minicounsel

Court: Ontario Court of Justice

Court File No.: 13740-16

Date of Judgment: November 20, 2018

Reasons for Judgment on Sentence Released: November 20, 2018

Crown: Her Majesty the Queen

Counsel for Crown: Mario Thomaidis

Defendant: Marcin Lebzuch

Counsel for Defendant: Colin Alexander

Before: Justice P.T. O'Marra

February 2, 21, June 5, 18, 19, 20, 21, July 10, October 1, 2018

Introduction

1On July 10, 2018, after the majority of the Crown's case had been presented, the accused changed his original not guilty plea to guilty to the following offences:

(1) Possession of child pornography to wit: graphic computer files, contrary to Section 163.1(4) of the Criminal Code of Canada;

(2) Access to child pornography to wit: graphic computer files, contrary to Section 163.1(4.1) of the Criminal Code of Canada.

2On October 25, 2016, a search warrant was executed on the accused's Brampton family home. The police analysis of the solid state computer located in the basement exclusively accessed by the accused, indicated there were 32 unique video clips and 69 unique pictures of child pornography on the computer.

3The child pornography portrayed children (male and female) between the ages of six (6) and fourteen (14) engaged in masturbation, fellatio, sexual and anal intercourse. The children were often raped and or sodomized by an adult.

Positions of the Parties

4Mr. Thomaidis, on behalf of the Crown, submitted that the appropriate sentence in this case is imprisonment for a period of eight (8) months, followed by a (2) two year period of probation, with terms that should include treatment or counselling to address sexual offending behavior, substance abuse and mental health issues. The Crown seeks ancillary orders under section 161 of the Criminal Code restricting the accused's access to children for a period of ten (10) years, a DNA order, an order placing the accused on the National Sexual Offender Registry (SOIRA) for life and an order for forfeiture of the computer.

5Mr. Alexander, on behalf of the accused, argued that since the six-month mandatory minimum sentence for possession of child pornography was recently struck down by the Ontario Court of Appeal in R. v. John, 2018 ONCA 702, the appropriate sentence is a conditional sentence to be served in the community for a period of 18 months with strict terms and conditions. In the alternative, if I find that a conditional sentence is an inappropriate disposition then I should consider a period of imprisonment in the range of four (4) to six (6) months. There was no objection to the period of probation, the SOIRA and the DNA orders. With respect to the order pursuant to section 161, Mr. Alexander asked that there be exceptions for his nieces and nephews if an adult family member of that child is present. As well, it was suggested that I should not completely restrict access to the Internet as it would be difficult to find employment and or further his education.

The Accused's Circumstances

6The accused is a 31 year old first time offender. He is a member of a close knit and supportive family. He is the eldest of three brothers. He is a single man with no children. By all accounts the accused had a fairly normal childhood, however, he recently disclosed that he was sexually abused by a neighbour when he was seven (7) years old. The accused harboured this terrible secret until he was 28 years old. He reported the sexual assault to the Peel Police Service a few weeks ago. The disclosure and the index offences have devastated his family.

7He completed high school and attended college to study animation illustration. He primarily worked in the construction industry but currently is unemployed. Occasionally he generates income by placing advertisements on buy and sell websites.

8The accused has always been involved in heterosexual relationships with age appropriate consenting female partners. He reported in the presentence report that he denied having any sexual attraction or preference for children despite the offences that he pled guilty to. He denied having any paraphilic activities or any fetish interests.

9The accused is heavily dependent on drugs and alcohol. Since 2016 he reported that he began consuming alcohol up to seven (7) beers and was using a gram of cocaine daily. He still abuses alcohol and cocaine but has reduced his intake.

10The accused has expressed remorse, embarrassment, and shame for his conduct. He explained that this behaviour was completely out of character. Prior to the offence he has never sought out child pornography. At the time that he possessed child pornography he was feeling lost due to his struggles with his sexuality. The accused never addressed the sexual abuse and he believed that this traumatic event left him confused and emotionally overwhelmed. The accused stated that he has suicidal ideations.

11The accused was arrested and released on a Recognizance of Bail with a surety the same day. He has been subject to terms and conditions, albeit with variations, for two years. Nevertheless, his liberty, freedom and movements have been restricted for the last two years. There have been no allegations of breaches during this period of time.

