R. v. Fitzpatrick, 2019 ONSC 2407

COURT FILE NO.: CR-16-10000633-0000

DATE: 20190416

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

JOHN FITZPATRICK
Applicant

Jennifer Gibson, for the Crown

John Erickson, for the Applicant

HEARD: January 14,15,16 and 22, 2019

REASONS FOR SENTENCE

Byrne j.

Introduction

1On January 19, 2017, John Fitzpatrick pled guilty to one count of accessing child pornography contrary to 163.1(4.1) of the Criminal Code and one count of failing to comply with a Court Order contrary to s. 161(4) of the Criminal Code.

2Both counts were committed on April 9, 2015. At the time, section 163.1(4.1) of the Criminal Code carried a mandatory minimum of 6 months incarceration if, as in this case, the Crown proceeded by way of indictment.

3At the outset of the proceedings, Mr. Fitzpatrick brought an application for an order striking down the mandatory minimum sentence of 6 months set out in section 163.1(4.1) on the basis that it constitutes cruel and unusual punishment, thereby violating section 12 of the Charter.

Positions of Counsel

4Defence counsel takes the position that appropriate sentence is a conditional sentence of 2 years less one day, followed by 3 years of probation. Under the current regime, Mr. Fitzpatrick is not eligible for a conditional sentence because s. 163.1(4.1) of the Criminal Code carries with it a mandatory minimum sentence of six month imprisonment. Defence counsel submits that subjecting Mr. Fitzpatrick to a term of incarceration when he would otherwise be eligible to serve his sentence in the community constitutes a grossly disproportionate sentence and thus violates s. 12 of the Charter.

5Crown counsel takes the position that a sentence of 3 years is appropriate under the circumstances. Further, that because this sentence exceeds the 6 month mandatory minimum, it is unnecessary for this court to determine the constitutionality of the mandatory minimum attached to s. 163.1(4.1) of the Criminal Code.

6Both counsel have provided a plethora of cases in support of their respective positions. I have reviewed all of the cases thoroughly and am grateful for the guidance.

The Analytical Framework

7In R. v. Nur, 2015 SCC 15, the Supreme Court set out the two step process to be followed in cases of constitutional challenge to mandatory minimum sentences: see para. 77.

8The first step is particularized to the offender, Mr. Fitzpatrick. It requires a determination of a fit sentence for Mr. Fitzpatrick having regard to the objectives and principles of sentencing set out in the Criminal Code. Where the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence, the mandatory minimum would be in contravention of section 12 of the Charter and fails unless justified under section 1 of the Charter: Nur, at para. 46.

9Second, even if Mr. Fitzpatrick’s sentence was found to be proportionate to the mandatory minimum, the court must go on to consider if the mandatory minimum would be grossly disproportionate when applied to reasonable hypotheticals: Nur, at para. 65. If found grossly disproportionate, the offending section will be struck down unless saved under section 1 of the Charter.

Step One: What is a fit sentence for Mr. Fitzpatrick?

The Applicable Legal Principles

10I will now turn to the applicable legal principles.

11In criminal proceedings, sentences are meant to reflect and reinforce the basic values of our society.

12It is often said that determining an appropriate sentence is one of the most difficult of tasks for judges. This case is no exception. Sentencing is a highly individualized process that takes into account not only the case law, but the circumstances of the offence and the circumstances of the offender. I also must take into account the objectives of sentencing set out in sections 718, 718.1 and 718.2 of the Criminal Code.

13How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the accused.

14However, when an offence involves the abuse of a person under the age of 18 years of age, the objectives of denunciation and deterrence take on a more principal role. By virtue of s. 718.01 of the Criminal Code, any offence involving the abuse of children is an aggravating feature on sentence. This is such a case. Accordingly, while the sentencing objectives of specific deterrence and rehabilitation remain important, denunciation and general deterrence must dominate.

