WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:

486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-04-09

Court File No.: Halton 15-1480

Between:

Her Majesty the Queen

— AND —

Antonio Scattolin

Before: Justice D.A. Harris

Heard on: May 14, 2018 and January 23, 2019

Reasons for Sentence released on: April 9, 2019

Counsel:

• Harutyun Apel and Kelli Frew, counsel for the Crown
• Brendan Neil, counsel for the accused

Introduction

[1] Antonio Scattolin pled guilty to one count of possession of child pornography between August 26 and October 19, 2012.

[2] Crown counsel elected to proceed summarily after Mr. Scattolin waived the limitation period.

[3] Mr. Scattolin is before me today to be sentenced.

[4] Crown counsel suggested that I should sentence him to imprisonment for one year, followed by probation for two years.

[5] Counsel for Mr. Scattolin suggested that I impose a conditional sentence of imprisonment for no more than two years less one day.

[6] Both counsel agreed that I should make the following ancillary orders:

1. a DNA order;
2. an order compelling Mr. Scattolin to comply with the Sex Offender Information Registration Act for 10 years;
3. a weapons prohibition pursuant to section 110 of the Criminal Code for five years;
4. an order pursuant to section 161 of the Criminal Code, limiting Mr. Scattolin's access to girls under the age of 16 years, for ten years; and
5. a forfeiture order with respect to certain items that were seized by the police.

[7] I find that a sentence of imprisonment for seven months, less credit for pre-sentence custody, plus probation for three years, is the appropriate sentence here.

[8] My reasons for this are set out under the following subject headings:

1. The law regarding a conditional sentence of imprisonment;
2. The fundamental purpose and principles of sentencing;
3. The offence;
4. The background of Mr. Scattolin; and
5. Analysis

Conditional Sentence of Imprisonment

[9] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[10] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[11] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[12] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;
2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. the court must impose a term of imprisonment of less than two years;
4. the safety of the community would not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[13] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[14] In Mr. Scattolin's case, the first four prerequisite criteria have been satisfied.

[15] His offence was not excluded pursuant to section 742.1.

[16] Nor is it punishable by a minimum term of imprisonment now that the minimum term of imprisonment has been struck down by the Ontario Court of Appeal.

[17] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.

[18] Finally, I find that Mr. Scattolin serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence. In reaching that conclusion I note that it has been 6½ years since the offence before me and there is no suggestion of any further offences during that time.

[19] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

Fundamental Purpose and Principles of Sentencing

[20] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[21] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[22] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[23] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[24] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[25] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[26] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[27] Section 718.01 of the Criminal Code provides that:

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.

[28] Section 718.2(a)(ii.1) provide that evidence that an offender, in committing an offence, abused a person under the age of 18 years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[29] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[30] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[31] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[32] In R. v. Priest, supra the Ontario Court of Appeal made it clear that this is in part a codification of the existing law, especially with respect to youthful first offenders. That case made it clear however that this principle is of less importance in cases involving very serious offences and offences involving violence.

[33] The Supreme Court also noted in Gladue that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. A sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.

[34] It is universally accepted that simple possession of child pornography is a serious offence. By its very definition, child pornography is created by recording the sexual abuse and sexual exploitation of children. These children are victimized for the first time when the pornography is created. They are re-victimized time and time again whenever someone views those images.

[35] This is occurring more frequently than in the past. The advent of digital cameras and the development of the Internet have made more child pornography available to more people, all at the push of a few buttons or keys on their computers, and this is all available in the comfort and safety of the offender's own home.

[36] With greater sophistication on the part of law enforcement officials, more of these offenders are being apprehended and, hence, the number of child pornography cases coming before the courts is increasing at a horrendous rate.

[37] Justice Molloy of the Ontario Superior Court of Justice stated in R. v. Kwok that:

Collectors of child pornography seek to distance themselves from the direct physical and emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators.

[38] She goes on to say in that the existence of this ready and eager consumer base could only be seen as an incitement to, "[those] ... depraved individuals who ... obviously get some kind of extra "kick" out of photographing and videotaping these atrocities and having other people look at them."

[39] She suggests that one way to deter would-be pornographers would be, "...by deterring those who are interested in acquiring the pornography."

[40] In light of all this it should come as no surprise that courts have consistently held that the primary focus for sentencing in cases of simply possessing child pornography must be denunciation and general deterrence.

[41] Molloy J. further reviewed relevant factors to be taken into account during sentencing in child pornography cases.

[42] She found the following 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 free downloads from the Internet.