12It is obvious that the impact of the offence has been difficult on the accused, notwithstanding his family remains supportive. I acknowledged that indeed a criminal conviction for the offence of possession of child pornography can be particularly harsh on an individual including the accused in these circumstances.

The Legal Parameters

13Possession of and accessing child pornography contrary to sections 163.1(4) and 163.1(4.1) of the Criminal Code are hybrid offences. The Crown elected to proceed summarily. The maximum penalty that the court can impose is imprisonment for a period of two years less one day. As I have already stated the mandatory minimum sentence of imprisonment was struck down as unconstitutional by the Court of Appeal. (See: John, supra.) These are primary designated offences for DNA testing purposes. It is mandatory on the court to consider an order pursuant to section 161 of the Criminal Code. These are also designated offences for life time compliance with the Sex Offender Information Registration Act, pursuant to section 490.013(2.1) of the Criminal Code.

The Mitigating and Aggravating Factors

14The aggravating factors in this case include the following:

(1) The size of the pornography collection included 69 accessible unique images and 32 accessible unique videos. The Crown submitted that the accused's collection was not considered a large collection and was significantly less than the collection found in R. v. Inksetter, 2018 ONCA 474 (28,052 unique images and 1,144 unique videos- 3.5 years imprisonment). However, although the accused's collection was a little less in size than the collection found in John, supra (89 unique videos- 10 months imprisonment) but it was a little less than the collection in R. v. Kwok (60 unique videos- 12 months imprisonment). The accused's collection warrants imprisonment. I find that the total time duration of the videos of 4 hours and 42 minutes aggravating.

(2) The nature of the collection was abhorrent. Children between ages of six years to twelve years were sexually abused by adult men. Images of masturbation and anal rape were depicted. This collection was depraved and violent.

15I consider the following to be mitigating factors include the following:

(1) The guilty plea. This demonstrated his remorse and contrition. Initially the accused plead not guilty. Considerable court time was expended by the Crown to prove its case. It was only after the conclusion of Constable Krall's technological evidence that the accused changed his plea. The evidence was overwhelming and highly incriminating against the accused. Usually a guilty plea is considered a mitigating factor and that remains the case here. However, its mitigating effect is somewhat tempered by the lateness of the plea and the circumstances in which it was eventually made. (See: Kwok, supra paras. 14-15)

(2) The absence of a criminal record.

(3) The accused was a young adult offender.

(4) He has a very supportive family and friends.

(5) He has struggled with serious addiction and mental health issues as a result of the emotional and psychological turmoil he has suffered from the sexual abuse.

(6) His willingness to accept and undergo counselling and phallometric testing to address his sexual behaviours.

(7) He had been on bail for two years with moderately restrictive conditions.

(8) The extent of the shame and humiliation of his crime. His entire family and close friends are aware. He reported that the embarrassment and disgrace has made it impossible for him to participate in familial events.

16What I consider neutral factors to be in this case include the following:

(1) There was no evidence of distribution, sharing and production of the illicit material. There was no reason to suspect that he ever did. The material that the accused accessed was stored on a password protected computer. No one else in his home could readily access or view the material.

(2) The failure to take addiction counselling. During the two years that this matter has been before the court the accused's has not engaged in counselling services for his addiction to drugs and alcohol nor for his mental health issues. In fact, he has only started recently to reduce his intake of drugs and alcohol.

(3) The danger to children. I only have before the court the accused's self-reporting to his probation officer that he denied any sexual preferences to children. No risk assessment was prepared that could have provided a definitive diagnosis and or ruled out that the accused was sexually attracted to children. I cannot completely rule out that the accused is not a danger to children without a comprehensive assessment or a completed treatment program, with demonstrated insight into his problem. However, the lack of diagnosis or risk foreseeability to children is not an aggravating factor, but their absence is not a mitigating factor. (See Kwok, supra para 47)

(4) The lack of insight. It is a sad irony to suggest that the accused does not have any insight into his conduct and the "plight of any of the victims in his disgusting portfolio of pornography" given that he is a victim of sexual abuse at seven years of age. (See: Kwok, supra Para. 39) However, I observed a complete lack of emotion or reaction from the accused when Constable Krall and Constable Martin outlined the repugnant titles of the numerous file names that were captured in the Shareaza library and the recycle bin on his computer. However, his reaction may have been completely different if the images were displayed in the courtroom. Unemotional behaviour is not treated as an aggravating feature however, I do not believe that it is a mitigating factor in this case.