15Finally, I am ever mindful that whatever sentence is imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The Evidence

The Offender

16John Fitzpatrick comes before this court as a 74 year old repeat offender. He was 72 at the time these offences were committed.

17Mr. Fitzpatrick grew up in Niagara Falls with his mother, father and three brothers. Mr. Fitzpatrick reports having a close relationship with both his parents growing up. Both Mr. Fitzpatrick’s parents passed away some time ago. His father worked outside the home as a chef. Mr. Fitzpatrick reports that his father drank and was sometimes an angry drunk, but that he was never abusive towards him. He also reports that his parents fought a lot, and that he was often caught in the middle.

18Mr. Fitzpatrick had two older brothers; the eldest has passed on and he has lost touch with his second eldest brother. Mr. Fitzpatrick reports having a good relationship with his youngest brother.

19As a young man, Mr. Fitzpatrick completed high school and went on to get a certificate from Humber College in Computer Programming, and later graduated from Toronto Business School. Mr. Fitzpatrick reports not liking school when he was younger. He felt that he did not fit in, and reports some instances of bullying.

20Mr. Fitzpatrick has been gainfully employed since he was 19 years old at a variety of jobs. He has in the past worked for the Department of Highways of Ontario, and for CIBC as a teller. He was a mail carrier for 5 years from 1969 to 1974. He quit to attend college. Following college, he worked in the IT field for approximately 25 years. He retired in 2001 as he has been unable to find work.

21Mr. Fitzpatrick has been in a committed and supportive relationship with his partner Norman for 47 years.

22Mr. Fitzpatrick does not suffer from any substances abuse issues.

23Mr. Fitzpatrick reports that he has been having pedophilic urges since his teen years, with a predominant interest in young males. He reports that his preferred ages were between 9 and 13 years. He reports that he began viewing child pornography sometime in 2005. He said that he stopped viewing all pornography after his arrest on these charges in 2015.

Prior Criminal History

24In 2011, Mr Fitzpatrick was convicted of possessing child pornography and accessing, downloading and distributing child pornography. Mr. Fitzpatrick was 67 years old at the time of this offence. On this occasion, Mr. Fitzpatrick had thousands of pornographic images on his computer. There were naked children in sexual poses, children having sex with each other and adults having intercourse with young girls. There were also pictures of babies. Some were still shots and others were videos.

25Mr. Fitzpatrick was sentenced to 18 months’ imprisonment and 3 years’ probation. In addition, Mr. Fitzpatrick was also subject to an ancillary order pursuant to section 161(1) of the Criminal Code prohibiting him from viewing pornography on anyone else’s computer.

26Mr. Fitzpatrick served his custodial sentence at the Ontario Correctional Institute, “OCI”, an institution that specializes in rehabilitative sexual offender programming.

The Offence

27I rely upon the facts which are set out in detail in the Agreed Statement of Facts marked as Exhibit 1. I do not intend to repeat them now.

28In summary, in March 2015, Mr. Fitzpatrick entered the Fort York Branch of the Toronto Public Library. He sat at one of the library’s desktop computers. Some patrons of the library noticed that he was looking at pictures of children in their underwear in suggestive poses. This incident was reported to the library staff but not the police.

29On April 9, 2015, Mr. Fitzpatrick returned to the library. Two civilian witnesses who worked at the library observed Mr. Fitzpatrick sit down at the same computer terminal as he had on the prior occasion. They observed Mr. Fitzpatrick access images and save them to a USB flash drive that was plugged into the computer. The witnesses saw images of naked children posing in sexually explicit positions. The witnesses reported the incident to the branch staff who then call the police. While the branch staff waited for police to arrive, Mr. Fitzpatrick continued to access and look at images. Upon arrival, the police could also easily view the images on Mr. Fitzpatrick’s computer.

