the admitted evidence, was never laid. The charge to which the offender has pled guilty, that of attempt possession of child pornography, carries no minimum penalty. Nor does it preclude the imposition, in otherwise appropriate cases, of a conditional sentence. The parties agree to some uncertainty respecting the critical issue of whether the ages of the nude adolescents in the images accessed through the offender's work computer are sufficiently youthful to meet the legal definition of "child pornography". The inchoate charge of attempted possession flows from this uncertainty.

[17] Crown and defence counsel have approached the resolution of this matter with abiding respect for the governing principles and a healthy helping of resourcefulness and ingenuity. Their respective positions do not reflect a joint submission, nor do they reflect a shared range. However, neither position threatens the public interest or the repute of the administration of justice. Accordingly, while my sentencing discretion remains legally unfettered, the submissions of counsel effectively bracket its exercise: a custodial disposition of 30 days or, as Crown counsel urges, six months, followed, as the parties agree, by a maximum period of three years probation and, of course, appropriate ancillary orders.

[18] In crafting a fit sentence, primary heed must be paid to the "fundamental principle" of sentencing, that of proportionality. As prescribed in s. 718.1 of the Code, a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". Put simply by the Supreme Court in R. v. Lacasse, 2015 SCC 64, at para. 54:

Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.

And at para. 58:

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. … Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case.

[19] The Supreme Court's reference to "comparison with sentences imposed for similar offences committed in similar circumstances" refers to the role of precedent, close comparator cases and, where they obtain, the "ranges" fixed by appellate courts with respect to various offence categories. Such ranges, while helpful references, are in no way binding. The Supreme Court, at para. 69, made clear that appellate "sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work" – that of achieving the objectives of deterrence, denunciation, rehabilitation and restoration through the exercise of individualized proportionality. In any event, and as counsel readily acknowledge, there are no precedents, let alone appellate ranges or even guidelines, respecting the fit sentence for inchoate pornography offences. Accordingly, and if only in this regard, the case before me presents as one of first instance.

[20] The legislative and judicial reaction to child pornography is universally that of moral repugnance. Children, as put by the Court of Appeal in R. v. D.(D.), 163 C.C.C. (3d) 471, at para. 35, are "our most valued and vulnerable assets". Their protection from abuse and exploitation is paramount in fashioning a penal response to child abuse offences. This principle, as made clear in R. v. E.O., 169 O.A.C. 110, para. 7, applies with equal force to the possession of child pornography:

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 that denounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of the offence.

See also, if only by way of consistent illustration of the importance assigned the principles of general deterrence and denunciation, R. v. D.G.F., 2010 ONCA 27, 250 C.C.C. (3d) 291; R. v. Kwok; R. v. Connor, [2009] O.J. No. 6369 (S.C.).

[21] Despite these principles' dominant role in crafting a fit disposition, each act of sentencing remains, as noted, an exercise in individualized proportionality. The principles of denunciation and general deterrence do not assume the same materiality in the very case, nor is there any fixed sanction by which to honour these principles. "[E]ach case", as said by Molloy J. in R. v. Kwok, supra, at para. 7, "turns on its own particular facts". She noted "an emerging consensus on the relevant factors to be taken into account" on sentencing those convicted of possession of child pornography. Having reviewed these authorities, Molloy J. organized a typology of factors bearing on the calculation of a fit sentence in such cases:

Generally speaking, any of the following are considered to be aggravating factors:

(i) a criminal record for similar or related offences;

(ii) whether there was also production or distribution of the pornography;

(iii) the size of the pornography collection;

(iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted);

(v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and

(vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.

Generally recognized mitigating factors include:

(i) the youthful age of the offender;

(ii) the otherwise good character of the offender;

(iii) the extent to which the offender has shown insight into his problem;

(iv) whether he has demonstrated genuine remorse;

(v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment;

(vi) the existence of a guilty plea; and

(vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).

Molloy J.'s analytical framework has received appellate endorsement (R. v. D.G.F., supra, at para. 15) and has been near-routinely followed and applied by trial-level courts across the country.

