SELECTED CASE LAW
ONTARIO:
In 2010 ONCA 27, Mr. F, a 35-year-old man, pleaded guilty to sexual assault, and possessing, making and distributing child pornography.
In 2005, investigations into this chatroom found that the room was used to create and ex-change child pornography. 82 members were arrested and over 30 children who had been abused were rescued. Mr. F had been a member at that time but was not one of the people arrested. Law enforcement later closed the chatroom. When the chatroom was reopened by its members in 2006, Mr. F joined using a new username and engaged in conversation with the undercover officer.
Mr. F sexually assaulted his four-year-old daughter and streamed the assaults via webcam to a user on an online chatroom for pedophiles. An undercover police officer had chatted with Mr. F, who had sent the officer 147 child pornography images, told him that he had two daughters, sent nude images of his youngest daughter, sent his daughter’s name, and bragged about sexually assaulting her. He told the officer he began abusing his daughter after being encouraged to by his online peers. Mr. F was arrested following the livestream to the officer. A search of his home led to thousands of child pornography images, nude images of children, and obscenity being found. Some of the children were bound or had sexual or violent commentary written on them. Some images included weapons.
At trial he was sentenced to four years in jail and three years’ probation. He expressed remorse for his actions.
The Crown appealed the sentence.
The appeal judge found the sentence “manifestly unfit” and did not meet the objectives of deterrence of Mr. F and other future offenders. The judge stated:
Unfortunately, the incidence of this behaviour appears to be increasing and expand-ing as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.[1]
The following factors were taken into account:
1. The respondent was participating in a child pornography chat room with like-minded adults.
2. People participating in the chat room traded child pornographic pictures.
3. These pictures included depictions of sexual assaults as well as other violence and other demeaning aggression against victimized children.
4. Victim impact information from one of those children showed that the pictures were made currently, that is, they were not historical material just being re-circulated in cyber-space.
5. The participants discussed committing sexual assaults on children and encouraged other participants to do the same. The respondent acknowledged that it was this encouragement that caused him to act out his fantasies on his own child.
6. The respondent sexually assaulted his own daughter on an ongoing basis. He was grooming her to participate in this activity by touching herself and posing for pictures.
7. The respondent’s daughter was a captive victim under his care and control. The abuse was ongoing and escalating and further assaults and abuse were only pre-vented because he was caught.
8. The fact that the victim was the respondent’s own child is the most egregious breach of trust there can be.
9. The respondent disclosed his daughter’s name to the other participant in the chat room, another extension of his breach of trust.
10. Not only did the respondent transmit pictures of his daughter being sexually assaulted by him to a stranger over the internet, he escalated the nature and extent of the criminal activity level by assaulting her as a live show to another participant. Had the other person in the chat room not been an undercover officer, it is likely that such a situation could escalate into more aggressive and prolonged sexual activity with the other person encouraging the activity.
11. By his live assault of his daughter in front of his new “friend”, a person he believed to be a pedophile, the respondent was sharing his child as an object of pleasure for both men for a criminal purpose. This constitutes an entire new aspect of the nature of the abuse that underlies the crime of making and distributing child pornography. The trial judge found that the respondent enjoyed being able to show off his daughter.
12. The victim impact statements show the long-term effect of all the aspects of this activity. Obviously sexual abuse of a child by a parent is likely to have a significant psychological effect on the child. However, the additional trauma is caused by the child knowing that her photos are out in the public domain where unknown numbers of people around the world may be able to access them, and, in this case, know the child’s name. It was unclear on the evidence whether anything transmit-ted in the conversation with the officer to a chat room that was immediately disabled could be available to be seen in the future. However, the victims have ongoing fear and uncertainty regarding what remains accessible on the internet and to whom. It amounts to ongoing psychological victimization of all the children involved.[2]
Mr. F’s sentence was increased to 7 years in jail. Additional orders included a DNA order, a 10 year limitation on being near or working with children, a 10 year limitation on using a computer to communicate with people under 14 years old, a 20 year registration as a sex offender, a 10 year weapons ban, and forfeiture of the images and equipment used in the offence.
Also see: 2007 CarswellOnt 10006 (ONCJ).
Criminal Offence(s): Sexual Assault
[1] 2010 ONCA 27 at para 22.
[2] 2010 ONCA 27 at para 25.