Court Information

Court: Ontario Court of Justice

Date: November 13, 2019

Court File No.: Halton 18-4213

Before: Justice D.A. Harris

Heard: June 12, 2019 and August 28, 2019

Reasons for Judgment Released: November 13, 2019

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

Anthony Dawkins

Counsel:

• Kelli Frew, counsel for the Crown
• Paul D. Stunt, counsel for the accused

Introduction

[1] Anthony Dawkins pled guilty to possession of child pornography. This offence occurred on November 19, 2018.

[2] Crown counsel elected to proceed by indictment.

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

[4] Crown counsel suggested that I should sentence him to imprisonment for 21 months, followed by probation for at least two years.

[5] Counsel for Mr. Dawkins suggested that I impose a conditional sentence of imprisonment, or in the alternative, imprisonment for no more than 90 days to be served intermittently. He took no issue with that being followed by probation.

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

1. a DNA order;
2. an order compelling Mr. Dawkins to comply with the Sex Offender Information Registration Act for 20 years; and
3. a forfeiture order with respect to certain items that were seized by the police.

[7] Crown counsel requested an order pursuant to section 161 of the Criminal Code, limiting Mr. Dawkins' access to girls under the age of 16 years, for 20 years. Counsel for Mr. Dawkins asked me not to make this order.

[8] I find that a sentence of imprisonment for 9 months, followed by probation for three years is the appropriate sentence here.

[9] 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. Dawkins; and
5. Analysis

Conditional Sentence of Imprisonment

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

[11] 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."

[12] 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.

[13] 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 must not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[14] 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.

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

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

[17] 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.

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

[19] Finally, I find that Mr. Dawkins 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 he had no prior criminal record and there is no suggestion of any further offences since he was charged almost one year ago.

[20] 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

[21] 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.

[22] 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.

[23] 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.

[24] 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.

[25] 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.

[26] 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.

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

[28] 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.

[29] Section 718.2(a)(ii.1) provides that evidence that an offender, in committing an offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that. It is settled law that simple possession of child pornography constitutes indirect abuse of a person under the age of eighteen years.

[30] 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".

[31] 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."

[32] 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.

[33] 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.

[34] 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.

[35] 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.

[36] 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.

[37] 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.

[38] 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.

[39] 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."

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

[41] 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.

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

[43] 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.

[44] 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).

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

[46] The maximum sentence for possession of child pornography is imprisonment for 10 years when Crown counsel proceeds by indictment.

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

[48] This is of little benefit to Mr. Dawkins. 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.

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

[50] 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.

[51] 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.

[52] 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".

[53] Counsel for Mr. Dawkins conceded that he had found only one case upholding the imposition of a conditional sentence of imprisonment with respect to a possession of child pornography offence. He was not relying, however on that decision of the British Columbia Court of Appeal in R. v. Swaby as it was clearly distinguishable from the case against Mr. Dawkins. I agree with his assessment.

[54] I also note the comments of that court that:

the possession of child pornography is a very serious crime. Except in exceptional cases, those who possess child pornography will be incarcerated.

[55] The cases referred to by Crown counsel assisted me to the degree that they reinforced the principles set out above. However, none of them was on all fours with the case before me.

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

The Offence

[57] In July of 2018 the Halton Regional Police Service Internet Child Exploitation (ICE) unit received several downloads of child pornography through the Torrential Downpour program on its computer. This program allows law enforcement to receive single source (from one user only) downloads from users sharing child pornography files. An ICE investigator was able to view 10 of the downloads and confirmed that they contained child pornography. The other files could not be opened. The IP address that was sharing these downloads was identified and judicial authorization was obtained to get the subscriber name and address from Bell Canada. The subscriber was determined to be a business in Burlington. Judicial authorization was then obtained to enter and search the premises. When the search warrant was executed in November of 2018, several employees were interviewed, including Mr. Dawkins who admitted that he had been downloading child pornography. The work devices used by Mr. Dawkins were seized and a subsequent search warrant was granted for his residence in which further devices were seized.

