Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— and —
John Granelli
Judicial Officer and Counsel
Before: Justice J. De Filippis
Heard on: May 5, 2016
Reasons for Judgment released on: July 6, 2016
Counsel:
- Mr. Slessor, counsel for the Crown
- Mr. Balka, for the defendant
Reasons for Judgment
De Filippis J.:
1The defendant pled guilty to possession of child pornography and making child pornography available to others, contrary to subsections 163.1(3) and (4) of the Criminal Code. He was arrested after police executed a search warrant at his home and seized his computer and two memory sticks. The warrant was based on police surveillance of IP addresses that display markers for child pornography.
2Three child pornography video files were found on the defendant's computer (from a shared website). Each one is about 13 minutes in length. The first one contains numerous clips of six to twelve year old girls revealing genitalia, digital penetration, masturbation, and intercourse. The second shows a five or six year old girl enduring similar indignity. She is also filmed having oral sex with a young boy while a man penetrates her anus. The third file portrays two five or six year old boys and a girl, who looks to be about ten years old, engaged in masturbation, oral sex and attempted intercourse.
3Police also seized two USB sticks; one at the defendant's home and another in the police cruiser, which the defendant had tried to secrete on the way to the police station. These memory sticks contain 4,176 pictures and 144 videos of child pornography. Many are duplicates.
4In addition to these images, a chat log was found. This conversation is between the defendant and a person in the United States in which the American offered to have the defendant come to his home and abuse his young daughter. The defendant described sadistic acts he would perform on the child as a prelude to rape. The evidence suggests this was a depraved fantasy, not a plan of action.
5The aforementioned summary of the offensive images and conversation will give context to the sentence I have decided to impose. I need not dwell on this further; suffice it to say that the material is highly disturbing.
6The "make available" charge is based on the fact that the defendant's possession of the child pornography is from a peer to peer network. This is a shared site that, by definition, makes the material available to others. This is not a case where the defendant otherwise distributed the obscene material.
Background of the Offender
7The defendant is 63 years old, married, with adult children. He is a certified accountant. He was convicted of similar offences in Manitoba in 2005 and received an 18 month conditional sentence.
8The defendant is a pedophile. There is conflicting evidence before me about his prospect for reform and his risk to children. I approach such medical opinions about this particular condition with caution. Other evidence supports the view that outside the defendant's hidden world he is a productive family man. He has led a double life.
9The defendant maintains that he has "stayed away" from child pornography since his last conviction and succumbed to temptation while under the influence of alcohol. I am not convinced of this. I appreciate the eleven year gap, but the graphic conversation recorded in the chat log is of particular concern and suggests the defendant has not merely "stumbled" on the road to recovery. Indeed, his statement to the court, as described below, confirms that his pedophilia has not abated.
Sentencing Submissions
10The offences in question are now subject to minimum penalties of imprisonment. The parties agree that something more than the minimum is required. The Crown suggested that the facts of this offence and the background of this offender warrant a sentence of four years in the penitentiary. Defence counsel acknowledged the seriousness of this matter and submitted it can be properly addressed by two and one-half years in custody.
Sentencing Principles
11The fundamental principles sentencing are set out in section 718 of the Code. The parties provided me with helpful cases about the application of this section to the offences in question. In this regard, I had occasion to make the following comments in a prior decision (R v Strohmeier 2007 ONCJ 141, [2007] O.J. No. 1250):
Possession of child pornography is a serious offence. The following general observations explain why: First, the prevalence of the offence is of great concern to the community. Whether it is because of the greater use of the Internet or an increase in law enforcement, there are more cases of possession of child pornography. In any event, the minimum jail term is a recent amendment to the Criminal Code and reflects Parliament's decision to remove the possibility of a conditional sentence for the offence. Second, the victimization of children captured in picture and video never ends. Time passes but the images remain. With the push of a button, those images can be shared with countless individuals throughout the world. Third, notwithstanding the permanent record that exists, greater exposure to child pornography leads to increased production, and the abuse of more children. Finally, there is a link between images of child pornography and inhibitions about the sexual abuse of children. See: R. v. Bauer [2002] O.J. No. 1135 (Ont. SCJ), aff'd at [2002] O.J. No. 3564 (OCA)](https://www.canlii.org/en/on/onca/doc/2002/2002canlii3564/2002canlii3564.html); R. v. Streompl, [1995] O.J. No. 2772 (OCA); R. v. Briere [2004] O.J. No. 5611 (Ont. SCJ); R. v. Sharpe 2001 SCC 2, [2001] 1 S.C.R. 45 (SCC).
Defendant's Statement to the Court
12At the conclusion of submissions, the defendant made an emotional statement to the court. He acknowledged he is aroused by images of children. He recalled that his sister told him, "You are smart, have family, and did this before, why do it again?" He recounted that his wife wonders if he ever really loved her. He said he is "ashamed". He concluded as follows: "Am I redeemable or a threat? I am in between. Whatever the sentence, I will keep trying. When I am out, I will find the right program and I will work at these issues".
Sentencing Decision
13I accept the sincerity of the defendant's statement to me. It reveals a troubled man, aware of the challenges he faces, and committed to overcoming them. However, the present misconduct is a serious set back and the road ahead is a long one. I must focus on the protection of society. The sentence I impose is intended to accomplish that objective and includes a framework to allow for rehabilitation of the offender.
14I am of the view that the appropriate range of sentence in this case is three to three and one-half years. The defendant has been in custody for 259 days since his arrest. At a ratio of 1.5-1, he has served the equivalent of 389 days, or one year and 24 days, in jail.
15I order that the defendant serve an additional two years in jail. This allows me to also order a period of probation. Having regard to the time already spent in custody, this is an effective sentence of three years and 24 days. Whether the additional jail term should be two years in the penitentiary, or two years less one day in a provincial reformatory, is a matter I will canvass with counsel after the delivery of these reasons. In any event, there will be a three year period of probation to follow. The terms of this order, in addition to the statutory ones, are that the defendant report as required to a probation officer, reside where directed and take counseling as arranged.
Ancillary Orders
16The defendant will also be subject to the following ancillary orders:
(1) He is prohibited, pursuant to section 109 of the Code from possessing firearms for 10 years.
(2) Pursuant to section 487.051, he must provide a sample of his DNA.
(3) He shall comply with the Sex Offender Information Registry Act for life, pursuant to section 490.012.
(4) In accordance with section 161, the offender is prohibited, for life, from attending any public park and swimming pool where persons under the age of 16 years are likely to be present, or any daycare, schoolyard, playground, or community centre. He cannot engage in employment or volunteer work in which he is in a position of trust toward a person under the age of 16, nor can he use a computer system to communicate with a person under the age of 16.
(5) The computer equipment seized by police is forfeited to the Crown pursuant to section 164.2.
Conclusion
17In the result, the defendant will be in jail and under supervision for five years. He is also subject to ancillary orders that are designed to restrict his conduct and track his movement. This may be helpful to the defendant and of comfort to the community.
Released: July 6, 2016
Signed: "Justice J. De Filippis"