30The computer that Mr. Fitzpatrick was using was located near the main foyer and front desk of the library. The front desk has a clear glass wall that allows an unobstructed view into the computer room. In close proximity was a lounge where mothers and young children in strollers had congregated. The computer room and Mr. Fitzpatrick’s computer screen was completely visible to patrons and library staff.

31The police seized and forensically analysed the two USB sticks, the library computer and other digital media. The analysis revealed 320 pornographic images of children. The majority of the images depicted the genitalia of prepubescent boys as young as 2 or 3 years old, in sexual explicit poses. Many of the images depicted young boys in some form of sexual act with an adult male, commonly fellatio. A portion of the images were digitally generated as opposed to real children. he high quality of the digital images made it difficult to distinguish them from a live or real image.

Dr. Julian Gojer

32On December 18, 2017, Dr. Gojer prepared a psychiatric risk assessment report on Mr. Fitzpatrick at the request of the Defence. Dr. Gojer was qualified as an expert in forensic psychiatry specifically related to the assessment and diagnosis of sexual offenders.

33Dr. Gojer diagnosed Mr. Fitzpatrick as suffering from bisexual Pedophilia with some limited ability that related to adult males. Dr. Gojer said that Mr. Fitzpatrick also suffers from Obsessive-Compulsive Disorder and a Persistent Depressive Disorder. He said there is no evidence that he suffers from a personality disorder, antisociality or psychopathy.

34Dr. Gojer’s assessment was based on the disclosure materials, criminal record, information provided by Dr. Doupe, the applicant’s factum, one interview with Mr. Fitzpatrick and one interview with Mr. Fitzpatrick’s spouse.

35Dr. Gojer did administer the psychopathy checklist in his assessment of Mr. Fitzpatrick. Mr. Fitzpatrick scored low on the test. Dr. Gojer explained that a low score means he is not anti-social. Dr. Gojer further explained that the result was not unexpected given the circumstances. I was left with the impression that the test had little relevance to the issue of recidivism.

36Dr. Gojer testified that no other testing was done because in his opinion none were relevant to this case.

37The two main sources of information upon which Dr. Gojer’s opinion was based are the interview he had with Mr. Fitzpatrick and the material provided by Dr. Doupe. I am still unclear when it is that Dr. Gojer interviewed Mr. Fitzpatrick and the duration of that interview.

38In his report, Dr. Gojer stated that Dr. Doupe noted that Mr. Fitzpatrick had a complex history of mental illness, suicidality, physical ailments and criminal charges. She noted that Mr. Fitzpatrick’s pedophilic attractions since puberty caused him great distress and led him to attempting suicide on three occasions. All three suicide attempts were when Mr. Fitzpatrick was in his 20’s. He is now 75 years of age and there is no evidence before me that he has attempted suicide in the intervening 50 years.

39Dr. Gojer testified that his first contact with Mr. Fitzpatrick was on April 30, 2015, after his arrest on the current offences. Mr. Fitzpatrick had been referred to Dr. Gojer by the probation office. Dr. Gojer referred Mr. Fitzpatrick to Dr. Doupe. As I understand it, Mr. Fitzpatrick has been in therapy with Dr. Doupe since the summer of 2015.

40Since that time, Mr. Fitzpatrick has attended 127 individual sessions of forensic psychotherapy with Dr. Doupe; 26 of those were joint session with his spouse.

41Mr. Fitzpatrick has also attended 129 sessions of the Moving Forward group therapy, a group of male sexual offenders focused on teaching members how to balance their lives, avoid situations and environments that may trigger reoffending, and moving to build healthy and fruitful lives.

42In addition, he attended 11 introductory group therapy sessions and 13 intake sessions. It is reported that Mr. Fitzpatrick has fully participated in the group therapy sessions and diligently completed homework assignments.

43Most notable and significant is that Mr. Fitzpatrick was started on 7.5 mgs of Lupron in May 2017. Lupron is a pharmaceutical drug that is used to reduce or eliminate all sexual thoughts and urges. Mr. Fitzpatrick is also taking 50 mgs of Sertraline a day to attenuate his obsessive ruminations and urges. Dr. Gojer is of the opinion that the combination of these two drugs seem to be working very well for Mr. Fitzpatrick.