[58] The investigator searched the work laptop for the specific file names of the downloads she had originally received from the IP address identified. She located file names that exactly match 20 of the 21 files that she had received on July 22, 2018, all of which had created date stamps matching the dates that she received the download. As indicated previously, 10 of the 20 files had been viewed at the time the download was received and determined to be child pornography. However, none of the actual images/videos were located on the devices as they had been deleted prior to the devices being seized.

[59] There were three images of child pornography found on Mr. Dawkins' work laptop. There was one video of child pornography found on a 2 GB USB located in a backpack at the office. The video is of a female approximately 2 to 4 years old with an adult male. The child is being vaginally, anally and digitally penetrated by the male and the male is forcing his penis in the child's mouth. On an external hard drive located at the residence there was a child pornography video located that shows a female child, approximately 3 to 4 years old, with an adult male penis in her mouth.

[60] File names were located on Mr. Dawkins' computer. Many of the filenames were located in folders that contained many files, similar to a zip file. Almost all of the file names in these folders are indicative of child pornography. Most of the folders could be seen in the downloads folder on the computer. For example, "Siberian mouse" is a known child pornography term.

[61] The devices were examined for other file names indicative of child pornography. Forensic review indicated that there had been thousands of files with titles indicative of child pornography.

[62] Mr. Dawkins indicated that when he went to many of the sites, there was often nothing there, and that many of the zip files were corrupted and could not be opened.

[63] Keyword searches for terms indicative of child pornography were done using special software. One common term used in many child pornography file titles is PTHC ("pre-teen hard core"). When this keyword search was done, there were over 1800 references on the work laptop and over 1500 on the home computer. Results of other keyword searches on the home desktop include PTHC - 1592 hits, Lolita – 485 hits, Pedo – 488 hits and PTSC ("preteen soft core") – 193 hits.

[64] In addition, there were titles which referred to "Daisy's Destruction", a well-known child pornography series that shows a young girl getting sexually tortured and is eventually killed, as well as other young girls being sexually tortured. There are also titles of files that refer to Vicky, as well as Tara, other well-known child pornography series.

[65] The forensic examination of the computer indicated that Mr. Dawkins was consistently downloading child pornography, consuming it and then deleting it so as not to be detected at work or at home. This manner of consuming child pornography has become quite common in recent years as child pornography has become more readily available and police investigation tools more sophisticated.

[66] It appears from the creation dates surrounding the titles that are indicative of child pornography that this was occurring since March of 2017 on his home computer and from February of 2018 on the work laptop. The tech crime officer was unable to provide a date as to when these computers first started being used in general as they use the Windows 10 operating system which provides a new install date every time the computer is given a major update.

Background of Mr. Dawkins

[67] I have been given a psychological report which provided me with the following information.

[68] Mr. Dawkins is 62 years old.

[69] He was born in England and his family immigrated to Canada when he was 12 years old.

[70] His formative years were free of significant trauma or abuse. He was raised in a home with both parents present and his two younger siblings. His parents argued frequently and were unfaithful to one another. They eventually divorced when he was about 18 or 19. Both parents remarried and he shared amicable relationships with his step-father and step-mother. His mother passed away about two years ago and his father, at the age of 82 was described as very healthy.

[71] While he was an average student academically, he struggled with adjusting to Canada as he was bullied because of his English accent and small stature. However, once in high school, he was able to join the soccer team and his skills in the sport served to boost his social position amongst his schoolmates.

[72] After graduating high-school, Mr. Dawkins moved to the west coast for about eight years.

[73] On return to Ontario, Mr. Dawkins completed a 2½ year computer programming/computer analyst program. He graduated in 1985.

[74] He then worked for various companies over the years before deciding to work as an account manager at the family business. He has been there for the past nine years.

[75] When questioned about his computer skills, Mr. Dawkins noted that given the length of time that he has been away from the IT industry, his skills are now outdated. In his view, he currently has relatively limited skills in managing the new updates that have taken place in recent years. He did note that by default, he is considered the "computer guy" at the family business.

