



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Schulz, 2018 ONCA 598

DATE: 20180629

DOCKET: C62305

Watt, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Martin Schulz

Appellant

Martin Schulz, acting in person

Grace Choi, for the respondent

Heard: February 20, 2018

On appeal from the conviction entered by Justice Gisele M.
    Miller of the Superior Court of Justice on March 23, 2016, and from the
    sentence imposed on May 31, 2016.

Brown J.A.:

I.

OVERVIEW

[1]

The appellant, Martin Schulz, a lawyer, was convicted of one count of
    possession of child pornography contrary to s. 163.1(4) of the
Criminal
    Code
. The trial judge sentenced him to 45 days imprisonment, to be served intermittently,
    three years probation, and a 10-year prohibition order under s. 161(1)(d).
    Terms of the probation and prohibition orders limited the appellants ability
    to access the Internet and email.

[2]

The appellant appeals his conviction. He also seeks leave to appeal the
    terms of the probation and prohibition orders that limit his access to the Internet.

[3]

For the reasons set forth below, I would dismiss the appellants appeal
    from conviction. I would grant him leave to appeal the Internet-related terms of
    the probation and prohibition orders but would dismiss the appeal.


II.

THE CONVICTION APPEAL

A.

The trial application
    to exclude from evidence seized materials

[4]

Based on information obtained from Bell Canada about subscriber
    information associated with a particular IP address, the police obtained a
    warrant to search the appellants residence for electronic devices and
    documents that might contain evidence of the offences of possession of child
    pornography and making available child pornography.

[5]

As the appellant is a lawyer, the warrant contained special provisions
    to protect solicitor-client privilege. They included the appointment of a
    referee to ensure that the search and review of seized documents were conducted
    in ways that would protect solicitor-client privilege. The warrant also
    required the police to place all seized items, unread, in a package and seal
    the package until further order of the court.

[6]

The search warrant was executed on August 16, 2012.

[7]

On February 11, 2013 the Crown obtained an order, unopposed by the
    appellant, from Hourigan J., as he then was, specifying the method by which a
    designated examiner could copy and review the contents of the seized devices
    for offensive materials (the Examination Order). The order required the
    examiner, before filing a report of his review with the court and making
    available copies of the seized devices, and working with the referee (if
    necessary), to ensure no privileged information was released to the Crown or
    police.

[8]

The appellant, who was represented by counsel at trial, applied to
    exclude all evidence found on the seized devices on the ground the search had
    been conducted in a manner that infringed his rights under s. 8 of the
Canadian
    Charter of Rights and Freedoms
. The appellant challenged the validity of the
    seizure, detention, and examination of the seized devices on numerous grounds:
    (i) the police obtained the appellants IP subscriber information without a
    warrant; (ii) no report was made under s. 489.1(1)(b)(ii) of the
Criminal
    Code
until one month after the execution of the search warrant; (iii) no
    request was made under s. 490(2) to detain the seized devices for more than 90
    days; (iv) the police failed to seal all seized devices, leaving unsealed six
    devices (though they concluded these contained no relevant information); (v)
    the examiner failed to conduct his examination of the devices in strict
    compliance with the Examination Order; (vi) the police failed to return to the
    appellant seized devices that did not contain any offensive materials; (vii) the
    police failed to take detailed notes of their examination of the seized devices;
    and (viii) a police officer improperly took screen shots of directory
    structures from the examiners copies when preparing to testify at an
    anticipated discovery hearing.

[9]

On the
    application before the trial judge, the appellants counsel acknowledged that
    if obtaining the IP subscriber information without prior judicial authorization
    was the only
Charter
breach, the decision of the Supreme Court in
R.
    v. Spencer
, 2014 SCC 43, [2014] 2 S.C.R. 212, pointed to the admission of
    the evidence. However, he submitted there were multiple s. 8 breaches, the
    cumulative effect of which required the exclusion of the evidence pursuant to
    s. 24(2) of the
Charter
.

