WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
P.I.
Before: Justice D.F. McLeod
Heard on: July 30, 2018
Reasons for Judgment released on: December 12, 2018
Counsel:
- D. Allison, counsel for the Crown
- A. Mamo, counsel for the accused P.I.
Reasons for Judgment
Introduction
1Mr. I. entered pleas of guilt to a series of charges he was facing in relation to offences spanning the period between the 7th of May to May 23, 2017. The Crown proceeded by indictment. The charges Mr. I. pled to were possession of child pornography (s. 163.1(4)), possession for the purpose of publication child pornography to wit a photograph and sexual assault on E.I. (s. 271). This matter was put over several times in order to furnish the Court with materials for the consideration on sentence.
Circumstances of the Offence
2On May 23, 2017, members of the ICE unit, specifically Cst. Martin, received a report from the National Centre for Exploited Children (NCECC). The report was from Facebook. Facebook advised authorities that a Facebook user, who was later identified as P.I., uploaded an image of a young male child that they believed was child pornography. The user, P.I.19, sent the image to another Facebook user, H.B.
Message: "Did you want to see E.I.'s?"
"Sure."
3The image was viewed by authorities and deemed child pornography.
4On the same day, a production order was granted ordering Rogers to provide subscriber information for the IP address used in the commission of the offence. Rogers advised the IP address was assigned to P.I. with an address provided.
5Officers executed a search warrant at that address on May 23, 2017. Only P.I.'s mother was present when the officers arrived to execute the warrant, but when her husband, the accused and 7 year old E.I. returned from a soccer game, Mr. P.I. was arrested for possession of child pornography and distribution of child pornography.
6Mr. P.I. was read his rights and cautioned and provided a voluntary videotaped statement to police.
7Mr. I. was interviewed by Cst. Caroline Losier on May 23, 2017. During the course of this statement, Mr. I. admitted to police he was the user of the Facebook account which had been disabled, but that since then, he had opened a new account.
8Mr. I. said that he'd met H.B. on Plenty of Fish 7 – 8 years earlier. He said that Ms. B. had never seen an intact (uncircumcised) penis and asked for a picture of his son E.'s penis. Mr. I. refused her request to send a picture of his son's penis. Instead, he told police, he went on Google and searched "pre-pubescent, intact penis", found a Google image, and sent that to Ms. B. over Facebook telling her it was his son's penis. After sending the photo he said his Facebook account was disabled "within 5 seconds" and he knew he'd be arrested "because of the image I sent" so he started to communicate over text message with Ms. B. He told police she asked him to send the photo again. He did so over text message.
9Mr. I. told police he had asked Ms. B. if there would be a difference between his son and her step son's penis. He asked Ms. B. to send him a picture of her step son's penis but she refused to do so. He claimed she had initiated the conversation about sending photos of their respective son's penises.
10In his initial statement, Mr. I. denied taking or sending photos of his own son E.'s penis. When he was shown photos where a male is touching a boy's penis, he denied that the thumb/finger in the picture was his. He told police it was a photo sent to him by someone else. He admitted that was the photo he sent to H.B. Later in the interview, he told police it was him who took the photo, although it was so long ago he didn't remember taking it. He told police he hadn't taken more than four photos with his cell phone.
11Further, he told police he had asked others to send him pictures of boy's penises as an exchange. He said that under 10 people had done so as of the date of the interview. One of the people who had exchanged photos with him was S.L., a US resident, who sent him a picture of the penis of the boy she babysat.
12Although Mr. I. had initially denied sending Ms. L. a picture of his son's penis, he later admitted he remembered doing so and that Ms. L. was surprised his son was still intact/uncircumcised when he sent the photo to her. He recalled sending the photo two to three times "maximum" through a circumcision website.
13Mr. I. denied sexually assaulting his son apart from taking the photo of his son's penis. He felt it was depression led him into doing this.
14When Officer Losier asked Mr. I. in the interview if they would find child pornography on his laptop, he told her that they might find "like 10" images depicting different circumcision styles. He said the photos were of boy's genitalia, but contained no sexual acts. One of the photos, he said, was the one exchanged with S.L. she took of the boy's penis while babysitting and changing his diaper.
15Mr. I. explained that he frequents online websites relating to circumcisions. He is against male circumcision and is part of a group called Intactivist. He watches images with naked children on You Tube so he can find out about circumcision in other cultures and save boys from being circumcised. His mother testified at the bail hearing she had no idea that her son was interested in the issue of circumcision and had never heard him talk about it although he has lived with his parents most of his life.
