R. v. Hopps

2010 BCSC 1875 R. v. Hopps

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hopps, 2010 BCSC 1875 Date: 20101210 Docket: 36907 Registry: Penticton Regina v. Kenneth Allan Hopps Sexual Offender Information Registration Act Before: The Honourable Mr. Justice Brown Oral Reasons for Sentence Counsel for the Crown C.A. Crockett Counsel for the Defence J. Pennington Place and Date of Hearing: Kelowna, B.C. December 9 and 10, 2010 Place and Date of Judgment: Kelowna, B.C. December 10, 2010 [1] Mr. Hopps stands convicted after trial of two offences: possession of child pornography contrary to s. 163.1(4) of the Criminal Code of Canada, R.S.C. 1985, C-46 [Code], and accessing child pornography contrary to s. 163.1(4.1) of the Code. The minimum sentence allowable for these offences is 45 days, the maximum is five years. [2] The Crown agrees the principles of R. v. Kienapple, [1975] 1 S.C.R. 729, apply. Consequently, Mr. Hopps' sentencing will relate only to possession of child pornography. However, I note some aspects of his accessing of pornography remain relevant to sentencing. [3] Mr. Hopps is 61. He was arrested after his wife, since divorced from him, reported him to police after she found pornographic images on the computer she shared with him. This was not the first time she had found such images on the computer. After she had found images on the computer on the earlier occasion, she spoke to Mr.

Hopps about it. She also sought advice and investigated ways she might monitor his access and prevent him from downloading further images. However, Mr. Hopps, who has considerable knowledge of Windows operating systems, knew how to circumvent the controls his then-wife had put in place. This is recounted fully in my reasons for conviction and I will not detail them further here. [4] Mr. Hopps had relevant prior convictions, and while details are not clear, it is evident he has a long history of viewing, accessing and possessing pornographic images. [5] The Crown has submitted a sentence at, or near, two years is fitting, coupled with the maximum allowed three years of probation and additional ancillary orders. [6] During sentencing submissions, defence counsel submitted a sentence of one year, plus probation, was a more appropriate sentence. However, this morning, before I began giving submissions, counsel advised that Mr. Hopps had conferred with his counsel and other advisors. Given what Mr. Hopps understands is the superior counselling and treatment services available in the federal system, he advised counsel he preferred a federal sentence. Counsel conferred and agreed on a sentence of two years, plus conditions for probation and ancillary orders, which I will refer to momentarily. [7] I have not given my reasons for sentence yet, of course. Two years imprisonment is close

to the sentence I intended to impose, and I agree to the proposed sentence. Given the sentence and the law's requirment of reasons for sentence, I will give continue with those now. [8] Mr. Hopps lives in Howard House, where he has to follow house rules. He lives on Social Assistance, plus some occasional income from busking. He has been assessed by a psychologist and a thorough pre-sentence report has been prepared. [9] Crown called Corporal A. Filotto who works in the Integrated Child Exploitation Unit of the RCMP, located in Surrey in this province. This was in response to a suggestion I made prior to sentencing that evidence about the nature and prevalence of child pornography offences in our province and Canada might be of some value on sentencing. [10] At trial, I heard extensive evidence from Corporal Kuan and other witnesses about various kinds of child pornographic images. Further details of these images can be found in my reasons. However, in summary, Corporal Kuan explained the various categories of pornographic images identifiable through the use of forensic software used by police investigative units. [11] Using this specialized software, Corporal Kuan identified eight images in what he referred to as Category 2. This category identifies images involving children and gross assault and two of these involved penetrative assaults involving an adult. In Category 3,

which encompasses explicit sexual activity involving children but not involving an adult, there were 15 images. In Category 4, which involves explicit erotic posing of children with an emphasis on the genital areas, there were 33 images. There were 56 child pornographic images in all. [12] In addition, there were 99 images in Category 5. These do not meet the Code definition of child pornography, but are of interest because, as Corporal Kuan explained, they are typically linked to images in Categories 1 to 4: a series of child pornography images often begin with a fully-clothed child and then progress through images sequentially, ending in images depicting explicit sexual activities with an adult. [13] After forensically examining the hard drive and looking for further evidence of pornographic images that may have been downloaded in the past but were no longer imprinted on the hard drive, Corporal Kuan examined various recent system indices utilized by Windows operating systems. These included: users of documents; unallocated space on a hard drive; user history of Internet access; restoring the system to earlier dates; searching the history of deleted bookmarks; indexing of items sent to the recycling bin; and, other indexing artefacts found on the computer hard drive used by Mr. Hopps. [14] From information gathered, it was clear there had been child pornographic images stored

on the computer hard drive at an earlier time, and that Mr. Hopps had accessed a variety of Internet web sites that were either clearly child pornographic in nature, or at least highly suggestive of images exploitive of children, in some cases of very young children. [15] In court, I briefly reviewed 50 thumbnail pornographic images. I then ordered them sealed, accompanied by an order that they were to be viewed only by a judge as necessary in furtherance of further proceedings in this case, such as an appeal. In summary, they are highly graphic images of very young girls, prepubescent, some perhaps in their very early teens, without exception in highly sexual poses. A few images involved very young children. There are images of oral sex performed by the child on a male. Some show penetration of young girls, and an erect adult penis can be seen positioned on the body of a very young girl, a toddler by my estimation and that of Crown, but in that instance without penetration. [16] These images are all highly disturbing to any right-thinking person, who would naturally hope never to see a child exploited in that way. They are the work of the most depraved of moral sensibilities, and constitute a callous violation of the childhood innocence every caring adult naturally wishes for and strives to provide to every child ─ "all the heaven that lies about our infancy," as the poet

Tennyson put it. [17] Crown counsel pointed out that victim impact statements are rare in child pornographic image cases. This is not surprising, given the age of the victims and the inherent nature of the crime. However, in R. v. Kwok, [2007] O.J. No. 457 (Ont. S.C.J.) [Kwok], the judge referred to the victim impact statement given by a young girl adopted from Russia by her abuser when she was five years old. He had essentially treated her as a sex slave for five years after adopting her. As the judge explains at paragraph 55, he had taken hundreds of pictures of her being sexually abused and mistreated and then displayed them on the Internet. Some of these very same images were in the collection of Kowk, the offender in that case. [18] At the time of the judge's 2007 sentencing reasons, the child was 13. Crown counsel explained she had tried to obtain a complete copy of the victim impact statement, but was advised by U.S. counsel the child no longer wished to make the full statement available. Counsel explained that early on, the child had participated in campaigns against sexual exploitation of children, using her negative experience to that positive end. As the judge in Kwok stated, the feelings expressed in the statement likely would be shared by any child or surviving adult treated as she had been. [19] At paragraph 51, the judge quoted her victim impact statement: The