[10]

In
    comprehensive reasons, the trial judge addressed each of the appellants
    allegations regarding a breach of his s. 8
Charter
rights. She found
    that:

(i)     the
    failures of the police to file a report pursuant to s. 489.1(1)(b)(ii) for one
    month and to apply under s. 490(2) for an extension of time beyond 90 days to
    detain the seized items infringed the appellants s. 8 rights;

(ii)    the
    failure of the police to seal six seized devices, as required by the search
    warrant, rendered their subsequent search unauthorized by the warrant and therefore
    a breach of s. 8;

(iii)   the
    method and scope of review employed by the examiner was reasonable, did not
    breach the Examination Order in any way, and did not violate the appellants
    s. 8 rights;

(iv)   the
    failure of the police to return seized devices that did not contain offensive
    materials was a clear and deliberate violation of the Examination Order;

(v)    the
    failure of a police officer to take notes of his search of the unsealed seized
    devices amounted to a violation of s. 8 of the
Charter
, but the paucity
    of notes in respect of his review of devices described in the examiners report
    did not violate s. 8; and

(vi)   the
    officers taking screen shots of the directory structure from the examiners
    copies did not constitute a search because the material already had been made
    available to the police pursuant to a court order and the officer simply made a
    copy of the material in order to present evidence in the proceedings.

[11]

The
    trial judge conducted an analysis under s. 24(2) of the
Charter
in
    which she considered the breaches of s. 8 on an individual basis and then cumulatively.
    Applying the principles in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R.
    353, to each of the breaches, the trial judge excluded from evidence only: (i) the
    six unsealed items for which no extension to detain was obtained under s.
    490(2); and (ii) the devices on which no offensive materials were found. The
    trial judge noted, at para. 206 of her reasons for her ruling on the
Charter
motion, that [t]he result of an individual s. 24(2) analysis of each of the s.
    8 breaches would result in the exclusion of evidence of little value to the
    prosecution of these offences.

[12]

In
    considering the cumulative effect of the s. 8 breaches, the trial judge
    concluded that none of the breaches resulted from bad faith conduct, save for
    the failure to return devices on which no offensive material was found. While
    acknowledging that there were clearly serious failures in the conduct of the
    police, she stated: I do not find that there was an overall pattern of conduct
    on the part of police which would impact public confidence in the administration
    of justice: at para. 208. The trial judge recognized the appellant had a high
    expectation of privacy in respect of all of the seized items. However, there
    was a strong societal interest in the adjudication of the case on the merits.
    Taking into account all of the factors, the trial judge found that to exclude
    all of the evidence obtained in the execution of the search warrant would bring
    the administration of justice into disrepute: para. 212.

B.

The
    grounds of appeal

[13]

In
    his factum, the appellant identified the following grounds of appeal from his
    conviction:

(i)

the trial judge erred in finding that the examiners searches complied
    with the Examination Order and did not violate s. 8 of the
Charter
;

(ii)

the
    trial judge erred in finding that the failure of the police to keep detailed
    notes in respect of devices described in the examiners report did not violate
    s. 8 of the
Charter
;

(iii)

the trial
    judge erred in concluding the officers taking of screen shots of examiners
    copies did not constitute a search; and

(iv)

the trial
    judge erred in her s. 24(2) analysis by placing undue weight on the nature of
    the charges against the appellant, viewing the conduct of the police in a more
    favourable light than warranted, and not finding that the cumulative effect of
    the s. 8 violations warranted the exclusion of the evidence.

[14]

In
    respect of the last ground of appeal, the appellant seeks leave to file fresh
    evidence.

C.

Analysis

The trial judges s. 8 findings

[15]

In
    his factum, the appellant did not make specific submissions in respect of his
    first three grounds of appeal. In oral argument, the appellant repeated his
    position that the examiner did not comply with the Examination Order.

[16]

I
    am not persuaded by this submission. The trial judges interpretation of the
    Examination Order was a practical and reasonable one. Her assessment that the
    examiners conduct fell within the scope of the Examination Order was
    reasonable and well-grounded in the evidence.

