Toronto Computer Crimes Lawyer

Access Child Pornography — Youth Guilty Plea

Client:  S.Y., Accused
Complainant:  Toronto Police Service Sex Crimes Unit — Child Exploitation Section
Charges:  access and possess child pornography

The Queen v. S.Y.
Ontario Court of Justice, Toronto
Judge Oleskiw
(Youth guilty plea: 20 July 2015)

Crown:   N. Fassler, Office of the Crown Attorney, Toronto
Defence:  Craig Penney, Toronto Child Pornography and Computer Crimes Lawyer

¶ 1  CROWN:  Good morning, it's Nicos Fassler for the Crown. So Your Honour, this is a matter that Your Honour has been following for some time. We're on the youth docket currently. There is a youth replacement information before the court.

¶ 2  THE COURT:  Can I see that Information, please. Thank you. Yes, okay, very good.

¶ 3  CROWN:  So what I anticipate happening, Your Honour, this morning, is that pursuant to our discussions, Mr. Y. will be arraigned on the youth information that's before the court.

¶ 4  THE COURT:  Yes.

¶ 5  CROWN:  He will enter a plea of guilty today. We won't put any facts in before Your Honour. My friend will concede there will be a basis, certainly, to the plea at the end. We've outlined that sort of in brief before Your Honour in chambers.

¶ 6  THE COURT:  Yes.

¶ 7  CROWN:  The matter would then go over for sentencing to a September 11th date, and in the interim, a report will be prepared and what I'll do today or this week is to get the order before Your Honour, and my friend is content that I do that in his absence. We hope that Dr. Gojer will be able to do that, I know my friend has been in contact with him, I just need to confirm that with the mental health office. The only other item of business, then, would be to withdraw the adult information, vacate the trial dates that have been set for October, and then attach the release to the new information ...

¶ 8  CLERK:  S.Y., you stand charged that between the 1st day of January, in the year 2008, and the 1st day of January, in the year 2011, at the City of Toronto in the Toronto Region, Mr. Y., a young person within the meaning of the Youth Criminal Justice Act, did have in his possession child pornography, contrary to the Criminal Code. How does the Crown elect to proceed?

¶ 9  CROWN:  By indictment. There's no election. It's a youth.

¶ 10  CLERK:  And how do you plead to the charge read to you, guilty or not guilty?

¶ 11  CLIENT:  Guilty.

¶ 12  CROWN:  And Your Honour, just so we're all clear. It is a youth information. I noticed the clerk noticed after the fact that it was prepared on an adult form, and that's the wording is a bit confusing, but he's made the necessary notations on it that it will appear as a youth information, and it does stipulate a young person, pursuant to YCJA. So I'm content that it is a youth information.

¶ 13  THE COURT:  Okay, so Mr. Y., I've accepted your plea of guilty, and I have had several judicial pre-trials with your counsel and the Crown and all are agreed that the factual, all of the essential elements of the offence have been made out. So I'm accepting your plea of guilt, but we will flesh it out in much more detail on September the 11th ...

¶ 14  THE COURT:  ... I was going to say the order for the s. 34 order is going on consent and it's agreed that Dr. Gojer will do it, and I just need to sign a formal order ...

¶ 15  CROWN:  Thanks, Your Honour. And if Mr. Clerk could just note the adult information withdrawn, the trial dates vacated and attach the releases to the youth information. I'll speak to the trial coordinator today just so that they have that obviously, Your Honour, as well.

¶ 16  THE COURT:  Okay. Thank you.

The Queen v. S.Y.
Ontario Court of Justice, Toronto
Judge Oleskiw
(facts and sentence: 11 September 2015)

Defence:  Craig Penney, Toronto Child Pornography and Computer Crimes Lawyer

¶ 1  CROWN:  So Your Honour, we're here on Mr. Y.'s matter. We're on the youth record, I believe.

¶ 2  THE COURT:  Yes, we're a Youth Court.

¶ 3  CROWN:  And constituted as a Youth Court, Mr. Y. having entered pleas before Your Honour some time ago. We are back today complete the matter of sentencing and to read some facts.

¶ 4  THE COURT:  Yes ...

