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(3) 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(3), read as follows:
486.4(3) CHILD PORNOGRAPHY — In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 OFFENCE — 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 —
Jason Barry
Before: Justice E. Deluzio
Heard on: September 20, 2019 and December 12, 2019
Reasons for Sentence released on: January 20, 2020
Counsel:
- Lee Burgess, counsel for the Crown
- Judyth Rekai, counsel for the accused Jason Barry
Reasons for Sentence
Justice E. Deluzio:
Guilty Pleas and Convictions
1On September 20, 2019 Jason Barry entered pleas of guilty, and was found guilty, of the following offences:
(i) one count of fail to comply with probation contrary to section 733.1(1)(b)
(ii) two counts of assault contrary to section 266(b)
(iii) one count of utter threat to cause harm or death contrary to section 264.1(1)(a)
(iv) one count of possession of child pornography (homemade video), contrary to section 163.1(4)
(v) five counts of making child pornography (12 homemade videos) contrary to section 163.1(2)
(vi) three counts of sexual interference contrary to section 151
(vii) one count of sexual assault contrary to section 271
(viii) three counts of voyeurism contrary to section 162(1)
Mr. Barry was also arraigned on a single count of sexual assault with a weapon and entered a plea of guilty to sexual assault. The Crown presented evidence during the sentencing hearing, which included a video. Mr. Barry admits taking the video and admits that he is the adult male depicted in the video. The video clearly shows Mr. Barry inserting a sharpie marker into a female child's vagina. Mr. Barry was therefore also found guilty of sexual assault with a weapon.
Circumstances of the Offences
2Mr. Barry was arrested and charged with all of these offences after police responded to a 911 call regarding a domestic assault. The complainant was Mr. Barry's former common law partner Alisha Campbell.
3Ms Campbell and Mr. Barry had been living together for about a year when this offence took place. They have no children together. Ms Campbell had visible injuries including abrasions to her neck and back and she was bleeding from her knee. She provided police with an audio recording she made while the assault was taking place. The audio recording was played during the sentencing hearing. Mr. Barry can be heard assaulting and threatening to harm Ms Campbell.
4Mr. Barry has also pleaded guilty to assaulting his former common law partner, Nicole Burshaw.
5Ms Burshaw reported this assault to police when they interviewed her about the videos that Mr. Barry made depicting Ms Burshaw's daughters. Mr. Barry admits that during an argument with Ms Burshaw he grabbed her by the arms, leaving bruises.
Child Pornography Offences
6Ms Campbell told police that Mr. Barry made and possessed child pornography and that she had seen a video on Mr. Barry's phone which depicted Mr. Barry standing over a sleeping, 14 year old developmentally delayed girl, and masturbating.
7Ms Campbell provided police with one computer hard drive and told police that Mr. Barry had several computers and hard drives in the residence. She also told police that Mr. Barry always takes a backpack with him when he leaves the residence, and puts the hard drives in the backpack.
8When police arrested Mr. Barry he had a computer hard drive, with a "sour puss" sticker, in his backpack.
9Police obtained a search warrant and seized electronics, including computers, hard drives, and SD cards from Mr. Barry's residence.
10The police found multiple homemade videos. Mr. Barry set up a video camera in his residences and filmed himself sexually abusing young children who were sleeping in his home, and in his care.
11The victims in most of these videos are two young girls who were sleeping in Mr. Barry's residence because he was babysitting them for their mother, who was a friend of his at the time. One of the victims would have been 9 years old at the time. The other victim was 14 and developmentally delayed. Mr. Barry sexually abused and videotaped this abuse while these young girls were entrusted to his care. The young girls appear to be sleeping while Mr. Barry removes or pushes aside their clothing to expose their vaginal areas. Mr. Barry can be seen in the videos sexual assaulting his young victims by fondling their vaginal areas, performing cunnilingus (in one video), inserting his finger into their vagina and then sliding his finger in and out. In one video he gets on top of the 14 year old victim, spreads her legs apart and presses his hips against her vaginal area, simulating intercourse. In another video, Mr. Barry can be seen inserting a plastic "sharpie" marker into the 9 year old child's vagina. Another video shows Mr. Barry masturbating while standing over a young sleeping girl. His erect penis is inches from the child's mouth. He ejaculates on her lips and then pulls away. There is still another video where Mr. Barry stands over the 14 year old sleeping victim, with his erect penis in his hand, masturbating. He then places the head of his penis against the child's lips and leaves it there for approximately 30 seconds before pulling away showing a small amount of semen on the head of his penis.
