ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Bools, 2015 ONSC 2869
COURT FILE NO.: CRIMJ(P) 2228/12
DATE: 2015-05-26
B E T W E E N:
HER MAJESTY THE QUEEN
Kerry Watson, for the Crown
- and -
BRADLEY BOOLS
Jack McCulligh, for the Defence
Defendant
HEARD: April 28, 2015
REASONS FOR SENTENCING
M. J. Donohue, J.
Overview
[1] Mr. Bools stands to be sentenced after conviction on one count of possession of child pornography; one count of accessing child pornography; and one count on making child pornography available.
The Facts
[2] Officers working with the Internet Child Exploitation Unit were able to download a number of offending images from Mr. Bools’ IP address on July 9, and July 10, 2011, through a peer to peer sharing program.
[3] Upon Mr. Bools’ arrest, his computer with three hard drives were seized and analyzed. The hard drives were found to contain child pornography images on two of the drives. Some of the images were the same as those which the officer had been previously able to download on the Bearshare peer-to-peer sharing program. A total of 58 images of child pornography were located, with 26 images being accessible to share to other Bearshare users.
[4] The evidence showed that Mr. Bools had viewed some of the offending images just days before the arrest.
(a) Circumstances of the Offence
[5] In Mr. Bools’ statement to the police I found that he admitted to downloading images of child pornography and sharing such images on the internet.
[6] I found that he had organized a number of the offending images with descriptive file names in various folders. He allowed it all to be shared on the Bearshare peer-to-peer sharing program.
(b) Circumstances of the Offender
[7] Mr. Bools is 32 years of age. He is single with no dependants. He resides with his mother. He has been on disability for depression since 2008, and spends his days at home at his computer. He describes himself as being a “hermit”.
[8] He is heterosexual in orientation. He has a foot fetish. For this reason he searches erotic images either on the internet or in magazines. He denied a sexual interest in children and expressed that they frightened him.
[9] His mother advised that Mr. Bools was diagnosed with attention deficit hyperactivity disorder when he was in Grade Two. He was bullied in school as a result of his learning disability. He was suspended often from school and only completed Grade Ten. He worked for a time through employment agencies and did roofing. At the time of his arrest he was involved in a government job development program and was just getting his resume in order.
[10] His parents divorced when he was 11 years old. Mr. Bools and his father were not very close but they shared an interest in computers. Mr. Bools’ father passed away in 2010 of cancer. Mr. Bools is not close to his sister or his half-sister. He is not involved in an intimate relationship.
[11] Mr. Bools’ mother said that he is not good at talking or sharing his emotions.
[12] Mr. Bools has consumed illicit drugs in the past and stated in his PSR that he did a line of cocaine offered to him about a month prior. He states that as he has anti-depressants, he does not need illicit drugs. His mother believes he is not consuming illicit drugs at present but acknowledged that he does use alcohol. Mr. Bools’ mother thought he was not taking medication. The family doctor last prescribed anti-anxiety medication in March 2014.
[13] He states that he loves alcohol but his mother does not believe he has an alcohol problem.
[14] Mr. Bools does not have any friends and does not like being around other people. He attempted suicide when he was 13 years of age. He still talks about ways to end his life. His family doctor feels that he remains at risk.
[15] His days are spent playing video games. He finds this allows him to escape from reality. He will bike ride in good weather, and he volunteers one night a week at a youth centre.
[16] His family doctor reported to ODSP in December 2009, that Mr. Bools had ADHD, depression and experienced black episodes. He noted the patient’s inability to retain employment, his poor self-image and that he is socially isolated.
[17] All those interviewed considered Mr. Bools to have very poor social and communication skills. His doctor recommended additional counselling and psychiatric care.
[18] Mr. Bools was given his right of allocution. He did not exercise this right.
[19] In his PSR, Mr. Bools states that he did not do anything. He states that he is not attracted to child pornography nor does he have an interest in children.
(c) Impact on the Community
[20] The impact of the offence of child pornography on the community was compellingly captured by the words of McLaughlin J. (as she then was), writing for the majority in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at paras 158-160:
The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities.
The Report on Pornography by the Standing Committee on Justice and Legal Affairs (1978) (MacGuigan Report), spoke of the effects of pornography as follows (at p. 18:4):
The clear and unquestionable danger of this type of material is that it reinforces some unhealthy tendencies in Canadian society. The effect of this type of material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism, non-violence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles.
In a similar manner, child pornography creates a type of attitudinal harm which is manifested in the reinforcement of deleterious tendencies within society. The attitudinal harm inherent in child pornography is not empirically measurable, nor susceptible to proof in the traditional manner but can be inferred from degrading or dehumanizing representations or treatment; see Thomson Newspapers Co., supra, at para. 92, and R. v. Mara, 1997 CanLII 363 (SCC), [1997] 2 S.C.R. 630 (S.C.C.). In the past this Court has not held Parliament to a strict standard of proof in showing a link between the expressive activity in question and the harm which it seeks to prevent, but has afforded Parliament a margin of appreciation to pursue legislative objectives based on less than conclusive social science evidence; see Irwin Toy Ltd., supra, at p. 990;Keegstra, supra, at p. 776; Butler, supra, at p. 504.
