



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Inksetter, 2018 ONCA 474

DATE: 20180523

DOCKET: C64324

Hoy A.C.J.O., MacFarland and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Mahlon Inksetter

Respondent

Lisa Joyal, for the applicant (appellant)

Paolo Giancaterino, for the respondent

Heard: April 9, 2018

On appeal from the sentence imposed on August 22, 2017 by
    Justice P. K. Doody of the Ontario Court of Justice.

Hoy A.C.J.O.:



overview

[1]

The respondent, Mahlon Inksetter, amassed one of
    the largest and worst collections of child pornography that the Ottawa Police
    Service had ever uncovered. He was convicted of possession of child
    pornography and make available child pornography, contrary to ss. 163.1(4) and
    163.1(3) of the
Criminal Code
.

[2]

The trial judge imposed a global, upper
    reformatory sentence of two years less a day in custody, followed by three
    years of probation. The Crown applies for leave to appeal sentence and asks
    that an increased sentence be imposed.

[3]

Respectfully, I agree with the Crown that while the
    trial judge specifically acknowledged that denunciation and deterrence were the
    paramount sentencing objectives for offences involving child pornography, his
    reasons demonstrate that he failed to give them paramount effect and that his
    error had an impact on the sentence he imposed. It is unnecessary for me to
    address the other grounds for the appeal the Crown advances. I would grant
    leave to appeal sentence, allow the appeal, and impose a global sentence of
    three and one half years imprisonment.

The Background

[4]

The police identified 28,052 unique images and 1,144 unique videos of
    child pornography on the respondents computer and various devices.
[1]
At that point, they halted their investigation, even though there were still
    1.2 million other images and 40,000 other videos left to review and categorize.
    Detective Carr testified that the respondents collection  which was amassed
    over several years  was among the top one or two most difficult collections
    she has ever had to review. Ninety-five percent of the material depicted actual
    penetration and other explicit sexual activity. Some of the images of explicit
    sexual activity involved children as young as one-year old. The images included
    bondage and bestiality. The respondent organized his collection in hundreds of
    folders, named in a manner consistent with their contents.

[5]

The material that the respondent downloaded was available to others via
    the internet so long as it remained in the shared folder on his computer. On
    March 8, 2016, this folder contained 75 unique files which were child
    pornography. On April 18, 2016, it contained 167 unique files.

[6]

The trial judge concluded that the volume of images and the number of
    children abused put the possession offence among the most serious for
    circumstances of the offence of possession of child pornography. He
    characterized the contents of the respondents very well-organized collection
    as at the extreme end of the spectrum.

[7]

He considered the circumstances of the respondent. He had no criminal
    record. He was 51 years of age and never married. His relationship with his
    ex-girlfriend had ended as she struggled with schizophrenia. He remained
    emotionally attached to her and continued to try to help her. Dr. Kingston, the
    psychologist whom the respondent began to see after the charges were laid,
    opined that the respondents motivation in turning to pornography was to numb
    out reality  a dysfunctional coping strategy for his feelings of lack of
    control over his ex-girlfriends struggle with schizophrenia. The respondents
    viewing of child pornography was accompanied by increasing marijuana use. Dr.
    Gray, the psychiatrist who carried out the respondents sexual behaviours
    assessment under s. 21 of the
Mental Health Act
, R.S.O. 1990, c. M.7, concluded
    that a diagnosis of pedophilic disorder was unlikely. He and Dr. Kingston
    agreed that the respondent was at very low risk to commit a future child
    pornography offence.

[8]

The trial judge noted that the respondent pled guilty at the first
    reasonable opportunity and would likely lose his employment as a result of his
    convictions.

[9]

The trial judge found that the respondent showed real remorse and
    insight and had accepted full responsibility for what he had done. He concluded
    that specific deterrence and rehabilitation had already been accomplished to a
    significant extent.

[10]

Crown
    counsel submitted that the applicable range of sentence was three to five years
    of imprisonment and that in these circumstances an appropriate sentence would
    be four and one-half years of imprisonment. Respondents counsel argued that
    the applicable range for possession of child pornography was nine months to
    four years, and a one year term of imprisonment on each count, with the two
    terms to run concurrently, followed by a period of probation of between 18 and
    24 months would be appropriate.

[11]

The
    trial judge reviewed several sentencing decisions, including
R. v. Dean
,
    [2010] O.J. No. 5305. In
Dean
, Ratushny J. sentenced Mr. Dean to the
    equivalent of 3 years for possession of child pornography in face of an
    applicable mandatory minimum of 45 days. (He was not also charged with making
    available child pornography.) Like the respondent, Mr. Dean pled guilty and was
    not a youthful offender and his collection of child pornography was large.

