Guilty plea: possession of child pornography

Published on July 24, 2013
Yarmouth Justice Centre TINA COMEAU PHOTO
Tina Comeau Photo

By Tina Comeau



A 54-year-old Yarmouth man has pleaded guilty to a charge of possession of child pornography and has been sentenced to serve 30 days in jail and adhere to court conditions set out in an 18-month probation order.

The matter had been scheduled for trial on Wednesday, July 24, but instead the lawyer representing James Gordon McRae entered a change of plea to guilty.

The possession of child pornography was not a recent event. The evidence presented during McRae’s sentencing hearing was that the creation of the images found on a computer and floppy discs dated back to between 2002 and 2006.

There was no evidence before the court of any activity beyond these years and some of the images created in the past had already been deleted.

The images the accused had been in possession of were described in court as photos of girls ranging in age from 6 to 16 in various stages of undress. The Crown referred to the images as “soft core” child pornography.

McRae will serve his jail sentence on weekends. The conditions in the probation order include one that prohibits McRae from having any contact with anyone under the age of 16 unless there is an adult present.

He is also banned from possessing or accessing any device that could be used to access the Internet – this ranges from computers to smart phones.

Crown attorney Peter Dostal said Parliament and society views offences of possession of child pornography as being “so serious that jail is a must.” But he also said that the law states a person must be punished according to how the law was written at the time the offence occurred. Although the present law requires a minimum of 90 days in jail, back in the early 2000s the requirement was a minimum of 14 days. In this case both the Crown and defence agreed to a 30-day sentence.

The investigation that led to McRae’s arrest in the fall of 2012 had its start in April 2006 in the United States when authorities from various departments and agencies launched an investigation called Project Flicker. The investigation was a joint task force that included, among others, U.S. Immigration and Customs Enforcement, child exploitation services, the U.S. Cyber Crime Center and the FBI.

“The focus of the investigation was on criminal organizations that owned and operated in excess of 200 different commercial child exploitation websites,” said Dostal. These websites hosted images that fell under the U.S. definition of child pornography.

The investigation included numerous undercover transactions by agents, who were able to eventually obtain records of customers that were paying for access to the images on these websites.

“This information was forwarded onto Interpol and then sorted out and forwarded to the respective countries that were associated with each account that would have been opened on the websites,” explained Dostal.

Many accounts had originated in Canada. The information was forwarded to the National Child Exploitation Centre in Ottawa, where eventually the account holders were pinpointed to their respective province.

On July 15, 2010, the National Child Exploitation Centre in Ottawa forwarded the Nova Scotia-related materials to Halifax, which were examined. Over time one of the accounts was identified as belonging to a James (Jim) McRae of Yarmouth.

“The records indicated a Mr. McRae had purchased a subscription through PayPal,” says Dostal, who said a 2006 financial transaction was traced back to one of the websites identified as part of the Project Flicker investigation. Investigators examined the website and confirmed that it hosted images that met the definition of child pornography under Canadian law.

On Oct. 4, 2012, a residential search warrant was executed at McRae’s residence. Computers and hard drives were seized. One of the computer hard drives located in a room in the basement was found to contain images of young girls in various stages of undress. There were also floppy discs found.

“Mr. McRae was asked about the images on the floppy discs. He said he recognized the floppy discs but he had forgotten about those. He hadn’t been aware for a number of years of the existence of those discs,” Dostal said.

McRae was arrested, although he declined to give a statement to the police.

The seized items were sent to Ottawa to undergo a forensic examination. On the computer 32 images were recovered that had been previously deleted. These images were now only accessible through forensic software. There was no determination of when the images were created or deleted.

Images of young females in various stages of undress were also found on the floppy discs. Some of the images were what the Crown called professional-type photos involving the same “model.” There were references included in the images to various websites, including one called Charming Angels.

“These files were created and accessed, according to the data, somewhere between Nov. 11 2002 and Dec. 26, 2002," said Dostal.

There were also just shy of 2,000 adult pornographic images found on one of the computer desktops. The Crown mentioned these since with 23 of the images, it was unclear whether the person was 18 years or older.

 The Crown made note of the dated age of the technology seized, pointing out the floppy discs would have been used in the past but were not being used at the time the search warrant was executed.

“There was no other evidence suggesting there was accessing of the discs post 2006,” said Dostal, who added there was no concern that McRae was an avid collector of child pornography. He was described as being on the lower spectrum of people who have been in possession of child pornography.

Still, Dostal said, it is a serious offence, since possession of these images drives the marketplace resulting in the exploitation of children.

McRae’s lawyer, Matthew Fraser, said by pleading guilty his client is taking responsibility for his actions. He also said his client, who has no previous criminal record, deeply regrets his poor judgment.

Fraser described his client as being someone who is very community orientated, and who has been held in high regard in his volunteer work, noting, for instance, he has been a volunteer firefighter in the past.

“I can certainly say that my client, again, regrets having committed the purchase of these images,” said Fraser. “There were 30 or 40, he wasn’t an avid collector…he was not producing or distributing any child pornography. However, it is a serious crime and he should be penalized accordingly.”

The Crown also asked for the accused to be included on the sex offender registry for 10 years and that a DNA order be executed.

Judge Robert Prince, in handing down the sentence, noted once again how seriously society views this type of offence.