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| Joseph P Hamon |
In effect, it argues that simple possession of pornographic photos and videos of children between the ages of 1 and 15 is a victimless hobby and persecution of such a hobby is akin to an ignorant promotion of slavery, racial prejudice and hate crimes against persons due to their sexual orientation. To wit, we should wake up and be enlightened and support such benign personal preferences. We should have a more libertarian creed and the government should have no place in the bedrooms of the nation.
It is more than two weeks later, and The Lawyer’s Daily has not received any offer of a commentary or rebuttal from their substantial readership. Is this a signal that the readership largely agrees with the content of the article or, perhaps, is it troublingly indicative that no one feels sufficiently compelled to raise an objection or alternative view?
Rather than look at the Court of Appeal decision, let’s consider the evidence as disclosed by the upheld trial decision (R. v. Rule [2021] O.J. No. 2532), where the charges of accessing or possessing child pornography were considered:
Child pornography was found on Arthur C. Rule’s computer.
“[12] Detective Constable Heidi Gastmeier testified at the sentencing hearing and
... [14] she estimated one third of the [over 100,000 images and videos] she categorized involved explicit sexual acts involving children, including vaginal penetration by adult male penises, objects and digits. She believed there may have been one image involving anal penetration of a child. Images involving babies still in diapers were also found in the collection.
“[15] The police took a sample of the images and videos and presented them to the court. Reluctantly, the court viewed the images and videos under the guidance of DC Gastmeier. The images viewed by the court were incredibly disturbing and utterly abhorrent. The sample consisted of 22 images and 10 videos.”
... [14] she estimated one third of the [over 100,000 images and videos] she categorized involved explicit sexual acts involving children, including vaginal penetration by adult male penises, objects and digits. She believed there may have been one image involving anal penetration of a child. Images involving babies still in diapers were also found in the collection.
“[15] The police took a sample of the images and videos and presented them to the court. Reluctantly, the court viewed the images and videos under the guidance of DC Gastmeier. The images viewed by the court were incredibly disturbing and utterly abhorrent. The sample consisted of 22 images and 10 videos.”
The court went on to use the words: “[16] repugnant,” “disgusting” and “heartbreaking,” finding that “The utter defilement and destruction of these innocent lives cannot be overstated.”
It is quite evident that these photos and videos possessed and viewed by Rule were not cartoons or paintings. Further, as a person under 16 cannot legally agree to sexual activity with an adult, Rule’s pornography was a graphical compilation of actual criminal acts against actual minors generally aged between 1 and 15 years of age.
The court commented on the psychiatric health of the accused. “[19] Dr. Philip Klassen noted Mr. Rule is diagnosed with heterosexual paraphilic disorder.” Parenthetically, it was an admission that child pornography was not good or healthy for Rule. Rule’s own evidence diagnosed and argued that he was suffering from a disorder or illness.
Remarkably, the Crown was able to locate three of the children found in the images and videos that Rule had in his possession. These three gave victim impact statements. The court writes:
“[36] The statements were compelling and clearly set out how the images and videos of them have had a devastating impact on their lives. The impacts noted included constant paranoia, fear of going out, feeling like people recognize them, fear of being found by the abusers and consumers of the images, anxiety, depression, disassociation, nightmares, anger, flashbacks, sleep problems, PTSD, inability to work or go to school, poor general health, hypervigilance, insecurity, social withdrawal, fear of the internet, and a feeling of constant, ongoing revictimization.
“[37] For the children in these types of images and videos, the abuse continues every time someone accesses and shares them.”
“[37] For the children in these types of images and videos, the abuse continues every time someone accesses and shares them.”
Rule’s own tendered evidence through Klassen notes that: “[24] [Rule] … tended to minimize or justify his actions by processing it as a victimless crime in that he was not directly hurting any children” by merely accessing and possessing child pornography. Klassen went on to remark that Rule “lacked some empathy about the harms being done to the children in the images he downloaded and used for his sexual gratification.” The court observed: “[27] Mr. Rule also expressed that a jail sentence was unwarranted in his case and was ‘overkill,’ because he did not create or distribute the material he acquired.”
In considering the appropriate sentence, Justice Evelyn J Baxter writes:
“[39] Sentencing judges attempt to achieve this goal [protecting society, contributing to respect for the law and helping to maintain a just, peaceful, and safe society] by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community ... [and]
“[57] Here, the offenses are very serious. The aggravating factors are significant.”
“[57] Here, the offenses are very serious. The aggravating factors are significant.”
The defence’s argument for a conditional sentence and probation was refused; the court decided that such a sentence could not be “entertained” given the “[47] ... gravity of sexual offenses against children, which includes the possession and acquisition of child pornography.”
The Article: “Child pornography decision upholds sentence, societal norms”
The article focuses on the “nonaction” of Rule. It reads: “It must also be kept in mind that Rule did not take the photos, did not trade them, had no contact with any of the children depicted and certainly no sexual contact with young girls.”