[17]

As
    to his other s. 8 grounds of appeal, the appellant has not identified any error
    in law or misapprehension of the evidence by the trial judge. Accordingly, I
    would not interfere with her findings.

The trial judges s. 24(2) findings

[18]

The
    appellants main submission on his conviction appeal is that the trial judge
    erred in her assessment of the seriousness of the s. 8 infringements that she
    found. The appellant submits the overall misconduct of the police was more
    serious than the trial judge found.

[19]

In
    support of that submission, the appellant moved for leave to file fresh
    evidence on the appeal.

[20]

In
    an affidavit in support of that motion, the appellant deposed that
    notwithstanding that the trial judge had ordered on February 19, 2016 that
    seized materials which did not contain offensive materials be returned to the appellant
    pursuant to s. 20 of the Examination Order, as of September 25, 2017 the police
    had not returned those materials to him. The appellant contends that this
    evidence is relevant to the issue of the seriousness of police misconduct
    regarding their treatment of the seized materials.

[21]

The
    respondent opposes the motion, primarily on the ground that the appellant has
    not met the cogency requirement for the admission of fresh evidence on the
    appeal:
R. v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, at paras.
    202-203 & 205, leave to appeal refused, [2016] S.C.C.A. No. 513. The
    respondent submits that the continued detention of the items in issue resulted
    from an arrangement between counsel, which was disclosed to the trial judge at
    the May 31, 2016 sentencing hearing.

[22]

I
    accept the respondents submission. The transcript of the sentencing hearing
    discloses such an arrangement. Given that arrangement, the appellants proposed
    fresh evidence has no bearing on the issue of the polices handling of the
    seized materials. I would dismiss the appellants motion for leave to introduce
    fresh evidence.

[23]

In
    considering the appellants main submissions regarding the trial judges s.
    24(2) findings, one must recall that deference is the standard of review applied
    to the three-pronged assessment conducted by a judge under s. 24(2) of the
Charter
.
    Where a trial judge has considered the proper factors and has not made any
    unreasonable finding, his or her determination is owed considerable deference
    on appellate review. But where the relevant factors have been overlooked or
    disregarded, a fresh
Grant
analysis is both necessary and appropriate:
R. v. Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82 (citations
    omitted). See also
Grant
, at para. 86.

[24]

As
    I understand the appellants submissions, he contends that the trial judge: (i)
    failed to attach sufficient severity to the s. 8 violations she found the
    police had committed, especially in view of the appellants claim of
    solicitor-client privilege over many of the seized materials; and (ii) placed
    undue weight on her findings that the police did not act in bad faith.

[25]

I
    am not persuaded by the appellants submissions. The trial judge considered the
    proper factors: she conducted an individual
Grant
assessment of each
    s. 8 violation and then applied the
Grant
factors collectively to the
    infringements. She gave detailed reasons for her findings.

[26]

As
    her reasons disclose, the trial judge was alive to the fact that some of the
    seized devices contained materials over which solicitor-client privilege was
    asserted.  She noted that: (i) the failure to seal six items involved devices
    over which no privilege was claimed; (ii) the failure to take notes involved
    those same devices; and (iii) no search of the seized items occurred during the
    period prior to the filing of the s. 489.1(1) report or before the Examination
    Order was made. There is no suggestion in the record that the police seizure of
    the devices or the subsequent review and report by the Examiner resulted in the
    disclosure of any privileged information to the police or the Crown. As well,
    the appellant acknowledges that the Crown did not seek to adduce any privileged
    information.

[27]

The
    s. 24(2) findings made by the trial judge found ample support in the evidence.
    None were unreasonable.

[28]

Consequently,
    I see no basis for interfering with her conclusion to admit certain of the
    seized materials into evidence. I would dismiss the appellants appeal from
    conviction.

III.

THE SENTENCE APPEAL

A.

