Counsel:

Philip Enright, counsel for the Crown.

John Collins, counsel for the accused.

[1]

SPARROW PROV. J.:-- The accused has been found guilty of the charge that he:

between the 7th day of August 1993 and the 30th day of September 1993, at the Municipality of Metropolitan Toronto in the Toronto Region, unlawfully did distribute child pornography, to wit; computer image and text tiles entitled MOPPET01.GIF, MOPPET02.GIF, MOPPET03.GIF, MOPPET04.GIF, MOPPET05.GIF, 3DOGSEX.ZIP, FWKIDS01.ZIP, FWKIDSO2.ZIP, FWKIDSO3.ZIP, FWKIDS04.ZIP, FWKIDS05.ZIP, KIDDYEAT.ZIP, KIDSARAP.ZIP, YNGFUN10.ZIP, YNGFUN11.ZIP, contrary to the Criminal Code.

[2]

I don't intend to extensively review the facts in this matter, as they are laid out in detail in the reasons for judgment: see R. v. Pecchiarich, 22 O.R. (3d) 748. In summary, however, I found the accused guilty of distributing child pornography in the form of computer images and texts, which he created and then uploaded to what is known as a computer bulletin board system (BBS). The images or pictures included prepubescent girls in the nude, with genitalia clearly depicted, and children involved in sexual acts with each other. The texts are largely short stories about children having sex with other children, adults, and even animals.

[3]

According to expert evidence, computer users can access these materials by first accessing the bulletin board and perusing its file list. After selecting certain tiles, he or she must go through an application and verification process with the systems operator of the BBS and make a payment or provide files in exchange before downloading the selected item. The accused admitted to being the co-systems operator of the Gateway bulletin board, where many of the files were located. Other BBS's contained the same or other files created by the accused.

[4]

The Crown argues that a 60 to 90 day jail sentence is required in this matter, as a "symbol", to use his word, of the serious and dangerous nature of child pornography offences. Defence counsel argues that his client should receive a suspended sentence and probation. Counsel also differ sharply on the issue of the terms of the probation order.

[5]

One witness was called at the sentencing hearing, Mr. Peter Collins, a psychiatrist who is the head of the community services division of the forensic unit at the Clarke Institute of Psychiatry. The accused refused to be seen by Dr. Collins, or any other psychiatrist, for the purpose of the sentencing hearing. However, Dr. Collins reviewed the pornographic materials uploaded by the accused, as well as a number of other items seized at his home, and concluded that they constitute the type of materials which pedophiles tend to possess. Pedophiles, he testified, are individuals who have an erotic preference for and fantasies concerning prepubescent children. However, he could not testify conclusively that the accused is a pedophile without a psychiatric examination. Furthermore, Dr. Collins explained that while some pedophiles never act out their fantasies, many do, especially in time of stress or when affected by drugs or alcohol. Pedophilic material, such as that produced by the accused, stimulates those pedophiles who ultimately act out their fantasies by seducing children into sexual activity.

[6]

The Crown argues, that Dr. Collins' evidence is relevant as it

(a) pertains to the issue of the appropriate terms of probation and

(b) explains the dangers of child pornography.

Defence counsel objected to the relevance of the above evidence, given that his client was not tried on any offence involving sexual abuse of children, but only for distributing fiction and crudely constructed images.

[7]

The only other piece of evidence filed at the sentencing hearing was the pre-sentence report, which revealed that the 20 year old accused is basically a loner with a "flat" affect, spending much time at his computer. He has completed only grade 10, but intends to attend Sheridan College to study art. He lives with his mother and stepfather, who were unaware of his activities going on in their home.

[8]

The Crown argues that the following factors regarding the offence are aggravating:

1) Many of the images have been produced from store catalogues, and thus reflect at least the faces of real children. As explained in the decision, clothes are usually removed and genitalia added by computer software. Thus it would be possible for the child's parent, neighbour or relative to come across this shocking material without prior awareness;

2) The accused has kept a booklet entitled "Facts on Friends", containing the names, addresses, phone numbers and brief descriptions of real children living on real streets in Mississauga. The first names of these children as well as descriptions of them are used in the pornographic texts. The Crown argues that the accused is obviously closely watching certain neighbourhood children, who he could attempt to seduce.

3) In Exhibit 9(h), a document located on his computer entitled "Recent Zephyrs Listings and Notes", the accused states "I love young children and would love to do everything in my stories that I've written, however, that time has not come ... yet". The Crown argues that this is clear indication of an intention to ultimately act out, and

4) He has kept a scrap book of stories involving sexual assault trials, and changes to the law in this area, which is also indicative of someone leaning in the direction of illegal sexual activity rather than pure fantasy. Dr. Collins testified that many pedophiles collect such material on legal matters.

[9]

Defence counsel argues that none of the items referred to above can be taken as indicative of an intention to molest children, rather than simply fantasize. Furthermore, there is no evidence that his client has involved real children in posing for pictures, or acted out any of the fantasies in his stories. He also argues strenuously that the materials are no worse, or even as bad as standard adult erotica such as Penthouse magazine, which contain photographs which are far more explicit in terms of the sexual poses depicted and their clarity. He argues that the computer screen images are so hazy that the children could not be identified; furthermore, the danger of a parent, relative, or friend seeing a known child is minimal, given that a tiny segment of the population is sufficiently interested in this type of material to go to the trouble of gaining access.

