COURT FILE NO.: CR-13-40000412-0000 DATE: 20160907 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Shanna Ferrone for the Crown

• and -

MOYI WANG John Christie for Moyi Wang

HEARD: August 30, 2016

REASONS FOR SENTENCE CORRICK J. (orally)

Introduction

[1] Following a trial, I found Mr. Wang guilty of two counts of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code.

Circumstances of the Offences

[2] On July 8, 2010, Mr. Wang was arrested after one of his classmates discovered images of child pornography on Mr. Wang’s laptop computer. The laptop was ultimately turned over to the police. When Mr. Wang was arrested, police seized a desktop computer and two external hard drives. Police analysis of the laptop computer revealed 35 child pornography images in the accessible space. The desktop contained five child pornography videos and three child pornography images in the accessible space.

[3] The images and videos had been obtained from the Internet by way of peer-to-peer file sharing programs, such as LimeWire. They had creation dates between April 16, 2010 and July 4, 2010. The creation date refers to the date when a file is created in a particular place on a computer.

[4] The videos and images depict prepubescent and pubescent female children, ranging in age from 7 to 14 years, engaged in sexual acts including intercourse, fellatio, cunnilingus and masturbation with adult women, adult men and other female children.

Legal Parameters

[5] In July 2010, when these offences were committed, the maximum punishment for possession of child pornography was five years in prison and the minimum was 45 days. In August 2012, the minimum was increased to six months in prison. In July 2015, the Criminal Code was amended to provide for a maximum punishment of ten years in prison, and a minimum punishment of twelve months in prison. These increases to the maximum and minimum sentences for possession of child pornography indicate Parliament’s concern about this criminal behaviour, and Parliament’s intention that courts treat the offence of possession of child pornography more seriously.

Positions of the Parties

[6] Ms. Ferrone, on behalf of the Crown, submitted that the fit disposition in this case is a sentence of between nine and twelve months in prison followed by three years’ probation, which should include a requirement that Mr. Wang be assessed and seek treatment. She also sought a DNA order, an order that his name be placed on the National Sex Offender Registry, an order that the computers and material seized from him be forfeited, and an order under s. 161 of the Criminal Code restricting Mr. Wang’s interaction with children and access to the Internet.

[7] Mr. Christie, on behalf of Mr. Wang, seeks a 90-day intermittent sentence followed by three years’ probation. Mr. Wang does not object to the terms of probation sought by Ms. Ferrone.

Governing Sentencing Principles

[8] In determining a fit sentence for Mr. Wang I am guided by the sentencing principles set out in the Criminal Code.

[9] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one or more of the following six objectives:

1. denouncing unlawful conduct,
2. deterring the offender and others from committing crimes,
3. separating offenders from society where necessary,
4. assisting in the rehabilitation of the offender,
5. providing reparations for harm done to the victim or to the community,
6. promoting a sense of responsibility in the offender, and
7. acknowledging the harm done to victims and the community.

[10] Any sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.

[11] I am also required by s. 718.2 to bear the following principles in mind when imposing sentence:

• the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Circumstances of the Offender

[12] Mr. Wang is 26 years old. He was born in China and came to Canada when he was nine years old. He resides in Kitchener with his parents, with whom he has a close relationship. Mr. Wang reported to the author of the pre-sentence report that he had a positive upbringing, having been well cared for by his parents.

[13] Following one year of university in an electrical engineering course, Mr. Wang began studying to become an electronics technician. As a member of the Canadian military, he attended a course at the Radio College of Canada, where he was studying when he was arrested. It appears that he has always done well academically.

[14] Mr. Wang is currently working at a military warehouse, shipping and restocking items for the military base. He has held that position since 2011. His direct supervisor reported that Mr. Wang is one of the best employees. He takes initiative, volunteers to assist other departments, and works well without supervision.

[15] Mr. Wang would like to remain a member of the Canadian military, but believes that he will be discharged as a result of his conviction and sentence on these charges. If he loses his position in the military, he has considered opening a restaurant, with the financial backing of his parents.

[16] Mr. Wang has no criminal record, no history of substance or alcohol abuse, and no history of behavioural or mental health difficulties. When he moved from his parents’ home to attend school, he spent an excessive amount of time playing video games, sometimes failing to sleep and missing classes to play. These offences occurred during that time. The conditions of Mr. Wang’s judicial interim release have prevented him from playing video games since he was charged.