[76] Mr. Dawkins did not have a criminal record.

[77] Mr. Dawkins reported reaching puberty at the age of 14. He first had intercourse at the age of 20, with his girlfriend at the time. He is heterosexual and has never had sexual contact with a male.

[78] He has had nine sexual partners. All were around his age, and two were somewhat older than himself. He reported having three serious relationships.

[79] He and his wife were together for over 30 years. They struggled to have children and were thrilled when they learned that she was pregnant with their daughter, who is currently 16 years old.

[80] When asked about his marriage, Mr. Dawkins offered that he and his wife have drifted apart emotionally in the past few years. He believes that his wife has been less affectionate and attentive since entering menopause. He related that as their emotional connectedness shifted, they had few sexual or intimate interactions. He believes that he turned to pornography to fill this void.

[81] As stated, he reported viewing pornography about two times a week but also admitted that he did have periods of daily use. He was not however, able to identify what triggered the more frequent usage.

[82] Mr. Dawkins adamantly denies having a sexual interest in pre-pubescent or pubescent females. According to him, he habituated to adult pornography and began to search out different forms of pornography, which led to him finding the videos/images depicting child sexual abuse about two years ago. He admitted to viewing these images and occasionally masturbating to the same. He adamantly denies fantasizing about these images/videos when masturbating. He denies ever fantasizing about or having thoughts about young females known to him, such as his daughter or her friends.

[83] When questioned about sexual interests and behavior, Mr. Dawkins denies paraphilic interests such as voyeurism, exhibitionism, frotteurism, bondage/discipline, dominance/submission, sadomasochism, or cross-dressing. He denies interest in casual sexual encounters. He has never used the services of a prostitute.

[84] He has never sought out or been a member of internet-based sex sites or chat rooms.

[85] Mr. Dawkins denies ever sharing information or images/videos with others. He denied ever paying for the images.

[86] When asked about "sexting" or communicating sexually through social media or telephone, Mr. Dawkins denied the same.

[87] Regarding his current relationship status, Mr. Dawkins noted that he has not had any interaction with either his wife or daughter since his arrest. He is currently residing with his brother and his wife. They do not have any children. He would like to reconcile with his wife but is unsure of her position with respect to their relationship.

[88] Mr. Dawkins denied a history of alcohol or substance misuse or abuse. He denied being under the influence of a substance when viewing or accessing any form of pornography.

[89] He is medically healthy and has no history of involvement with mental health professionals. He does believe that he is currently suffering from depression in response to his current situation. He denies ever entertaining thoughts of suicide and he denies any current suicidal ideation.

[90] In terms of activities, Mr. Dawkins remains employed with the family business. At the present time, it does not appear that he is involved in any recreational or social activities. He has had a few friends reach out to him, but he is not interested in socializing. Although he wished to continue playing soccer with his men's soccer league, he was told that given his charges, he will not be able to participate until his legal matter is resolved.

[91] When asked about possible identification with adolescents or children, Mr. Dawkins denied the same. He indicated that he prefers the company of adults over children and has interest in adult themed movies, books, and magazines. He offered that he did coach his daughter's soccer team when she was younger for one season but denied that he sought this out to be close to young females. He has never coached any other children's sports teams.

[92] Mr. Dawkins has expressed remorse for his behaviour and his current situation. Since his arrest, he has not accessed any type of pornography. He accepts responsibility for his current situation and regrets having caused pain to his wife and daughter.

[93] In terms of his behavior and insight, Mr. Dawkins demonstrated some insight into his behavior. He accepted responsibility for accessing the inappropriate images/videos and also seemed to recognize that he rationalized his conduct ("it is on the internet", "it is not that difficult to access", "it is not that different than downloading unpaid for music."). His expressions of remorse and shame presented as genuine.