44Dr. Gojer is of the opinion that the combination of medication and counselling put Mr. Fitzpatrick at a very low risk of re-offending.

45Dr. Gojer does caution that the medication could result in side effects in the future and for this reason, Mr. Fitzpatrick’s low risk needs to be monitored on a regular basis while on the medication, or if he goes off it.

46Dr. Gojer testified that currently Mr. Fitzpatrick’s condition is being very well managed, however he did acknowledge that this situation is a fluid one, and that Mr. Fitzpatrick needs to be closely monitored in the future. Dr. Gojer testified that it is highly unusual to be a first offender for a crime of this nature at 67 and then to re-offend in your 70’s. Dr. Gojer testified that the conduct speaks to the strength of Mr. Fitzpatrick’s urges, and that his propensity to reoffend will exist into his 90's. Dr. Gojer testified that although Mr. Fitzpatrick has made great strides during his time with Dr. Doupe, if incarcerated he can still continue his medication and benefit from programs and therapy offered at specialized institutions.

Dr. James Cantor

47Dr. James Cantor testified that in the spring of 2018, Mr. Fitzpatrick engaged his services to provide a written report summarizing the scientific basis for his opinion that pedophilia is an innate and lifelong feature, reflected in the brain with roots preceding birth, and for which no cure has been shown to be effective. (Exhibit 4)

48I have no evidence suggesting anything contrary to this opinion of Dr. Cantor. In my view, the bulk of his evidence, although interesting, is of minimal value in the determination of a fit sentence for Mr. Fitzpatrick. Dr. Cantor did review materials provided by Dr. Doupe and found her report to be competent and thorough. It is important to note that Dr. Doupe’s report was not filed on this sentencing hearing, nor was she called as witness. Absent context, Dr. Cantor’s opinion on her report is of no value to me.

Analysis

49There are a number of significant aggravating features attached to this particular case. Of note is the serious nature of these types of offences. Accessing child pornography is an offence that poses the risk of serious harm to vulnerable persons. In R. v. Sharpe, 2001 SCC 2, Justice L’Heureux-Dubé observed at para. 158:

The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter of rights of children and other members of society. Child pornography eroticizes the inferior social, economic and sexual status children. It preys on pre-existing inequalities.

50The court went on to recognize that “simple” possession of child pornography is a significant contributing factor to the overall problem of child pornography in society. It is basic principle of supply and demand. Offenders who possess and/or access child pornography, directly or implicitly, trigger the production and distribution of child pornography. In other words, by providing an audience, they create and fuel the market for the producers: see Sharpe, paras. 199-210.

51In this case, Mr. Fitzpatrick was in possession of a USB stick containing approximately 320 images of child pornography. The vast majority of the images were of prepubescent males and close ups of their genitals. The images depicted children in explicit sexual acts with adults or each other. The majority of sexual acts depicted were of fellatio, typically an adult male on a male child. The images were of live children as well as digitally animated children. I viewed a representative sample of the images. The digitally animated images were of such high quality that in most instances it was impossible to distinguish them from the images of live children. The digitally created images were no less graphic and equally disturbing as the ones of live children.

52I am mindful that it is not uncommon for offenders to be found in possession of thousands of images, and by comparison Mr. Fitzpatrick’s 320 images could appear less significant. That comparison, however, is a flawed one. The amount of images seized is directly linked to the storage available on the device being accessed by the offender. Typically investigators in these types of cases seize personal computers and external hard drives which have large storage capacities. On this occasion, one USB stick was seized on Mr. Fitzpatrick’s person, which had a limited storage capacity. In my view, the 320 images stored on this device takes on more significance when analyzed from this perspective.

