Court File and Parties

Court File No.: 4814-1340-011450

Date: January 28, 2015

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

James McTurk

Before: Justice Charles H. Vaillancourt

Heard on: June 14, July 23, 2013; October 7, 9, 16, 17, 2014

Judgment released: January 28, 2015

Counsel:

A. Stanford, counsel for the Crown

C. Cawkell, counsel for the defendant, James McTurk

REASONS FOR SENTENCE

CHARGES

1On June 14, 2013, James McTurk entered pleas of guilty to the charges that he:

(1) On or between the 18th day of May in the year 2011 and the 11th day of July in the year 2012, in the City of Toronto, in the Toronto Region, did import child pornography, contrary to section 163.1(3) of the Criminal Code of Canada; and

(2) Further, that during a thirteen month period ending on or about the 24th day of July in the year 2012, in the Country of Cuba, did make child pornography to wit images and videos, contrary to section 163.1(2) of the Criminal Code of Canada; and

(3) Further that he, during a thirteen month period ending on or about the 24th day of July in the year of 2012, in the Country of Cuba, did for a sexual purpose touch an unknown Cuban girl, a person under the age of sixteen years directly with a part of his body, to wit his mouth, contrary to section 151 of the Criminal Code of Canada; and

(4) Further that he, during a thirteen month period ending on or about the 24th day of July in the year 2012, in the County of Cuba, did for a sexual purpose touch an unknown Cuban girl, a person under the age of sixteen years directly with a part of his body, to wit his mouth, contrary to section 151 of the Criminal Code of Canada; and

(5) Further that he, during a thirteen month period ending on or about the 24th day of July in the year 2012, in the Country of Cuba, did for a sexual purpose touch an unknown Cuban girl, a person under the age of sixteen years directly with a part of his body, to wit his hands, contrary to section 151 of the Criminal Code of Canada; and

(6) Further that he, during a thirteen month period ending on or about the 24th day of July in the year 2012, in the Country of Cuba, did for a sexual purpose touch an unknown Cuban girl, a person under the age of sixteen years directly with a part of his body, to wit his mouth, contrary to section 151 of the Criminal Code of Canada.

AGREED STATEMENT OF FACTS

2During their investigation, police located a total of 95 unique electronic photographs and 7 unique videos depicting child pornography, on various devices in the possession of James McTurk.

3Of the 95 photographs, 67 were deleted. Of the remaining 28 photos, 7 were found on a SD card in James McTurk's possession upon his arrest at Pearson International Airport on July 24, 2012. Nineteen were found on his laptop at his residence. Two were found on a SD card at his residence.

4Of the 7 videos, 3 were deleted. All 4 of the remaining videos were found on electronic media in James McTurk's possession upon his arrest at the airport.

5All child pornography in James McTurk's possession was created by him and featured girls that he came into contact with in Cuba.

CONTENT OF MATERIAL IN POSSESSION OF MR. McTURK

6I would have been more than content to accept counsel's consensus that the photographs and video found in the possession of Mr. McTurk met the definition of child pornography and moved on from there.

7However, I did review the material as I believe that I am required to do so.

8The most shocking portrayal of child pornography is a video, date-stamped March 29, 2012, which captures Mr. McTurk kissing a child who appears to be between three and five years of age for approximately one minute. Mr. McTurk is seen pulling the girl towards him and she seems to be resisting. Mr. McTurk repeatedly inserts his tongue into her mouth. Afterwards, he gives the child a candy and lets her go.

9The photographs include:

(a) Mr. McTurk performing oral sex on a girl aged five to ten years and pressing his penis up against the girl's vagina

(b) Mr. McTurk and a child sitting on a bed naked with the child holding Mr. McTurk's penis while he touches her breast area.

10To learn that the aforementioned conduct seen on the video was being recorded by an aunt of the girl causes one to ask, "Who will protect this most vulnerable and defenceless child?"

VIDEO STATEMENT OF MR. McTURK – July 14, 2012

11Mr. McTurk's statement after his arrest provided an insightful commentary as to his Cuban sex trade junkets over the years.

12Mr. McTurk fancied himself as a benefactor to certain families in Cuba by providing new clothing, household goods etc. to make their life easier.

13He acknowledged that his "humanitarian aid" facilitated access to the younger female members of those families. To use his words, he was "invited in[to]" the families.

14Over the years and many visits to Cuba, Mr. McTurk characterized his predatory conduct as being rooted in curiosity/stupidity.

15In one sense, Mr. McTurk seems to recognize that the many individuals descending upon Cuba for sexual activities with children presents a serious social problem.

16However, he viewed himself as an exception to the harm being perpetuated upon the vulnerable girls because he was not "hurting anyone". Somehow, Mr. McTurk is able to distinguish his masturbation and oral sex without penetration as a more benign activity.

17This defies common sense. One can only think of the impact Mr. McTurk's mauling has on a five-year-old child.

SENTENCING POSITIONS OF COUNSEL

18Ms. Stanford, for the Crown, argues that an appropriate sentence for Mr. McTurk is a penitentiary sentence of 4 years in addition to his pre-trial custody. Mr. McTurk has approximately 30 months pre-trial custody. If one were to grant a credit of 1:1.5, this would result in 45 months or three years and nine-months credit. The global custodial period of incarceration suggested is just over 7.5 years.