The issue
    stated

[29]

As
    noted, the appellant was sentenced to 45 days imprisonment, to be served
    intermittently on weekends, and three years probation. Although the parties
    disagreed about the length of probation, they agreed on the terms of probation,
    including the term limiting the appellants use of devices to access the Internet
    or email, which he now challenges on appeal.

[30]

The
    Crown also sought a 10-year prohibition order under s. 161(1)(a)-(d) of the
Criminal
    Code
. Orders made under s. 161(1)(a)-(c) can limit where an offender may
    go, whom he may contact, and the type of employment he may undertake. Section
    161(1)(d) authorizes the court sentencing a person convicted of the possession
    of child pornography to make an order prohibiting the offender from using the
    Internet or other digital network, unless the offender does so in accordance
    with conditions set by the court. The Crown sought an order under s. 161(1)(d)
    containing similar limitations on Internet and email access as found in the
    probation order.

[31]

Defence
    counsel opposed the imposition of any s. 161 order. He argued one was not
    necessary given the evidence showing the appellant presented a low risk of
    recidivism, together with the serious probation terms imposed. However, in the
    event the court imposed a s. 161 order, defence counsel submitted the terms
    concerning computer use should be the same as those in the probation order.

[32]

Defence
    counsel sought a two-year term for probation. The sentencing judge disagreed,
    ordering probation for three years. However, the sentencing judge otherwise imposed
    the terms of probation agreed upon by counsel.

[33]

The
    sentencing judge did not make the orders under s. 161(1)(a)-(c) requested by
    the Crown. However, she did impose a 10-year order under s. 161(1)(d).

[34]

The
    probation and s. 161(1)(d) orders contain identical terms that limit the
    appellants use of any device capable of accessing the Internet or email and
    capable of storing data in a digital format. The terms state:

You shall be further limited to direct and indirect use of any
    device capable of accessing the Internet or email and capable of storing data
    in a digital format, including but not limited to computers, electronic media,
    digital or hard copy transport media or data, digital still or video cameras,
    camera phones, personal digital assistants, scanners as follows:

·

at your place of employment or as required for employment related
    purposes;

·

for the purpose of communicating with your legal counsel or, for
    the purposes of reviewing legal documents, or obtaining legal advice regarding
    ongoing legal and professional regulatory matters;

·

not to use a personal computer that does not have K9 protection
    software installed;

·

provide proof of installation of K9 protection on your personal
    computer(s) to your probation officer;

·

not engage directly or indirectly in the use of electronic media
    for the purpose of communicating with Internet websites commonly known as
    bulletin boards, whether interactive or static in nature; and

·

permit your probation officer, or a police officer requested by
    your probation officer to assist, access to your computer to ensure compliance
    with this Order, subject to reasonable precautions being taken to protect
    solicitor/client privilege respecting any client documents on those computers.

[35]

The
    appellant seeks leave to appeal from these limitations contained in the
    probation and s. 161(1)(d) orders (collectively, the Internet Limiting Terms).
     He asks this court to vary them so that the prohibition on his access to the Internet
    would forbid access only to: (i) any content that would be illegal under the
Criminal
    Code
; and (ii) any bulletin board, service or website that facilitates
    access to or makes available content that would be illegal under the
Criminal
    Code.


[36]

The
    appellant submits the Internet Limiting Terms are inconsistent with the
    evidence that he was at the low end of any risk to reoffend and tantamount to severing
    him from the Internet, which is an indisputable component of everyday life.

[37]

The
    respondent submits this court should not interfere with the Internet Limiting Terms.
    The conditions of probation  including the limits on computer use  were the
    product of a joint proposal by counsel. The s. 161(1)(d) order was reasonable
    for the purpose of protecting the community and facilitating the appellants
    reintegration into the community.

B.

Analysis:
    The probation order

[38]

The
    appellant seeks to vary the Internet Limiting Terms in his probation order.