12There are additional homemade voyeuristic videos depicting Mr. Barry's former young step daughters changing clothes or after a shower.
13One home made video involves a 9 month old female infant. This video was created on December 31, 2016. Mr. Barry can be seen approaching a playpen where the infant is sleeping and reaching his hand down the front of her diaper for a few seconds until the baby wakes up crying. Police investigation confirmed that Mr. Barry was attending a New Years eve party hosted by the baby's parents when he committed this offence.
14In addition to his collection of homemade child pornography, Mr. Barry collected child pornography from the internet. Police seized 315 accessible and 1808 unique inaccessible images containing child pornography and 1843 accessible and 140 inaccessible child pornography videos.
15Several videos containing child pornography, including a representative sample of Mr. Barry's child pornography collection downloaded from the internet, and Mr. Barry's homemade child pornography videos were played during the sentencing hearing.
Criminal Record
16Mr. Barry has a criminal record but he has never received a significant jail sentence. He has 6 prior sets of convictions starting in 2001 with a conviction for mischief. He was convicted of dangerous driving and failing to attend court in 2003 and sentenced to a 15 day conditional sentence. He has an assault conviction in 2006, for which he received a 6 month conditional sentence order plus 2 years probation, and a criminal harassment conviction in 2008 for which he received a suspended sentence and 18 months probation. In 2015 he was convicted of fraud and theft under and received a suspended sentence. In 2017 he was convicted of mischief and harassing telephone calls and he received a suspended sentence. These most recent offences were domestic in nature and involved his previous common law partner, Nicole Burshaw.
Pre-Sentence Reports and Assessments
17A Pre-Sentence Report dated December 4, 2019 a Psychological Report dated November 25, 2019, and a Sexual Behaviour Assessment dated November 5, 2019, were ordered for the purpose of this sentencing hearing and filed as exhibits.
18At page 9 of the presentence report the probation officer writes that: with regards to the offences, the subject expressed that he was simply "curious". He offered that he committed the offences because he was in a 'very depressed state' adding that his use of methamphetamines was a contributing factor in some of the offences. The subject stated he received his first computer at the age of eighteen and at that time he began viewing age consenting pornography and indicated he 'viewed a variety of porn'. He claimed he 'ran into child porn by accident' and he 'loves' downloading programs for free on sites available online. The subject stated he searched 'girls' on a site and claimed it downloaded 'young girls'. He stated his 'curiosity returned him to the site 'to see what else was there'. The subject admitted to downloading and viewing the child pornography 'multiple times' and indicated 'some of it turned him on'. He indicated the personal videos he made he masturbated to them 'a few times'. The subject stated that he is 'highly disgusted' with himself and claimed if he was not under the influence of drugs he wouldn't have done it however, as mentioned above, the subjected claimed responsibility for placing a video camera in the daughters' room of a previous partner. He reported he was not abusing methamphetamine at the time and that this was the first time he 'took interest' in young females".
19Later in the report, the author writes that Mr. Barry "expressed no victim empathy or remorse whatsoever. These offences are a breach of trust and authority. The subject deflected blame onto the victim, Ms Campbell, stating she caused arguments and wouldn't leave him alone. With regards to the sexual offences, the subject reported it was "curiosity" and stated his use of drugs contributed to committing the offences".