[43] 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 his community).

[44] I am satisfied that this is an extensive, but not exhaustive list of the appropriate factors that I should consider in this case.

[45] The maximum sentence for possession of child pornography in October 2012 was imprisonment for 18 months when Crown counsel proceeds summarily. This has since been amended to imprisonment for two years less one day.

[46] Mandatory minimum sentences have been struck down with respect to this offence.

[47] This is of little benefit to Mr. Scattolin. In all of the cases striking down mandatory minimums, the Ontario Court of Appeal has done so on the basis of reasonable hypotheticals. None of these reasonable hypotheticals is similar to this case in any way.

[48] With respect to the charge of possession of child pornography I note certain comments by the Ontario Court of Appeal in the recent decision R. v. John.

[49] Pardu J.A. wrote:

The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter, 2018 ONCA 474, at para. 16.

[50] She also wrote that:

… the size and nature of the appellant's collection is a seriously aggravating factor. The appellant had possession of 89 unique videos and 50 unique images of child pornography. He actively sought out these images and videos. His collection included images of children as young as four years old, and some perhaps as young as two or three years old, subjected to anal and vaginal penetration with sex toys and adult penises. This is terrible abuse of young children. In R. v. Lynch-Staunton, 2012 ONSC 218, at para. 57, Ratushny J. pointed out that:

[i]t is to be understood by those trolling the Internet for child pornography that these pictures are acts of violence against children, that viewing and possessing them perpetuates the original violence, that viewing and possessing them encourages new child victims, and that as a consequence, jail terms will result.

[51] In R. v. Schulz, the Ontario Court of Appeal recently described a collection consisting of 45 unique images and 111 unique movies as "a significant amount of child pornography".

[52] Counsel for Mr. Scattolin relied heavily on the decision of the British Columbia Court of Appeal in R. v. Swaby upholding the imposition of a conditional sentence of imprisonment with respect to a possession of child pornography offence.

[53] I note however the following comments which clearly distinguish that case from Mr. Scattolin:

67 As set out above, the possession of child pornography is a very serious crime. Except in exceptional cases, those who possess child pornography will be incarcerated. Mr. Swaby, however, as found by the sentencing judge, is the exceptional case. Judge Galati described him as "child-like" due to his impairments. Both psychologists who interviewed Mr. Swaby agreed on the deleterious effect that incarceration would have on him.

72. Assessing Mr. Swaby's moral culpability is complicated as he is not a "typical" offender. Mr. Swaby was 23 years old at the time of the offence. He is now 28 years old. His background is discussed above. At the time of the offence, Mr. Swaby lived with significant cognitive and intellectual impairment, as well as other mental health problems, including auditory hallucinations.

73 The circumstances of his offence were undeniably serious. His collection was extensive, and portrayed children, including very young children, in violent and horrific circumstances.

74 Mr. Swaby understood that what he was doing was wrong. But, as Galati P.C.J. found, he did not know "how wrong it was". Mr. Swaby likened the experience of watching the videos to watching a video of a person breaking their leg. That is obviously not an accurate reflection of the blameworthiness or harm of the offence.

75 Both Galati P.C.J. and Marchand J. concluded that Mr. Swaby had a highly reduced level of moral culpability based on his personal circumstances. That reduced level of culpability supported their findings that a fit and proportionate sentence would be a CSO.

76 In order to justify a non-custodial sentence, it is necessary to appreciate the seriousness and significance of Mr. Swaby's impairments--particularly given that the difference is between a 90-day sentence, which could cause significant harm to Mr. Swaby, and a CSO, which is a sentence of imprisonment served in the community rather than the harmful prison setting.

[54] Before I can apply the above principles, I must examine the offence here, and the background of Mr. Scattolin.

The Offence

[55] Between August 26 and October 19, 2016, Mr. Scattolin downloaded child pornography files from a website.

[56] In October 2012, Toronto Police seized the computers hosting that website. The computers provided information identifying Mr. Scattolin's computer.

[57] On May 7, 2015 the Halton Regional Police Service Internet Child Exploitation (ICE) unit executed a Criminal Code search warrant at his home in Burlington.

[58] Several computers and additional data storage devices were seized for further analysis.

[59] Mr. Scattolin admitted to police that he had downloaded child pornography but advised that he had since deleted the material.

[60] Police subsequently found 7,317 child pornography images and 64 child pornography movies on a computer tower and another 612 child pornography images on another computer. These were found on a desk in Mr. Scattolin's home office.