The Principles in Sentencing

17The guiding purposes and principles of sentencing are set out in sections 718, 718.1, 718.01, and 718.2 of the Criminal Code which state the following:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Objectives — offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(v) evidence that the offence was a terrorism offence, or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

18It is well recognized in the case law, particularity from the Court of Appeal and the Supreme Court of Canada that child pornography is evil and vile. Possession of child pornography increasingly menaces our young people and threatens our values as a society.

19For example, In R. v. Jewell and Gramlick (1995), 100 C.C.C. (3d) 270, (Ont. C.A.) at 277 per Justice Finlayson: The evil of possession is a very important contributing element in the general problem of child pornography. A consumer for the distributor and a short step from distribution by the possessor himself or herself; R. v. Stroempl (1995), 105 C.C.C. (3d) 187, (Ont. C.A.), at 191, per Morden, A.C.J.O. (as he then was); R. v. Lisk, [1998] O.J. No. 1456 (C.A.) at para. 1, per curiam.

20In the recent decision of Inksetter, supra para. 22 Justice Hoy reiterated the perniciousness of child pornography;

Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis, 2012 ABCA 148, at para. 29, "possession of child pornography is itself child sexual abuse." The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing, and making available his vast and terrible collection to others, the respondent participated in the abuse of thousands of children.

21The legislative history of this is that The Safe Streets and Communities Act, which received Royal Assent on March 13, 2012 and which was proclaimed in force on August 9, 2012, imposed a mandatory minimum sentence of 90 days where the Crown proceeded by summary conviction. This was followed by the Tougher Penalties for Child Predators Act, which received Royal Assent on June 18, 2015 and came into force on July 17, 2015 and increased the minimum sentence to six (6) months where the Crown proceeds by summary conviction.

22In August 2017, the Ontario Court of Appeal upheld a ruling that the mandatory minimum sentence of twelve (12) months on the charge of child luring proceeded by indictment was unconstitutional. (See: R v Morrison, 2017 ONCA 582). In June 2018, the Ontario Court of Appeal struck down the mandatory minimum for possession of child pornography. (See: John, supra).

23I have referred to the legislative history of these sentences because it indicates clearly that Parliament has chosen on two separate occasions over the past six years to indicate that longer sentences of imprisonment are called for in cases of child pornography. The decisions to strike down mandatory minimum sentences has been mostly on the basis that accepting the argument that the such a penalty would be grossly disproportionate to reasonable hypothetical situations as permitted in R. v. Nyr, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para 22.

24Nevertheless, in a case of this nature, and in these circumstances and the recent emphasis on the importance on public denunciation and deterrence, the mandatory minimum sentence is unnecessary. (See: John, supra para. 41).

Analysis

25There is no doubt that the sentence I impose will involve a period of imprisonment. The Court of Appeal has recently emphasized the importance of denunciation and deterrence for any offence involving the abuse of children, and that those principles and the primary principle of sentencing applicable for such offences as child pornography. See: John, supra para. 41, Inksetter, supra para 16, R. v. J.S., 2018 ONCA 675, and R. v. Schulz, 2018 ONCA 598.

26Now that the mandatory minimum sentence punishment of six (6) months is struck down, consequently I am obligated to consider whether the accused should be permitted to serve a custodial sentence in the community by way of a conditional sentence with strict terms and conditions pursuant to section 742.1 of the Criminal Code.

27There are five prerequisites for the imposition of a conditional sentence.

(1) The offender must be convicted of an offence that is not specifically excluded (e.g. sexual assault, when prosecuted by indictment).

(2) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.

(3) The court must impose a sentence of imprisonment that is less than two years.

(4) The safety of the community would not be endangered by the offender serving the sentence in the community.

(5) The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

28The facts of this case meet the first three pre-conditions. The Crown did not proceed by indictment, there is no longer a minimum sentence applicable, the Crown is seeking an eight (8) month sentence and the safety of the community would not be endangered by the defendant serving his sentence in the community. However, I must impose a sentence that takes into consideration of the fundamental purposes and principles set out in sections 718 to 718.2 of the Criminal Code.