[39]

The
    only dispute at sentencing concerning the probation order was whether it should
    extend for two or three years; the sentencing judge imposed a three-year
    probation order. The specific terms of the probation order were agreed upon by
    Crown counsel and very experienced defence counsel. In those circumstances, I
    see no basis upon which to interfere with the terms of the probation order.

C.

Analysis:
    The s. 161(1)(d) order

The statutory framework and purpose

[40]

Section
    161 of the
Criminal Code
was enacted in 1993. Amendments passed in
    2012 added s. 161(1)(d). Section 161(1) reads:

161 (1) When an offender is convicted, or
    is discharged on the conditions prescribed in a probation order under section
    730, of an offence referred to in subsection (1.1) in respect of a person who
    is under the age of 16 years, the court that sentences the offender or directs
    that the accused be discharged, as the case may be, in addition to any other
    punishment that may be imposed for that offence or any other condition
    prescribed in the order of discharge, shall consider making and may make,
subject to the conditions or exemptions that the
    court directs
, an order prohibiting the offender from

(a) attending a public park or public
    swimming area where persons under the age of 16 years are present or can
    reasonably be expected to be present, or a daycare centre, schoolground,
    playground or community centre;

(a.1) being within two kilometres, or any
    other distance specified in the order, of any dwelling-house where the victim
    identified in the order ordinarily resides or of any other place specified in
    the order;

(b) seeking, obtaining or continuing any
    employment, whether or 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;

(c) having any contact  including
    communicating by any means  with a person who is under the age of 16 years,
    unless the offender does so under the supervision of a person whom the court
    considers appropriate; or

(d)
using
    the Internet or other digital network, unless the offender does so in
    accordance with conditions set by the court
. [Emphasis added]

[41]

The
    overarching protective function of s. 161 of the
Criminal Code
is to
    shield children from sexual violence:
R. v. K.R.J.
, 2016 SCC 31, [2016]
    1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is
    not available as a matter of course: there must be an evidentiary basis upon
    which to conclude that the particular offender poses a risk to children; the
    specific terms of the order must constitute a reasonable attempt to minimize
    the risk; and, the content of the order must respond carefully to an offenders
    specific circumstances:
K.R.J.
, at paras. 48-49.

[42]

This
    court, at para. 17 of
R. v. Brar
, 2016 ONCA 724, 134 O.R. (3d) 95,
    summarized the Supreme Courts analysis in
K.R.J.
about the purpose of
    s. 161(1)(d):

In its analysis of s. 161(1)(d), the court addressed the need
    for such a provision. Section 161(1)(d) was enacted in 2012 to close a
    legislative gap created by rapid social and technological changes. Those
    changes have created a space for harmful behaviour not captured by the former
    iteration of s. 161, which allowed sentencing judges to prohibit offenders only
    from using computer systems to contact children directly. The new harmful
    behaviours now captured by s. 161(1)(d) include accessing and distributing
    child pornography and contacting other adults for the purposes of planning and
    facilitating criminal behaviour (
K.R.J.
, at para. 107). With the
    broadened powers under s. 161(1)(d), the court is better able to monitor
    offenders use of the Internet thereby limiting their opportunities to offend
    and preventing such behaviour (
K.R.J.
, at para. 108).

[43]

Given
    the discretionary nature of an order made under s. 161(1), an appellate court
    should not interfere absent an error in principle or the imposition of a
    prohibition that is demonstrably unfit and unreasonable in the circumstances:
R.
    v. W.Q.
(2006), 210 C.C.C. (3d) 398 (Ont. C.A.), at para. 25; and
Brar
,
    at para. 26.

The jurisprudence

[44]

The
    appellant submits the Internet Limiting Terms imposed by the sentencing judge
    are unreasonable in that they exceed the scope of the s. 161(1)(d) order
    imposed by this court in
Brar
. That order restrained the offender from
    using the Internet for 20 years to access: (i) any content that violated the
    law;  and (ii) any social media sites, social networks, Internet discussion
    forums or chat rooms (or making a profile on any such service). In fashioning
    that order, this court drew upon the decision of the Quebec Court of Appeal in
R.
    v. Perron
, 2015 QCCA 601.

