A seldom-used obscenity provision in the Criminal Code was invoked here in the case of a former Queen’s University student who was sentenced to almost six months in jail but avoided certain deportation.

Nineteen-year-old Omar T. Elshazly, who lives in the Toronto area, pleaded guilty in Kingston’s Ontario Court of Justice to having and distributing obscene matter in the form of images of children, defined as pornographic.

He was sentenced, on a joint recommendation from his lawyer, Mike Mandelcorn, and assistant Crown attorney Jennifer Ferguson, to 175 days in jail and was placed on probation for three years.

Justice Allan Letourneau ordered additionally that while on probation, Elshazly must continue in sexual behaviour counselling, with specific emphasis on dissuading the consumption and distribution of child pornography.

The judge ordered him, also as a condition of probation, not to possess, make or distribute such materials in the future and required that Elshazly have pornography-blocking software installed on his phone, computer and other devices. He must provide proof of installation to his probation officer, as well as the passwords for all of his devices, allowing them to be inspected on demand.

Additionally, Justice Letourneau forbid him from masking his identity on the internet; barred him from accessing or subscribing to any service involved in child pornography; and prohibited Elshazly from having contact or communication with anyone under 16, except under the supervision of a responsible adult.

The judge was told the teen was an engineering student at Queen’s University in February last year when Kingston Police received an alert from the RCMP’s National Child Exploitation Co-ordination Centre reporting the upload, weeks earlier, of 14 suspicious images. They’d been transmitted via Skype from an IP address that turned out to be part of Queen’s University’s network.

Assistant Crown attorney Jennifer Ferguson said police investigators executed a search warrant on Elshazly’s dorm room on March 10 and seized his computer, router and a USB stick and found 37 unique images that met the legal definition of child pornography.

She also told the judge that Elshazly later admitted he’d been downloading child pornography and had shared 14 of those images with other users he’d met in chat rooms on the deep web.

Defence lawyer Mandelcorn assured the judge that was the one and only time that his client succumbed to the urging of others to distribute such materials, although he’d had prior requests.

Justice Letourneau, who didn’t view and wasn’t asked to view the images, sought information from the lawyers about the degree of depravity they represented. There’s an extremely wide range, and Letourneau asked: “Shouldn’t they be described in some general way?”

Ferguson told him she had not viewed the pictures, but police estimate the victims involved were all girls 12 to 15 years old and she said they characterized the collection in its total as “not constituting the extreme.”

Mandelcorn, who had to examine his client’s collection at police headquarters as part of the disclosure process, clarified for the judge, telling him that child nudity was the defining feature he observed: “The vast majority,” he said, “were naked pictures of girls.”

He told the judge there were a small number of exceptions, however. One image, Mandelcorn remembered, depicted two girls engaged in a sex act, and the most disturbing involved a girl and a dog — but fell short of bestiality.

In his submissions, Mandelcorn asked Justice Letourneau to take note, however, that his client’s activities were discovered about two weeks after his 18th birthday. Even Ferguson, while not condoning the crime, suggested there’s a qualitative difference between the attraction to these girls of someone Elshazly’s age at the time and the engrossment of much older men.

The charges are the same, however. Elshazly was originally charged with accessing, possessing and distributing child pornography, and after those charges became known he was thrown out of Queen’s, according to Mandelcorn.

His client’s family was also pursuing naturalization at the time, and he told the judge Elshazly’s parents and younger sibling obtained their Canadian citizenship but he was precluded by his legal jeopardy.

In fact, had he pleaded guilty or been convicted on any of the original child pornography charges, Mandelcorn said all of the legal experts he consulted were in agreement that his client would be deported. Hence the deal with the Crown to prosecute Elshazly for obscenity.

Mandelcorn told the judge his client, who had always been an excellent student, found his university experience more difficult than expected. With his grades falling, Mandelcorn said, Elshazly consoled himself by playing video games and visiting deep websites where he should not have been. It was against that backdrop, the judge was told, that he began downloading the illegal images.

Since then, however, Mandelcorn said his client has entered into counselling, and a sexual risk assessment submitted to the court rates him as a low risk to reoffend.

Justice Letourneau was told Elshazly now hopes to return to studies at Queen’s in 2019.

He also wanted to begin serving his jail sentence immediately. Blais explained there’s a time sensitivity because in order to return to Queen’s, Elshazly will have to register by January.

syanagisawa@postmedia.ca