19Mr. Cawkell submits that a sentence of time served and a s. 810.1 order would meet the ends of justice.

LONG-TERM OFFENDER APPLICATION

20Mr. McTurk's criminal antecedents and current charges prompted the Crown to make an application on behalf of the Attorney General of Ontario pursuant to section 753.1(1) of the Criminal Code of Canada to have Mr. McTurk declared a long-term offender.

21Mr. Patrick Monahan, Deputy Attorney General of the Province of Ontario, pursuant to s. 754 of the Criminal Code consented to proceedings being instituted to have Mr. McTurk declared a long-term offender within the meaning of section 753.1(1) of the Criminal Code of Canada dated February 12, 2013.

22Section 753.1 of the Criminal Code of Canada reads that:

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that:

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will re-offend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

REPORT OF DR. SCOTT W. WOODSIDE, LL.B., M.D., F.R.C.P.(C)

23Dr. Woodside conducted a psychiatric assessment of Mr. McTurk to address the psychological question as to whether or not Mr. McTurk, from a psychiatric perspective, meets the criteria for long-term offender status, as set out in s. 753.1 of the Criminal Code of Canada.

24Dr. Woodside was provided with voluminous materials, as is set out at page 1 of his report dated December 31, 2013.

25Mr. McTurk was interviewed by Dr. Woodside on October 17, 18, 25 and November 18, 2013.

26At page 28 of his report, Dr. Woodside concluded under the heading, psychiatric opinions and recommendations that:

Mr. McTurk does not appear to clearly suffer from any major mental illness, such as schizophrenia or bipolar disorder. He has previously been diagnosed as suffering pedohebephilia and I concur with this diagnosis. Dr. Klassen also noted a history of possible alcohol-related problems. I believe there is sufficient evidence to diagnose an alcohol abuse disorder (or Alcohol use disorder, mild according to the current DSM5 manual). Dr. Klassen also referenced problematic personality traits although he did not diagnose Mr. McTurk as actually suffering from any specific personality disorder. I agree that he does not clearly appear to suffer from any specific personality disorder although he has experienced difficulty maintaining personal relationships over time, in a manner suggestive of narcissistic traits being present.

27Pedohebephilia refers to a primary interest in prepubescent and pubescent-aged children.

28At page 29 of Dr. Woodside's report he outlines the diagnosis of paraphilia and treatment for individuals with pedohebephilia as follows:

The diagnosis of a paraphilia may be made by any one of three means. An individual may be diagnosed as paraphilic when they show a paraphilic sexual preference on phallometric testing, in a laboratory with published, or available sensitivity and specificity data. An individual may be diagnosed as paraphilic if they admit to, or acknowledge, the same. An individual may be diagnosed as paraphilic when they engage in behaviour that cannot reasonably be explained by any other psychiatric diagnoses.

29Mr. McTurk also faces challenges with an alcohol abuse disorder.

30Dr. Woodside noted at page 30 of his report that:

Substance abuse disorders are generally defined as the use of substances in a fashion that has maladaptive social, occupational or physiological consequences.

In this case, there is evidence primarily from his own self-report of intermittent difficulties with alcohol, with his appearing to engage in binge-drinking of a heavy nature particularly during his visits to Cuba (and during his offending activity). As well, he indicated he was told his heart attack was in part related to his drinking, such that he cut back on his alcohol consumption thereafter, although he reported continuing to drink in much smaller amounts thereafter leading up to the time of his arrest.

While Mr. McTurk acknowledged drinking at the time of both past and current offending behaviour, he did not directly attribute his offending to his alcohol consumption.

31Dr. Woodside's comments regarding the criminogenic variables at play are found at pages 31-32 of his report.

Mr. McTurk reported being raised in a relatively supportive home environment and denied ever being subjected to abuse of any kind. He also denied any significant history of involvement in conduct-disordered behaviour. He reported doing reasonably well in school and has been gainfully employed throughout his entire life.

Mr. McTurk has been involved in a number of intimate relationships, although these appear to have been either unhappy or unstable in their nature.

Alcohol use has been problematic for Mr. McTurk although never to the point where he sought out treatment or it interfered overly with his employment. However, he noted most of his offending behaviour took place during periods where he was consuming alcohol more heavily.

Of greatest note, Mr. McTurk suffers from pedohebephilia, with his interests in this regard becoming more obvious from 1994 onwards, with his incurring convictions for sexual offences involving children. He appears to have offended only while visiting Cuba and attributed his offending to female children and adolescents, in essence, throwing themselves at him due to their socioeconomic situation and in gratitude for his providing gifts of money and items to them or their families during his trips. He had difficulty understanding the exploitative nature of his behaviour and did not believe he had been involved in "grooming" his victims. As well, while outwardly clear that he took advantage of being in a country where his activities were either not noticed or tolerated, Mr. McTurk portrayed his visits to Cuba as part of his humanitarian aid efforts.

As well, I note that Mr. McTurk associated with other individuals interested in sexual activity with children, sharing explicit sexual materials with them in Canada and also perhaps facilitating their contacts with children in Cuba.