[22] Molloy J.'s catalogue of factors is, of course, inclusive rather than exhaustive. No inventory can claim to entirely encompass the myriad of factors that may properly impinge on any particular sentencing decision. Other than by way of offence-specific adaptations, the factors she enumerates are not unique to child pornography offences. Those pertaining to the circumstances of the offender are plainly generic while those bearing on the nature of the crime reflect, as would any similar set of considerations, the quantum, gravity and, where salient, commercial dimensions of the offensive conduct at issue. In short, Molloy J.'s inventory affords a helpful checklist of relevant factors but, with respect, its real worth rests less with its content than with its recognition of the importance of conducting an individualized assessment despite the animating principles of general deterrence and denunciation and despite the near-visceral attitude of revulsion for the offence at issue.

[23] Applying Molloy J.'s catalogue of relevant factors, it is clear that, with one exception, T.W. satisfies each of those characterized as "mitigating". The sole exception is that, at 57, he cannot claim to be of "youthful age" – thus rendering T.W.'s age of neutral consideration. (As explained by Molloy J. in R. v. Kwok, supra, at para. 8, "[t]he presence of [by way of illustration] a guilty plea or of remorse is mitigating. However, the absence of such factors is not aggravating; it is neutral".) Further, while T.W.'s age precludes discounting his moral responsibility on the basis of youthful immaturity or curiosity, his sheer longevity adds resonance to the mitigative value of a life free of criminal antecedents and of "otherwise good character". He has, in short, a half-century of proven pro-social credit on which to draw in assessing his moral substance and, importantly, his potential danger going forward.

[24] The "aggravating factors" in Molloy J.'s listing are here effectively absent. Other than his half of the seized chat-line exchanges (a matter to which I return), there is no suggestion that T.W. was involved in the production or distribution of child pornography, that he purchased or traded for such files, or that he has been diagnosed as a pedophile. Relatedly, there are no allegations of hands-on abuse of children or of his being anything but a low risk to re-offend and a very low risk to molest children or to commit any act of violence. Further, the CAS, following their own careful assessments, consented to T.W.'s son A. being returned to reside with and the custody of T.W. under CAS supervision. Revisiting the chat logs: their content and context do not lead to an inference, as arises in at least some other cases, that these text exchanges were used for any purpose (such as recruitment, grooming or child-trafficking) more nefarious than masturbatory fantasy.

[25] There is, here, no means to quantify or even characterize the relative "depravity" of the offensive conduct or the ages of the children captured in the "pornography collection" at issue. There is no "pornography collection". There were, as admitted and at highest, attempts to access child pornography. Leaving aside ambiguities as to age, the seized photographic images are of relatively small number. Those admitted as sample exhibits are primarily of naked or near-naked young persons at family or social gatherings in what appear to be naturist settings. There are no couplings. There are no acts of abuse or defilement or violence or, for that matter, anything graphically sexual in the photographic images. There are a few, very few, samples of line drawings of explicit sexual engagement, but again the ages of the imagined participants, while youthful, remain uncertain. Put otherwise, if T.W. was found in possession of a cache of similar seized images that indisputably involved children under the age of eighteen, that collection, while undoubtedly amounting to child pornography, would fall towards the lowest rung of any ladder of offence-specific gravity.

[26] The circumstances of T.W.'s case are most unusual. Returning to the s. 718.1 principle of proportionality, the "fundamental principle" of sentencing, any instance of child pornography is a matter of great concern. However, the circumstances of the offence before me place it at the less severe end of any spectrum of gravity for this species of illegal conduct. T.W., of course, bears full responsibility for his offence – one that he appears to have assiduously pursued over months. Nonetheless, his moral liability can be no greater than that carried by the circumstances of the offence to which he pled. Further, the offensive conduct is narrowly contained, alien to T.W.'s pro-social character, and not predictive of a material risk of re-offending or harming children. The personal ordeal suffered by T.W., his genuine remorse, his positive clinical assessment and his self-directed efforts at counseling all negative the need for any further sanction to secure the sentencing purposes of individual deterrence or rehabilitation or the protection of the public from his behaviour. What remains, of course, is the penal cost to be extracted to serve the principles of general deterrence and denunciation in the circumstances of the immediate case.