absolute worse (sic) thing about everything that happened to me was that Matthew [her abuser] put my pictures on the internet. He traded them with other people like baseball cards. What kind of people want to see pictures of a little girl being abused in this way? ... I know that these pictures will never end and that my "virtual abuse" will go on forever. Usually when someone is raped and abused, the abuse ends. But since Matthew put those pictures on the Internet, my abuse is still going on. Anyone can see them. People ask for them and are downloading them. Day after day. People want to see me abused. I want every single person who downloads my picture to go to jail and be really punished as much as possible. They are as evil as Matthew. They want to see me suffer. They want to see me starved and hurt and sad and abused. Child pornography is not a victimless crime. I am a victim and I still suffer everyday and every time someone sees me being abused. [20] White it is possible the child's counsel at the time may have paraphrased the statement, it has the ring of truth about it, and it is, in my estimation, a reliable reflection of what a child in that situation, having experienced what she did, would say about the impact of sexual exploitation on them. [21] Mr. Hopps' former spouse also provided a victim impact statement. She stated when she reported her husband to the police

after discovering child pornography on the computer she had shared with her husband, despite safeguards she had put in place previously after discovering similar images, she and her son were evicted from their rental accommodations. She is overcome with feelings of guilt, and both she and her son have felt significant negative repercussions in the community from Mr. Hopps' actions and their previous connections with him. This is not surprising. Child pornography, and the sexual abuse and exploitation of children that produce it, is rotten at its root, trunk, branch, stem and leaf, and all of its fruits are poisonous. Judges in various courts and jurisdictions have said as much repeatedly, as discussed further later. [22] The Crown called Corporal Filotto as a witness not to give an expert opinion, though he does possess much knowledge and considerable training and experience in the investigation of the distribution, accessing, and possession of child pornography images, but to give factual information about the prevalence of the accessing and possessing child pornography, particularly in Canada, but also internationally, and about the effect of the Internet and its impact on the growth or the spreading of pornographic child images, the limitations investigative units face, and the obstcles to their identifying and apprehending offenders. He provided statistics to illustrate the

prevalence of child pornographic images found on the Internet, downloaded by users and kept for their own use or distribution to others. [23] Corporal Filotto has been a member of the RCMP for 19 years. For the last five years, he has been a member of the Integrated Child Exploitation Team, referred to as the ICE Team, which works out of Surrey, British Columbia. It consists of one sergeant, two corporals, nine constables and support staff. Despite this staff, Corporal Filotto explained that they do not have the resources required to fully carry out the work load they have. [24] The ICE Team coordinates its work with the National Child Exploitation Unit in Ottawa, Interpol, and with various international policing agencies who share pertinent information with the ICE Team working in Surrey. They also share information with other police forces in British Columbia. There is a proactive component to their work and unit members travel the province, if necessary, to train officers. [25] Corporal Filotto is a certified professional IT technician and is nearing completion of his certification in computer and Internet forensics. Therefore, he has a good foundation for describing and providing the facts and information he did in this case. [26] He explained that development and growth of the Internet has fostered the spread of child pornography and with it the subcultures that develop

and support it and, through them, express approval of sexual exploitation of children. Child pornography subcultures, through such means as chat groups, create a sense of legitimacy confirming a sense that their behaviour is normal and acceptable. [27] The Internet has become the main medium for distribution and consumption of child pornography. The volume of Internet traffic viewing child pornography is increasing. Corporal Filotto explained it appears the age of children is lowering in child pornographic images, which has increased concern victims even younger than what are now seen will be less able to disclose abuse than older children would be capable of doing. Young children appear to be increasingly preferred. [28] The anonymity of the Internet allows offenders to communicate with one another and exchange images, videos and stories. The absence of jurisdictional boundaries makes policing very challenging, both in the location and investigation of crimes, where the offence is often committed and shared internationally. Cpl. Filloto explained the Internet is growing faster than the responsive investigative processes police can put in place. [29] Cpl. Filloto explained pornographic images are used as a form of currency of exchange between offenders storing pornographic images. They are able to use images they have in their possession as a bargaining tool and means of

exchange for new images in the possession of other collectors of child pornography images. Some offenders collect these images in special series or according to their individual preferences, much as some people might collect baseball cards, which is how both Cpl. Filloto and the victimized child mentioned earlier described the process. Collectors can then use these series or unique collections in exchange for other images to be added to their own collection or to complete a series. In some instances, a series of images of children exploited from a very young age are kept and then, as the child becomes older, added to, with offenders wanting to have a complete set of all of the images of that particular child from the earliest years onward. Some of these children become particularly well known by child pornography viewers, and are known and sought out by their name. [30] Other obstacles to apprehension, apart from the obvious barrier of national boundaries, include variations in the legal definition of child pornography from one jurisdiction to the next; and likewise, the age of protection for children varies. [31] Internet service providers do not monitor the content of their servers. [32] Corporal Filotto explained that, according to recent statistics provided by the Office of the Federal Ombudsman of the Government of Canada, child exploitation offences have increased 800

percent between 1998 and 2003. His own experience confirms its incidence has been increasing since then. As for pornographic images portraying serious child abuse, the incidence of these images has quadrupled between 2003 and 2007, according to the Federal Ombudsman. Eighty-three percent of these contain images of children 12 years old or younger, 39 percent are of children between 3 and 5 years, and 19 percent contain images of infants less than three years of age. [33] Content is becoming increasingly violent. With improved imaging technology, images have become clearer, compared to the grainy images available in the 1970's. Over 80 percent of the images and videos catalogued by the Ombudsman involve penetration, 20 percent involve torture or bondage, and 87 percent involve prepubescent children and are "highly graphic." [34] Referring once again to research by the Office of the Federal Ombudsman for Victims of Crime, Corporal Filotto stated estimates are that 500,000 individuals worldwide are trafficking in child pornography. Of those convicted, 30 percent were living with minor children, and almost 50 percent had access to minors at home, either as part of their work or social setting. [35] Corporal Filotto explained the work of Cybertip, a non-profit Winnipeg, Manitoba company that fills a similar function to Crime Stoppers, well-known to most people. But in Cybertip's

case, the focus is on crimes of child exploitation occurring anywhere in the world. Anyone aware of sexual exploitation of children, through child pornography or in other ways of exploitation, can make a report to Cybertip. [36] Cybertip keeps its own statistics, and these indicate 82 percent of images analyzed depict very young, prepubescent children under 12. Thirty-five percent depict serious sexual assaults. Some of these are extreme, involving children under 8. [37] The countries most involved in hosting images of sexual abuse in order of incidence are: United States, Canada, Russian, the Netherlands, and Spain. In some cases, server companies hosting child pornographic images may be unaware their servers are being used for that purpose. Businesses for example, may not be aware, their servers are hosting a child pornographic site or images. [38] Corporal Filotto's own unit receives approximately 300 files per year from national and international sources, a substantial majority of which involve child pornography. His unit has observed a decrease in still images and an increase in child sexual assault videos. The ICE Team receives files from local, regional and international agencies. Videos are becoming more prevalent with faster access and downloading times that are now available on the Internet. [39] Proactive investigations of the ICE Team focus primarily on monitoring

