SELECTED CASE LAW
ONTARIO:
In 2018 ONCJ 302, Mr. B, a 56-year-old man, pleaded guilty to making sexually explicit material available to a person he believed was under the age of 16. He thought he was communicating with a 15-year-old girl and later her 14-year-old friend on the internet over a two-week period, however, he was in communicating with a police officer posing as the girls. Mr. M directed the conversation to sexually explicit topics and sent photos of his erect penis to the girl. He arranged to meet with the girl, but didn’t go. At one time he tried to get her to download Skype to video chat with her. When he told the girls he had communicated with an 11 year old girl, the police cut off their operation, as a real child may have been in danger and arrested Mr. B. Under a search warrant, the police seized various electronic devices containing child pornography.
Commenting on the benefits and challenges of internet use and anonymity the judge stated:
Over the last quarter century, nearly every facet of modern life has been affected by the Internet. Today, the Internet has become the principal means by which we ac-cess news, music, movies, and other forms of entertainment, engage in all aspects of commerce and conduct research. The Internet has also quickly developed into one of our primary means of communication.
Some degree of anonymity is a feature of much Internet activity. In fact, the anonymity of online activities can sometimes be essential to an individual’s personal growth and the flourishing of an open and democratic society. Consequently, the Supreme Court of Canada has acknowledged that, depending on the totality of the circumstances, anonymity in a person’s online activities may be subject to a reasonable expectation of privacy and therefore enjoy constitutional protection under section 8 of the Charter.
That said, Internet anonymity also has its dark side. Like the law-abiding, those with nefarious purposes have also flocked to the Internet. Children, too, are voracious Internet users. The vulnerability of children when they go online is obvious. The Inter-net, especially social media, provides an all too easy point of contact between children, the most vulnerable members of our society, and those bent on exploiting them as objects of their sexual gratification.[1]
Mr. B acknowledged he was responsible for child luring and possessing child pornography but was not charged with those offences. They were considered aggravating factors in his sentencing. Mitigating factors included the 26 hours of sex offender counselling Mr. B had participated in prior to sentencing, his remorse, and his recognition that his behaviour was inappropriate.
He was sentenced to 12 months of imprisonment, three years of probation, and various orders including a 20 year ban on communicating with persons under the age of 16 online, 20 year ban on any internet use that violates the law, a 20 year ban on using social media or chat forums other than 50+ dating sites,10 years registered as a sexual offender, a DNA order, and the forfeiture of the devices used to facilitate the offence.
[1] 2018 ONCJ 302 at paras 1-3.
Criminal Offence(s): Making Sexual Material Available to a Child