¶ 5  CROWN:  ... EXHIBIT NUMBER 1: Agreed statement of facts — produced and marked.

[FACTS ADMITTED: On 11 December 2013, Microsoft reported to the authorities that a user at an IP address, later identified as Mr. Y., had uploaded 3 images of child pornography via SkyDrive, which is on-line storage and back-up service offered by Microsoft. On 13 August 2013, a search warrant was executed at his residence, where he lived alone, but he was not arrested at that time, as no illegal files were found during the on-site forensic search. Later forensic analysis provided grounds to arrest Mr. Y. On 23 September 2014, Mr. Y. was arrested. After speaking with duty counsel, he provided a statement. Mr. Y. admitted to having an interest in child pornography from his early teens and to downloading about 100 images of child pornography over the 10-year period prior to his arrest. He admitted that the last time he was on the computer searching for child pornography was "probably" in 2013. That admission is consistent with the forensic analysis of the items seized, which revealed six images of child pornography associated with system-created files, but no files purposely saved or stored by the user. During the statement, Mr. Y. told the investigating officers that "I really hate it", "that I tried so hard to stop," and that there were times when "I would literally throw up in my mouth." Before the upload, he had "tried to delete them in every imaginable way." He admitted to uploading the 3 illegal images to SkyDrive, but explained that the upload of the illegal files was non-intentional because he didn't know he still had those images. He couldn't delete the images from SkyDrive, he further explained, because Microsoft froze his account, but he did send a service ticket to Microsoft reporting what had happened.]

[Submissions are made at this time.]

¶ 6  REASONS FOR SENTENCE:  Possession of child pornography is a very serious offence. As you well know, and as is reflected in Dr. Gojer's report, you appreciate how harmful it is to those children and to other children, in fact. I have rarely seen such a positive report as is put forward by Dr. Gojer, on your behalf, and it speaks very well of you. You have come before the court with no previous record of any kind and you, indeed, have demonstrated, as Mr. Penney puts it, ownership, insight and relapse prevention basically from the get-go. So you have done a lot of work and that all bodes well for you. As sentencing you as a young person, I do agree with Mr. Penney that one year probation is sufficient to meet all of the goals of sentencing of a youth with no previous record, and a youth in your circumstances. And there will be a one year probation order, and the terms of that probation order will be that you report immediately, today, and thereafter, as directed by your probation officer or his or her designate. You will continue to take counselling or treatment, as directed by Dr. Gojer, or his designate, and sign releases to allow your probation officer to monitor your progress and completion of any programming. You, also, during the year of your probation, must not seek employment or a volunteer position that puts you in a position of trust or authority towards a person under the age of 16 years of age, under the age of 16, and you must not, as well, be alone with any person under the age of 16 years unless in the direct and continuous presence of another adult. And those would be all of the terms. Do you have any questions about any of those terms?

¶ 7  CLIENT:  No, Your Honour.

¶ 8  THE COURT:  Okay, and you'll be able to abide by them? Okay. If you breach your probation order, you are subject to being prosecuted, charged, prosecuted and possibly spending jail time for that offence, and that also would affect how the criminal records are treated under the youth system. So it's obviously very important that you abide by your probation order. That probation order also includes statutory terms, which are to keep the peace and be of good behaviour. So you basically have to stay out of any kind of trouble for a year. I believe that completes the matter. I want to say that I am impressed that you've taken this head on as a young person, and I certainly am very hopeful that you are able to overcome your challenges and that we don't ever see you in the criminal courts again, sir, okay.

¶ 9  CROWN:  Thanks, Your Honour. And Your Honour does have the orders that ....

¶ 10  THE COURT:  I have the order. I'm going to endorse the forfeiture order, as it's going on consent.

¶ 11  CROWN:  Thank you. And I just want to thank both the officer for her assistance in dealing with the matter, and as well, my friend, for providing the information that he did in the frank and fair manner that he did. It certainly helped the Crown to come to the position that it ultimately did.

¶ 12  THE COURT:  Yes, the whole matter was dealt with extremely well, so I thank everybody.

¶ 13  MR PENNEY:  Thank you, so much, Your Honour.