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Indexed as:

R. v. Lowes

Between

Her Majesty the Queen, informant, and

Kirk Lowes, accused

[1997] M.J. No. 549

Manitoba Provincial Court

Enns Prov. Ct. J.

October 23, 1997.

(9 pp.)

Counsel:

Janice LeMaistre, for the Crown.

Hymie Weinstien, Q.C., for the accused.

¶ 1 ENNS PROV. CT. J.: The accused has pleaded guilty to an information charging him with the offence of distributing child pornography, contrary to Section 163.1(3)(a) of the Criminal Code. The Crown having proceeded by indictment, the maximum punishment is incarceration for a term not exceeding ten years.

 

¶ 2 The facts are not in dispute and are, briefly stated, as follows:

1. Using his computer, the accused "down-loaded from Internet many images involving child pornography.

2. On three separate occasions the accused posted these images on computer networks as follows:

(a) June 25, 1996 - 11 images

(b)June 27, 1996 - 1 image

(c)July 17, 1996 - 8 images

3. As a result of information received from a Customs Officer in Ottawa, police officers in Winnipeg were able to trace the origin of these postings to the accused, and, acting on the authority of a search warrant, arrested the accused and seized his computer equipment including the images posted on the three occasions mentioned above, and as well, approximately 1000 more images 95% of which were clearly portraying child pornography, involving children in the 8 to 12 years of age grouping (see Exhibit S 2). These additional images were not distributed but simply downloaded from the Internet onto the accused's disk and computer hard drive. The computer records revealed numerous requests for more images to be sent (posted) or traded.

4. There is no allegation or proof of commercial or for-profit activity in the case.

 

¶ 3 These are the basic facts in this case. At the time of submissions to sentence, Crown counsel called Det. Sgt. Wayne Harrison of the Vice Division, Winnipeg Police Services, to testify about the investigation into the case, as well as to give general evidence about child pornography and its presence on the Internet. He explained that anyone with appropriate computer equipment can access extensive child pornography in this manner. Literally millions of Canadians have such computer technology and can access pornography not only from Canadian sources, but literally world-wide. This is a shocking, disgusting and tragic reality.

 

¶ 4 The accused is 27 years of age, married some 2 1/2 years, and the father of a child very recently. He has a good work record and is presently fully employed. Numerous character reference letters (see Exhibit S 1) from his wife, parents, other family members, co-workers and friends speak eloquently of his good reputation and fine character.

 

¶ 5 As the profit motive was not present here, what was the motive for his actions. I quote at some length from the psychiatric report prepared by Dr. Stanley Yaren, Psychiatrist, Health Sciences Centre, PsychHeath Centre, dated April 16, 1997 (contained inn Exhibit 51).

"The reason for this assessment was explained to Mr. Lowes. He understood that our conversation was not confidential as I would be preparing this report for your use. He was completely cooperative, open and spontaneous throughout the assessment procedure. Mr. Lowes is facing charges in connection with distributing child pornography over the Internet. Mr. Lowes readily acknowledges and admits to the actions which led to the charges against him. He also acknowledges the wrongfulness and immorality of his behaviour. Based upon this assessment it is my opinion that Mr. Lowes' involvement in the offending behaviour was not intentionally malicious was not done either for personal sexual gratification or for financial gain. Mr. Lowes first developed an interest in the Internet in December of 1996 at which time his home computer became connected to the Internet through a commercial Internet service provider. Mr. Lowes' interest rapidly progressed to a fascination and then later an obsession. He started spending all of his spare time in front of the computer attempting to master the technology of the Internet. This type of experience was not new for Mr. Lowes or for his wife, as it was his usual practice when he was becoming involved in and learning about something new to totally immerse himself in it. Mr. Lowes eventually mastered the techniques of searching the Internet and discovered News Groups where he was able to access sexually explicit material of all kinds. He admits that initially he was somewhat titillated by the erotic material (but not the pedophiliac material). He states that the novelty soon wore off and the content became boring. He then became interested in exploring more deviant material. He derived excitement from the sense that he was exploring and accessing things that are usually forbidden. He viewed this more as a technical challenge than as something he was doing for sexual gratification. As I understand it he explored a number of areas of deviant sexuality not only pedophilia. Eventually Mr. Lowes sought to increase his technical skills and mastery as well as his exploration of the forbidden by getting into the process of exchanging pictures by electronic mail. Apparently Mr. Lowes was unaware of the fact that there are relatively simple techniques which can be used to exchange E-mail without having it traced back to the individual. Mr. Lowes appears to have been experimenting without giving much thought to the implications of his actions. Mr. Lowes states that by the time he was charged with the offences his interest in the Internet had already begun to wane and it had been several weeks since he had accessed or exchanged any of the pornographic material. He states that he was in the process of deleting the material from his computer hard drive as the pictures were using up all of his storage space. Mr. Lowes is 27 years old. He has no past history of mental disorder and no criminal record. He has been married for the past 2 1/2 years to a woman who he has known for the past 14 years. They are expecting their first child later this year. Mr. Lowes has some university education. He is steadily employed on a full-time basis in a semi-skilled job with a cable manufacturing company. Previously he has worked as a salesman. Mr. Lowes is a moderate drinker and he does not use illicit drugs. He is in good physical health . . . . .