[12]

In
    determining what sentence to impose, the trial judge concluded that the
    appellants situation was more like that of Mr. Dumais, in
R. v. Dumais
,
    2011 ONSC 276, [2011] O.J. No. 116, another decision of Ratushny J. Mr. Dumais,
    like the appellant, showed real remorse and insight, voluntarily attended
    assessment and therapy sessions, and accepted full responsibility for what he
    had done. Specific deterrence and rehabilitation had already been largely accomplished
    for Mr. Dumais. To address the need for denunciation and general deterrence, Mr.
    Dumais was sentenced to 9 months in custody and a one-year term of probation,
    in the face of an applicable mandatory minimum sentence of 45 days.

[13]

The
    trial judge acknowledged that the minimum imprisonment had been twice increased
    by Parliament and the appropriate range of sentence for these crimes has
    increased since Mr. Dumais was sentenced.
[2]
He also acknowledged that the appellants collection was significantly larger
    and contained more vile images than that of Mr. Dumais and that Mr. Dumais was
    only convicted of possession, and not also of making available child
    pornography.

[14]

At
    para. 75, the trial judge was clear why he did not impose a term of
    imprisonment of more than two years. He wrote:

If the sentence was greater than two years, it
    could not include a period of probation. In my view, probation will be of
    significant assistance because it will ensure that [the respondent] receive[s]
    counselling in emotion regulation and dealing with stress that was recommended
    by both Dr. Gray and Dr. Kingston. Furthermore, a period of incarceration
    followed by a lengthy probation will allow control and supervision of Mr. Inksetter
    for a longer period of time than would the 4 ½ year sentence sought by the
    Crown.

Analysis

[15]

The
    trial judge justified a reformatory sentence for offences that he described as
    among the most serious for circumstances of the offence of possession of child
    pornography by the fact that it permitted him to include a period of
    probation. In his focus on probation, the trial judge gave primary effect to
    the objective of rehabilitation rather than the objectives of denunciation and
    general deterrence. The trial judges reasons demonstrate that this error in
    principle resulted in the imposition of a shorter term of imprisonment than
    would otherwise have been imposed.

[16]

By
    enacting s. 718.01 of the
Criminal Code
, Parliament made clear that
    denunciation and general deterrence must be primary considerations for any
    offence involving the abuse of a child. Further, this Court has repeatedly
    stated that denunciation and general deterrence are the primary principles of
    sentencing for offences involving child pornography:
R. v. D.G.F.
,
    2010 ONCA 27, 98 O.R. (3d) 241, at paras. 21-22, 30;
R. v. Nisbet
,
    2011 ONCA 26, [2011] O.J. No. 101, at para. 3;
R. v. E.O.
, [2003] O.J.
    No. 563, at para. 7;
R. v. Stroempl
, [1995] O.J. No. 2772, at para. 9.

[17]

The
    courts have very few options other than imprisonment to achieve the objectives
    of denunciation and general deterrence:
R. v. Lacasse
, 2015 SCC 64, [2015]
    3 S.C.R. 1089, at para. 6.

[18]

Probation
    has traditionally been viewed as a rehabilitative sentencing tool. It does not
    seek to serve the need for denunciation or general deterrence:
R. v. Proulx
,
    2000 SCC 5, [2000] 1 S.C.R. 61, at p. 87. Further, in this case the trial judge
    specifically viewed probation as a rehabilitative sentencing tool: he noted how
    it would assist in ensuring that the respondent continued to receive
    counselling. To the extent that probation was not intended as a rehabilitative
    tool, it was intended to address specific deterrence. The trial judge included
    a period of probation to achieve these objectives although he had found they
    had already been significantly accomplished.

[19]

The
    respondent argues that, in this case, probation assists in filling the need for
    denunciation and general deterrence because the probation order includes a term
    requiring him to agree to provide access to his electronic devices to the
    Ottawa Police Service upon demand for the purpose of searching for material
    related to child pornography before using the internet. The respondent says
    that this term, which was included as a workable alternative to a blanket
    prohibition on internet use, permits a significant interference with his
    privacy rights.

[20]

I
    reject this argument. As I indicate above, it is clear from the trial judges
    reasons that his objective in imposing a long period of probation was not
    denunciation and general deterrence. Moreover, I do not accept that the
    possibility that such a term might be imposed in a probation order, and that,
    if imposed, police might search an individuals electronic devices, serves as a
    general deterrent or that its imposition meets the objective of denunciation.