Legal Parameters
[21] Possession of child pornography is an indictable offence pursuant to s. 163.1(4) of the Criminal Code. The section states that a person convicted of this offence is liable to imprisonment not exceeding five years and to a minimum punishment for a term of six months.
[22] Section 163.1(4.1) is the offence of accessing child pornography. It provides for imprisonment for a term not exceeding five years and to a minimum punishment for a term of six months.
[23] Section 163.1(3) provides that the offence of making child pornography available is an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year.
Positions of Crown and Defence
[24] Crown and Defence counsel submitted a joint submission asking the court to order the mandatory minimum custodial sentence for each offence, to be served concurrently.
[25] The Crown further asks this court to order Probation for the offender for a period of two years following his release, in order to address concerns about recidivism. The Defence consents to the Crown’s proposed terms of probation, with the exception described below, of requesting the potential of Mr. Bools residing with his sister.
Case Law
[26] The Crown relies on one case in her submissions, R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 (Ont. S.C.J.) where Justice Molloy reviews the particularly relevant factors to be considered in child pornography sentencing at para 7:
Not surprisingly, each case turns on its own particular facts. However, an analysis of the case law does reveal an emerging consensus on the relevant factors to be taken into account: see, in particular, R. v. Parise, [2002] O.J. No. 2513 (Ont. C.J.); R. v. Malien, [2005] O.J. No. 3868 (S.C.J.). 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 of 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. 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).
[27] The Defence did not submit any case law for this court to consider, in light of the joint submission.
Mitigating and Aggravating Factors
[28] There are a number of mitigating factors in this case.
[29] Mr. Bools has some serious disabilities. He suffers from ADHD and depression as well as poor self-esteem. This has contributed to a failure to complete high school and remain employed. He is very much alone in the world and has been at an increased risk for suicide.
[30] Mr. Bools has no prior criminal convictions. In particular, he has never been convicted of a similar offence.
[31] Mr. Bools has not been charged with production of child pornography, nor is there any evidence that Mr. Bools paid to access or obtain this material, thereby contributing to the creation of a market for child pornography.
[32] The size and nature of Mr. Bools’ collection is overall a mitigating factor. At 58 images, the number of images was not large, and no videos were found in his possession. Although the children portrayed in these images were all relatively young, they were not images of violence and there were no images of children engaged in sexual acts with adults. A large majority of the images depicted the children naked and posed in sexual manners. The Crown argued that, although the severity of this charge must not be diminished, many aspects of Mr. Bools’ collection were not aggravating.
[33] Mr. Bools has been compliant with the terms of his house arrest for a period of three years. This is a mitigating factor indicating his ability to comply with required terms over an extended period of time.
[34] There are also aggravating factors in this case.
[35] Mr. Bools has been convicted of distributing child pornography. This conviction itself is an aggravating factor on sentencing.
[36] Although Mr. Bools is on disability for anxiety he has not been on his medication for over a year. Mr. Bools doctor said that Mr. Bools has a poor understanding of the world and can easily get into problems because he lacks the ability to recognize consequences.
[37] Mr. Bools has not expressed remorse for his actions. He expressed no remorse and denied responsibility for these crimes. He viewed the offences as “not a big deal,” according to Constable Ullock.
[38] Mr. Bools used a sophisticated cataloguing method for the images of child pornography.
Principles of Sentencing
[39] The Criminal Code sets for the purpose and principles of sentencing:
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances
[40] In cases of child pornography, the strongest principle in sentencing is denunciation and deterrence: R. v. Neilly, [2006] O.J. No. 1588 (C.A.); R. v. O. (E.), 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563 (C.A.); R. v. Stroempl (1995), 1995 CanLII 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont. C.A.).
Reasons
[41] Legislation has mandated a mandatory minimum sentence of incarceration for each of these offences.
[42] These charges are Mr. Bools’ first offence, and his collection is limited in size and do not depict some of the most graphic images of child pornography available. Certainly his sharing these images is of serious concern to this court.
[43] I understand that there was no pre-sentence custody.
[44] As per the joint submission and in light of a careful consideration of both the mitigating and the aggravating factors, this court sentences Mr. Bools to the mandatory minimum sentence of six months imprisonment on count 1, six months imprisonment on count 2, and one year imprisonment on count 3, to be served concurrently.
Ancillary Orders
[45] Section 490.012 (1) of the Code mandates an order requiring the person convicted of a “designated offence” to comply with the Sex Offender Information Registration Act. Child pornography under s. 163 of the Code is a “designated offence” under s. 490.011(a). As Mr. Bools has been convicted of three separate “designated offences,” he is required to comply with this order for life, pursuant to s. 490.013(2.1) of the Code.