[10]

In addition the defence submits that the accused should not be imprisoned because he is a youthful first offender, and because his sentence should not be disparate from that of similar offenders. He referred the court to two recent similar cases in which the accused pleaded guilty to charges of distributing obscene materials R. v. Bolton and R. v. Lee in which conditional discharge were imposed pursuant to joint submissions of Crown and defence. In those cases the accused did not create the materials, but were systems operators of the BBS's involved in the distribution of both obscene adult materials and child pornography. Defence submits that imposition of a jail sentence would demonstrate disregard for the principle of parity of sentencing, and would improperly penalize his client for having a trial rather than pleading guilty.

[11]

Regarding probation, the Crown seeks an order that the accused be prohibited from

(a) communicating with anyone under the age of 16 years,

(b) utilizing a computer modem, which permits him to upload and download materials, and

(c) appearing in school yards, playgrounds, and other areas frequented by children.

Defence counsel argues that such terms are too harsh, and virtually banish him from society. He agrees, however, to a term that the accused receive a psychological assessment and treatment for the problems revealed; furthermore, he concedes that a community service order is appropriate.

[12]

After considering the matter thoroughly, I cannot disagree that a jail sentence would be valuable as both a specific and general deterrent. I make this comment given the serious nature of the offence, particularly the fact that the accused created the items he discovered, and used catalogue photographs of real children and references to children on his street in so doing. I do not agree that the images are so hazy as to be unidentifiable. Although the accused is not being sentenced for any sort of sexual activity, or certainly for being a pedophile, I accept the evidence of Dr. Collins that his materials are capable of inciting other pedophiles to act out. In so testifying, he reflected the following finding of Mr. Justice McCombs in the decision of R. v. Langer (Ont. Ct. Gen. Div.) unreported, April 20, 1995, dealing with child pornography which defence argued was legal as it had artistic merit:

This objection ignores the reality that, on the basis of the opinion evidence which I have accepted, private possession of child pornography poses a realistic risk of harm to children, by reinforcing cognitive distortions, fuelling fantasies, and its potential use in "grooming" possible child victims. It is entirely reasonable and within the legitimate objectives of Parliament to criminalize private possession of child pornography.

[13]

As Justice McCombs also said at p. 18, the legislation is designed to protect children, "society's most vulnerable members". Although the BBS audience may be small, it is clear that the material, once downloaded, can be widely spread. Prevention of distribution through general and specific deterrence in criminal matters is obviously key to such protection.

[14]

On the other hand, I must consider the fact that the accused is young - 20 now and 19 at the time of the offence and has no criminal record, factors which are important in mitigating sentence: see R. v. Bailey and Prothoroe, 1970 O.R.3rd, 138 (Ont C.A.). Generally, a first offender should only receive a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate: R. v. Stein, 15 C.C.C. (2d) 376 (Ont C.A.).

[15]

In addition, I note that the pre-sentence report revealed the offender to be a peaceable, if somewhat antisocial young man, who has not acted out any of his fantasies to date, and who has some plans for the future. Although the trial was fairly lengthy, the accused admitted that the materials were pornographic, and made other concessions which expedited the matter; furthermore, he was cooperative with the police, all to his credit.

[16]

Also, I must consider the issue of parity of sentencing. As stated by the Ontario Court of Appeal, while absolute uniformity in sentencing is not possible, nonetheless sentences upon like offenders for like offences committed in like circumstances should not be widely disparate: R. v. Wood (1979), 21 C.L.Q., 423. The Crown points out that Mr. Bolton made a $2000 donation to a legal clinic, and Mr. Lee forfeited his computer equipment to the Crown, that both pleaded guilty, and neither created the distributed materials. Nevertheless, they were the systems operators of bulletin boards, distributing a variety of illegal adult and child material, and received the benefit of discharges. Given the principle of parity of sentencing, and the accused's status as a youthful first offender, with some difficulty I conclude that a suspended sentence is in order in this matter. Hopefully he will be deterred as well as rehabilitated through treatment, and other terms of a probation order, and the goal of general deterrence will be achieved by the registration of a conviction following a complex and arduous trial.

[17]

The accused will be placed on probation for two years, and will attend at the probation officer immediately and at least once a month thereafter. He will be assessed for psychological problems by Dr. Collins or another specialist approved by the probation officer, and will attend for treatment as approved by the officer. During the two years he will perform 150 hours of community service at a rate of not less than 10 hours per month, in order to gain experience and make a contribution which offsets the harm caused by the accused.

[18]

Regarding the contested terms, I am aware that probation is not to be used as a form of punishment: R. v. Ziatas (1973) 13 C.C.C. (2d) 287 (Ont C.A.). Nevertheless, I order that he not initiate communication with anyone under the age of 16, directly or indirectly. In my view this term is reasonable and necessary, given his obvious taste for pedophilic material, his booklet and stories referring to children in his neighbourhood and his ominous statement that he has not acted on any of his fantasies yet. Counsel may apply to have this term varied at a later date, particularly if psychiatric reports shed light on this matter. However in my view, at present it would be neglectful of me to fail to provide such protection to children in his community.

[19]

Regarding his computer, I agree that banning him from using a modem would interfere greatly with his preferred form of communication regarding many matters, and could affect future learning and employment opportunities. I therefore order that he not upload or download any computer material which is erotic, obscene, or pornographic in nature.

[20]

I also agree that banning his attendance at playgrounds or other locations frequented by children is an inappropriate term, given that it is broad and difficult to enforce (see R. v. Heywood (1994) 34 C.R. (4th) 133 S.C.C.); furthermore, he appears to find the models for his materials in magazines, and by observing children on his street, rather than attending in play areas. No such term will therefore be ordered at this time, although I note that the Code permits the Crown to apply for a variation in this regard in future if warranted.

[21]

Thank you for your submissions.

SPARROW PROV. J.