[61] The vast majority of the photos were of unclothed girls, aged 7 to 8, exposing their genitals to the camera. The videos showed adult males having full sexual intercourse with young girls. There was no bondage or BDSM.

Background of Mr. Scattolin

[62] I have been given a Pre-sentence Report and several reference letters and a letter from Mr. Scattolin which provided me with the following information.

[63] Mr. Scattolin is now 50 years old.

[64] He is one of three children. His mother is 81 years of age and his father is 84 years of age. His parents reside in Etobicoke and are anti-social people. He has a 58 year old sister who works for a bank, is not married and resides with their parents. He also has a 54 year old brother who is unemployed, is not married and resides with their parents. No one in his family has a criminal record.

[65] He shares a pretty good relationship with his parents. They are aware of the offence and they remain supportive of him. He and his wife see his parents a dozen times per year. He shares a good relationship with his sister but not with his brother.

[66] His parents were "very strict" and his mother was a violent woman who would pull his hair and hit him as forms of punishment. He experienced physical, verbal and emotional abuse from his mother. His father was more timid and stricter with his brother and sister. He was provided with food, shelter and clothing. He was not permitted to go on overnight school trips and was not allowed to have girls telephone him. His mother would hit him if a girl called. In addition, she would turn off the television if she thought that the program that he was watching was too sexual in nature. He did not start dating until he was in his late 20's.

[67] His parents fought amongst themselves during his formative years and he recalled many months where his parents did not speak to one another. His parent's philosophy was if they provided food and shelter then this constituted "great parenting." He attributes his anti-social demeanor to an absence of familial outings and one on one time with his father.

[68] He never experienced any form of sexual abuse, however, he was scarred by the fact that he was not able to build social skills with his peers due to the restrictions that his parents placed on him.

[69] He started to date his wife when he was 28 years of age. She was his first girlfriend. They met through the "tele-personals" or phone dating. They dated for a few years prior to getting married as her priest expected a period of dating and completion of a marriage program prior to the wedding. His wife also came from a strict background and they did not cohabitate prior to getting married. They got married on July 8, 2000 and that they share a great relationship. He also shares a good relationship with his in-laws; however, it has been difficult to visit them over the course of the past three years due to his curfew.

[70] His wife was born with a genetic condition known as Familial Cerebellar Ataxia (Speech Halting dysarthria speech). She is not able to secure gainful employment nor is she able to drive. Earlier in their marriage they were thinking of having children, however, it would have required extensive gene therapy. Her disability is progressive and he gives a great deal of attention to her. He prepares meals and does general household chores. She does not move around much when she is home alone.

[71] They share an open and honest relationship and communicate with one another. She was surprised by his involvement in the offence. He is the sole provider in the family and she does not qualify for income support based on his earnings. She does collect a small amount of income support through Canada Pension.

[72] His sexual relations with his wife are "regular" and "normal". He "is not promiscuous and does not have "that high of a drive."

[73] He attended two elementary schools the first from kindergarten through grade six and the second for grades seven and eight. He attended the same secondary school from grades nine through thirteen when he graduated with honours.

[74] He attended Humber College and graduated from an Electrical Engineering Technician - Control Systems Program with Honours. He has also taken many courses through his employment.

[75] He started to work on a part time basis at the age of 13 years at a printing company. He started to work in the construction field with his father in the summer following his grade nine year. He worked full-time during the summers and on Saturdays during the school year.

[76] After completing his college studies he was employed regularly and worked his way up through five positions which brought an increase in salary. He also worked a lot of overtime. This employment was terminated shortly after he was charged.

[77] It was difficult for him to seek new employment as he was not permitted to access a computer, however, a variation of his bail conditions allowed his wife to supervise his job searches on line. This variation allowed him to secure his current fulltime employment. This came with a significant decrease in pay.

[78] He seldom drinks alcohol. He never experimented with illicit drugs.

[79] He has lawfully owned firearms since he was 18 years of age and participated in target shooting on a regular basis. His wife would accompany him on his outing. He had an extensive firearm collection that was seized at the time of his arrest, valued at $80,000. His firearms and supplies were stored in two safes in the basement of his home with active motion sensors. His firearm collection is currently being sold through a consignment store. This was his life-long sport and it was very painful to lose his collection.

[80] He reported that he is a very quiet person and that outside of work hours he mainly spends his time with his wife and his family.

[81] He owns his residence and does not have any outstanding debts.

[82] He does not have a medical diagnosis or a mental health diagnosis and he is not prescribed any type of medication.