[45]

In
Perron
, the Quebec Court of Appeal considered the reasonableness of a
    s. 161(1)(d) order in the context of convictions for sexual interference,
    invitation to sexual touching, and luring. Offences concerning child
    pornography were not involved. The s. 161(1)(d) order imposed by the sentencing
    court prohibited use of the Internet for five years except under the
    supervision of an adult who was aware of the offences committed: at para. 35.
    On appeal, the Crown submitted that instead of a total prohibition on internet
    use, the Court of Appeal should substitute a s. 161(1)(d) order that prohibited
    contact by means of the Internet with persons under the age of 18 years. The
    Court of Appeal agreed, and it modified the s. 161(1)(d) order to prohibit, for
    five years, use of the Internet to access illegal content, communicate with
    persons under the age of 18 years other than immediate family members, or
    access social media, such as Facebook.

[46]

In
Brar
, this court set aside as demonstrably unfit and unreasonable a s.
    161(1)(d) order that consisted of a 20-year prohibition on Internet use except
    when at employment and on the ownership or use of any mobile device with
    Internet capabilities. In its place, this court substituted a 20-year
    prohibition order along the lines of that imposed in
Perron
.

[47]

Mr.
    Brar pleaded guilty to counts of sexual assault, prostitution of a person less
    than 18 years of age, and child luring. In substituting a less restrictive s.
    161(1)(d) order, this court focused on several factors: (i) the initial orders
    restriction on the ownership of Internet capable devices fell outside the permitted
    ambit of a s. 161(1)(d) order; (ii) the order imposed would be particularly
    onerous on Mr. Brars ability to secure employment given that it limited access
    to his place of employment, as well as in light of his occupational history as
    a computer science specialist and IT technician; (iii) modern life requires
    some form of access to the Internet for innocent purposes; and (iv) Mr. Brar
    did not pose many of the risks s. 161(1)(d) was designed to prevent, such as
    the possession or distribution of child pornography.

[48]

Since
Brar
, s. 161(1)(d) has been considered by other appellate courts.

[49]

In
R. v. Miller
, 2017 NLCA 22, 354 C.C.C. (3d) 58, the accused entered a guilty
    plea to a charge of possessing child pornography. The sentence imposed included
    a s. 161(1)(d) order that prohibited Mr. Miller from using a computer to
    communicate with persons under the age of 16 years. The Newfoundland and
    Labrador Court of Appeal dismissed an appeal from that order. It held that in assessing
    whether an offender poses a risk to children for the purposes of justifying an
    order under s. 161, a sentencing judge is entitled to consider not only the
    results of relevant risk assessment tests, but also the facts and circumstances
    of a particular offence and/or offender: at paras. 21 and 27-28. The court
    concluded that the large volume of images, their violent content, the tender
    ages of the children depicted, and the period of time over which Mr. Miller had
    viewed the images demonstrated that he posed a risk to children, justifying
    making the s. 161(1)(d) order: at paras. 31-35.

[50]

Finally,
    in
R. v. Athey
, 2017 BCCA 350, the offender pleaded guilty to
    possession of child pornography, the making of child pornography, and sexual
    interference. The police had seized from the offenders devices child
    pornography consisting of approximately 2,300 still images and 27 videos. As
    part of the sentence, the sentencing court imposed a 20-year prohibition order
    under s. 161(1)(d).  Unfortunately, neither the sentencing nor appeal reasons
    described the precise scope of the order. The British Columbia Court of Appeal
    reduced the duration of the prohibition order to 10 years and modified the
    order to permit the offender if his employment so requires it, to use the
    Internet or other digital networks on digital equipment provided by the
    employer during his working hours for purposes of his employers business: at
    para. 51.