It is also worthy of note that Mr. McTurk exhibits an unusual pattern of offending, insofar as his offending behaviour appears to have escalated in severity with age, rather decreasing as one would typically expect. This may reflect some degree of insensitivity to potential legal consequences, given he does not expect to live much longer (and thus may be less deterred by the prospect of time incarcerated).

32Dr. Woodside addressed the issue of Mr. McTurk's risk assessment at pages 32-35:

You have requested that I assess whether or not this individual may, from a psychiatric perspective, meet the criteria for Dangerous Offender or Long-Term Offender status, as articulated in Section 753 of the Criminal Code of Canada. This necessarily entails an assessment of risk. A risk assessment for non-sexual violence includes consideration of a number of variables known to be correlated with risk, including a variety of socio-demographic factors (male, single, low educational achievement, low intellect, unstable employment, geographic instability, young age, a prior history of violence, the presence or absence of anti-social personality disorder or psychopathy, a history of substance abuse, the presence of a major mental illness and other risk factors).

An assessment of risk begins with an actuarial or statistical appraisal of risk, which takes into account some, or all, of the above-noted factors and provides a numerical anchor-point, as regards risk. These anchor-points tend to be under-estimates of risk, as it is well-known that individuals commit offences, both sexual and non-sexual, for which they are neither charged nor convicted. Once an actuarial estimate of risk is arrived at, one should then attend to address those clinical, non-actuarial factors (dynamic factors) that may suggest upward or downward movement of the statistical appraisal of risk. Adjustment of an individual's risk category on the basis of clinical or dynamic variables should only be undertaken very cautiously, as empirical research has consistently shown risk assessment tools to be superior to clinical opinion in offering a probability of criminal recidivism over a defined period of time.

For many years the term psychopathy was largely a lay term, poorly operationalized and understood. Over the past approximately two decades, largely as a result of the work of Dr. Robert Hare and his colleagues, our understanding of psychopathy has been greatly enhanced, through the design, construction and repeated validation and cross-validation of the Psychopathy Checklist-Revised. This tool defines and measures the extent to which an individual resembles the ideal of the prototypical psychopath, that personality dimension most closely related to offending behaviour in virtually all clinical samples. The PCL-R consists of 20 items, each of which may be scored 0, 1, or 2, thus rendering scores on a continuum ranging from 0 to 24.

The PCL-R is comprised of two portions, Factor One and Factor Two sub-scales, with Factor One measuring exploitive values and attitudes and Factor Two addressing indicia of behavioural dyscontrol. Dr. Hare defines psychopathy, diagnostically, as being evidenced by a score of 30 or greater out of 40 on the PCL-R. However, other investigators have shown that significant risk of criminality begins when an individual has a PCL-R score in the mid-twenties or above. There remains some debate as regards whether the PCL-R measures a construct that is a continuous variable, with a linear relationship to future violent criminality or whether the PCL-R measures a non-continuous or special construct that is non-linear. Some individuals view scores on the PCL-R as being an indication of the severity of antisociality present in the individual.

Mr. McTurk's PCL-R score was 12 out of a possible 40 points, according to scoring completed by this author. His total score on the PCL-R places him at the 13th percentile of male prison inmates in the PCL-R standardization sample; that is, more than 87% of individuals in the standardization sample would have received a higher score and only 12% a lower score. The average score on the PCL-R in the prison samples is between 22-23. This score would be considered moderately protective in terms of risk for re-offence.

Mr. McTurk was also scored using the SORAG, which is considered one of the best actuarial instruments for predicting violence among male sex offenders. The SORAG is recommended for use in individuals with a history of sexual offending and is felt to offer a more accurate, probabilistic estimate of risk in such individuals. Both the VRAG and SORAG were developed by the same authors and the definition of violent recidivism is the same for both. The authors of these two instruments recommend that the SORAG be used with sex offenders, while the VRAG be used with non-sexual offenders. Both scores are presented here, as there is more published research evidence in support of the predictability and reliability of the VRAG. The SORAG is a somewhat newer instrument with fewer studies available at present, although it has performed well research.

Mr. McTurk obtained a score of -11 on the VRAG. This score placed Mr. McTurk at the 22nd percentile compared to the developmental sample of male offenders (i.e., his score was lower that 78% of individuals in the development sample) and in the 3rd of 9 ascending categories of risk on the instrument. Among the developmental sample, 24% of offenders in the same risk category re-offended within 10 years of opportunity. Taking into account the estimated measure of error associated with the VRAG, Mr. McTurk' true score would be expected to fall within one risk category above or below this instrument. This means the expected probability of violent recidivism is expected to range between 10% and 31% within 10 years of opportunity. This score would typically be described as falling within the upper range of the low risk group (i.e. in the third of the first three ascending categories of risk on the instrument).

Mr. McTurk was also scored on the SORAG and achieved a score of -11 on this instrument. This score placed him at the 4th percentile (i.e. his score was lower than approximately 96% of the offenders in the development sample) and in the last (lowest) of 9 ascending categories of risk on the instrument. Among the development sample, 9% of offenders in the same risk category committed a new violent offence within 10 years of opportunity. Taking into account the estimated measure of error associated with the SORAG, Mr. McTurk's true score would be expected to range between 0% and 12% within 10 years of opportunity.