A Fit Sentence

[21]

As
    I have said, the trial judges error in principle led him to impose a sentence
    of two years less a day to allow for the lengthy period of probation. I agree
    with the trial judge that the objectives of specific deterrence and
    rehabilitation were largely met before sentencing. In my view, having regard to
    the circumstances of the offence and the offender, a global sentence of three
    and one half years imprisonment for possession of child pornography and making
    child pornography available is required to satisfy the objectives of denunciation
    and general deterrence.

[22]

Child
    pornography is a pervasive social problem that affects the global community and
    its children. In
R. v. Sharpe
, 2001 SCC 2, [2001] 1 S.C.R. 45, the
    Supreme Court described how possession of child pornography harms children.

As
    Fraser C.J.A. wrote in
R. v. Andrukonis
, 2012 ABCA 148, at para. 29,
    possession of child pornography is itself child sexual abuse. The children
    depicted in pornographic images are re-victimized each time the images are
    viewed. In amassing, viewing, and making available his vast and terrible
    collection to others, the respondent participated in the abuse of thousands of
    children.

[23]

Over
    the past decade, Parliament has increased the legislated range of sentence for
    child pornography related offences. Most recently, in 2015, it amended the
Criminal
    Code
to increase the minimum sentence for possession of child pornography
    to 1 year and the maximum sentence to 10 years, in all cases where the Crown
    proceeds by indictment. At the same time, the maximum sentence for make child
    pornography available was increased to 14 years. (The minimum sentence remains
    at one year.)

[24]

I
    am aware that there is an appeal pending in this Court in
R. v.
    Cristoferi-Paolucci
, 2017 ONSC 4246, [2017] O.J. No. 4341, challenging the
    constitutionality of the mandatory minimums for possession of, and making
    available, child pornography. However, even if the mandatory minimums are
    declared of no force and effect, Parliaments legislative initiatives signal
    Canadians concerns regarding the increasing incidence of child pornography.
    Sentencing decisions that precede these amendments must be viewed with some
    caution.

[25]

As
    Feldman J.A. wrote in
D.G.F.
, at para. 21, [o]ver the last two
    decades, courts have been on a learning curve to understand both the extent and
    the effects of the creation and dissemination of child pornography over the internet
    and to address the problem appropriately. Even before these amendments, this
    court signalled that more significant sentences for child pornography-related
    offences were appropriate:
R. v. H.(R.)
,
2012 ONCA 593, [2012] O.J. No. 4230;
R. v. Saliba
,
    2013 ONCA 660, [2013] O.J. No. 6002.

[26]

In
D.G.F.
, at para. 22, Feldman J.A. noted that the incidence of child
    pornography appears to be increasing and expanding as technology becomes more
    sophisticated. The Crowns evidence at the respondents sentencing reinforced
    this concern:

·

Child pornography is available to anyone now at the touch of a
    button.

·

A person can now access a peer-to-peer network just as easily
    as they can access the internet, and can search for child pornography on the
    dark Web just as easily as they can do a regular Google search.

·

Members of the Ottawa Internet Child Exploitation (ICE) unit,
    on average, about once every week, learn of new applications in respect of
    child pornography crime that they never even knew existed.

·

There are so many reports of child pornography related crime
    coming into the Ottawa ICE unit that the police have to triage by how bad the
    child pornography is.

·

The images and videos keep getting more aggressive. The police
    are now identifying more images of baby rape.

[27]

A
    longer sentence on the count of make available child pornography than for the
    count of possession is warranted because by making images and videos he
    downloaded available to others via the internet, the respondent contributed to
    the further victimization of the children depicted in the pornographic images. In
    my view, a sentence of three years imprisonment on the count of possession of
    child pornography and three and one half years imprisonment on the count of
    make available child pornography, to be served concurrently is fit in these
    circumstances, which include the early guilty plea and other mitigating factors
    identified by the trial judge.

Disposition

[28]

Accordingly, I would grant leave to appeal sentence, allow the
    appeal, and substitute a sentence of
three years imprisonment on the
    count of possession of child pornography and three and one half years
    imprisonment on the count of make available child pornography, to be served
    concurrently
.

Released: AH MAY 23 2018

Alexandra Hoy
    A.C.J.O.

I agree J. MacFarland
    J.A.

I agree L.B. Roberts
    J.A.





[1]
The police identified a total of 133,266 images and 3,032 videos of child
    pornography on the respondents computer and devices before they halted their
    investigation. A large number of these images and videos were duplicates.



[2]
The trial judge referred to Mr. Dean, rather than Mr. Dumais, in the relevant
    paragraph, para. 74, of his reasons. However, it is clear that this was an
    editorial mistake and his intended reference was to Mr. Dumais. Accordingly, I
    refer to Mr. Dumais.


