SELECTED CASE LAW
In 2006 ABCA 190, a 23-year-old man, pleaded guilty to possessing and distributing child pornography.
Mr. S had a large collection of child pornography. The police located somewhere between 4,000 and 10,000 images and around 1,000 videos on Mr. S’s computer. Around 500 movies and 500 images were determined to be child pornography. The collection including images of children mostly between six and eight years old, but as young as nine months old, some of whom were in obvious pain during the sexual abuse. He began downloading pornography, including child pornography, when he was 14 years old.
Mr. S also operated a website where other child pornography consumers could upload their own images in exchange for some of Mr. S’s images. There was evidence the website had been visited 3,915 times from people from 52 different countries, and around 75,000 trades had occurred. Mr. S ran the website in order to collect more images, rather than to gain a prof-it. Users were expected to upload three images for every one they downloaded. Undercover police officers were able to download child pornography from Mr. S’s website.
He was sentenced to two years less a day served in the community and two years’ probation.
The Crown appealed his sentence, arguing Mr. S should have served his sentence in jail and that the sentence should have been longer.
The Court of Appeal agreed that his sentence was too lenient and that the trial judge had focused too much on Mr. S’s personal circumstances and not enough on the factors that made this a serious offence. The court stated:
In our view, the sentencing judge erred by failing to properly consider the following highly relevant and aggravating factors, and thereby greatly minimizing [Mr. S’s] culpability:
(i) Mr. S used the Internet to collect and distribute, on a worldwide basis, some very extreme child pornography;
(ii) he operated a computer server on which he stored this material;
(iii) his contacts were permitted to download files, but only provided they first up-loaded new material to the server;
(iv) the sheer volume of material and trades;
(v) his conduct was planned and sophisticated;
(vi) the offence only ceased when [Mr. S] was caught;
(vii) the pre-sentence report said his sexual compulsivity was moderately high and he suffers from cognitive distortions; and
(viii) [Mr. S] meant to, and did, enhance his own collection, which was massive and extremely disturbing, thereby creating a market for and potentially encouraging the creation of new images or movies.
The court noted that sentences served in the community were rare for child pornography distribution offences. It also noted that Mr. S did not limit who could visit his website, it was open to the public as long as they uploaded new material. It found his style of distribution as reprehensible as a commercial enterprise, because it encouraged additional production of new material and more exploitation of children.
The appeal was allowed, and Mr. S’s sentence was changed to 15 months in jail and a two-year probation. Internet restrictions and prohibitions on being near children were added to his probation order.
2006 ABCA 190 at para 11.
Criminal Offence(s): Child Pornography Offences