peer-to-peer social networking sites. However, the unit is able to monitor less than three percent of these peer-to-peer networking sites. Based on their monitoring of those sites, Corporal Filotto testified police are aware of over 18,000 Canadian households, which, through file sharing, are in possession of, or possibly making available, child pornography. [40] Software available to the ICE Team, and other police units, allows them to identify child pornographic images on folders shared in peer-to-peer networking sites such as LimeWire. These were initially developed to allow people to share music, but have mutated into a multiplicity of uses, including sharing of child pornography images. Using sophisticated image recognition programs developed for use by law enforcement agencies, the police are able to compare images found on shared social networking folders to thousands of previously identified child pornography images stored on the server data base used by law enforcement agencies. [41] ICE Team investigations confirm child pornographic images are being shared throughout Canada and not just in major centres. As an example, in October 2010, in [redacted], a small Vancouver Island community, police identified 3 IP addresses accessing child pornography through peer-to-peer social networking sites. IP users of those sites can be identified and monitored. In British Columbia,

approximately 2,483 IP addresses are sharing pornographic images. As further examples, in Kelowna the number is 126 and in Penticton 27. However, that is only in relation to the sites police are able to identify and monitor through their software and monitoring of peer-to-peer social networking sites such as LimeWire. [42] Apart from the limitations and challenges police face as a result of jurisdictional boundaries, Corporal Filotto testified offenders are finding better ways to collect and share images of sexual abuse. As RCMP and municipal forces improve their methods, offenders likewise find better and more secure ways to share and collect their images. They increasingly use encrypted networks and secure networks, which cannot be accessed by investigators. They are also increasingly using Cloud storage, that is, huge servers with tremendous storage capacity provided for free, or even larger amounts with modest additional cost, and these are password protected. These server systems, routed through multiple countries and servers, are notoriously difficult to trace and shut down. [43] Child pornographic images can also be stored more conventionally, but also secretively, on computers and hard drives, in and as part of video games, digital cameras and storage devices, CDs and DVDs, thumb drives, phones and MP3 players. [44] As for conditions restricting computer use by

parolees, Corporal Filotto testified it is almost impossible to monitor whether offenders who are subject to conditions imposed by the court on computer use are actually accessing child pornographic images or not. He explained police may attend and examine a computer in the offender's home as permitted by a probation condition, but the offender may easily have a laptop or other available means of accessing images the police have no way of ascertaining or accessing. In effect, I understood from Corporal Filotto's evidence there are no monitoring systems available to ensure compliance with conditions the court may impose with respect to use of computers. [45] Corporal Filotto particularly emphasized the role of web forums and subcultures surrounding child pornography, as briefly mentioned earlier, and particularly their ability to elicit a sense of peer approval and confirmation of the normality of sexual and inappropriate emotional relationships with children. Subculture hierarchies develop, and there are differing levels of prestige and status within the subculture of members collecting and viewing child pornographic images. For example, he explained an offender with their own child, who then exploits this to develop a collection of pornographic images using a webcam, is accorded the highest status. Below that is the offender who possesses a very large collection and

cataloguing system, and who has knowledge and experience and can offer advice on how to avoid detection. Some collectors of child pornographic images have what Corporal Filotto described as a collection personality, and are focused on collecting a complete set of available images of a particular child, as briefly mentioned earlier. [46] At trial, I heard evidence that child pornographic images can progress from somewhat benign-appearing photographs of children fully clothed, to various states of undress, followed by images depicting increasing degrees of sexual exploitation and abuse, including violence and physical harm in some cases. [47] On cross-examination, Corporal Filotto confirmed his unit did not keep old statistics, so long-term comparisons are not possible in this case. However, he explained the work is increasing every year and the unit is still understaffed, despite additional members recently assigned to the unit. He does not have the resources necessary to investigate all child pornographic images it can identify on peer-to-peer social networks. [48] Dr. Patricia Neilson, a psychologist, assessed Mr. Hopps on June 6, 2010, and June 23, 2010, for a total of four hours. For unexplained reasons, Mr. Hopps did not show up for a scheduled July 7, 2010, appointment. Dr. Neilson is an experienced psychologist, having graduated in 1984 with a Master's Degree from the

University of Calgary and earning her doctoral degree in psychology in 1990. She worked as a psychologist for the Mental Health Services in Saskatchewan from 1985 to 1994, and has been in private practice in Vernon from 1994 until now. She is an experienced psychologist. [49] Mr. Hopps has given three different versions of how he first became involved in collecting child pornographic images. In all three he was a passive, almost innocent, participant, motivated mostly by curiosity or even concern for the victims. He variously blames finding pornographic images on his stepson's computer for introducing him to child pornography, which he then followed up on to see if he could find where they were coming from, or, in another version, he became upset and wondered how much could be seen without a credit card. In the third version he said that he was motivated by a combination of his curiosity about the images and his interest in computers. [50] He blamed his continuing access of pornographic images on his marital relationship, suggesting he had been abused in the relationship and that he saw getting caught as a way of escaping from what he characterized as a trapped marital relationship. This is nonsense. Throughout the course of most of his marriage to his former wife she supported him with her disability income. He was at great pains to conceal pornographic images on the computer

he shared with his former wife, and with his expertise in operating systems was able to do so for a considerable time without her knowing, despite safeguards she had put in place. [51] Mr. Hopps explained to Dr. Neilson he knew his actions were wrong, but he also perceived himself as "monitoring illegal activity," and he expressed some satisfaction when he became aware some sites were being blocked. He criticized the makers of pornography and law enforcement agencies alike for allowing this form of child abuse to continue. This again underlines his denial of personal responsibility and the pattern of blaming others that one sees threaded through his various statements to Dr. Neilson and Ms. Peterson. [52] Mr. Hopps admitted he had suffered for many years from what he described as a sexual addiction. He admitted his pornography collection included disturbing images, but denied masturbating to child pornographic images and denied any sexual attraction to children. However, he admitted his collection of Internet pornography also included images of prepubescent children. [53] Mr. Hopps specifically stated he knew his behaviours were both longstanding and self-destructive, but stated he was unable to stop. He erased images from his computer, but would then begin to download images again, particularly when under stress. When asked why it was so difficult to stop, he again blamed