The present case

[51]

At
    the time she sentenced the appellant, the sentencing judge did not have the
    benefit of the Supreme Courts decision in
K.R.J.
Nevertheless, her
    reasons, when read as a whole, disclose that she considered the factors
    relevant to making a s. 161(1)(d) prohibition order  that is, whether the
    order constitutes: (i) a reasonable attempt to minimize the risk the offender
    poses to children; and (ii) a careful response to the offenders specific
    circumstances.

[52]

Although
Brar
did not involve a conviction concerning child pornography, in
    that case this court indicated, at para. 22, that the possession of child
    pornography is one of the risks s. 161(1)(d) was enacted to prevent. Here, the
    appellant possessed a significant amount of child pornography. In her reasons,
    the sentencing judge observed that the appellant possessed some 101 images and
    155 videos of child pornography. The material consisted of 45 unique images and
    111 unique movies. As the sentencing judge stated, [t]hose are 156 victimized
    children. The Psychological Assessment Report prepared by Dr. Sandra Jackson
    noted that the files possessed by the appellant depicted pre-pubescent youth
    engaged in various sexual acts with adult males and other youth and some of the
    files involved very explicit images of child abuse.

[53]

The
    possession of child pornography poses a grave risk to children. The sentencing
    judge specifically noted the case law that characterizes the possession of
    child pornography as an abhorrent crime that causes extreme harm:
R. v.
    Nisbet
, 2011 ONCA 26, at para. 1;
R. v. Sharpe
, 2001 SCC 2, [2001]
    1 S.C.R. 45, at para. 158 (concurring); and
R. v. Lynch-Staunton
, 2011
    ONSC 218, at para. 49.

[54]

The
    risk the appellant poses to children by possessing child pornography arose from
    his use of devices that accessed the Internet. There was no evidence the
    appellant had contacted or attempted to contact children. Given those
    circumstances, the sentencing judge did not accede to the Crowns request to
    grant a prohibition order under s. 161(1)(a)-(c). Instead, she limited the
    order to the means by which the appellant posed a risk to children  his use of
    the Internet.

[55]

In
    fashioning the overall sentence, the sentencing judge also took into account
    the results of Dr. Jacksons risk assessment, which assessed him as a low risk
    for sexual recidivism.

[56]

The
    specific conditions the sentencing judge imposed in the s. 161(1)(d)
    prohibition order, while strict, nonetheless carefully responded to the
    offenders specific circumstances. The conditions imposed by the sentencing
    judge permit the use of devices capable of accessing the Internet or email not
    only at the appellants place of employment, but also as required for
    employment related purposes.

[57]

Finally,
    one must recall that the dispute at trial regarding an order under s. 161(1)(d)
    concerned the need for such an order, not the scope of the order in the event
    one was made. The Crown sought a 10-year order containing terms set out in s.
    161(1)(a)-(d). The Crown submitted the conditions to be attached to a s.
    161(1)(d) order should mirror those in the probation order. Defence counsel
    opposed the imposition of any s. 161(1) order. In the alternative, he took the
    position that the only s. 161(1) condition that might be appropriate was s.
    161(1)(d), with conditions that mirrored those of the probation order. In the
    result, the sentencing judge granted only an order under s. 161(1)(d), which
    limited the appellants access to the Internet on the terms worked out by
    counsel.

[58]

In
    those circumstances, I would not interfere with the sentencing judges s.
    161(1)(d) order. The sentencing judge considered the relevant factors and
    crafted an order that reasonably attempted to minimize the risk the appellant
    poses to children and responded to his specific circumstances.

[59]

Although
    I would grant the appellant leave to appeal from the Internet Limiting Terms, I
    would dismiss his appeal.


IV.

DISPOSITION

[60]

For
    the reasons set out above, I would dismiss the appellants appeal from
    conviction. I would grant him leave to appeal from the Internet Limiting Terms,
    but I would dismiss his appeal.

Released: DW Jun 29 2018

David Brown J.A.
I agree. David Watt
    J.A.
I agree. Grant Huscroft J.A.