Mr. Lowes indicates that he does not experience any deviant sexual arousal. He indicated that he worked in one of the first adult video stores in Winnipeg. Initially he found this job quite sexually exciting but he rapidly discovered that continuous exposure to explicit sexual material was boring, monotonous and he soon lost interest. It is interesting to note that this earlier experience seems to have been repeated in his more recent exposure to explicit material over the Internet. It appears that when he became bored with this material he pursued more deviant and forbidden material as a way of stimulating his interest. Mr. Lowes indicated that he and his wife are quite compatible sexually and that he does not experience any need for involvement in deviant sexual fantasies or practice. There is nothing based upon my examination to indicate that Mr. Lowes suffers from pedophilia or any other paraphilic disorder . . . . . I would not classify Mr. Lowes' level of involvement in the Internet as a true addiction. I do not consider his interest in child pornography to be a manifestation of a pedophilic disorder. I do not identify any other mental disorder or condition requiring treatment or psychological intervention."

 

¶ 6 As indicated in Dr. Yaren's report, the accused has no criminal record and no history of any mental illness or problem. He immediately admitted his actions and has pleaded guilty in a timely manner. As there was considerable publicity about his arrest and the charge he faced, his counsel pointed out that he, his wife and greater family have already been subjected to humiliation, harassing and threatening telephone calls, as well as having his home spray painted with extremely derogatory words. Much emphasis was placed as to the degree of his remorse, and in making a Personal statement to the court, the accused again displayed what appeared to be sincere and deep regret for his actions.

¶ 7 The extent and availability of child pornographic material on the Internet was referred to earlier. In my view, this should be considered both as an aggravating, as well as mitigating factor. As the accused's counsel pointed out, the accused's actions are minor in comparison to the voluminous amount of such material available by accessing the appropriate sources. At the same time, the actions of the accused add to its availability and thus aggravate the situation. The evil of such exploitation of children is well described in a letter dated October 10, 1997 from Rev. Gordon Taylor of the Fort Garry United Church (also contained in Exhibit S 1), as follows:

"The production, distribution or consumption of child pornography is abhorrent to us who seek to be disciples of Christ. I believe that all too few males in our nation understand that pornography is not about sexual pleasure but about power over others, both vicarious and personal. Many men, including, but not limited to Kirk, have not always appreciated the cruelty and violence against children that goes into the production of these materials. Nor do enough men comprehend the devastation that remains with such individuals who have been used in making pornography. I suspect also that many males do not recognize how these images can erode their own sexuality and spirituality, and degrade the relationships that the users have with others in the community: men, women and children alike. Having acknowledged the evil of this material, nevertheless, I believe that incarceration is not the best way to deal with this crime (and sin), particularly in Kirk's case. It seems to me that to jail this not-yet-mature young man might satisfy some desire for vengeance, but only at the expense of brutalizing him, his wife and new daughter (here I am assuming that Kirk would be at risk as a 'molester' within the prison population). Incarceration would mean the loss of job and income. The cost to the state of protective custody would be augmented by the potential cost of family support. Further, I would think that we would want to encourage others to take responsibility for the actions, as Kirk has done by pleading guilty to the charges; a severe sentence would seem to discourage others from admitting their action. I believe that society's interest in rehabilitation, restitution and deterrence would be better served by requiring Kirk to further explore and understand the consequences of pornography on its victims, and to work to make other males aware of the damage pornography does."

 

¶ 8 To this point, I have written mainly about the actions and personality of the accused. Equally important, of course, is the potential harm which his actions may encourage others to engage in. It is recognized clinically that in the four-steps leading to pedophilia such material often accelerate the de-sensitivity to deviant sexual behaviour and the eventual acting out and actual physical child abuse. Courts must surely attempt to address' this concern with whatever sentencing alternatives are legally available.

¶ 9 The Crown relied upon the judgment of Morden A.C.J.O., Ontario Court of Appeal in R. v. Stroempl, (1995) 105 C.C.C. (3d), p. 187, in which the accused, a man of 67 years, was convicted of possessing a large quantity of child pornography, with no evidence of pedophilia, nor a profit motive, had his sentence reduced from 18 months to 10 months on appeal. Justice Morden quotes Finlayson, J. of the Ontario Court of Appeal in R. v. Jewell, 100 C.C.C. (3d) 270 at p. 277, as follows:

"The conduct underlying these convictions discloses a subculture that is unsettling and repugnant. These appeals confront the court with the pressing issue of how to deal with offenders such as the appellants who prey on young persons, boys in this case, for no other purpose than their own sexual gratification. The court must be responsible to emerging concerns that pornography, particularly child pornography, has become an area of criminality that increasingly menaces our young people and threatens our values as a society. Because pornography now can be so easily prepared and disseminated through relatively inexpensive means, such as the handheld video camera used in the case under appeal, it has emerged as a very real problem in our society."