others, saying it was because he was "feeling so much under [his former wife's] thumb." [54] He admitted to knowing the children he was viewing were being abused. He understood "it messed children up," as he put it, and referred to his own claimed experiences of child sexual abuse. Mr. Hopps described childhood abuse, both physical and sexual, in his home. I recall that when giving a statement to the police after his arrest he suggested his mother was probably the first of a series of abusers. However, his mother's report does not support this, although she did confirm the father was physically abusive. [55] I will not refer to all the details set out in Dr. Neilson's report, marked as an exhibit. However, they catalogue Mr. Hopps' descriptions of sexual abuse by a 14-year-old aunt when he was 10, an 18-year-old male babysitter when he was 12, and a sexual assault while hitchhiking when he was 16, but none of these were disclosed to his family or to the authorities. [56] School was difficult for him, with poor academic achievement shown in elementary school. However, he reported to Dr. Neilson he had achieved perfect marks in mathematics and electronics, and 90 percent in physics. I do not believe Mr. Hopps is lacking in intelligence or any degree of incapacity to fully understand the nature and consequences of his actions, the expectations of society, or to comprehend the

potential harms associated with possessing and viewing child pornography. [57] Mr. Hopps advised Dr. Neilson of a varied work history, most noteworthy, however, for how short-lived his various employments were, with the exception of several years employment as a train conductor, which he eventually quit after finding it too stressful. He is currently unemployed, supported by Social Assistance, but is considered employable. [58] He has a history of substance abuse, related primarily to alcohol, although this is not particularly problematic at the moment while he is resident at Howard House. He also admits to a period of heavy use of marihuana. He advised Dr. Neilson he was both drinking and smoking marihuana at the time of his current offences, marking those as risk factors for reoffending. [59] His family history includes a history of mental illness, but despite his involvement with Mental Health Services and his current regimen of antidepressants, these are thought to relate to his dealings with the charges before the court. Mr. Hopps is not considered to be suffering from any significant mood disorder requiring intervention. [60] In 1987, he was convicted of sexual assault on a five-year-old girl, and spent eight months in custody at Kamloops Regional Correctional Centre, followed by two years probation. Dr. Neilson confirms Mr. Hopps attended therapy there, which he

described as very beneficial, stating it helped him understand he misinterpreted signals from the victim and that he learned young children do not make sexual advances. [61] He attended individual treatment from June 1988 to October 1989. Dr. Neilson notes that, despite the gains he reported to her about the results of his therapy, he was unable to describe his risks for reoffending or describe a risk management plan. [62] In 1990 he was convicted of sexually assaulting his stepdaughter, who was 11 at the time. Mr. Hopps minimized the nature and extent of his assault, but this is not supported by the record of the offence, which notes a series of assaults. A recent concern is a police complaint made about his taking photographs of children. Mr. Hopps advised Dr. Neilson that incident involved photographing a friend's daughter in her underwear, but he denied any sexual intent. He stated he deleted these photographs. [63] Another incident noted by Dr. Neilson occurred at a public beach, when he took photographs of two girls he said were trying to pull off each other's bathing suits. Mr. Hopps reportedly expressed indignation to Dr. Neilson in his recollections of the event. He described it as child abuse, stating that there were other adults and likely family members present, saying "We were witnessing public sexual exposure." Mr. Hopps described the scene as "like child

pornography at a public beach." After being confronted by adults present, he fled home and destroyed the photographs. [64] In her clinical impression, Dr. Neilson did not consider Mr. Hopps a reliable historian. At the bottom of page 7 of her report she writes: Mr. Hopps presented as narcissistic, with an inflated sense of self-importance, and a strongly held belief that others are responsible for the many difficulties he has faced. He spoke very disparagingly of his ex-wife, whom he believes to be responsible for his current offences. He expressed virtually no sense of responsibility for his own behaviour or consequences of his actions. [65] On page 8 she notes: [His] clinical profile did not reveal any marked elevations, which would be considered to indicate the presence of clinical psychopathology. Mr. Hopps, [on testing,] described himself as a socially isolated individual who has few interpersonal relationships that could be described as close and warm. [66] At the bottom of page 8 the doctor noted: Mr. Hopps has a history of suicidal behaviour... [he] is not considered to be suffering from a significant mood disorder which requires intervention, and that his presenting distress has been primarily related to stress associated with the charges before the court. [67] On page 9 Dr. Neilson noted: ...Mr. Hopps presented as narcissistic, with little expressed empathy for others

and frequent indications of an inflated self-evaluation. His description of events was frequently in the extreme, and therefore the reliability of his self-report is considered suspect. In describing most aspects of his life, Mr. Hopps was unable to identify any sense of responsibility for his circumstances or choices. Although he admitted to two prior sexual offences, he minimized his behaviours and victim impact. His presentation was one of blaming others and virtually no sense of personal responsibility. He did not express any feelings of remorse or empathy. [68] Further down on page 9 she writes: Mr. Hopps has a history of sexual offending, and admits to a history of obsessive masturbation and pornography use. While he denies being sexually attracted to children, his admitted behaviours of offending against prepubescent girls and viewing child pornography suggests otherwise. Mr. Hopps' stated belief that he can simply stop what appears to have been a longstanding pattern of deviant sexual thoughts and behaviours appears unrealistic. Of concern is that, despite what was described as successful sex offender treatment, Mr. Hopps is unable to identify any current risk factors. Based on his own explanation of the motivation for his offending, there is nothing substantial that has changed that would suggest that he is better able to cope with deviant sexual thoughts and

compulsions... [69] She goes on to write that "Mr. Hopps denies any risk of offending sexually and stated that his biggest risk is for attempted suicide." Dr. Neilson notes there is no current psychometric measures available to predict risk for sexual offending, but notes that a history of sexual offending, of sexually obsessive and deviant sexual behaviours, intimacy deficits and absence of a positive social support network are considered in risk factors and treatment targets. [70] At the bottom of page 9, Dr. Neilson notes: Despite Mr. Hopps' denial of risk and any treatment needs, he is considered in need of extensive sex offender treatment. Such treatment could assist him to better understand and accept his ongoing risks, develop behavioural strategies to manage deviant sexual thoughts and compulsions, develop empathy and other personal skills, and assist him to develop a better sense of personal responsibility. Given his lack of awareness of any risks, and his attitude of external blame, it is expected that treatment efforts will be challenging, and therefore longer-term intervention is required. [71] The presentence report prepared by Ms. Peterson contains useful additional information, but some of its content is encompassed by Dr. Neilson's report, so I will not expand on those aspects. [72] In Ms. Peterson's questioning of Mr. Hopps on prior sexual assaults,

specifically how he first began accessing child pornography and why he continued accessing it, she notes he continued his well-established pattern of blaming others, and his failing to take responsibility for viewing the images, or for showing any level of remorse or understanding of his offending. Particularly concerning in this case is the fact he fails to acknowledge the seriousness of his offence. When asked by Ms. Peterson why he returned to viewing child pornographic images, he denied doing it often and stated it was not a problem after he went to treatment in 1988. It demonstrably was a problem. [73] On page 6, Ms. Peterson states: When questioned why it became a problem now, Mr. Hopps indicated it was 'not a problem, there were maybe ten pornographic pictures in there (computer).' Mr. Hopps would not clarify his view for the writer as to how many child pornographic images it takes to be a problem or wrong. When questioned on how accessing child pornography fit into his self management plan and relapse prevention plan he completed in treatment in 1988, Mr. Hopps indicated he did not consider viewing child pornography as a risk factor for him to reoffend. Mr. Hopps did not acknowledge that accessing child pornography was an offence. [74] At page 7 of her report, Ms. Peterson outlined programs available in federal and provincial institutions, and in light of what has