Aggravating and Mitigating Factors

[17] The factors to be considered in relation to child pornography offences were clearly listed by Justice Molloy in R. v. Kwok as follows:

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

(i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.

Generally recognized mitigating factors include:

(i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).

[18] A number of these factors are present in Mr. Wang’s case. In mitigation, Mr. Wang is a youthful first offender. Although he is now 26, he was only 20 years old at the time of the commission of these offences. Apart from the events giving rise to these offences, he has been a productive and law-abiding member of society. He has very strong parental support. His mother and father attended every court appearance with Mr. Wang. Their dedication to and support of their son is to be commended.

[19] Mr. Wang has been subject to conditions of judicial interim release that prohibit him from possessing any electronic devices for more than six years, without further offending.

[20] He is willing to undergo any assessment ordered by the court and take any treatment or counselling necessary. He indicated to the court that he will respect and abide by my orders, which I have no reason to doubt, given his compliance with his judicial interim release order.

[21] Finally, it is likely that Mr. Wang will lose his employment and his status as a member of the Canadian military as a result of these convictions.

[22] In aggravation is the fact that the images and videos in Mr. Wang’s possession depict female children between the ages of 7 and 14 engaged in a variety of sexual poses and acts, including masturbation, fellatio, cunnilingus and sexual intercourse in a variety of positions with adult males. One video shows a simulated rape involving bondage. As repulsive as my description of these images and videos sounds, the real horror of them can only be adequately understood when one views these vile images.

Sentences Imposed in Other Cases

[23] I am also required to consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I turn to that now.

[24] I have carefully reviewed the decisions to which Mr. Christie and Ms. Ferrone have referred in support of their positions. Although the cases assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case.

[25] What is clear from these decisions is that denunciation and deterrence are the paramount sentencing objectives in cases involving child pornography. People who possess child pornography fuel its production, contributing to the ongoing abuse, exploitation and degradation of children. Furthermore, the innocent children depicted in these images and videos are revictimized every time the images and videos are shown.

[26] Both decisions relied upon by Mr. Christie dealt with offences committed prior to the amendments to the Criminal Code that provided for any mandatory minimum sentence for this offence. In both of the cases, the offender pleaded guilty and had been involved in therapeutic counselling while awaiting trial. Both offenders also had a substantially larger collection of pornography than Mr. Wang. Both offenders received conditional sentences.

[27] Ms. Ferrone relied on cases in which the offenders received prison sentences ranging from six to twelve months.

[28] In R. v. Stroempl, the Court of Appeal reduced an 18-month prison sentence to ten months for a 68-year-old first offender who pleaded guilty to possession of over 300 images and 10 videos of child pornography.

[29] In R. v. Kwok, the offender was sentenced to 12 months in prison after being found guilty of possession of 2,000 images and 60 videos of child pornography. Although Mr. Kwok originally pleaded not guilty, he changed his plea to guilty part way through the trial.

[30] The offender in R. v. Dumais was sentenced to nine months after pleading guilty to possession of 170 images and 44 videos of child pornography.

[31] Finally, in R. v. Nisbet, the offender pleaded guilty to possessing 28 images and 43 videos of child pornography and was sentenced to six months in prison. This case is the closest on the facts to Mr. Wang’s case in terms of the size of the pornography collection. The main difference is that Mr. Nisbet pleaded guilty and his sentence was mitigated as a result.

[32] Nisbet and Dumais were decided when the minimum punishment prescribed for possession of child pornography was 45 days. No minimum punishment was applicable in the cases of Kwok and Stroempl. In all of these cases, the offender pleaded guilty. These are important differences from Mr. Wang’s situation.

Terms of Probation and Ancillary Orders

[33] As I indicated, the parties agree on the terms of probation, including a term that prohibits Mr. Wang from having a computer in his home, and a term prohibiting him from possessing any device that can connect to the Internet.

[34] In addition, Ms. Ferrone seeks an order pursuant to s. 161 of the Criminal Code, including an order prohibiting Mr. Wang from using the Internet or other digital network.

[35] I raise the issue of prohibiting Mr. Wang from using a computer and accessing the Internet because, in my view, these limitations are very significant in today’s electronic society, where electronic devices have become an indispensable part of daily life, used for a wide variety of purposes, including education, communication by email, banking, and seeking employment.