[94] Mr. Dawkins adamantly denies having sexual interest in pre-pubescent or pubescent females. It is noted that Mr. Dawkins has no history of hands-on offending and he denies having masturbated to fantasies of young females. That said, masturbating to images/videos depicting young females is suggestive of pedophilic interests.

[95] Given his age and no evidence of hands-on offending, phallometric testing does not appear necessary.

[96] The psychologist concluded that:

Mr. Dawkins presents as a child pornography exclusive offender. Specifically, he falls into the category of individuals who are a low risk to transition to hands on offences or return to accessing child pornography

To Mr. Dawkins credit, he presents with a number of strengths or protective factors that serve to mitigate risk. Specifically, he is prosocial and cooperative by nature and he does not present as antisocial. There is also no indication of personality psychopathology or inclination to be impulsive. In addition, he does not have past justice involvement, he holds stable employment, and he has a strong prosocial support network. It is also noteworthy that he does not have a history of substance dependency or abuse. Further, Mr. Dawkins accepts responsibility for his behavior and his expressions of remorse present as genuine.

He recognizes that he would benefit from addressing his problem behavior in treatment and presents as motivated for the same. With respect to treatment, Mr. Dawkins would benefit from developing more adaptive coping strategies. He would also benefit from addressing his rationalizations and cognitive distortions that continued his viewing of images/videos of child pornography.

Analysis

[97] 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.

[98] 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."

[99] 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.

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

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

[102] The aggravating factors can be found in the offences.

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

[104] The size of this collection of child pornography is smaller than that in R. v. John, supra but the evidence is that Mr. Dawkins regularly deleted child pornography after he viewed it. Even so, I am not satisfied that I can accurately assess the amount of child pornography seen by him. I am satisfied that whatever amount he viewed, it was too much.

[105] He also accessed this child pornography in such a way that he made it available to others. Crown counsel elected not to proceed with the charge of making child pornography available, but it was agreed that I was to take these facts into consideration.

[106] Neutral factors (neither aggravating nor mitigating) include the fact that Mr. Dawkins is not seen to be a hands-on danger to children and the fact that he did not pay for the child pornography.

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

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

[109] He has repeatedly expressed remorse for what he has done.

[110] He had no prior criminal record.

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

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

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

[114] He has however not seen his daughter since he was charged and contact with his wife has been limited. It is not clear if he will be able to rebuild his relationship with either of them.

[115] He has begun working with a psychologist and has expressed a willingness to follow through with further counselling in the future.

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

[117] 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.

[118] Neither is a sentence of imprisonment in the intermittent range.

[119] The appropriate sentence is imprisonment for nine months.

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

[121] I am also satisfied that I should make an order pursuant to section 161 of the Criminal Code. I am satisfied however that this should run for 10 years only.

[122] 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.

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

[124] 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.

[125] I am satisfied that Mr. Dawkins does not pose a hands-on risk to children. Accordingly, I am not making an order pursuant to paragraphs (a), (a.1), (b) or (c) of section 161(1).

[126] With respect to restrictions on Internet use pursuant to paragraph (d), 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.

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

[128] 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.

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

[130] 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).

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

Sentence

[132] For the above reasons, I sentence Mr. Dawkins as follows.

[133] With respect to the charge of possession of child pornography, I sentence him to imprisonment for nine months.

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

[135] The terms of the probation will require that Mr. Dawkins:

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. 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.

8. not possess or access child pornography;

9. 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.

10. 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 8 am and 8 pm, 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.

[136] I also make the following ancillary orders.

[137] 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. Dawkins of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[138] 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. Dawkins comply with the provisions of the Sex Offender Information Registration Act for 20 years.

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

(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, Anthony Dawkins, and shall not use any pseudonym, nickname or code name to identify himself.

[140] Finally, I am ordering the forfeiture of the items which were listed in the draft order provided to me.

[141] I have considered the provisions of section 110 and agree with both counsel that an order pursuant to that section should not be made here.

Released: November 13, 2019

Signed: Justice D.A. Harris