[83] With respect to counselling, he attended for four counselling services through his Employee Assistance Program before he was fired.

[84] He began meeting with his wife's counsellor and has completed at least 27 one hour sessions and two joint one hour sessions with his wife. The problem with this is that, as even counsel for Mr. Scattolin concedes, the counsellor, while qualified, appears to be more of a friend than a detached objective professional.

[85] The author of the Pre-sentence Report wrote that "It would appear that the subject would benefit from more intensive counselling /therapy that would focus on his sexually deviant behavior in an attempt to discover the root cause and prevent such behavior from repeating itself in the future".

[86] All of his references, including members of his wife's family, describe him in glowing terms and stress how he is "fully committed in supporting and providing for his disabled wife who is fully dependent on him". They were all surprised to learn of his involvement in this offence.

[87] His wife depends on him. As she describes it, he "does everything around our home, all cooking, all cleaning, all laundry, all cat care, all yard work, all shopping and errands". They live in a two storey house. When going up the stairs she leaves her walker at the base of the stairs, walks up five to six stairs, takes a break on the landing and then goes up another five to six stairs. A Personal Support Worker attends once per week. He is the sole source of income for the family. It will be very hard for her if he goes to jail.

Analysis

[88] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

[89] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

[90] General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.

[91] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Scattolin and yet, at the same time, one that is responsive to his unique circumstances.

[92] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[93] The aggravating factors can be found in the offence itself.

[94] Mr. Scattolin was in possession of child pornography that includes videos of adult males having sexual intercourse with young girls.

[95] The size of this collection of child pornography is greater than that in R. v. John, supra. I do note however that there is nothing before me to suggest that he has looked at this in the past six years.

[96] There are also a number of mitigating factors in this case.

[97] He pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse.

[98] He has repeatedly expressed remorse for what he has done, including his letter to the court. He is truly remorseful not only for what he has done but also for what his incarceration will do to his wife.

[99] He had no prior criminal record.

[100] He has otherwise led a very good life and been of good character.

[101] He has been bound by bail conditions since his release and has not offended further.

[102] He has strong support from friends and family.

[103] He has however lost many friends as well as his employment as a result of his offence. He will likely lose his current job when I send him back to jail.

[104] He was forced to sell his gun collection. In doing this, he suffered not only a financial loss but also the loss of an activity that he greatly enjoyed.

[105] He has begun working with a counsellor. Unfortunately, he has chosen the most economical rather than the most objective counsellor. I am concerned that I cannot rely on her assessment of future risk posed by Mr. Scattolin.

[106] I do remind myself however that there is nothing before me to suggest that he has looked at any of the child pornography in his possession in the past six years. Further, it is clear that he has gained insight into the impact that his actions had on the young girls whose victimization was portrayed in those images.

[107] I also give him credit for the fact that he has sought out counselling and has expressed a willingness to follow through with further counselling in the future.

[108] As I stated earlier, Mr. Scattolin is very different from the offender in R. v. Swaby, supra.

[109] After considering all of the above, I find that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. A conditional sentence of imprisonment is not appropriate here.

[110] The appropriate sentence is imprisonment for seven months, less credit for pre-sentence custody.

[111] I am crediting 7 days of actual pre-sentence custody as 10 days. He has spent a long time on bail, but that delay was to accommodate his attempts to sell his guns and obtain counselling. Further, his release terms were not terribly restrictive. I am satisfied that I should assess total pre-sentence credit as one month.

[112] That jail term is shorter than that suggested by Crown counsel but I am satisfied that it should be followed by probation for three years, rather than two.

[113] Both counsel agreed that I should make an order pursuant to section 161 of the Criminal Code. In light of the absence of any sort of meaningful risk assessment, I agree with this completely.

[114] In drafting the terms of that order, I am mindful of recent comments by both the Supreme Court of Canada and the Ontario Court of Appeal.

[115] The overarching protective function of section 161 of the Criminal Code is to shield children from sexual violence.

[116] However, an order under section 161 constitutes punishment and is not available as a matter of course. There must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender's specific circumstances.

[117] With respect to restrictions on Internet use, it must be kept in mind that in modern life, at least some form of access to the Internet is simply unavoidable for innocent purposes such as accessing services and finding directions. In many homes the telephone operates using the Internet, rather than traditional telephone wires.

[118] Depriving an offender of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life.

[119] Internet is used for such commonplace activities as shopping, corresponding with friends and family, transacting business, finding employment, banking, reading the news, watching movies, attending classes and so on.