[46] The Crown and Defence agree that there is to be a DNA authorization pursuant to s. 487.051(1) of the Code. This order will issue.
[47] Pursuant to s. 737(2)(b)(ii) of the Criminal Code, individuals are required to pay a victim surcharge of $200 for each indictable offence per offence. Mr. Bools has been convicted of three separate indictable offences and is therefore required to pay a total victim surcharge of $600. Pursuant to Order in Council No. 2173/99 of the Lieutenant Governor of Ontario, Mr. Bools shall pay the victim surcharge within 60 days of the release of these reasons.
[48] There will be an order under s. 161 of the Criminal Code which prohibits Mr. Bools, for a period of 20 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;
(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 the offender does so under the supervision of a person whom the court considers appropriate; or
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
[49] The Crown also requests this court to issue a forfeiture order s. 164.2 of the Code covering Mr. Bools’ computer and three hard drives. This order will issue.
[50] The Crown has requested a term of probation of two years. Defence counsel consented to this length.
[51] The Crown filed tailored Suggested Terms of Probation for Mr. Bools. I have included those terms below.
[52] Defence counsel asked this court to modify the probationary terms to allow Mr. Bools to reside in his sister’s residence with her children, provided that his sister invites him to do so.
[53] I have considered this modification but I am not prepared to make it. Mr. Bools has resided with his mother for at least ten years. He has stated that he is not close to his sister. I have no evidence of the need for this modification to the Crown’s suggested terms.
[54] If the need arises, Mr. Bools may apply to the court for such amendment. The court at that time can consider the most current information of Mr. Bools’ medical status, his cooperation with the probationary terms, and the completion of his treatment and counselling.
[55] Mr. Bools will comply with the following Terms of Probation for a period of two years following his release from custody:
Reside at an address approved by the Probation order and not in a residence where children under the age of 18 reside.
Contact Sexual Behaviour Clinic and CAMH and Mental Health Program, or a similar program chosen by your Probation Officer within one week of release from custody in order to make arrangements for treatment and counselling as directed by your Probation Officer.
Attend and be amenable to treatment from that clinic, at or through CAMH Law and Mental Health Program or any such treatment as directed by your supervisor.
Provide your Probation Officer with proof of attendance for the treatment and such documentation or waivers as requested by the Probation Officer in order to monitor compliance and progress in treatment.
No contact or communication with children under the age of 18 years UNLESS in the company of another adult over the age of 21 who is aware of your sexual offences and approved of in advance by the Probation Officer.
Not to possess or access any images of children who are, depicted to be, or appear to be under the age of 18 years old who are naked, or who are portrayed in a sexual manner.
Not to possess any device capable of accessing the internet or composing, transmitting, or receiving electronic mail (“email”) or any digital text communications UNLESS:
a. The possession or use of such device is required for purposes of employment AND
b. The possession of or use of such a device is required at the place of employment only, AND
c. Only with written permission of your Probation Officer for the proposed possession of the device in these circumstances for purposes of employment.
Not to subscribe, or access by any means whatsoever, any internet service or similar communication service except as may be required by your employment, and except for a standard cell phone which does not have the capacity to access the Internet and then, only with the prior written approval of your Probation Officer, and upon providing all related subscription documentation to your Probation Officer as proof of the limitations and terms of service.
Where written permission is obtained from the Probation Officer to possess any electronic device for the purposes of employment, the offender SHALL:
a. Not be permitted to have an electronic mail (“email”) account without the prior written approval of his Probation Officer;
b. Where approval for an electronic mail (“email”) account is granted, the offender is permitted to have ONLY one email account, which the offender shall not change or use to create any other email account(s); and
c. Where approved to have internet service as required for employment, the offender must provide the Probation Officer with accurate, up-to-date information regarding his Internet Service provider (“ISP”) account. This information includes, but is not limited to: the name of the Internet Service provider, and the offender’s account number and billing address.
Not to use any electronic devices to communicate with a person under the age of 18.
Not to use any electronic device to access Internet “chat rooms”, “social networking sites” or file sharing programs.
Provide your Probation Officer with any encryption codes and/or encryption passwords necessary to permit the random inspection of any electronic device(s) for the purpose of monitoring his compliance with the provisions of this order.
Not associate with others convicted of sexual offences, except only during attendance for treatment/counselling.
Final Decision
[56] Accordingly, I order Mr. Bools to serve the mandatory minimum sentence for each offence he was convicted of, six months for count 1, six months for count 2, and one year for count 3, to be served concurrently. On his release, he will be subject to a probationary period for two years, with the conditions set out above.
M. J. Donohue, J.
Released: May 26, 2015
CITATION: R. v. Bools, 2015 ONSC 2869
COURT FILE NO.: CRIMJ(P) 2228/12
DATE: 2015-05-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
BRADLEY BOOLS
Defendant
REASONS FOR SENTENCING
Donohue J.
Released: May 26, 2015