16Mr. I. denied going to child pornography websites that include images of children in sexual acts. He denied having any sexual interest in children or that he has been involved in any contact offences. He denied watching video or looking at photos that involve sexual acts with children.
17Mr. P.I.'s Acer laptop was seized and analyzed shortly after his arrest and initial interview. Initially 19 images were recovered that meet the Criminal Code definition of child pornography.
18In three of those photographs, an adult male's hand could be seen holding a young male's penis. In at least one photo, the middle finger of the adult male was visible with fine fingerprint ridge detail.
19On June 1, 2017, the photo was taken to Forensic Identification Service for the purpose of trying to identify the person touching the young male child's penis. Constable Joel Fraser indicated that the fingerprint had enough friction ridge details for the left middle finger in the photo to use as a comparison. Constable Fraser was able to compare the fingerprint on the photo and P.I.'s fingerprints. The fingerprint matched that of that accused, Mr. P.I.
20As a result, on June 14, 2017, the accused turned himself in to be arrested for Make Child Pornography, Sexual Assault and Sexual interference. He provided another voluntary videotaped statement after he had spoken to counsel.
21Mr. I. admitted that the child in the photo analyzed by Constable Fraser was his son E. and that he had taken the photo 3 – 4 years earlier when his son was about 3 years old. He admitted it was his hand in the photograph. He took the photo to show someone an intact penis and sent it to a female who lives in the United States (S.L.).
22E.I. was interviewed and said that if someone touched his penis, he'd tell his grandpa, not his dad, because his grandpa is his friend. He made no allegations of his father sexually assaulting him and had no memory of any photograph(s) of his penis being taken by his father.
23On June 15, 2017, H.B. was interviewed. Ms. B. is the Facebook user that received the child pornography image. She advised that the accused had sent her an image through Facebook messenger of a young male child's penis.
24She met Mr. P.I. on line many years ago. They met in person once and have continued to talk as friends since through Facebook Messenger and through text messages. Ms. B. said that she sometimes helps her boyfriend's kids get dressed. Mr. I. had asked her about 1 – ½ months before his arrest about the 6 year old son. Mr. I. asked her what his penis looked like, i.e. if the boy was circumcised and asked the colour of his penis. She told him it was pink. Mr. I. also asked about the size of the boy's testicles. He repeatedly asked her to take photos of her 6 year old stepson's genitals but she refused.
25The final C4P report indicates that on the Acer laptop there are 28 images of child pornography [2.1 MB] with 19 unique images, meaning 9 of the images are duplicates.
26An analysis of the child pornography showed most of the 28 photos are of young male children fully nude or in diapers although there is one picture of a young girl in a bath touching her vagina and another of a young girl lying naked on a bed.
27There are three additional photographs of a young male's penis. All three constitute child pornography. [37.0 MB] The Crown can prove two of the three of the photographs are of E. The two photos of E. appear to be the same photo duplicated. In other words, the Crown can prove that there is one photo of E.'s penis taken by his father, P.I., on his computer.
28Mr. I. was collecting child pornography before taking pictures of his son. Three photos constituting child pornography pre-date the pictures of his son's penis. One of those photos is of a young girl.
Circumstances of the Offender
29Mr. P.I. has no criminal record and no outstanding charges.
30The court has reviewed very carefully the contents and recommendations of the Pre-Sentence Report (PSR), however the court will rely on the most salient facts all of the contents within its reasons.
31The PSR revealed that Mr. I. was the eldest in a line of two siblings. He denied experiencing any physical, emotional or sexual abuse and indicated that although his parents occasionally argued, he never witnessed any abusive or disrespectful behaviour between them.
32In November 2008 Mr. I. met a women using an online dating site and began a romantic relationship, by April 2009 the couple moved in together and shortly after that the couple learned they were expecting. The relationship was short lived and subsequent to the birth of their son in February 2010 Mr. I.'s partner left taking their child with her.
33Family court proceedings were initiated after his ex-partner left, eventually awarding both parties joint custody. Mr. I.'s son resided with him for the majority of the time, returning to his mother on the weekends and holidays until May 2017 at which point Mr. I. was charged with the offences before the court and was placed in the care of his mother.
