Fit for the Pen

Inksetter had one of the largest and worst collections of child pornography that the Ottawa Police Services had ever uncovered. He was found guilty of both possessing child pornography and making it available. Police identified some 28,052 unique images and 1,144 unique videos. The investigation was halted at this point even though 1.2million other images and 40,000 other videos remained to be categorized.

At the sentencing hearing Detective Carr testified that Inksetter’s collection was among the top one or two most difficult collections she had ever had to review. About 95% of the material depicted explicit sexual activity. The youngest of the victims were around a year old. The folders were user organized and labelled commensurate with their contents. Some of the material was downloaded and remained in a shared folder available to others.

At the time of his sentencing Inksetter was 51years old and had no criminal record. The Crown sought a sentence of 4.5years. Defence sought a term of 1year imprisonment followed by probation. The sentencing judge imposed a term of two years less a day followed by three years probation. The Crown appealed. The Court of Appeal agreed that the sentence was unfit: 2018 ONCA 474

First, the appellate court noted that s718.01 makes clear that denunciation and deterrence are primary considerations for any offences involving the abuse of a child.

Second, the Court reminded everyone that probation is traditionally a rehabilitative tool and does not seek to “serve the need for denunciation or general deterrence” @18. The Court of Appeal soundly rejected Inksetter’s argument that probation could fulfill the principles of denunciation and deterrence. The Court framed the argument this way:

The respondent argues that, in this case, probation assists in filling the need for denunciation and general deterrence because the probation order includes a term requiring him to agree to provide access to his electronic devices to the Ottawa Police Service upon demand for the purpose of searching for material related to child pornography before using the internet. The respondent says that this term, which was included as a workable alternative to a blanket prohibition on internet use, permits a significant interference with his privacy rights. @19

The Court held:

I reject this argument. As I indicate above, it is clear from the trial judge’s reasons that his objective in imposing a long period of probation was not denunciation and general deterrence. Moreover, I do not accept that the possibility that such a term might be imposed in a probation order, and that, if imposed, police might search an individual’s electronic devices, serves as a general deterrent or that its imposition meets the objective of denunciation. @20

The Court of Appeal then set about determining a fit sentence. In so doing they noted the following.

First, over the past decade Parliament has increased the legislated range of sentence for these types of offences. @23

Second, as technology becomes increasingly sophisticated the prevalence of child pornography related offences is on the rise. @25

Third, making child pornography available warrants a longer sentence than possession of child pornography. @27

The Court concluded that a sentence of 3years for possession of child pornography and a sentence of 3.5years for making child pornography to be served concurrently was a fit sentence. @28