[36] The Supreme Court of Canada has recently held in R. v. K.R.J. that the prohibitions found in s. 161 constitute punishment. They are imposed to achieve the purpose and principles of sentencing, and significantly affect the offender’s liberty or security interests. In my view, the imposition of such conditions must therefore meet the test of proportionality set out in s. 718.1 of the Criminal Code.

[37] Mr. Wang has been prohibited from possessing any devices capable of accessing the Internet and from having a computer in his residence since July 13, 2010, when he was released on bail. That is more than six years. He will be subject to the same prohibitions throughout a three-year probation term, making a total of more than nine years. In my view, a further prohibition on the use of the Internet is not proportionate to the gravity of the offence committed by Mr. Wang and his degree of responsibility, and I decline to order that.

[38] Section 161(d) of the Criminal Code permits an order prohibiting the use of the Internet, and was not in force at the time of these offences. However, retrospective operation of the section was held by the Supreme Court of Canada to be a reasonable limit on an offender’s rights protected by s. 11(i) of the Charter to have the benefit of a lesser punishment if the punishment for an offence is varied between the time of its commission and the time of sentencing.

[39] The Court also determined that retrospective operation of s. 161(c) prohibiting contact with a person under the age of 16 years violated s. 11(i) of the Charter, and was not a reasonable limit. That order is therefore not available in Mr. Wang’s case.

What is the Fit Sentence?

[40] A fit sentence must be one that denounces and deters this pernicious exploitation of innocent and vulnerable children. It must also reflect the fact that Mr. Wang had a relatively small collection of pornography that appears to have been collected over a brief period of time – from April to July 2010.

[41] In addition, it must reflect that Mr. Wang has good prospects for rehabilitation. He is willing to accept treatment, has strong family support and is a hard-working, productive member of the community. These offences were committed six years ago when he was 20 years of age, and living away from home for the first time. He has had six years to mature. Rehabilitation is the best protection for the public and I must take it into account.

[42] In my view, an intermittent sentence of 90 days would not adequately reflect society’s abhorrence of Mr. Wang’s offences nor would it serve to deter others.

[43] A fit sentence in this case is, in my view, nine months incarceration. Given that Mr. Wang served five days in jail prior to being released on bail, I will credit him with seven days of time served.

[44] Accordingly Mr. Wang, I sentence you to 267 days incarceration on both counts. The sentences will be served concurrently. That is one week shy of nine months.

[45] Upon your release, Mr. Wang, you will be bound by terms of probation for three years. The terms are as follows:

1. You will report to a probation officer within 48 hours of your release from custody and thereafter when, where and in such manner as directed by your probation officer;
2. You will keep the peace and be of good behaviour;
3. You will appear before the court when required to do so;
4. You will seek and maintain full time employment;
5. You will notify your probation officer of any change of address or employment within 48 hours of the change;
6. You will submit to a sexual assessment as directed by your probation officer;
7. You will take such psychological or psychiatric counselling as your probation officer directs;
8. You will sign any releases necessary for your probation officer to monitor your compliance with these terms;
9. You will not possess any device capable of connecting to the Internet;
10. You will not have a computer in your home that is capable of connecting to the Internet; and
11. You will not be in the company of anyone under the age of 14 years unless you are in the direct presence of another adult.

[46] You must understand, Mr. Wang, that if, without reasonable excuse, you breach any of the conditions that I have just imposed, you can be charged with the offence of breach of probation. That is a criminal offence for which you may be fined or imprisoned for a maximum of two years or both.

[47] I also make the following ancillary orders.

[48] As possession of child pornography is a primary designated offence, I am required to make a DNA order pursuant to s. 487.051 of the Criminal Code. Mr. Wang, you are required to provide such samples of your bodily substances as may be required for forensic DNA analysis.

[49] I also order that the computers and hard drives and the material contained in them that were seized from you be forfeited to the Crown pursuant to s. 164.2 of the Criminal Code.

[50] The offence of possession of child pornography is a designated offence enumerated in s. 490.011 of the Criminal Code. I therefore order that you comply with the requirements of the Sex Offender Registration Act. That order is effective today and will continue in force for twenty years pursuant to s. 490.013(2)(a) of the Criminal Code.

[51] Finally, pursuant to s. 161 of the Criminal Code, you are prohibited from 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, schoolground, playground or community centre unless you are in the direct presence of an adult, and you are prohibited from 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. This order will take effect on the day that you are released from custody, and will continue in force for a period of five years.

[52] That concludes my reasons for sentence.

Corrick J.

Released: September 7, 2016