20The author of the Sexual Behaviour Assessment, Dr. Jan Looman, concludes in his report that "Overall Mr. Barry presents as a well above-average risk for sexual re-offence. His primary treatment needs relate to intimacy difficulties, and issues related to sexual pre-occupation and sexual deviance. I also noted that Mr. Barry minimizes his offending; downplaying the length of time he was offending and describing it simply as 'taking pictures'. He only acknowledged the physical sexual contact when I prompted it. He also minimized the period of time over which his offending occurred, presenting it as being only for a short period of time; however his downloading of pornography started in 2012; and his making the videos with K was in 2013; indicating a longer duration of sexually deviant behaviours. Mr. Barry would benefit from participation in a sexual offender treatment program. He also may benefit from substance abuse programming, given his tendency to use drugs to help with coping".
Sentencing Principles
21Child pornography is created by exploiting and sexually abusing children. In this case, Mr. Barry repeatedly exploited and sexually abused children who were in his care, sleeping in his home. These sexual assaults were serious and involved digital penetration, vaginal penetration with an object, and cunnilingus, all acts that violated the sexual and bodily integrity of the victims.
22Instead of keeping these children safe from harm, he violated their bodies, treated them as sexual objects, and taped his abuse of them to feed his own sexually deviant needs.
23While there is no evidence that Mr. Barry shared or exchanged, images or videos from his homemade collection or his internet collection, Mr. Barry, by downloading and possessing images and videos depicting child sexual abuse, made himself a participant in the market for child pornography.
24I am mindful of the purpose and principles of sentencing set out at section 719 of the criminal code. The fundamental purpose of sentencing is to protect society and contribute the maintenance of a just peaceful and safe society. The primary objectives of sentencing offenders who sexually abuse children are denunciation and deterrence.
25The sentence I impose today must send a clear message to others who engage in or are tempted to create or possess child pornography or sexually abuse children.
Position of Crown and Defence
26The Crown is seeking a 15 year global sentence, less pre trial custody on 1:5 to 1 basis.
27Defence Counsel submits that a sentence in the range of 5 to 7 years is the appropriate and just sentence in this case, taking into account the mitigating factors, including Mr. Barry's plea of guilty, his expression of remorse at the sentencing hearing, the fact that he has no prior offences against children on his record, and the fact that there is no evidence that Mr. Barry ever distributed or shared his child pornography collection.
Aggravating and Mitigating Factors
28Mr. Barry is 37 years old. He grew up in an abusive household and was exposed to domestic violence. Mr. Barry has provided a letter of support from his grandparents, Mervin and Lois Bailey. They are supportive of their grandson and have been visiting him weekly since his arrest.
29During the sentencing hearing, Mr. Barry said he was deeply remorseful and apologized to his victims. He said he wanted help. Ms. Rakai submits that Mr. Barry views this guilty plea and sentence as an opportunity to change his life. She points out that since his incarceration he has been very involved in bible studies and has been regularly meeting with chaplains in the jail.
30In this case the aggravating factors strongly outweigh the mitigating factors including the mitigation of Mr. Barry's guilty plea. Mr. Barry is identifiable in some of the videos which depict his sexual abuse of the children sleeping in his home. His plea of guilty was in the face of the overwhelming evidence against him.
31The presentence report and Sex Offender Assessment report both indicate that Mr. Barry appears to have little insight into the harm or potential harm caused to his own child victims and the child victims depicted in his child pornography collection.
32The young age of Mr. Barry's victims, and their dependant relationships with Mr. Barry are significant aggravating factors on this sentencing hearing. Mr. Barry violated the trust of these children and their mothers.
33It is also aggravating that, while Mr. Barry does not have a prior record for sexual offending against children, he has been sexually abusing children and creating child pornography for years. The voyeurism offences happened in 2012 in Burshaw home and the home made child pornography starts around 2013 and continues until Mr. Barry's arrest in 2018.
Related Sentencing Judgements
34I have considered the parity principle; that a sentence should be similar to sentences imposed on similar offenders for similar offences. Both the Crown and defence counsel have provided me with cases in support of their respective sentencing positions.