developed this morning I will not refer to that, or the clarifications and further information that was provided by Crown and marked as Exhibit 6 in these proceedings. [75] I turn now to the principles of sentencing and the authorities that were provided by counsel. Sections 718 to 718.2 of the Code set out the general principles of sentencing, which judges refer to constantly because they express what Parliament expects judges to consider and weigh before imposing sentence. [76] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and, to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. [77] From those purposes, it is easy to see why some of the concerns raised by Dr. Neilson and Ms. Peterson are significant in sentencing. [78] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [79] I am not going to

recite the rest of s. 718.2, which deals with aggravating and mitigating circumstances and specifically: · the necessity to impose sentences that are similar for similar offences, and for similar offenders; · the need to ensure when consecutive sentences are imposed the combined sentence should not be unduly long or harsh -- and of course that applies to any sentence; · the need, in every case, to consider whether an offender should be deprived of their liberty if less restrictive sanctions may be appropriate in the circumstances, bearing in mind that this principle applies not only to whether a term of imprisonment should be imposed in the first place, but also to the length of the sentence; and, · the need to consider alternative sanctions. [80] Finally, s. 718.01 of the Criminal Code requires a court imposing a sentence for an offence involving abuse of a person under the age of 18, an aggravating factor, to give primary consideration to the objectives of denunciation and deterrence. While rehabilitation remains a factor in sentencing, the objectives of denunciation and deterrence of such conduct remain the primary consideration in the sentencing calculus: R. v. Lazore, 2008 ONCJ 578 [Lazore]. [81] Lazore is a lengthy and detailed discussion of the principles and objectives underlying denunciation and deterrence, as well as other principles of sentencing. Given their

importance in a case such as this, and although to some extent they involve consideration of workaday legal principles intimately familiar to judges and counsel, a brief review is warranted in this case so they are conceptually clear and correctly applied. [82] In Lazore, the court referred to paragraph 1 of R. v. M. (C.A.), [1996] 1 S.C.R. 500, a decision of the Supreme Court of Canada that deals with principles of denunciation. The objective of denunciation mandates a sentence should communicate society's condemnation of that particular offender's conduct. [83] In short, a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values, as enshrined in substantive criminal law. Following on that, R. v. Latimer, 2001 SCC 1 [Latimer], further explains at paragraph 86: Furthermore, denunciation becomes much more important in the consideration of sentencing in cases where there is a "high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like-minded individuals may well be deterred by severe sentences": R. v. Mulvahill and Snelgrove (1993), 21 B.C.A.C. 296, at p.

300. This is particularly so where the victim is a vulnerable person with respect to age, disability, or other similar factors. [84] Sentencing must advance the societal goal of promoting a just, peaceful and safe society. Renaud J. explain, at paragraph 19 of Lazore: In this sense, judges are instructed to address the imperative need to denounce emerging threats to the well-being of the community and, as well, to alert the whole of the citizenry to the fact of new threats to the safety of all and in particular to the safety of many vulnerable potential victims. [85] Regarding possessing and accessing child pornography specifically, Renaud J. comments at paragraph 30: [T]he mere fact of possessing (and of accessing) child pornography is to engage in the type of inimical conduct which s. 718.01 of the Code seeks to eliminate. The babies, toddlers, young children and adolescents whose victimization is captured forever by these images and technology are further harmed with each viewing and act of acquisition. [86] In R. v. E.O. (2003), 169 O.A.C. 110 [E.O.], the court described possession of child pornography as a crime of enormous gravity, both for the affected victims and for society as a whole. The court stated at para 7: The offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deters

others from the commission of the offence, and reflects the gravity of the offence. [87] The court in Lazore also explains how deterrence and denunciation may be distinguished. Denunciation deals not just with future conduct, but also serves the purpose of heightening respect for the laws and institutions of Canada, and strengthening respect for the personal autonomy and integrity of all of those who share the just, peaceful and safe society the Criminal Code seeks to safeguard. [88] Deterrence seeks to convince offenders to refrain from further offending and to discourage unlawful acts by others. However, judges must be careful, as Renaud J. cautions, to ensure the resulting sentence does not become too severe by its having added aggravating weight to both objectives of denunciation and deterrence, without being mindful of the sentencing totality principle. [89] Deterrence often does result in extra punishment, however. The offender is punished more severely, as explained in R. v. B.W.P., 2006 SCC 27, at paragraph 2, "not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity." [90] Of course, any such additional sanction must respect the fundamental sentencing principle of proportionality enshrined in s. 718.1 of the Code. [91] As mentioned, some of these comments refer to basic

principles, not usually recounted when sentencing. However, in a case such as this, given the pernicious nature of this offence, which evidently has become so widespread, difficult to control and to police, it is more important these principles be brought to the fore and their underlying intentions and purposes considered. [92] A sentence must be proportional, mindful of all objectives of sentencing, and judges should ensure the objectives of denunciation and general and specific deterrence, which both counsel agree are the principle objectives of sentencing in this case, do not overwhelm all other considerations, or result in a disproportionate sentence. [93] With respect to the objectives of rehabilitation, I am satisfied these objectives are best satisfied with a considerable period of incarceration: to allow treatment in a sexual offender program that would allow its work to take hold; and to provide Mr. Hopps with the means to control his behaviour through his recognition of the risk factors involved, and take personal responsibility for his actions and the harm they have caused. Therefore, in this case the objectives of rehabilitation and denunciation and deterrence coincide to a considerable extent. [94] I turn now to a review of other authorities referred to by counsel. Counsel have advised there are few authorities dealing with child pornography sentencing at the