34In both elementary and secondary school, Mr. I. described his academic level as basic. He informed that he had an Independent Education Plan (IEP) as he was assessed as having a developmental issue with word recognition which impacted his ability to read and write. Mr. I. had the support of a speech pathologist until he was ten years of age. He acknowledged being suspended in high school on two occasions for acting out which he believes was an attempt to get the attention of others. He also described himself as "quiet" but had friends and socialized with his peers.
35In a report generated by the William Osler Health System dated April 8, 2017 and authored by Dr. Amlan Das the report acknowledges Mr. I.'s level of delay as follows:
The patient endorses a history of developmental delays including delays in sitting, speaking words, cooperative play, walking, feeding self, controlling the bowels and bladder, dressing self, riding a bicycle, and tolerating separation. (Page 2 of 5)
36The Osler report (at page 2 of 5) under the heading of History of present illness described Mr. I. as having a long history of depressive and anxiety symptoms, and suggested he has had these issues for the last 12 years. He also has difficulty with indecisiveness, poor self-esteem, and constantly thinks "am I good enough."
37In April 2010 Mr. I. completed the Personal Support Worker Certificate Program at Humber College. He later returned to college where he enrolled in the Law Clerk Program however did not complete this program of study. The majority of Mr. I.'s employment history has consisted of General Labourer Positions.
38Mr. I. described himself as a heterosexual male, with a primary sexual interest in adult females. He denied having a sexual interest in children per se, however acknowledged that when he viewed images that focused on the genitalia of children, more often male children, he became sexually aroused. He acknowledged that he masturbated to such images but never the pornographic images he had of his son. He maintains that he has never thought about engaging in sexual acts with children, explaining he has been around children his whole life in the capacity of a hockey referee and never considered acting out sexually towards any of them.
Impact on Victim and/or Community
39The age of the complainant makes the traditional inquiry into the impact this matter has had on the young toddler virtually impossible. However, this court is informed by its lived experience. The impact of what has taken place in this matter will have far reaching effects on this toddler for the remainder of his life. The impact has been felt already in that he does not have the access he once had to his father. This in and of itself can have lasting effects unless significant and lasting life changes are employed to ensure balance.
40Aside from the victim there is also the ripple effect which is felt by the extended family of both the mother and father. The grandparents on Mr. I.'s side of the family have also been devastated by the years of change and uncertainty. These challenges have significantly impacted on their ability to see and interact with their grandson.
Legal Parameters
41The Crown proceeded by indictment on all offences before the court.
42For the offence of sexual assault contrary to s. 271 of the Criminal Code, the offender is liable where the complaint is under the age of 16 years, to a maximum punishment of 10 years.
43Pursuant to s. 718.3(7) of the Criminal Code, the sentence of imprisonment for 163.1 must be served consecutively to a sentence of imprisonment for a sexual offence committed against a child.
44For the offence of make child pornography, pursuant to 163.1(2) of the Criminal Code, the offender is liable to a minimum punishment of one year and a maximum punishment of 10 years.
45For the offence of making available child pornography, pursuant to 163.1(4) of the Criminal Code, the offender is liable to a minimum punishment of one year and a maximum punishment of 10 years.
Position of Crown and Defence
46The Crown has submitted that the appropriate sentence for this offender and these offences is a sentence of:
- 12 months consecutive for the offence of sexual assault
- 2 – 2.5 years for the offence of making child pornography
- 12 – 18 months possession of child pornography
This would mean a global sentence of 4 – 4.5 years less time served.
47The defence submits that the appropriate sentence should be one of a low penitentiary sentence less Mr. I.'s time served.
Sentencing Principles
48In the case of R v. M.S., [2017] O.J. No. 3762, Justice Brown, in considering the appropriate sentence, was guided by the provisions in the relevant sections of the Criminal Code. This includes sections 718, including denunciation, general deterrence, specific deterrence, separation of offenders from society, rehabilitation, reparations for harm, and promotion of a sense of responsibility and acknowledgement of harm done to victims. The sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender, pursuant to s. 718.1. In addition, the court is very mindful of the sentencing principles set out in s. 718.2(b) through (e), including disparity, totality, imposing the least restrictive sanctions and deprivation of liberty appropriate in the circumstances, and any considerations appropriate for aboriginal offenders.
Mitigating Circumstances
49The Pre-sentence Report describes Mr. I. as a complicated man, son, brother and father who has several internal struggles that have shaped him into the man that he is today.
