Whitehorse man sentenced to one year in jail for possessing child pornography

WARNING: This article contains graphic content and may affect those who have experienced sexual violence or know someone affected by it.

A Whitehorse man has been sentenced to one year in jail for possessing child pornography.

Kole Smeeton pleaded guilty to the charge last May, and was sentenced by Justice Karen Wenckebach on Jan. 8. After Smeeton serves one year, which is the minimum sentence for the charge, he will be under probation for two years under a number of conditions.

He is ordered not to possess or consume alcohol, marijuana or illegal drugs. He cannot communicate with people under the age of 16 without adult supervision, and he similarly can't work or volunteer in a position of trust toward people under 16. 

He is also barred from using social media or chat rooms including Facebook, Twitter, Tinder and Instagram. He will be registered as a sex offender for 20 years.

Dropbox tip leads to charges

Smeeton was charged after uploading a video of "a pubescent minor involved in a sex act" to his Dropbox account in October 2021, according to sentencing documents. 

Dropbox flagged the video to the National Center for Missing and Exploited Children, which spurred a police investigation. The Dropbox account matched Smeeton's name and IP address.

When police seized Smeeton's devices the following February, they found 350 images and videos. Thirty-six images and six videos depicted "a youth engaged in sexual activity with Mr. Smeeton," according to the sentencing document, while others appeared to have been downloaded from the internet. . 

Smeeton originally faced more charges, including sexual assault of a minor, but those were dropped. According to Crown counsel Adrienne Switzer, it was decided that the sexual assault charges were not in the public interest after consultation with the victim.

Smeeton said he downloaded the images by accident. He told a Gladue report writer that he was involved with online sexual fantasy boards, and people sent him attachments there. He said he opened the files and saw "children doing awful things." He said he found them "gross" and closed the files, but inadvertently downloaded them in the process. He said he was heavily abusing substances at the time.

Justice Karen Wenckebach expressed doubt about Smeeton's story in her decision, because his explanation was inconsistent and varied between interviews with a probation officer, psychologist and Gladue report writer.

"Mr. Smeeton's failure to be candid about the offence is apparent upon reading the three reports," Wenckebach said in her decision. She noted inconsistencies around the circumstances of Smeeton downloading the content, which was also inconsistent with the agreed statement of fact that Smeeton uploaded child pornography to Dropbox himself.

Minimum sentence applied

Smeeton's failure to take full responsibility for the possession of child pornography was the "most significant aggravating factor" in the case, Wenckebach said.

She also noted that Smeeton was heavily abusing substances, especially cocaine, at the time of the offence. Smeeton has since quit cocaine, but continues to self-medicate with marijuana and has not sought treatment for substances. 

Given these factors, Wenckebach said she's concerned that Smeeton is at risk of re-offending.

There were also some mitigating factors, Wenckebach said. She noted that Smeeton is a first-time offender, he is a young man himself, and he has attended counselling. A Gladue report also detailed the negative impacts of colonialism on Smeeton's life, including generational traumas associated with residential school, substance abuse and sexual abuse.

Crown counsel submitted that 18 months in jail would be an appropriate sentence; while the defence counsel asked for a two-year conditional sentence with no jail time — which would require Wenckebach to declare that the one-year minimum sentence is unconstitutional.

Wenckebach said the risk of Smeeton reoffending was too high to order a conditional sentence, and declined to consider whether the one-year minimum is unconstitutional.

Support is available for anyone who has been sexually assaulted. You can access crisis lines and local support services through this Government of Canada website or the Ending Violence Association of Canada database. ​​If you're in immediate danger or fear for your safety or that of others around you, please call 911.