53Further aggravating is that Mr. Fitzpatrick attended a public library, on two separate occasions, and in full view of patrons was accessing and saving child pornography. The fact that this happened on two separate occasions defeats any argument that this was a single random event. I am also mindful of the potential harm to the patrons of the library who reported Mr. Fitzpatrick’s conduct. Libraries are meant to be safe places in our communities, where families and children can gather. Mr. Fitzpatrick’s complete disrespect and disregard for the other patrons on this day is troubling.

54Moreover, and significantly aggravating, is that Mr. Fitzpatrick was on probation and a prohibition order related to his prior child pornography conviction at the time of this offence. It is of great concern to this court that Mr. Fitzpatrick had finished serving an 18 months sentence for distribution of child pornography, with a 1 year concurrent sentence for possession of child pornography, and was still on probation for those offences at the time of this offence. I find that Mr. Fitzpatrick’s blatant disregard for court orders is a significant aggravating feature.

55In terms of mitigation, I take into account that Mr. Fitzpatrick has entered a plea of guilty to these offences at the judicial pre-trial stage at the Superior Court of Justice. Mr. Fitzpatrick’s plea of guilt is a demonstration of his willingness to accept responsibility for his actions and that is very much to his credit. In his personal statement to me, Mr. Fitzpatrick expressed his remorse and his desire to continue to engage in therapy and move forward in his life. There has been a more than 2 year delay between the entering of the plea and passing of sentence. his is in large measure due to Mr. Fitzpatrick’s application challenging the constitutionality of the mandatory minimum sentence attached to section 163.1(4.1) of the Criminal Code.

56Further mitigating is that immediately following his arrest on this charges, Mr. Fitzpatrick admitted that he had an ongoing problem with child pornography. Since his arrest, Mr. Fitzpatrick has engaged in weekly forensic psychotherapy sessions with Dr. Doupe. He has been diagnosed with a Pedophilic Disorder and has been taking the drug Lupron to manage this condition. Mr. Fitzpatrick has also been diagnosed with Obsessive Compulsive Disorder, Major Depressive Disorder and Complex Post Traumatic Stress Disorder. There is no evidence and I am not persuaded that these disorders are connected to his Pedophilic Disorder.

57Defence counsel submits that for the first time in Mr. Fitzpatrick’s life, he is now receiving the proper counselling and treatment for his disorder. Defence counsel seems to imply that this level of therapy and treatment simply wasn’t available to Mr. Fitzpatrick in the past and if it had been he would have engaged it. I disagree. Mr. Fitzpatrick has, in the past, had many opportunities both in and out of custody to receive treatment. Mr. Fitzpatrick was in therapy with Dr. Peter Sheridan at the Manassa Clinic prior to being incarcerated the first time. He also received treatment during his incarceration at OIC and at CAMH after his release in the sexual offender program. At some point after his release, Mr Fitzpatrick ceased therapy. While it is to his credit that he is now participating in therapy, it is obvious that getting caught and the prospect of going back to jail is the true motivation for him. Be that as it may, Mr. Fitzpatrick now reports his sexual urges are suppressed and attributes these positive changes to this current therapy regime.

58Dr. Gojer, who is not his treating physician, acknowledges that since taking the drug Lupron, Mr. Fitzpatrick’s sex drive has been non-existent and there have been no urges to look at child pornography.

59Defence counsel takes the position that incarcerating Mr. Fitzpatrick at this stage of treatment would put him at risk for a re-lapse because he would not have access to the same level of care. Defence counsel seems to suggest that Mr. Fitzpatrick’s success is dependent on his ability to stay under the care of Dr. Doupe.

60I disagree, and here is why.