[27] In this regard, one factor that does not appear in Molloy J.'s inventory here warrants consideration: the impact of the offender's sentence on others. (See, for example, R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, at para. 41.) The "other" of immediate concern is A. – his fragile circumstances, his pressing emotional health challenges and his reliance on his father, the offender T.W. It would be naïve to assume that T.W.'s sentence – especially any sentence involving a substantial period of custody – would not adversely affect A.

[28] No offender's sentence can be contorted beyond the parameters of fitness to accommodate the needs of an innocent family member, no matter how sympathetic his situation. That said, there is rarely but a single sentence that meets the standard of just and appropriate. Applying, then, the principle of restraint, recognizing the ample mitigative considerations that here obtain, and acknowledging the value of fashioning a disposition that allows for continued parental support while preferencing the objectives of general deterrence and denunciation through a custodial disposition, T.W. is sentenced to an intermittent term of incarceration.

[29] The effective custodial sentence is one of 40 days. T.W. spent two days in custody before being released on bail. Crediting these two days as the equivalent of three for purposes of sentence calculation (R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575), the carceral portion of T.W.'s sentence going forward is 37 days. An intermittent sentence is ordinarily served on consecutive weekends, but no rule other than common sense and the needs of the offender dictates the pattern of intermittency. But for a brief recess to accommodate a scheduled Family Court appearance, T.W. is to serve the intermittent custodial portion of the sentence while his son A. is at summer camp for special needs children: that is, from July 7-10, July 12-29 and August 10-21, 2016. Combined with the custodial day consumed by T.W.'s processing at the front end of his sentence, this amounts to 37 days incarceration.

[30] Following the conclusion of the intermittent portion of his sentence, T.W. will be on probation for three years, the maximum period permitted by law. The terms of T.W.'s probation, as set out in detail in the accompanying order, include conditions requiring him to routinely report to a probation officer; to reside at an address approved of by that officer; to not access, possess or distribute child pornography; to not use a computer or internet accessible device without his probation officer's permission, foreknowledge of the officer in charge and the installation of monitoring software; to consent to random searches of his personal computers; to not use computers other than his own in public facilities absent adult supervision or written consent of his probation officer; to abstain from communication with persons under the age of 16 other than his own son or in the presence of his son or an adult person; to continue professional counseling; to participate in such other assessment (including at a specified clinic), counseling or treatment as directed by his probation officer or a mental health professional approved by his probation officer; to sign such waivers, consents or releases as may be necessary to permit monitoring of T.W.'s compliance with the terms of his probation order and to permit his probation officer and the Children's Aid Society to freely communicate respecting T.W. and his family. In addition, before the completion of the intermittent portion of his sentence, T.W., when not in custody, is subject to a probation order requiring him to keep the peace, be of good behaviour and attend at jail, when required, on time and in a straight and sober condition. Further, while in custody T.W. is prohibited from communicating with any persons under the age of 16, other than his own son.

[31] T.W. is also subject to a number of ancillary or collateral orders. These include an order requiring him to provide a sample of his bodily substance for DNA analysis and one requiring him to comply with the terms of the Sex Offender Information Registration Act (SOIRA) for the next ten years. Most importantly, with the exception of or unless accompanied by his son, T.W. is, for the next ten years, prohibited from attending public facilities at which persons under 16 are likely present, having any contact with persons under 16, and using the internet other than in accordance with court-ordered conditions. Further, for the rest of his life T.W. is prohibited from securing paid or volunteer employment involving a position of trust or authority over children under the age of 16. In addition, for the next ten years he is subject to a comprehensive weapons prohibition. The precise and governing language of these orders, as with the terms of the probation order, is that set out in the orders themselves.

D. CONCLUSION

[32] For the reasons just recited, T.W. is sentenced to 37 days in jail (to be served on an intermittent basis), followed by three years of probation. A number of ancillary orders complete this disposition.

[33] I would be remiss if I did not express my gratitude to counsel for their conscientious attention to this project.

Sentence pronounced on June 15, 2016

Reasons released on July 6, 2016

Justice Melvyn Green