35In the case of R v J.S. 2018 ONCA 675, the Ontario Court of Appeal, upheld a sentence of 18 years for a 35 year old, first time offender who sexually abused his three nieces, including six month old twins and a four year old, filmed the abuse and distributed the images and videos he created on the internet. J.S. was babysitting the children when the abuse occurred. He also possessed an internet based collection of child pornography and included images and videos of sadistic sexual abuse and sexual degradation of very young children. A pre-sentence report considered J.S. to pose a high risk to reoffend. The OCA held that the sentence of 18 years, while at the "high end of the range" was not unfit. While there are certainly many facts in common between the J.S. case and the case before me the most significant distinguishing feature is that J.S. shared his home made videos and images over the internet thereby perpetuating the pain and suffering he inflicted on his victims, there is no evidence in this case of distribution of child pornography by Mr. Barry.
36In the case of R v J.P. 2008 ONCJ 484, a decision of the Ontario Court of Justice, case the accused pleaded guilty to 8 counts of sexual interference, 1 count of making child pornography and 1 count of possession of child pornography. He received a sentence of 14 years, less six and ½ years pre trial custody. The accused made videos of himself sexually assaulting 8 boys and he had a large child pornography collection obtained from the internet. The accused befriended the families of his victims and often babysat the children. Most of the children were under 10 years old, and the sexual interference occurred when the children were sleeping or appeared to be sleeping. The abuse occurred over several years. The accused was 36 years old and a first time offender. He was diagnosed as a pedophile with a moderate risk of future sex-offending.
37In R v S.P. 2018 ONCJ 621, the accused was a first time adult offender who pleaded guilty to 11 offences, including four counts of making child pornography, four counts of distributing child pornography, two counts of invitation to sexual touching and one count of sexual interference. He received a global sentence of 9 years, 3 months, less pretrial custody. S.P. had a large internet based child pornography collection, and he also sexually abused his own children and other children (four children in total) in his care, and videotaped his abuse. There was evidence that S.P. shared his online child pornography collection over the internet but no evidence that he shared any images of the child pornography that he created.
38In the recent decision of R v S.C. 2019 ONCA 199, the Ontario Court of Appeal upheld a 9 year sentence for sexual assault, making child pornography and possession of child pornography. The Crown sought a sentence of 15 years. In that case the accused pleaded guilty and the offences were committed against young children under the accused's care in a day care center. At the time of sentencing the accused was 38, single and had no prior criminal record. In upholding the sentence the court of appeal found that the 9 year sentence was "consistent with the pattern of increasing sentences for sexual offences involving young children and child pornography,"
Conclusion
39The Victim Impact Statements filed at the sentencing hearing describe the significant and lasting physical and emotional harm experienced by several of Mr. Barry's child victims who have been made aware of their victimization by Mr. Barry and by their mother who trusted him. The victim impact statement filed by Alisha Campbell details her continuing fear and emotional trauma.
40The Crown has proceeded by indictment and I take into account the statutory sentencing limits for these offences.
41Section 718.01 requires that denunciation and deterrence must be the primary sentencing objectives for sentencing in child abuse cases.
42Section 718.3(7) provides that the court shall impose consecutive sentences where an offender is sentenced at the same time for a child pornography offence and another sexual offence committed against the same child; or sexual offences other than child pornography offences committed against more than one child. However, this section must be read in the context of the totality principle of sentencing set out at Section 718.2(c) which provides that "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh".
43Taking into consideration the aggravating and mitigating factors I have already referred to, the serious and longlasting impact on the victims, the primary sentencing principles of denunciation and deterrence, and the related sentencing decisions I have reviewed, I have decided that a global sentence of 12 years is a just and appropriate sentence in this case.