61Dr. Doupe did not testify on this sentencing hearing and I have no evidence that she shares Defence counsel’s view. Moreover, there is evidence before me that Mr. Fitzpatrick was not under the care of Dr. Doupe from November 2015 to May 2016 because she went on sabbatical. I am uncertain as to who the treating physician was during Dr. Doupe’s absence, but there is no evidence to suggest that Mr. Fitzpatrick re-lapsed or his treatment was disrupted during this time. I am confident that Mr. Fitzpatrick’s condition could be treated and managed during a period of incarceration. I am not of the view that Mr. Fitzpatrick’s success is dependent on Dr. Doupe. If incarcerated, he would have the benefit of specialized treatment under the care of highly qualified therapists. Moreover, Dr. Gojer confirms that Mr. Fitzpatrick could continue on his current medication while incarcerated.

62It is the opinion of Dr. Gojer that while on the medication, Mr. Fitzpatrick remains at low risk to re-offend. However, Dr. Gojer also acknowledges that assessing risk is fluid, not static, and that although Mr. Fitzpatrick’s risk might be low right now, it may not stay that way; it will require him to take his medication for perpetuity and run the risk of developing physical side effects that could result in him having to discontinue use. I am further mindful that although Mr. Fitzpatrick is currently voluntarily taking the medication, the choice to continue or not is entirely up to him, adding an element of uncertainty and risk moving forward.

63Moreover, the low-risk assessment of Dr. Gojer is entirely based on Mr. Fitzpatrick’s self-reporting that he currently has no sexual urges. Absent phallometric testing, which Mr. Fitzpatrick has declined, there is no ability to independently verify or assess Mr. Fitzpatrick’s position. Dr. Gojer testified that phallometric testing could potentially eliminate any questions about Mr. Fitzpatrick’s sexual urges. His reluctance to participate in this type testing is troubling and, in my view, adds uncertainty to the position that he is at low-risk to re-offend.

64Mr. Fitzpatrick is now 75 years of age. He was 72 at the time of these offences. Typically there is a decrease in sexual urges as a person ages. Mr. Fitzpatrick seems to be a bit of an anomaly in that regard. Mr. Fitzpatrick reports having sexual urges consistent with a Pedophilic Disorder much of his life, but that he only started acting on those urges much later in life. As a result, Dr. Gojer is of the view Mr. Fitzpatrick’s propensity to act on those sexual urges will last into his 90’s.

65I accept that Mr. Fitzpatrick has taken significant steps towards his rehabilitation since his arrest for these offences. He appears to be committed to treatment at this stage and that is to his credit. I also accept that Mr. Fitzpatrick is and has been suffering from a Pedophilic Disorder and myriad of other mental health issues. However, in my view, those mental health issues, even combined with his positive steps towards rehabilitation, cannot override the seriousness of the crime and the need to denounce and deter this behavior by foregoing a jail sentence. In my view, Mr. Fitzpatrick is not a candidate for a conditional sentence. After taking into account the law, the submissions of counsel and the unique factors that attach to this case, I find a sentence of 30 months in the penitentiary is appropriate. But for Mr. Fitzpatrick’s considerable efforts at rehabilitation, the sentence could have been much higher.

66Defence counsel submits that Mr. Fitzpatrick has been subjected to highly restrictive bail since his release after arrest on April 15, 2015, and should be credited accordingly. There is nothing on the evidentiary record before me to suggest that this bail has impacted Mr. Fitzpatrick’s life. As I understand it, Mr. Fitzpatrick’s surety is his spouse of 47 years. They are both retired and the house arrest condition has not interfered with Mr. Fitzpatrick’s ability to go about his day. I am also mindful that Mr. Fitzpatrick could have brought an application to have his bail condition reviewed. He did not. In my view, there is no basis to grant relief as a result of the bail conditions.

67Having found that a 30 months penitentiary sentence is appropriate for Mr. Fitzpatrick, it follows that the mandatory minimum of 6 months, which excludes conditional sentences, is not grossly disproportionate for Mr. Fitzpatrick.

Step Two: Would the mandatory minimum sentence be grossly disproportionate for a reasonably foreseeable offender?