It goes on to say that: “The disorder becomes problematic only when the person so suffering acts upon the urges. Rule did not do so.” The article punctuates this theme by stating that there was no suspicion that Rule acted out criminally nor that he was likely to attempt or commit an assault. The piece concludes with the querulous suggestion that punishing the person afflicted with “the mental disorder of pedophilia, even [when] sexual urges are restrained, is one of society’s last and most hated forms of discrimination.”
Ultimately, the article bristles at the conviction that: “Nonetheless, society is outraged that a senior citizen would be found violating a sacrosanct social norm” and the Court of Appeal is named “vigilantes” for upholding the sentencing of the guilty plea.
The problem with the article is twofold. It fails to distinguish between “accessing and possession” of child pornography, which was the criminal charge in this case, and the elevated charge of sexual exploitation of a young person such as in s. 153 of the Criminal Code. Rule was not charged with sexual exploitation in s. 153; he was charged with and pleaded guilty to “possessing and accessing child pornography,” contrary to s.163 of the Code.
The article claims that Rule did not “act on his urges” and dwells on the effective innocence of Rule against any charge under s.153. But he did act out. There was an actus reus in the charge confirmed by the subsequent guilty plea. He did act on his urges when he obtained the child pornography and every time that he accessed any of the more than 100,000 images. He did not accidentally come across these images but sought them out and acted on his urges to look at the images. He had the urge to look and he actively and repeatedly did look.
The criminal justice system is there to protect and promote the health and security of our children — and, in this case, sentencing under the Criminal Code, as Justice Baxter stated, is meant, among other objectives, to denounce and deter this activity. (To be clear, the obvious factor why the sentencing decision rejected a conditional sentence lies in the recognition of “[48] …the gravity of sexual offenses against children, which includes the possession and acquisition of child pornography” — not, or not merely, as suggested in the article, because this judge and then the Court of Appeal were horrified by the nature and extent of the “pornographic collection.”)
Without an audience or demand, child pornography and child exploitation will falter and be mercifully confined. Demand pushes production. Where people are seeking child pornography, we cannot remain ignorant to the fact that there is a child pornography industry, and that accessing and possessing child pornography is aiding and abetting the criminal act of creation and dissemination of these images. Can we remain untouched that the desire of those who wish to possess and access child pornography has spawned a $20-billion industry that continues to expand on the backs of the broken lives of the most vulnerable of children? (See the New York Times commenting on the Oversight and Investigations Subcommittee’s findings in Child Sex as Internet Fare, Through Eyes of a Victim.)
The second problem with the article lies in the failure to consider the reason behind the criminal charge of “possession or accessing” child pornography. This is a discussion of the collision of rights. In political science terms, this is the right of the individual versus societal or children’s rights.
How far do one’s freedom extend? The classic answer is, “A person's freedom ends where another’s freedom begins.” — Justice Oliver Wendell Holmes. The article’s argument for Rule’s rights must fail because the inherent rights of children to security of their persons requires the court to refuse to “entertain” the intrusion of the “possessing and accessing” perpetrator into the lives of children.
It is important to remember that this is not a rejection of the person of Arthur Rule. This is not a failure to be sensitive to his disorder but rather a judging of his actions and the impact of his actions. The very title of the article denotes a focus on society vs. individual rights.
The article would have us believe that individuals who merely access or possess child pornography should be free from criminal or social disapprobation and should have a right to choose any form of entertainment. However, it should be argued that such a focus allows individuals such as Arthur Rule to continue to deny that they have both a societal and personal problem, which, when acted upon — even when that action is limited to accessing and possessing child pornography — properly triggers the attention of criminal law.
The article also seems to suggest that societal norms could change, and that society’s aversion to the mere viewing of pedophilic images may go away. However, it would seem that society is becoming more adverse to such exploitation.
In family law, new torts are popping up. “Invasion of privacy” or “intrusion upon seclusion” torts allow for, for example, the censuring of persons who publish videos of a former partner engaged in a sexual act without the consent of that former partner. These torts have been met with wide societal approval. And these are adults. No wonder, then, that when the subjects of such images are children, the offence is criminally compounded. In contrast to the article that shouts “discrimination” and the “impoverishment of society” through limits placed on questionable entertainment choices, one might well argue that society advances through the increased recognition of the true damage done through non-consensual privacy breaches — irreparable damage done to adults and most certainly to children.
Significantly, and again from the sentencing order:
“[29] Mr. Rule also provided and read in a letter of apology to the court wherein he expressed his remorse and explained how and why he began to access child sexual abuse material. He said he now understands the children in the images are victims, and that his behaviour contributed to the continued abuse and victimization of these children.”
Rule’s own witness, Klassen, had stated that Rule lacked empathy for the children captured and abused in pornographic sessions but his concluding letter of apology would seem to indicate a newly discovered remorse for the victimized children. One can only hope that this letter of apology was sincere.
In any case, it is hoped that this response to the article helps explain how the children in the images are victims, and that acting on urges to access and possess these images inevitably contributes to the continued abuse and victimization of children — regardless of whether or not the perpetrator was involved in the initial creation or dissemination of child pornography.
Joseph P. Hamon is a certified mediator, collaborative family lawyer and certified specialist in family law practising in the Ottawa Valley.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Photo credit / blueringmedia ISTOCKPHOTO.COM
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