Mr. McTurk was also scored using the Static-99R instrument. This instrument was devised as a screening tool to identify individuals at risk for future sexual offending. As such, it takes into account only a limited number of factors known to be related to sexual recidivism, and only those which can typically be scored on the basis of historical information alone (i.e., without highly correlated with future sexual recidivism, (e.g. psychopathy), and as such, has more limited reliability and validity. Mr. McTurk's score on the Static-99R was 1 out of a possible 12, with his receiving the maximum score was lower than at least 60% of individuals in an updated development sample of routine sex offenders. In a development sample of high-risk/high needs offenders, approximately 16% of individuals with the same score committed a new sexual offense within 10 years of opportunity. As expressed in another manner, his risk of recidivating sexually was 0.77 x that of the average sex offender. According to the instrument, this score placed Mr. McTurk in a low risk category for sexual recidivism. Of note, these risk estimates refer only to the individual's risk for sexual recidivism, as compared with the VRAG and SORAG, which consider risk of both non-sexual and sexual violence.

I would caution that the probabilistic estimates of recidivism noted above imply a greater degree of precision than is likely warranted, as these estimates have been noted to vary from study to study. As a result, I would give greater weight to the percentile rankings among offenders in the sample and to the relative risk ratios.

There is nothing in this individual's clinical presentation or history to suggest these risk estimates are overestimates. Mr. McTurk clearly embodies a number of the clinical variables known to be related to sexual recidivism, including most significantly, the presence of a sexually deviant preference (pedohebephilia) and alcohol use difficulties. These variables should likely be considered static variables, which will not be specifically responsive to intervention.

In my opinion, however, the risk estimates noted above likely underestimate the true risk posed by Mr. McTurk for sexual re-offense specifically. Mr. McTurk has acknowledged far greater sexual offending activity over the last 20 years than is reflected in his criminal record. As well, while age typically has a moderating effect on the risk to reoffend, in Mr. McTurk's case, the opposite appears to be the case (i.e. he has continued to offend with advancing age and escalated in terms of the severity of his offending behaviour, at least based on his current self-report). It may well be that he is no longer inhibited by fear of incarceration, given he does not believe he will live that much longer, [and] thus feels that the risk of being caught (incarceration) is "worth it" to engage in his preferred sexual activity.

Overall, I would view Mr. McTurk as being at low risk for purely violent recidivism and moderate to high risk for sexually violent recidivism from a purely clinical perspective, as well as from an actuarial perspective. (emphasis added)

33Dr. Woodside outlines the factors that have direct bearing on the issue of long-term offender status as it relates to Mr. McTurk commencing at page 38 of his report.

1. Diagnosis and Prognosis

First and foremost, one needs to know what the likelihood of response to treatment and/or supervision is for any diagnosis. Once this is generally known, one can then look to the individual to see whether there is any reason to be more or less optimistic regarding that specific individual's likelihood of benefitting from treatment and/or supervision in a manner that reduces recidivism. In Mr. McTurk's case, his relevant diagnoses are pedohebephilia and his alcohol use disorder.

According to the research literature, there does not appear to be a general decrease in violent offending among all individuals after the age of 40 to 45 but this appears to be non-specific in nature and may be possibly related to biological variables such as decreased testosterone, decreased physical prowess and development of various medical conditions (hypertension, liver disease, etc.).

In this case, as already noted, Mr. McTurk's criminal convictions begin at the age of 60 and have continued since that time, arguably increasing in severity. This clearly goes against the usual expected trend and is of assistance in identifying Mr. McTurk as an atypical offender.

As well, research literature relating to individuals high in psychopathic traits indicates that individuals scoring 25 or above on the PCL-R show a poorer response to treatment and/or supervision, with a greater likelihood of refusing treatment outright or dropping out of treatment. In this case, Mr. McTurk's score (12) in and of itself is not suggestive of his being likely to experience significantly greater difficulties with respect to persisting in treatment and complying with supervision than would be the case with individuals with lower scores on this instrument. His actual response to treatment and supervision will be further reviewed in separate sections below.

As well, individuals with antisocial personality disorder are also typically seen as being less amenable to treatment, with there being little evidence that these individuals benefit from treatment in terms of recidivism. McTurk does not appear to suffer from Antisocial Personality Disorder and thus is not markedly different from other individuals in terms of potential amenability and expected benefit from treatment.

Overall, considering both the absence of antisocial personality disorder and his score on the PCL-R, his prognosis would be considered to be fair to good in comparison to other offenders. When considering his diagnosis of an alcohol abuse/use disorder, he does not appear to be at markedly higher risk for relapse than other substance-abusing individuals and should be expected to potentially benefit from treatment.

When considering his diagnosis of pedohebephilia, research relating to the treatment of sexual offenders has been equivocal, with the most optimistic research indicating a modest reduction of risk only. The most rigorously controlled studies have shown little or no benefit from psychological treatment. Pharmacological treatment may hold out the possibility of more substantial reductions in recidivism although this has not been well demonstrated to date and depends on the offender's willingness to take such treatment in an ongoing fashion.