 

¶ 10 These cases were, of course, decided before Section 742.1 (conditional sentences) was enacted, nevertheless their dicta is appropriate.

 

¶ 11 In R. v. Pecchiarich, a decision of the Ontario Court of Justice (Provincial Division), on July 20, 1995, Sparrow, P.J. imposed a suspended sentence, 150 hours of community service, psychological assessment, and certain other conditions for the offence of distributing child pornography on a computer bulletin board system, much like the situation in this case. In that case, the accused was 20 bears of age, and also had no prior criminal record.

 

¶ 12 In R. v. Wischnewski, a decision of this court by Judge Frank Aquila, the accused was found in possession of over 500 video tapes depicting the torture and bondage of women, an& animals and children performing sex acts. Evidence in that case indicated that the accused had been distributing and selling these video tapes across Canada for between $30.00 to $50.00 and had earned approximately $10,000.00 from this illegal endeavour over a five year period. Judge Aquila imposed a 90-day jail sentence and, in addition, a fine of $4,000.00 on charges of distributing obscene material and possession of child pornography for the purpose of distribution. The extent of the distribution of such material and as well, its nature, i.e. video tapes v. still photos as in the case here distinguish, but do not minimize the case before me. Likewise, the commercial aspect of the Wischnewski case distinguishes it from the case before me in which no such allegation is made.

 

¶ 13 Since some of these cases were decided before the introduction of the conditional sentence, I have appreciated re-reading the judgments of our Manitoba Court of Appeal in the following cases:

R. v. Jozef Arsiuta (February 7, 1997)

R. v. Victoria Janine Stevens (March 11, 1997)

R. v. Donald Ralph Sanderson (April 25, 1997)

R. v. Conchita Mananghaya (May 16, 1997)

R. v. Donald Wiznuk (October 6, 1997)

 

as well as my judgment in R. v. Emile Courchene (March 21, 1997).

 

¶ 14 While these cases deal with very different and divergent matters, they address the issue of conditional sentences or other non-incarceratory dispositions. The Crown rightly points to the need for a sentence that adequately addresses the need for general deterrence and the need to express society's denunciation for cases involving children or as many judgments have held "our most vulnerable citizens".

 

¶ 15 While the accused in this case never personally exploited or abused any child, he compounded the exploitation and abuse which the makers of these pornographic images entail. His distribution of them, even if limited, potentially accelerated deviant violent behaviour towards children by others which clearly requires denunciation and deterrence.

¶ 16 While the Criminal Code provides for a maximum sentence of ten years, it also provides no minimum, nor does it preclude consideration of any other lawful disposition provided for in the Code. Having decided that a denunciatory and deterrent, sentence is required, is incarceration the appropriate disposition? In R. v. J.W. (Ont. C.A., 1997), No. 1380 - April 8, 1997, Rosenberg J.A. said:

"In my view, the enactment of the conditional sentence regime represents a concession to the view that the general deterrent effect of incarceration has been and continues to be somewhat speculative and that there are other ways to give effect to the objective of general deterrence."

 

¶ 17 In the Stevens (supra) case Mr. Justice Twaddle cites this comment, as well as an excerpt from from the 1987 Canadian Sentencing Commission (long before conditional sentence) as follows:

"In view of its extremely negative collateral effects, incarceration should be used with great restraint where the justification is general deterrence."

 

¶ 18 Cases of this kind are so terribly repugnant that it is not surprising that offenders are subjected to vilification, hatred and humiliation. It is therefore important that an independent tribunal, in this case, the Court, not be swayed simply by public outcry but by applying appropriate sanctions according to law. In R. v. Knockaert, 16 Man.R. (2d) p. 313, Hall J.A. stated at page 317:

"What an individual offender should receive for a particular offence for which he has been found guilty is always a difficult and sensitive task. It cannot be discharged by reference to any formula or tariff, nor by reference to perceived public opinion. It must be done in a manner that reflects the unique circumstances of the particular offender and of the offence."

And later in the judgment by Mr. Justice Huband, at page 326:

"This Court is unanimous in its expressed view that decisions on sentence ought not to be influenced by the pressures of public opinion."

 

¶ 19 In attempting to apply the correct sentencing principles to this case, I must consider the aggravating, as well as mitigating factors alluded to already. It is my view that despite the seriousness of the accused's offence, that a generally deterrent and denunciatory sentence can be imposed without resorting to incarceration. The sentence will be as follows:

 

¶ 20 The Court imposes a fine of $5000.00 or in default, the statutory alternative, in addition, there will be a two year Probation Order with the following conditions:

(a) Probation supervision

(b) The surcharge of $35.00 or the statutory alternative.

(c) Attend, participate and complete such counselling as may be directed by Probation Services, which shall include at least attending five meetings with an anti-pornography organization, as arranged by Probation Services.

(d) A prohibition from possessing or accessing any pornographic material whatsoever.

(e) Keeping the peace and being of good behaviour.

 

¶ 21 In addition, the Court orders the forfeiture of all pornographic material seized from the accused, excepting the computer equipment not containing any pornographic information or material.

ENNS PROV. CT. J.