29The questions are: (1) whether a conditional sentence order is an appropriate disposition for this particular case? (2) Will the imposition of a conditional sentence address the primary sentencing goals of general deterrence and public denunciation?

30In my view, a conditional sentence order for a period of eighteen months (18) would be wholly inappropriate in this case, in light of the nature and content of the child pornography that the accused collected. The imposition of a conditional sentence would be contrary to and inconsistent with the fundamental purposes and principles of sentencing. Furthermore, a conditional sentence would not send a loud and clear message to the public that possessing and accessing child pornography is unacceptable. It is also ironic that the court was being asked to send the accused back to his home environment where his crimes were committed without the accused having undergone any treatment or counselling. Any deviant personalities may not view a conditional sentence order as much of a deterrent "when weighed against the strength of their urges to access child pornography." (See: Kwok, supra at para. 57). Moreover, I cannot be satisfied that the accused, untreated for his substance abuse and mental health issues and undiagnosed, would not be a risk to the public if he was permitted to serve his sentence in the community.

31The courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence. (See: R v Lacasse, [2015] S.C.C. 64 at para. 6). I am mindful of the fact that the accused has never spent any time in custody beyond his two days of pretrial custody and therefore, I must exercise judicial restraint for a first time offender. I cannot impose a crushing custodial sentence that undermines the principle of rehabilitation which can be addressed in a probation order.

32The primary principle of general deterrence and public denunciation cannot be the only driving force behind sentencing. The individual's circumstances must be weighed in the balance. However, I do not believe that the accused's personal circumstance militates against a jail sentence. The collection is too depraved. But I am of the view that given the broad range in terms of lengths of sentences, his circumstances call for a jail sentence at the lower end of the spectrum.

Conclusion

33In my view, the appropriate and fit sentence that takes into consideration, accused's guilty plea, the absence of a criminal record, his supportive family, his addiction and mental health issues, and other mitigation factors, as well the principles of general deterrence and public denunciation, is that of seven (7) months of imprisonment concurrent on both charges. When I take into consideration the length and conditions of bail and the pre-trial custody of three (3) days, I will credit the accused one month and therefore reduce the sentence to six (6) months incarceration. After the accused is released from custody he will be placed on probation for a period of two (2) years with the following terms and conditions and in addition to the three (3) statutory conditions he shall:

Report to a probation officer as directed.
Reside at an address approved by your probation officer.
Not possess or access child pornography.
Not 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.
Not to be in the company or presence of any child under sixteen (16) years of age without a responsible adult who is aware of your present offences.
Attend and actively participate in any rehabilitative and/or counselling program as recommended by his probation officer specifically addressing: Sexual offender behaviour, alcohol and drug abuse, and mental health issues.
Sign any necessary consent for disclosure to enable the probation officer to monitor his compliance and attendance in any assessment, treatment and counselling.
Abstain from the purchase, possession, and consumption of drugs except in accordance with a medical prescription.
Permit his probation officer, or a police officer requested by his probation officer to assist, access to his computer and any mobile phone that is in his possession or control to ensure that those devices have not been used to access child pornography, subject to reasonable precautions being taken to protect solicitor/client privilege respecting any client documents on those devices.
Provide to the probation officer his internet service provider, his account number and his billing address.

34Upon his release from imprisonment and completion of his parole, he will be subject to an order under section 161 of the Criminal Code for a period of ten (10) years. He is prohibited from,

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; unless with a responsible adult that is aware of the present offences;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years with the exception of his nieces and nephews, unless the offender does so under the supervision of a person whom the court considers appropriate; or

(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. I am ordering the same internet limiting conditions as I have set out in the probation order.

35If the accused's personal circumstances changes to the extent that he becomes a father of a child/children during the duration of the order made pursuant to section 161, I would be amenable to varying the terms of the order if the circumstances warranted such a variation.

36I also make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from the accused of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

37These offences are designated offences pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to section 490.013(2.1) of the Criminal Code that the accused comply with the provisions of the Sex Offender Information Registration Act for life.

38I am ordering forfeiture of the seized tower computer and USB devices that remain in possession of Peel Police Service.

39I will give the accused two (2) years to pay the victim fine surcharges.

Released: November 20, 2018

Signed: Justice P.T. O'Marra

R. v. Lebzuch, 2018 ONCJ 981

Case Summary

Introduction

Positions of the Parties