[120] Courts should avoid imposing orders that create overbroad or unreasonable restrictions on an individual's liberty.

[121] Having said that, the appeal courts have clearly recognized the purpose of orders made pursuant to section 161(1)(d):

In its analysis of s. 161(1)(d), the court [in K.R.J.] addressed the need for such a provision. Section 161(1)(d) was enacted in 2012 to close a legislative gap created by rapid social and technological changes. Those changes have created a space for harmful behaviour not captured by the former iteration of s. 161, which allowed sentencing judges to prohibit offenders only from using computer systems to contact children directly. The new harmful behaviours now captured by s. 161(1)(d) include accessing and distributing child pornography and contacting other adults for the purposes of planning and facilitating criminal behaviour (K.R.J., at para. 107). With the broadened powers under s. 161(1)(d), the court is better able to monitor offenders' use of the Internet thereby limiting their opportunities to offend and preventing such behaviour (K.R.J., at para. 108).

[122] I am satisfied that the terms set out in the following order are neither overbroad nor unreasonable restrictions on Mr. Scattolin's liberty. On the contrary, they constitute a reasonable attempt to minimize any risk that he poses to children.

Sentence

[123] For the above reasons, I sentence Mr. Scattolin as follows.

[124] With respect to the charge of possession of child pornography, I sentence him to time served, being pre-sentence custody of 7 days, credited as 10 days, plus credit for time spent subject to restrictive bail terms for a total of one month plus imprisonment for 6 months. My intention is that this should be the equivalent of imprisonment for 7 months.

[125] That will be followed by probation for three years.

[126] The terms of the probation will require that Mr. Scattolin:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of his release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including a sexual offender relapse prevention program or any other program recommended by his probation officer;

7. attend for phallometric testing if directed by the probation officer;

8. not seek, obtain or continue 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 female persons under the age of 16 years;

9. not use the Internet or other digital network, including email, texting, MSN Messenger, any other messenger system or any chat rooms, or Skype or WhatsApp or Facebook or Twitter or Instagram or Snapchat or any other social network, for the purpose of communicating with a female person under the age of 18 years. When communicating with anyone by means of such a computer system or other device other than in the course of his employment he will take reasonable steps to ascertain the age of the person. Further, when communicating with anyone by means of such a computer system or other device other than in the course of his employment he shall identify himself by his full real name, and shall not use any pseudonym, nickname or code name to identify himself.

10. not possess or access child pornography;

11. not possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner.

12. to permit meaningful monitoring of his compliance with the terms and conditions of this order, he shall:

    (a) permit access to his residence by his Probation Officer and / or by a Police Officer between the hours of 8am and 8pm, 7 days per week and allow random inspection(s) of all his electronic device(s); and

    (b) reside only at a residence where the lawful owner / tenant will permit such access; and

    (c) provide any encryption codes/passwords necessary to permit the random inspection of any electronic devices for the purpose of monitoring compliance with the provisions of this order.

[127] I also make the following ancillary orders.

[128] This is a primary designated offence and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. Scattolin of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[129] It is also a designated offence pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to section 490.012 of the Criminal Code that Mr. Scattolin comply with the provisions of the Sex Offender Information Registration Act for ten years.

[130] I also make an order pursuant to section 161 of the Criminal Code prohibiting Mr. Scattolin for ten years from:

(a) attending a public park or public swimming area where female 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 unless accompanied by his wife or other responsible adult person who is aware of this order;

(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 female persons under the age of 16 years;

(c) having any contact - including communicating by any means - with a female person who is under the age of 16 years unless supervised by his wife or another responsible adult person who is aware of this order;

(d) using the Internet or other digital network to access or distribute child pornography, or using the Internet or other digital network, including email, MSN Messenger, any other messenger system or any chat rooms, or Skype or WhatsApp or Facebook or Twitter or Instagram or Snapchat or any other social network, for the purpose of communicating with a female person under the age of 16 years. When communicating with anyone by means of such a computer system or other device other than in the course of his employment he will take reasonable steps to ascertain the age of the person; Further, when communicating with anyone by means of such a computer system or other device other than in the course of his employment he shall identify himself by his full real name, Antonio Scattolin, and shall not use any pseudonym, nickname or code name to identify himself.

[131] Pursuant to section 110 of the Criminal Code, for the next five years Mr. Scattolin is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[132] Finally, I am ordering the forfeiture of the computers which were seized by the police.

Released: April 9, 2019

Signed: Justice D.A. Harris