68Having determined that the mandatory minimum sentence provided in the Criminal Code would not result in a grossly disproportionate sentence for Mr. Fitzpatrick, I must now go on and consider whether the mandatory minimum sentence would impose a grossly disproportionate sentence on another person in a reasonably foreseeable situation.

69In R. v. Nur, at para. 68, the court instructs that a reasonable hypothetical or reasonable foreseen situation cannot be far-fetched or only marginally imaginable. It is not a license to invalidate statues on the basis of remote or extreme examples. The exercise is to be grounded in experience and common sense. Laws are not to be set aside on the basis of speculation.

70Although, defence counsel relies on a number of hypotheticals in support of their position that the mandatory minimum is grossly disproportionate for the reasonably foreseeable offender, I only need focus on the hypothetical analogous to the third hypothetical advanced and relied upon by the Court of Appeal for Ontario in R. v. John, 2018 ONCA 702.

71In R. v. John, the court found that the six month mandatory minimum sentence for possession of child pornography in force at the time of the offence violated s. 12 of the Charter. The third hypothetical, advanced at para. 29 and relied upon by the court, was as follows:

An 18 year old whose friend forwards him a “sext” from the friend’s 17 year old girlfriend and without her knowledge. The 18 year old does not forward the “sext” but keeps it on his phone.

72In this case, counsel submits a virtually identical hypothetical:

An 18 year is invited by his friend to access a sexually suggestive digital image which the friend took of his 17 year old friend. The 18 year old accepts the invitation and accesses the image.

73The reasoning and findings of the court in R. v. John, at paras. 39-41, is directly applicable to this hypothetical. Accordingly, I find that most members of the community would consider a six month jail sentence, under those circumstances, that is a single image, lawfully created, and passively received by a youthful adult offender, to be grossly disproportionate.

74As a result, based on this hypothetical, I find that the mandatory minimum sentence does violate section 12 of the Charter, and therefore must be struck down. I further find that the Charter violation cannot be saved by section 1 of the Charter.

Summary

75Mr. Fitzpatrick’s sentence will be as follows:

• Count two, accessing child pornography contrary to section 163.1(4.1) of the Criminal Code: 30 months; and

• Count one, fail to comply with a court order pursuant to section 161(4) of the Criminal Code: 12 months concurrent.

76In addition there will be the following ancillary orders:

• An Order pursuant to s. 485.051 of the Criminal Code, that Mr. Fitzpatrick provide a sample of his DNA for analysis;

• An Order pursuant to s. 164.2(1) of the Criminal Code, that Mr. Fitzpatrick forfeiting all devices used in the commission of this offence;

• An Order pursuant to s. 490.012 of the Criminal Code that Mr. Fitzpatrick comply with the S.O.I.R.A. for 20 years;

• An Order pursuant to s. 161(a) of the Criminal Code, that Mr. Fitzpatrick not attend a public park or public swimming pool, where person under the age of 16 years are present of can reasonably be expected to be present, or daycare centre, schoolground, playground or community center, or a public library except in the direct company of his spouse Norman Simard, for life.

• An Order pursuant to section 161(b) of the Criminal Code, prohibiting Mr. Fitzpatrick from seeking, obtaining or continuing employment, where of 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 for life; and

• An Order pursuant to section 161(d) of the Criminal Code prohibiting Mr. Fitzpatrick for life from using the Internet or other digital network, unless the offender does so in accordance will the following conditions:

1. On your own personal telecommunications device which is equipped with software that blocks access to peer-to-peer sharing networks and Usenet or Freenet;

2. On any other telecommunications device except under the direct and constant supervision of your spouse, Norman Simard;

3. Where you are not self-employed, at your place of business, for business purposes and in accordance with IT and other polices at your place of business; and

4. Not to use any telecommunications device to access the Internet or other digital networks in order to access child pornography, participate in chat rooms, or bulletin boards that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material, or to access Usenet or Freenet.

Byrne J.