Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 02 06 COURT FILE No.: Guelph 19/2693

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

WILFRED KWOK

Before: Justice M.K. WENDL

Heard on: May 18, 2021 Reasons for Sentence released on: June 2, 2021

Counsel: S. Turner, for the Provincial Crown J. Fera, for Wilfred Kwok

WENDL J.:

[1] Wilfred Kwok was found guilty, after trial, of the possession of child pornography and making child pornography available. My trial reasons are found at R. v. Kwok, 2020 ONCJ 528. Briefly, by way of review, Mr. Kwok was found to have possessed 5652 pictures and 65 videos of child pornography. The pictures and videos included various acts depicting adults with minor girls, minor girls with other minor girls and pictures focused on the genital regions of minor girls.

[2] The Crown is requesting a sentence in the range of 2-3 years, the defence is suggesting the lower end of that range at 2 years.

Background

[3] The only information available to this Court about Mr. Kwok is his basic background. Overall, his upbringing seems to have been positive with supportive parents. However, Mr. Kwok did not discuss the charges before the court in the pre-sentence report or obtain a risk assessment despite being offered the opportunity to do so. This leaves the court with little to no insight into the causes of his behavior, his risk of recidivism or any insight that Mr. Kwok would have into his own conduct.

Legal Principles

[4] Denunciation and deterrence are the primary sentencing principles in the case at bar. R. v. Inksetter, 2018 ONCA 474 at para. 3 The possession of child pornography is in-and-of-itself child abuse. Effectively, by viewing child pornography, the offender participates in the abuse of children. Ibid at para. 22

[5] The protection of children is one of the primary goals of law in Canada. As the Supreme Court stated in R. v. Sharpe, 2001 SCC 2, “The importance of the protection of children is recognized in both Canadian criminal and civil law. The protection of children from harm is a universally accepted goal.”

[6] Recently, in R. v. Friesen, 2020 SCC 9, the Supreme Court emphasized that sentences involving sexual offences against children must reflect the harm done.

It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the “life-altering consequences” that can and often do flow from the sexual violence (Woodward, at para. 76; see also, Stuckless (2019), at para. 56, per Huscroft J.A., and paras. 90 and 135, per Pepall J.A.). Courts should also weigh these harms in a manner that reflects society’s deepening and evolving understanding of their severity (Stuckless (2019), at para. 112, per Pepall J.A.; Goldfinch, at para. 37).

Analysis

[7] In my view the range provided by the Crown, 2-3 years, accurately reflects the range of sentence for Mr. Kwok. Balancing the aggravating and mitigating factors will determine where Mr. Kwok falls upon that range. The aggravating factors are the size of the collection and the lack of insight into his behavior. As the Court of Appeal stated in R. v. Shah, 2017 ONCA 872 at para. 8:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 190 O.A.C. 354 (C.A.), at para. 2.

[8] Simply put, the lack of insight and risk of recidivism increases the need for specific deterrence.

[9] I pause to note here that while in Inksetter the accused had a much larger collection of pictures and videos than Mr. Kwok, and the collection of picture and videos was more aggravating in both quality and quantity, the accused in that case benefited from more mitigating circumstances such as the plea of guilty, he showed real remorse, he made significant steps towards rehabilitation and was at low risk to re-offend. Effectively, the sentencing court found that rehabilitation and specific deterrence had been accomplished to a great extent by the time of sentencing. Inksetter, supra note 1 at para. 9 In addition to that, the cause for Mr. Inksetter’s offending behavior had been identified. This is not the case at bar.

[10] I also mention that in R. v. John, 2018 ONCA 702 the Court of Appeal sentenced the accused to ten months with a much smaller collection of pictures and videos, 89 videos and 50 pictures, however, stated that but for the efforts at rehabilitation the sentence would have been much higher. Again, there is no evidence of rehabilitation in front of this Court.

[11] The only significant mitigating factor, in the view of the Court, is the efficient and focused conduct of the trial itself. Defence made significant admissions which streamlined the trial, including an agreed statement of fact, the nature and quality of the pictures/videos and the expert’s qualifications. In addition to that, they focused the trial on veritable triable issues such as the voluntariness of Mr. Kwok’s statement and access to the computers containing the offending material. A guilty plea is viewed as a mitigating factor not only because it is seen as a traditional sign of remorse but because it saves trial time and spares witnesses from testifying. While an efficient and focused trial is not a sign of remorse and cannot be given the same weight as a guilty plea, the fact remains that a focused trial spares valuable court time, Crown preparation time, judicial deliberation time and saves witnesses from testifying. In the COVID and Jordan eras, where time is at a premium, some credit must be given to an efficiently run trial. R. v. Cunsolo, 2012 ONSC 114 at para 52

Final Orders

[12] Therefore, I impose a sentence of 33 months on the make available charge and 33 months concurrent on the possession of child pornography charge.

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

(a) attending a public park or public swimming area where 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 a 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 persons under the age of 16 years;

(c) having any contact – including communicating by any means – with a person who is under the age of 16 years unless supervised by a 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 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, Wilfred Kwok, and shall not use any pseudonym, nickname or code name to identify himself. My reasoning relating to the imposition of the 161 order is identical to my reasoning in R. v. Cunningham, 2019 ONCJ 559 paras. 19-27

[14] Finally, I impose a SOIRA order for 20 years and a DNA order on both offences.

Released: June 2, 2021 Signed: Justice M.K. Wendl