Supreme Court level of our courts. [95] In R. v. V.(P.), 2010 BCCA 34 [V.(P.)], our Court of Appeal considered an appeal from the Supreme Court, where the respondent had pleaded guilty to three counts of production of child pornography involving a five-year-old child, to sexually touching the child in the same time frame, and to possession of child pornography. The offences had occurred after certain amendments to the Criminal Code, namely Bill C-2 - comprehensive legislation to better protect children and other vulnerable victims from harm, had come into force on November 1, 2005. These established a minimum term of 45 days for possession of child pornography, likewise for the offence of invitation to sexual touching of a child under the age of 14. [96] The judge in R. v. V.(P.) had sentenced the offender to a term of imprisonment of one year, concurrent on each charge, followed by a probation order for three years. [97] The offender's child pornography library in V.(P.) consisted of over 11,000 images. He had involved his own female child in his pornographic activities by asking her to perform certain acts. Then he made photographs and videos of her performing these activities. [98] The Crown, submitting a penitentiary term of not less than two years ought to be imposed, argued the sentences imposed had not adequately reflected the moral blameworthiness of the respondent's

conduct, and failed to give effect to the principles of denunciation and deterrence. [99] The court noted the respondent had acted in a responsible fashion after his activities had come to light and had spent considerable monies on counselling. He entered guilty pleas and appeared committed to taking any treatment that would ensure against any repetition of his conduct. The sentencing judge found the risk of reoffending was low to moderate. The devastating effect on his personal and professional life was also noted. [100] The Court of Appeal recognized sentencing is an individualized process, but said: [10] ... it appears odd that what seems to be a fairly aggravated set of circumstances would only attract the minimum mandatory sentence for the making of child pornography... [101] The court said it would not have interfered with the penitentiary term as sought by the Crown. The court imposed concurrent sentences of 18 months on the two charges involving the offender's daughter. To this, it added a consecutive six-months-less-a-day sentence for the possession of child pornography. This still would have left a global sentence of less than two years in total, and so would have allowed for the conditions the sentencing judge had attached to probation. [102] However, the court said: [13] This, of course, can be viewed as quite a lenient sentence having regard to the amount of

pornography that the respondent was in possession of, but the length of this sentence is conditioned by my concern that the incarceration portion of the sentence be of such a nature as to preserve the ability of the Court to impose a term of probation. [103] Therefore, the Court of Appeal had not considered possession of child pornography in isolation; and it can be rightly said it did not intend its finding in that case to be a binding precedent for a sentence on possession of child pornography. [104] I note the personal characteristics of the offender in V.(P.) are quite different from Mr. Hopps, in terms of prior history, remorse, taking responsibility for the consequences of the offence, and its overall impact on the offender's life. [105] With respect to the imposition of minimum sentences in these types of offences, the Court of Appeal noted the courts should pay attention to Parliament's intentions. [106] Crown counsel referred me to R. v. Foulliard, January 28, 2009, Abbotsford Registry 68120-2C (B.C.P.C.), an unreported 2009 decision of our Provincial Court. In that case, the accused entered a guilty plea to possession of child pornography. There were four videos, two involving young teenagers undressing and engaging in sexual acts. The remaining two were what the judge said could be undeniably termed hardcore child pornography, one involving a female child

approximately three years of age. The other remaining video was characterized as highly disturbing as well, involving nine and ten-year-old children engaged in sexual activities. The judge characterized them as falling at the worst end of the spectrum of child pornography images. The offender readily admitted to his offence and said he needed help for his addiction to child pornography. [107] Foulliard had one previous criminal record in 1977, involving the offence of a sexual assault of a child, his female niece, who was between the ages of five and ten years, this occurring on numerous occasions. The Crown proposed a sentence of six to nine months. The court noted the offender had a support group in his church, who were anxious to assist him. The court noted the limited extent of images in his possession and accepted the Crown's recommendation. He was sentenced to a term of imprisonment of nine months, followed by a probation order of three years. [108] In R. v. W.A.E., [2009] N.J. No. 218 (Nfld. P.C.) [W.A.E.], a Provincial Court decision of the Newfoundland and Labrador Provincial Court, the judge imposed a sentence of four years and nine months. The RCMP had found 476,704 images described as child sexual abuse on the offender's computer, and an additional 158 images found at the offender's workplace. In addition, there were CDs and DVDs containing thousands of images, five

involving infants, 15 involving child obscenity, and 680 child sexual abuse videos. One of the images was evidently an autopsy photograph depicting a small girl who had been raped and strangled; however, the court found the most disturbing aspect of the videos were the large number of the videos involving infants with penises placed in their mouths, buttocks and vaginas. [109] I note some presence of similar types of images found in Mr. Hopps' possession. [110] The judge noted the offender had understood the nature of the material he possessed, some of which had to be accessed through the use of passwords and such other means. The offender understood that anyone who possesses child pornography knows it involves the abuse of children and that they are contributing to that abuse. He therefore found the offender's degree of moral culpability rose to the highest possible level. The Judge also noted the offender had not accepted full responsibility for his actions and tended to perceive himself and family members as the victims. The judge imposed the maximum sentence, less three months, therefore four years and nine months. The Crown acknowledges this sentence is at the high end given the relevance, nature and number of the images and of the circumstances referred to by the judge. That said, it is difficult to find any fault with the sentence, given the facts before him in that

case. [111] I am quoting specific passages from W.A.E., beginning at the first paragraph, because, in my view, they apply to this case and any others like it, and underline the gravity of offences of this kind: [1] The possession of child pornography is not a victimless crime. It is an inherently serious, harmful and insidious offence, regardless of whether it involves any distribution. Those who possess child pornography encourage the production of such material by providing a market for it even without the exchange of monies. Thus, they directly contribute to the harm caused to children in its production. The Internet has exponentially facilitated access to child pornography to a degree which is frightening. In R. v. B.(T.L.) ...the Alberta Court of Appeal described the use of the Internet for accessing child pornography as constituting a "profound and present danger to children around the world" (at paragraph 27): ...The sexual exploitation of children through child pornography and the use of the Internet to distribute it constitute a profound and present danger to children around the world. Canada, as part of the world community, must do its part in ensuring that appropriate sentences are imposed on those who choose to exploit children in this fashion. This offence is difficult to prosecute given the relative degree of anonymity offered through the use of the Internet. And

the ease with which images of sexually exploited children can be transmitted through this instant, worldwide network adds to the gravity of the offence and the degree of victimization of the children. It takes only a click of a mouse for one child pornographer to spread graphic images of child sexual abuse internationally in seconds. Thus, the primary sentencing principles that apply in sentencing those convicted of distributing child pornography must be deterrence and denunciation. [2] Child pornography can be used to lure other children into sexual activity ... and it attacks the most vulnerable members of our society. [112] Continuing in para 2, referring to a United States decision, United States v. Williams, 444 F. 3d 1286 (2008), the Judge in W.A.E. states: Child pornography harms and debases the most defenseless of our citizens. Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet. [113] In the case at bar, I heard firsthand evidence from Corporal Filloto about the difficulties and challenges facing peace officers in their attempting to police the crime of accessing and possessing of child pornography. [114] The judge in W.A.E. also referred to various judicial decisions concerning the seriousness ascribed to the offence by Canadian courts, beginning at paragraph 30. [115]

From R. v. Jewell and Gramlick (1995), 83 O.A.C. 81: [22] The court must be responsive 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. [116] From R. v. Sharpe, 2001 SCC 2: [28] ...no one denies that child pornography involves the exploitation of children. The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences. [117] From E.O.: [7] Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. [118] From R. v. Garcia, 2009 BCSC 407: [14] Child pornography victimizes the children who are photographed or filmed.