Overall, Mr. McTurk's primary diagnoses (pedohebephilia and alcohol abuse/use disorder) are considered difficult to treat, with a moderately poor prognosis being associated with each. The combination of diagnoses renders the prognosis for successful treatment, and a reduction in his risk for further violent and/or sexual offending, somewhat worse compared with other offenders absent such diagnoses. However, his prognosis would be markedly worse if either significant antisociality or psychopathy were present. Their absence assists in reducing his risk to reoffend.

2. Self-Report of Current Motivation for Treatment and/or Supervision

There is little to no research indicating that expressions of a desire to pursue treatment or to comply with supervision are related to reductions in recidivism. This is not overly surprising given that the majority of individuals, when faced with significant consequences for their actions, will indicate a desire to take whatever treatment is necessary. As a result, positive expressions of motivation to pursue treatment appear relatively non-specific and largely unhelpful in attempting to determine who is actually most likely to benefit from treatment and/or supervision. However, an expression of refusal to pursue treatment or to comply with supervision has been shown to be related to negative outcome and increased recidivism in antisocial individuals.

With respect to Mr. McTurk, he did indicate during our interviews that he was willing to take psychological sex offender treatment, joking that he had always found the coffee good during his previous treatment. He was more equivocal regarding treatment with pharmacological sex-drive reducing medication, citing concerns for his medical health. He was also equivocal regarding the need for treatment for his alcohol use, indicating he had already substantially decreased his use since his heart attack.

Overall, I believe this factor to be neutral or moderately positive for Mr. McTurk.

3. Previous Response to Treatment

In attempting to determine who would be a good candidate for treatment and likely to benefit from treatment, assessors often look to the individual's past response to previous treatment. This gives some indication of an individual's degree of motivation although of course individuals can show a pattern of failure to benefit from treatment in the past but decide at a later date to truly engage in treatment.

Mr. McTurk has been offered and received treatment for pedohebephilia in the past and completed treatment and was described in largely positive terms in that regard. However, I noted he declined to receive treatment with sex-drive reducing medication when this was recommended to him by Dr. Klassen and Dr. Dickey in 1999 and also discontinued treatment in the Sexual Behaviours Clinic at CAMH once his probation period ended, despite the recommendation that he continue with treatment at that time. I also note that he almost immediately returned to involvement in high risk activities (travel to Cuba and purchasing sex there) and eventually committed the index offenses. It was also abundantly clear that while intellectually and cognitively capable of benefitting from treatment, Mr. McTurk continued to display rationalizations and justifications regarding his offending behaviour while in treatment and also regarding his most recent offending behaviour. Treatment to date does not appear to have been particularly effective.

Overall, I believe the evidence on this factor is negative.

4. Response to Previous Supervision

It is unclear whether or not intensive supervision actually results in decreased rates of violent recidivism but there is some preliminary data indicating a possible benefit in this regard.

Again it may be of some value to look to how an individual has responded previously to past supervision, when trying to determine who is likely to benefit from such supervision in the future.

In this case, Mr. McTurk has been subject to supervision on two prior occasions and was described as reporting regularly with no issues identified. It is noteworthy that during the initial period of probation, he continued to travel to Cuba (there was no restriction or condition preventing this) and that following completion of the second probation period of 2002, he immediately discontinued treatment and within a year, resumed travel to Cuba where he once again began purchasing sex.

Overall, I would view this factor as neutral at present or modestly negative.

5. Employment Prospects and Supports within the Community

Again, it is unclear whether or not providing employment for individuals with Mr. McTurk's cluster of difficulties reduces rates of recidivism, but it is reasonable to assume that there may be benefit in this regard. As well, having stable relationships and supports within the community is likely also to be of some benefit to individuals such as Mr. McTurk.

Mr. McTurk's history is good although he is now retired and cannot be expected to enjoy any ongoing benefits of employment of this time (e.g. remaining busy and experiencing increased self-worth).

With respect to supports within the community, Mr. McTurk indicated he is in contact with family members including his sister and his niece. His niece clearly indicated that she would continue to support him, although she did not condone his offending behaviour. Those family supports may be of some assistance to him.

With respect to intimate relationships, I note that Mr. McTurk has struggled to maintain stable relationships in Canada and may have used his relationships in Cuba to facilitate access to children.

Overall, I would view these factors as being neutral at best or somewhat negative in terms of his risk for future sexual re-offence.

6. Summary

In summary, I believe there is reason for pessimism, from a psychiatric perspective, regarding this individual's future manageability within the community, even if strict conditions were put in place and Mr. McTurk were to agree to follow through with conditions and treatment recommendations. At the same time, I am cognizant of Mr. McTurk's advancing age and that any moderately lengthy sentence may effectively become a life sentence for this individual.

CRIMINAL RECORD OF MR. McTURK

[34]

Date	Offence	Sentence
1995-10-24 (Stratford)	Possession of Child Pornography	Conditional Discharge, Probation 2 years
1999-04-08 (Stratford)	Possession of Child Pornography	18 month Conditional Sentence, Probation 18 months

CRITERIA TO BE USED IN FINDING THAT AN OFFENDER IS A LONG-TERM OFFENDER

(a) Appropriateness of a sentence of imprisonment for two or more years for predicate offence (s. 753.1(1)(a))

35Ms. Stanford submits that the predicate offences are in and of themselves serious enough to warrant a substantial period of incarceration in light of Mr. McTurk's background.