50The subject expressed remorse and regrets for his actions. He acknowledged the harm he has caused his son and family members and appreciates that he contributed to the victimization of other children by accessing child sexual abuse images. He explained that for a number of years leading up to and during the offence period, he was in a dark place mentally and emotionally. He believes if he had sought out help to deal with his depression he would not have acted out in this manner.
51Mr. I. appreciates the consequences that his behaviour has had on his son and family. The subject reportedly experienced a severe bout of depression following his arrest, however sought out medical help and has been actively addressing his issues through various programs in the community.
52Mr. I.'s intention to plead guilty to these charges should also be seen as a mitigating circumstance in that the toll of a long and protracted trial could have done irreparable harm to a family structure which to this point had already undergone significant trauma.
Aggravating Circumstances
53There are many aggravating circumstances to this case which are itemized below:
(i) This was a significant breach of trust which involved a father and his 3 year old son.
(ii) The fact that Mr. I. used his son's real name prior to sending out a photo of his son's genitalia.
(iii) The photographing of his son's genitalia and then releasing it for public consumption.
Review of Case Law
54Cases dealing with breach of trust scenarios that have actually been captured on film and widely distributed have unfortunately become more common place in the criminal context. The law continues to take shape around these issues and in many respects the notion of bright lines in legal jurisprudence are increasingly difficult and as such require each Justice to recognize the subtle nuances in each case and adjust accordingly.
55Justice Brown from the Ontario Court of Justice acknowledged the burgeoning reality of breach of trust cases conjoined with the making of child pornography and referred to the case of R v. L.M., 2008 SCC 31, [2008] S.C.J. No. 31, and noted the in para. 28 of the case that once a photograph has been posted on the web, "it can be accessed indefinitely, from anywhere in the world". The court went on to state that the victim "will never know whether a pornographic photograph or video in which she appears might not resurface someday".
56Justice Moldaver in the case of R v. D.D., [2002] O.J. No. 1061, suggests that "as a society we owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators and as such, they make easy prey. People….know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow."
57Moldaver J. then extrapolates on the above theme ensuring that the court begins to understand the long-lasting and significant realities that can present themselves when dealing with young impressionable victims. The case of R v. D.D.:
36 In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.
37 Two such consequences were identified by the Alberta Court of Appeal almost ten years ago. In R. v. S. (W.B.) and R. v. P. (M.) (1992), 73 C.C.C. (3d) 530 at 535, the court, composed of Major J. A. (as he then was) and McDonald and Quigley JJ. made the following observations:
When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in serious psychological harm to the victim.
When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones, and may even be permanent.
One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship with another adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.
Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as he or she had been treated as a child - that is, he or she may abuse a child sexually. There is no empirical way of proving that a particular child victim, when he or she becomes an adult, will do to some child what has been done to him or her. We do know that sentencing judges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both) who had stood in a parental relationship to him or her when he or she was a child.
58When addressing sentencing principles, Justice Durno in R v. D.K., [2014] O.J. No. 6404, addressed the overarching principle of proportionality to the gravity of the offence and the degree of responsibility of the offender at paragraph 71:
Sentencing must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The offences are most serious for the reasons indicated earlier. In relation to child pornography, the Court of Appeal has held that,
Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further, the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deters others from the commission of the offence and reflect the gravity of the offence. R. v. E.O., [2003] O.J. No. 563 at para. 7
59Durno goes on to state:
72 The very existence of child pornography has been held by the Supreme Court of Canada to be inherently harmful to children and to society. The Supreme Court has found "this harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of pornographic presentations which, on their own, violate the integrity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticizes the inferior social, economic and sexual status of children that preys on pre-existing inequalities. R. v. Sharpe (1996), 105 C.C.C. (3d) 321
Child pornography poses serious problems for our society, and criminal sanctions must be imposed against those who involve themselves in this deeply destructive and harmful activity.
Conclusion
60Mr. I. sat in the role as father and care giver. This dual responsibility allowed him unfettered access to his child. The breach of trust between child and parent in this matter is one of the highest in this court's estimation.
61The age of the young victim made the young child not only vulnerable but also mute in many respects. His vulnerability can be seen in what this court sees as an obvious unwilling participation in the various acts occasioned on him by his father. This young child was helpless to fight against this endeavour. His young mind oblivious to the indignity being thrust upon him by his parent.