The children are at a minimum sexually exploited and very often are sexually abused as part of the image-taking. The child is re-victimized every time someone looks at the images as they are widely circulated through the Internet. Further, it is believed that circulation of these images can create a kind of pedophile-peer-group mentality where social inhibitions against sexualization of children are lowered, potentially encouraging child sexual abuse. [15] Thus, possession of child pornography is treated as an extremely serious crime. [119] This, of course, links very closely with evidence Corporal Filloto gave. [120] The W.A.E. decision is also useful, in its review of a number of authorities and their sentencing considerations. The judge's summary of sentencing principles for cases of child pornography is also very useful. I will not recite those principles here, though I reviewed them and found them apt and helpful. [121] R. v. Graham, 2008 BCPC 59, involved a 32-year-old man without friends or social contacts, described as remarkably narcissistic and manipulative and having what the court described as significant drug issues. He was sentenced to 12 months imprisonment after police, acting on a tip, found 9,924 child-exploitive images in his possession. [122] The court found he was interested only in his own welfare. He had quit school in Grade 8, had virtually no employment

record and lived on Social Assistance. The examining psychologist found little evidence of guilt, shame, or remorse. With no appreciable understanding of why child pornography was harmful, he denied and minimized. He was not considered a very good treatment candidate; the court agreed with the recommended sentence of one year's incarceration. [123] Counsel for Mr. Hopps submitted the circumstances of the offender in Graham most resembled Mr. Hopps. However, based on the judges' descriptions of Mr. Graham, he was a barely-functioning adult, unable to cope, and, by any measure, unemployable. [124] Mr. Hopps also displayed thinking characterized as narcissistic, and was seen by Dr. Neilson and the probation officer as lacking in empathy for the victims of child pornography; and he does not appear to see himself as having committed a significant offence or requiring further treatment. [125] However, he clearly understands the harms that child pornography causes. He previously had received the benefit of several months treatment, and as a result of his previous sexual assault as a child, which he recounts, has no reason for any lack of insight or incapacity to identify risk factors. [126] In R. v. B.C.M., 2008 BCCA 365 [B.C.M.], our Court of Appeal confirmed a one-year sentence for possession of an electronic child pornography collection consisting of 274 photographs, 175 of

aggressively nude or provocatively posed children. The offender had also downloaded over 1500 images which involved sexualization of children. This was in the context of sexual touching offences against children and one count of making child pornography. [127] The global sentence was six years imprisonment. On appeal, the appellant conceded he could not successfully attack the sentence of one year for possessing child pornography. I note the possession charge in B.C.M. was somewhat subsumed by the other serious offences before the court also requiring a sentence. [128] In R. v. Kwok, a 29-year-old first offender was sentenced in Ontario to a year's imprisonment for possession of 2,000 still images and 60 child pornography video clips. Written materials also included a chat room conversation between pedophiles discussing how much they enjoyed sexually abusing young children and babies, and where such graphic material could be obtained. This is yet another linkage to the testimony of Corporal Filloto. [129] The Crown in Kwok requested a sentence of 18 months, followed by two to three years probation and ancillary orders. Defence counsel did not take issue with the sentencing range identified by Crown, but submitted there was no need to send the offender to jail. He sought a conditional sentence. This was at a time when conditional sentences were still optional for possession of

child pornography. [130] Kwok was a first time offender who enjoyed the support of a sister and a circle of close friends. As a result of his conviction, he lost his job as a flight attendant. Between the ages of 14 and 17 he had engaged in prostitution. The pornographic images featured both male and female children, some babies, many in distress, many tied up. [131] The court could not satisfy itself either way whether Kowk had genuine insight and remorse, but the judge felt he had begun to develop some insight into the fact there were real children suffering real harm in the images he had collected. The judge had considered, but rejected, the option of a conditional sentence. [132] At paragraph 58 of Kwok, the judge was mindful of what he referred to as the dehumanizing aspects of prisons and that the underlying basis for the deterrent effect of imprisonment was overrated. However, he saw possession of child pornography as one of those offences where a sentence can have a strong deterrent effect. As he said: A message must be sent to those people, before they start down the path of accessing child pornography, that police are becoming more sophisticated, that society is becoming less tolerant, that more and more people are being caught, and that if caught, they stand a very good chance of going to jail. [133] He found these factors stood against a conditional sentence; and

whilst finding incarceration was necessary, rejected the Crown's proposed sentence proposed at the upper end, in light of Kwok's relative youth. Otherwise, he thought the nature of the collection might warrant such a sentence. [134] The judge was also aware lighter sentences had been imposed previously for similar offenders. That is not a consideration in this case, as Parliament has imposed a minimum term of imprisonment for possession of child pornography and conditional sentences are no longer optional. [135] The last case I will consider is R. v. Hammond, 2009 ABCA 415 [Hammond], a decision of the Alberta Court of Appeal. The respondent offender was 61 years of age, well-educated with no prior criminal record, and had what the Judge characterized as an endowment of skills, which he had put to good use in society. [136] The court, citing R. v. Wilson, 2009 ABCA 257, noted it is a duty of the sentencing court to find a sentence fit for the offender, the offence, the victims and the community. The images in Hammond included 56 different images and 106 unique videos of child pornography described as particularly abhorrent. The videos depicted victims of actual sexual assault by adult males involving young children, who were violated, abused, groped and enslaved to produce pornographic material, which the respondent used as a form of sexual stimulation. [137] At paragraph 9 the

Judge said this: The Crown has provided us with an extensive analysis of the social policy behind the package of relevant provisions of the Criminal Code, noting how, despite the fact that virtually the entire world has set its face against this form of gross abuse of children, it remains a virulent pestilence. It is sustained in many places by the conduct of people just like the respondent. If there were no consumers of this material, there would not be producers... [138] The Judge in Hammond, continuing at para. 9, referred to para. 158 of Sharpe: The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities. [139] The Judge in Hammond then said: [10] Accessing child pornography is not a victimless crime. The trial judge distinguished case

authorities involving the production or distribution of child pornography. This is not clear error, but the inherently serious and harmful nature of the present offence is not removed by the absence of such factors. The existence of a market for this material is necessarily an inducement to the production and distribution of child pornography by others. [140] The court allowed the appeal and increased the sentence from 45 days to one year. [141] In virtually every case the decisions refer to the number and nature of images found in the possession of the offender as a factor in sentencing. In my view, the underlying significance of such considerations lies in their capacity to demonstrate the depth to which the offender has become involved in viewing and possessing child pornography. But the number of images should not be the sole basis for making this assessment. An offender may have a very lengthy involvement in the child pornography subculture, but not possess a large number of images at the time of their arrest. Images may be deleted or stored in places not known to the police. [142] The level of depravity displayed in the images can also be a significant marker of the depth of the offender's involvement in this crime. Corporal Filloto said the level of violence in child pornographic images has been increasing, as has the young age of the children depicted therein. In some