36I have outlined some of the factual circumstances of Mr. McTurk's sexual conduct in these reasons and I find that the activity engaged in requires a deterrent sentence.

37Mr. McTurk clearly advised the police that his Cuban junkets over the years resulted in multiple incidents of sexual contact with young girls.

38I find that Mr. McTurk's need to memorialize his activities is an aggravating circumstance.

39Undoubtedly, in the case at bar, the predicate offences are serious. Mr. McTurk's criminal behaviour has spanned many years. These current offences represent his third go around before the Courts for similar conduct.

40I agree that a sentence in excess of two years is appropriate.

41I also agree with the Crown that an aggravating factor in this case is the fact that Mr. McTurk sought out his victims in a third world country. He used his position as a benefactor to the families as a gateway to his young victims.

42Justice Moldover in R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.) at para. 34 observed that:

"The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing."

43Justice Malloy in R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 (S.C.J.) at para. 49 noted that:

"As child pornography has become an increasingly pervasive evil in our modern society, our courts have become increasingly aware of the need to recognize the gravity of the offence and the enormous harm it causes. The impact of child pornography on the helpless children that are its subjects is obvious. In addition, it is now well recognized that pedophiles frequently use child pornography to desensitize the children they are preying upon; to "groom" them and persuade them that the reprehensible acts that are about to be perpetrated on them are "normal" or acceptable."

(b) Substantial Risk to Re-offend (s. 753.1(1)(b))

44Mr. McTurk's criminal record demonstrates his proclivity for engaging in sexual misconduct with young girls.

45I agree with Ms. Stanford that any suggestion that there have been significant gaps in Mr. McTurk's conduct is inaccurate. Mr. McTurk's statement to the police leaves no doubt that he was involved in repetitive child sexual abuse over many years as opposed to a couple of isolated incidents.

46One would think that, considering Mr. McTurk's age, nature would have curtailed Mr. McTurk's desire and ability to carry out his predatory conduct.

47However, Mr. McTurk continues to engage in sexual stimulation (often involving fantasies of under-aged girls) even while he is incarcerated.

48Dr. Scott Woodside's testimony and report certainly suggest that Mr. McTurk is at risk to re-offend.

49I am aware that Dr. Woodside's evidence and expert opinion regarding the long-term offender application requirements is not determinative of the issue and that the court cannot abdicate its role to an expert. (See R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 at para. 97-100.)

50However, I can use the evidence and expert opinions of Dr. Woodside in arriving at my ultimate decision regarding the issues in question.

51Dr. Woodside conceded that taken together, the VRAG, SORAG, and STATIC-99 placed Mr. McTurk at low risk with respect to engaging in future violent or sexual offending. However, this does not end the matter. Dr. Woodside's clinical opinion is that Mr. McTurk's risk is actually much higher than the aforementioned actuarial tools suggest.

52Dr. Woodside testified that the single best predictor of future sexual offending is a phallametric test that is indicative of pedohebephilia. Such a test was administered on Mr. McTurk in 1999 by the Centre for Addiction and Mental Health (CAMH) and it indicated that Mr. McTurk has pedohebephilia. This diagnosis would still be valid.

53Dr. Woodside noted that pedohebephilia is not curable and is exceedingly difficult to treat effectively.

54At page 35 of his report, Dr. Woodside observed that

"Mr. McTurk clearly embodies a number of clinical variables known to be related to sexual recidivism, including most significantly, the presence of a sexually deviant preference (pedohebephilia) and alcohol use difficulties. These variables should likely be considered static variables, which will not be specifically responsive to treatment.

55The fact of the matter remains that Mr. McTurk is an atypical offender. The years have not reduced Mr. McTurk's sexual drives and desires.

56Dr. Woodside noted at page 35 of his report that:

"In my opinion, however, the (actuarial) risk estimates.…likely underestimate. The true risk posed by Mr. McTurk for sexual re-offence specifically. Mr. McTurk has acknowledged far greater sexual offending activity over the last 20 years than is reflected in his criminal record. As well, while age typically has a moderating effect on the risk to re-offend, in Mr. McTurk's case, the opposite appears to (be) the case (ie. He has continued to offend with advancing age and escalated in terms of the severity of his offending behaviour, at least based on his current self-report). It may well be that he is no longer inhibited by fear of incarceration, given he does not believe he will live that much longer, (and) thus feels that the risk of being caught (incarceration) is "worth it" to engage in his preferred sexual activity."

57I take no comfort from Mr. Cawkell's submission that Mr. McTurk's escalating pattern of behaviour does not demonstrate future risk of sexual acting out but rather it reflects a recognition by the Respondent of his own mortality and a bucket-list approach to life wherein he attempted to experience all his desires and fantasies.

58Likewise, I am not confident that banning Mr. McTurk from travelling to Cuba would eliminate the risk of Mr. McTurk re-offending.