62Further, due to his age his voice is the one that remains noticeably absent in the process unable to aid the Court but yet a central figure to the crime and its potential outcomes.
63Mr. I. is a man who has seen his own misfortune during his life and is a man whose mental circumstances are not lost on this Court or these proceedings. Mr. I.'s personal circumstances in a case such as this must be taken into consideration but in this court's estimation those circumstances must give way to general deterrence.
64A crime of this nature has the potential to derail future happiness for it young victim. That happiness compromised by a single act that may be relived over and over again by a mind which has no understanding for the latent yet profound imaginings that form part of his or her psyche.
65However crystal ball gazing is also not appropriate in circumstances such as these. This Court must be balanced but also intuitive, the court must also be able to draw on its own lived experience to determine real and realistic outcomes that may lay in wait for this young child and then form a sentence that does not rely exclusively on possible probabilities but remain governed with an even, deliberate and objective stream of consciousness.
66The breach of trust in this matter requires a sentence that speaks to its impact, the potential far reaching and long lasting personal and psychological turmoil to the victim as well as a sentence that responds to the blatant disregard for the victim's dignity and lack of consent. The sentence must also be tempered by the mental health and lived life of the perpetrator.
67In all of the circumstances this court is of the view that the appropriate sentence should be one of 3 years and 6 months.
Sentence
On count #1: 6 months
On count #4: 1 year and 6 months consecutive to count #1
On count #5: 1 year and 6 months consecutive to all other counts
Ancillary Orders
(i) There will be a SOIRA order for life in accordance with the Code
(ii) A section 161 order for 10 years
(iii) Forfeiture of all property related devices
(iv) 109 order for 5 years
To be placed on probation for 2 years with the following terms:
(v) Report in person to a Probation Officer as directed.
(vi) Do not be in the company of any person under the age of 18 unless such a person is a family member of the offender and the offender has the permission of the lawful guardian of that child and he has the written permission of the probation officer who has confirmed with the guardian that they are aware of the nature of the criminal offence for which you have been convicted.
(vii) With respect to your son E.I., you are not to have any contact, communication or direct access unless in accordance with a Family Court Order, made after today's date.
(viii) Not to possess or access child or adult pornography.
(ix) Not to possess or access any images of children who are depicted to be or appear to be under the age of 18 years, who are naked or who are portrayed in a sexual manner.
(x) Not to use or possess any device capable of recording or storing data in a digital format, including, but not limited to: computers, handheld devices, personal digital assistance, cellular telephones, digital cameras, digital video cameras UNLESS:
(a) The possession or use of such a device is required for the purposes of employment.
(b) The possession or use of such a device is required at the place of employment only.
(c) The offender obtains the written permission of the probation officer for the proposed possession of the device in these circumstances for the purposes of employment only.
(xi) Not to possess any device capable of accessing the Internet or composing, transmitting, or receiving electronic mail ("email") UNLESS:
(a) The possession or use of such a device is required for the purposes of employment.
(b) The possession or use of such a device is required at the place of employment only.
(c) The offender obtains the written permission of the probation officer for the proposed possession of the device in these circumstances for the purposes of employment only.
(xii) Even where written permission is obtained by the offender from the probation officer to possess any electronic device for the purposes stipulated therein, the offender SHALL:
(a) Not be permitted to have an electronic mail ("email") account without the prior written approval of his probation officer
(xiii) Where approval for electronic mail ("email") account is granted, the offender is permitted to have ONLY one email account, which the offender shall not change or use to create any other email account(s).
(xiv) The offender shall provide to the probation officer sufficient, reliable, verifiable information regarding the electronic mail account to permit the probation officer to monitor the offender's use of the electronic mail service.
(xv) Not to use any electronic device to communicate with any person under the age of 18.
(xvi) Not to use any electronic device to access Internet "chat rooms" or social networking sites.
(xvii) Attend for assessment at the Centre for Addiction and Mental Health's Sexual Behaviours Clinic as directed. Actively participate in counselling and or treatment as recommended by the clinic or recommended by your probation supervisor.
(xviii) Participate in any other counseling as recommended by the probation officer.
(xix) Sign any releases required to allow the probation officer to monitor your compliance with assessment, treatment or counseling.
Release of Decision: December 12, 2018
Signed: Justice D.F. McLeod