cases, such as W.A.E., the nature and extent of the images found are good empirical markers of how deeply involved the offender has been in child pornography. [143] Referring now to Corporal Filloto's evidence, and expressing it in colloquial terms, the offender in Hammond could be seen as a big man on the child pornography campus. [144] In the case at bar, 56 images, all abhorrent but not as depraved as those found in some cases, do not constitute all of the pornographic images Mr. Hopps had accessed and stored on his computer. [145] Further, the evidence satisfies that Mr. Hopps has likely been viewing pornographic images and deleting them for several years, and would have continued doing so, but for his former wife's intervention in calling the RCMP, for which she deserves thanks from her community. [146] Further, Mr. Hopps' record of sexual assault of minors as young as five years old and his recent photographing of young children indicate a longstanding pernicious and perverted sexual interest in children. Sexual exploitation and abuse of children can assume different aspects, and Mr. Hopps' history in this regard is very significant for sentencing. [147] I find it particularly troubling Mr. Hopps fails to acknowledge the seriousness of his offence, minimizing the number of images involved - and as if that excused his activities. Likewise troubling is: his failing to see

and acknowledge he has, in fact, reoffended; his narcissistic disregard of the serious, probably lifelong, harm the viewing of children in pornographic images causes them; and, his lack of empathy for those children, who are among the most vulnerable members of our society. All this exists despite his acknowledgement those children have been harmed. [148] The cases universally condemn, in the strongest possible terms a court can employ, the crime of possession of child pornography. Historically, however, and certainly before amendments to the Code set a minimum sentence of 45 days, sentences have not reflected the court's description of the nature of the offence and the harms caused. The possessor of child pornography images is in equal evil partnership with their producers. Accessing and possessing child pornography has a direct impact on the sexual exploitation and the heartrending physical abuse and violence that is sometimes involved. [149] Corporal Filloto explained the child pornography marketplace and how it operates. Without consumers there is no market. The distribution and viewing of the images, as commented on in the cases, constitutes a continuing form of abuse because the child lives out their life knowing a stranger somewhere in the world is taking pleasure in their pain. No viewer of child pornography can fail to comprehend that. [150] At the same time, police

forces face daunting obstacles in identifying and apprehending offenders. They use increasingly sophisticated methods, and chances of apprehension are higher than they have been in previous years. Nonetheless, as Corporal Filloto explained, abusers are also becoming increasingly sophisticated. [151] Where risk of apprehension and criminal sanction is likely less, the strength of the deterrent aspect of the sentence becomes that much more significant. As noted in Lazore, denunciation can sometimes address an imperative need to announce emerging threats to the well-being and safety of communities, in this case threats to children. [152] Given what I have heard in evidence and reviewed in the authorities, the threat to children contained in child pornography images, their production, distribution and viewing is growing and the courts are obliged to respond in appropriate measure, though still having regard to the principles of sentencing, and the circumstances of the offender. [153] Now, at this point I would have been pronouncing sentence. However,as mentioned earlier, I have heard from counsel that Mr. Hopps wishes to serve his sentence in the federal penitentiary. Counsel are agreed the sentence should be two years, plus conditions for probation. This is very close to the sentence I would have imposed in any event in this case, except it would have been a 'provincial time'

sentence. But given the benefits that Mr. Hopps sees in a federal term of incarceration, probably rightly, given the facilities and treatment that would be available to him, he is likely to benefit from a penitentiary term. As such, that will be the incarceration sentence imposed in this case. That then leaves the terms for probation. [154] The term for probation shall be three years, the maximum allowable. Mr. Hopps, you shall keep the peace and be of good behaviour during your period of probation, which will follow your release, having served your sentence. [155] Other conditions of your probation are as follows: · You shall appear before the court when required to do so by the court, and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation. · Your initial residence upon your release shall be where you are directed by a probation officer. · You are to report to the nearest probation officer within two days of your release, and thereafter as and when directed by your probation officer. · You shall not change your place of residence without the prior written consent of your probation officer. · You shall terminate forthwith any Internet services via Internet Service Providers at any residence that you are at, and provide further proof of such

termination to your probation officer. · You are not to possess or utilize any electronic device capable of accessing the Internet, including, but not limited to, cellular telephones with Internet access, computers and computer gaming consoles, except while on the premises of, and engaged in work at, a workplace approved by your probation officer. · You shall be at liberty to apply to the court if any modifications are necessary in order to allow you to carry out your employment in a proper manner, but you will have to appear before a judge in order to do that. · You shall allow any peace officer or any probation officer access to your residence upon request, and you shall allow any peace officer and/or a probation officer to examine any computer equipment, peripheral devices, communication devices, data storage devices, including removable media, and will provide any passwords, usernames or manuals that may be necessary to enable a peace officer or a probation officer to properly examine the above computers and devices to verify that you are complying with the order. · You are not to engage in any activity that involves contact or communication with persons under the age of 18, including using a computer system within the meaning of s. 342.1 of the Criminal Code for the purposes of contacting or communicating with a person under the age of 18 years. · You are not to be in any

place where persons under the age of 18 can be reasonably expected to be, unless in the company of an adult approved by your probation officer. · You shall attend, participate in and successfully complete any assessment, counselling or programming, as directed by your probation officer. Without limiting the generality of the foregoing, such counselling or programming shall include assessment for sex offender treatment and include any programming and counselling recommended for sex offender treatment. · You shall advise your probation officer of any person you are living with or dating, and provide the probation officer with the name of and contact information for that person. · You must advise any person you are living with or dating of your conviction for this offence, and you must provide that person with contact information for your probation officer. · You shall have no contact of any kind, direct or indirect, with C.H. You shall not be within 100 metres of any known residence, workplace or school attended by C.H. · You shall abstain absolutely from the possession and consumption of any alcohol or non-prescription drugs or prescription drugs not prescribed to you. You shall provide such samples of your breath as are suitable for analysis upon the demand of any peace officer in order to determine whether you are in compliance with this condition. · You shall not enter any

premises such as a bar, pub or liquor store, where the primary commodity sold is liquor. · Pursuant to s. 490.012(1) of the Code, with reference to the Sexual Offender Information Registry Act, S.C. 2004, c-10, you shall for a period of ten years remain registered with that registry. · Pursuant to s. 161(1)(a)-(c) of the Code, for a period of ten years you are not to be present in any area where children are present. That is, you shall not to attend 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. · You shall not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; · You shall not use a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years. · Pursuant to s. 490.1of the Code, there shall be forfeiture of all items seized by the police, and I impose a victim surcharge in the amount of $50, which is less than the $100 that is authorized for indictable offences, given your limited financial means. [156] Mr. Hopps, you will receive a copy of all of these conditions that you should keep in your possession at all times, you are not expected to remember it all, as you sit there right now. [157] I thank counsel, Mr. Pennington and Ms. Crockett, for their assistance. [Note: these reasons redact discussions with counsel relating to parole conditions, condensed to the final probation conditions.] "N. Brown J."