59Even assuming Mr. McTurk has restricted his sexual activities with children to Cuba, Dr. Woodside is of the view that banning Mr. McTurk from travelling to Cuba does not necessarily lower his risk to re-offend sexually. I agree that perhaps the opportunities available in Cuba could accommodate his desires. Given Mr. McTurk's continued sex drive and his incurable diagnosis of pedohebephillia, I agree that restricting Mr. McTurk to Canada would force him to seek out opportunities in Canada.

60Another area of concern regarding future risk is Mr. McTurk's lack of success in past counselling for his issues. Although he participated well in the programs offered in the past, he ceased counselling when he was able to do so and found himself back in Cuba and back to his old ways.

61Mr. McTurk's view of himself, his actions and impact of counselling definitely cause me great concern. The following observations speak for themselves:

• He rates his self-esteem as an 8 out of 10; deducting 2 points for his "present charges".
• He states that his involvement in the charges were a "function of curiosity on both our parts."
• It was all for self-gratification.
• He makes a distinction of never ejaculating with 10-12 year-old girls.
• He states that the young girls seemed "curious."
• They are talking about me like I am a predator, a stalker … but the girls came to my door every day.
• They wouldn't leave me alone … but of course, I was Santa Claus.
• He expressed sentiments to Dr. Klassen that the underage individuals with whom he had sexual contact in Cuba had significant control over their sexual interactions and exercised free will.
• I didn't look upon them as minors.
• They were pounding on the doors [in order to prostitute themselves].
• They were there all the time. I wasn't predatory. I think it was just opportunity and curiosity.
• He did not think his actions were harmful to the girls until he went to CAMH and they said it would affect them for the rest of their lives … but I saw them later and it didn't seem to have affected them.
• It appeared to free them up to view sex as a commodity … to them, it's normal because it doesn't destroy them.
• The girls would be annoyed if he went with someone else and not them, noting they wanted stuff that was going to someone else … that was their motivation, they wanted the stuff, not me.
• He always saw himself as helping them.
• There is no way I would ever hurt those kids. I would in fact hurt anyone who wanted to hurt them. He did not believe the children were knowingly harmed by him. He loved them all. No children were harmed.

62The aforementioned statements demonstrate that Mr. McTurk just does not get it.

63The juxtaposition of these comments and the video of him "deep-throating" a child in the 3 to 5 year-old range speaks volumes.

64It does not come as a great surprise that Dr. Woodside concludes that considering Mr. McTurk's primary diagnoses (pedohebephilia and alcohol abuse/use disorder and the moderately poor prognosis associated with each, his risk to re-offend is high.

65Section 753.1(2) states that:

(2) The Court shall be satisfied that there is a substantial risk that the offender will reoffend if: (emphasis added)

(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or

(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. (Emphasis added)

66I am satisfied that section 753.1(2) has been met in the case at bar.

67Sexual interference and child pornography offences are included in subsection 753.1(2)(a).

68There has been an obvious and repetitive pattern of behaviour in Mr. McTurk's sex holidays to Cuba over the years.

69The conduct in this case has the potential to (and is likely to) cause severe psychological damage to the young victims of these crimes. (See R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.) at para. 37).

70I agree with Ms. Stanford's submission that the diagnoses and risk assessment of Dr. Woodside, along with treatment prognosis and Mr. McTurk's attitude towards his offending behaviour make it likely that Mr. McTurk will commit further sexual offences against children. Mr. McTurk's conduct in sexual matters (grooming, sexual interference, and involvement in child pornography) shows a likelihood of causing injury, pain or other evil to other persons in the future. It is clear that such blatantly exploitive conduct of this nature causes pain to the young victims.

(c) Reasonable Possibility of Eventual Control of Risk in the Community (s. 753.1(1)(c))

71I agree with the Crown, that while there is no possibility of controlling Mr. McTurk's risk in the community at the present time, there does exist the possibility of control in the future.

SENTENCING CONSIDERATIONS

72In the context of Dangerous Offender and Long-Term Offender hearings, the law is very clear. The court must consider as the first and foremost sentencing principle, the protection of the public. (See R. v. Higginbottom, 2001 CanLII 3989 (ON CA), [2001] O.J. No. 2742 at para. 26 (Ont. C.A.).)

73In R. v. Edwards, 2008 ONCA 414 (CanLII), [2008] O.J. No. 2055 (Ont. C.A.) commencing at para. 19, the court noted that:

19 The dangerous offender/long-term offender sentencing regime is a "specialized measure" targeted at offenders who clearly pose a threat to the security of our communities: R. v. Payne (2001), 2001 CanLII 28422 (ON SC), 41 C.R. (5th) 156 at para. 83 (Ont. S.C.J.). In R. v. Lyons at 328, the Supreme Court affirmed that the primary purpose of the dangerous offender sentencing regime is the protection of the public. The view expressed in Lyons was described more fully in R. v. Johnson, 2003 SCC 46 (CanLII), [2003] 2 S.C.R. 357 at para. 19:

In Lyons, La Forest J. explained that preventive detention under the dangerous offender regime goes beyond what is justified on a "just desserts" rationale based on the reasoning that in a given case, the nature of the crime and the circumstances of the offender call for the elevation of the goal of protection of the public over the other purposes of sentencing. La Forest J. confirmed, at p. 339, that the legislation was designed "to carefully define a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration". [Emphasis added]

20 Thus, in sentencing the appellant, the trial judge's paramount concern must have been to design a sentence that complied with the goal of public protection; this concern was elevated above the concern captured within the "totality principle".

74Mr. Cawkell strongly advocated that the Court reject the Crown's Long Term Offender application and penitentiary sentence and instead impose a sentence of time served and a section 810.1 recognizance.

75Justice Moldover J.A. (as he then was) in R. v. D.V.B., 2010 ONCA 291 (CanLII), [2010] O.J. No. 1577 (Ont. C.A.) at para. 56 addresses the issue of s. 810.1 and s. 810.2 recognizances thusly:

"I do not take from the fact that s. 810.2 came into force at the same time as the long-term offender provisions that Parliament, presumably with a view to creating a harmonious scheme, intended to off-load on to s. 810.2 the important task of protecting the community from people who are highly dangerous and who have been unable to satisfy the relatively modest requirements of s. 753.1(1)(c). In my view, s. 810.2 does not contain the clout needed to shoulder that burden, nor does it provide for the machinery needed to process the never-ending stream of annual hearings that would result. In the context of the long-term offender regime, I prefer instead to view s. 810.2 as a safety valve that Parliament put into place to address those cases where the optimistic outcome envisaged by s. 753.1(1)(c) turns out to be unwarranted. (Emphasis added)

76I agree. It would seem that s. 810.1/810.2 provide law enforcement a final safety valve for public safety.

77Counsel for the applicant called Detective-Constable Scott Peters of the Toronto Police Services in support of his position.

78Detective-Constable Peters is active in the supervision of s. 810.1/810.2 recognizances in Metro Toronto and noted that they were used when there were no other supervision options left to law enforcement who were concerned about risks that may be posed by offenders who were no longer under the direction of probation/parole.

79Detective-Constable Peters advised the Court that supervision generally involved informal meetings in a coffee shop or similar public area. Virtually no supervision occurs away from these weekly meetings. Furthermore, the police do not have the ability to control an offender's daily activities, whereabouts or associations.

80Detective-Constable Peters indicated that those who are most successful on a s. 810.1/810.2 order have good insight into their problems and want to help themselves.

81Mr. McTurk does not meet the above-noted criteria.

82It is interesting that Detective-Constable Peters stated that his preference for managing high risk individuals in the community is the imposition of a long-term supervision order. He noted that such orders provide for longer-term supervision, residency conditions which allow for closer supervision, and more readily accessible programming through Corrections Canada.

83I do not consider that a Section 810.1/810.2 order begins to address the principles of protection of society/denunciation required by the facts of this case and the personal circumstances of Mr. McTurk.

84I have already commented in these reasons that a Reformatory Sentence/Probation option was not viable. The program options available do not meet the needs of Mr. McTurk. More importantly, the circumstances of this case require a more meaningful disposition than that of a Reformatory Sentence/Probation Sentence.

85I find that an appropriate sentence herein requires a penitentiary term coupled with the Long Term Offender designation for 10 years.

86This sentencing option is the most viable option to reduce Mr. McTurk's risk to society and afford the degree of protection that the public deserves.

87Mr. McTurk will be afforded the option of high intensity sexual treatment while serving this sentence.

88Once Mr. McTurk has completed his federal placement, there is a seamless transition to the Long Term Offender portion of the sentence.

89I am mindful that Ms. Stanford is seeking a four year sentence on top of credited time served.

90I am not inclined to impose that sentence.

91I recognize that Mr. McTurk is now 80 years of age, has responded somewhat to his previous sentences and has entered pleas of guilt to the charges before me. Some credit must be given to these factors when considering the principle of totality.

SENTENCE

92Accordingly, the sentence of the Court, in addition to pre-trial custody, is two years and 1 day plus a 10-year long-term offender designation on each count concurrent.

ANCILLARY ORDERS

• DNA order on primary grounds
• Order pursuant to s. 490.012 and s. 490.113 for life regarding Sex Offender Information Registration Act (SOIRA)
• Order of forfeiture pursuant to s. 164.2(1) of the Criminal Code of Canada with respect to pornographic material seized
• Order of prohibition pursuant to s. 161(d) of the Criminal Code of Canada, namely not to use the internet or other digital network, unless the offender does so in accordance with conditions set by the Court for a period of 20 years
• Order of Disclosure to Correctional Services of Canada pursuant to s. 760 of the Criminal Code
• The Victim Fine Surcharges are waived.

Released: January 28, 2015

Justice Charles H. Vaillancourt

ADDENDUM TO JUDGMENT OF JANUARY 28, 2015

Court File No.: 4814-1340-011450

Date: March 5, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

James McTurk

Before: Justice Charles H. Vaillancourt

Heard on: June 14, July 23, 2013; October 7, 9, 16, 17, 2014

Judgment released: January 28, 2015

Counsel:

A. Stanford, counsel for the Crown

C. Cawkell, counsel for the defendant, James McTurk

93The Order pursuant to s. 490.012 and s. 490.113 regarding Sex Offender Information Registration Act (SOIRA) should reflect for life rather than for 10 years.