Credit for Pretrial Custody
44Defence counsel asks that the court give Mr. Barry enhanced credit taking into account the time that Mr. Barry spent in lockdown at the Central East Corrections Center. A letter dated Dec 11, 2019 prepared by the Central East Corrections Center was filed as an exhibit and details Mr. Barry's time in lockdown at that institution and the reasons for the lockdowns. Many of the lockdown days were due to staff shortages or labour disruptions. On 102 days as of the last sentencing hearing date, December 12, 2019, Mr. Barry was in lockdown for 6 hours or more. During this time in lockdown Mr. Barry was confined to his cell with no access to yard, day room, or counselling, and restricted or no access to visits, phones and showers. The Crown argues that there is no evidence that Mr. Barry suffered any adverse effects during these lockdown periods and therefore no enhanced credit should be given.
45It is now well established that particularly harsh presentence incarceration conditions can justify credit beyond the ordinary credit for presentence custody: R. v. Duncan, 2016 ONCA 754, at para. 6. Lockdowns caused by staff shortages have been repeatedly criticized by the courts in Ontario during the past few years: see R v Jama 2018 ONSC 1252.
46In the recent Ontario Superior Court decision of R v Jeffrey Persad, 2020 ONSC 188, Justice Shrek characterized the continued lockdowns due to staff shortages at the Toronto South Detention Center, as "essentially a form of deliberate state misconduct relevant not only to the principles of individualization and parity, but also to the communicative function of sentencing and the overarching sentencing goal of contributing to respect for the law" and gave enhanced credit at the rate of 3:1 for the days Mr. Persad spent in lockdown.
47As Justice Shrek notes in the Persad case, there is no mathematical formula for determining the enhanced credit to be given for lockdowns. Based on the evidence before me in this case, including the letter from the Central East Corrections Center, and Mr. Barry's Affidavit detailing the impact of the lockdowns on him personally, I am prepared to give Mr. Barry enhanced credit at the rate of 2:1 for the 102 days he spent in lockdown for 6 hours or more.
48Mr. Barry has been in custody for 621 actual days, since his arrest on May 9, 2018. The 102 days Mr. Barry was in lockdown will be enhanced at the rate of 2:1 to 204 days. And the balance of 519 days will be enhanced at the usual 1:5 to 1 basis to 779 days for a total of enhanced pretrial custody of 983 days. (rounded up to 2 years, 9 months)
49Therefore, taking into account Mr. Barry's pretrial custody, enhanced to 2 years and 9 months Mr. Barry shall be sentenced today to an additional 9 years and 3 months to be apportioned according to an Appendix that I will provide to the clerk.
Ancillary Orders
50There will be a 10 year Section 109 Weapons Prohibition Order and a DNA order.
51There will be the mandatory Orders requiring Mr. Barry to comply with the Sex Offender information Registration Act for life, pursuant to Section 490.012(1) and 490.013(2.1). I impose this order for life because maximum sentence for sexual assault with a weapon when the victim is under 16 is life.
52Finally, there will be an Order pursuant to Section 161 of the Criminal Code, restricting Mr. Barry's future contact with children for life, as follows:
Prohibiting Mr. Barry from attending any public park or public swimming area where person under the age of 16 are present or can reasonably be expected to be present or a daycare center, schoolground, play ground or community center (s161(1)(a))
Prohibiting Mr. Barry from 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 (s 161(1)(b))
Prohibiting Mr. Barry from having any contact, including communicating by any means with a person who is under the age of 16 years, unless under the supervision of a person approved by the Children's Aid Society or otherwise with the approval of the Children's Aid Society or an order of a court of competent jurisdiction
Prohibiting Mr. Barry from using a computer system within the meaning of Section 342.1(2) for the purpose of communicating with a person under the age of 16, except for his son, with the approval of the Children's Aid Society
Pursuant to s 161(1)(d) Mr. Barry will not use the Internet or any similar communication service to access any content that violates the law.
53There shall be a forfeiture order of all electronic items seized for destruction as the Attorney General may direct.
54There shall be an in custody non communication order, pursuant to section 743.21 with respect to Alisha Campbell, Dk, EK, Jennifer Blanchard, KB, RB, Nicole Burshaw, JT, KH.
Released: January 20, 2020
Signed: Justice E. Deluzio
Appendix A — Sentencing Apportionment
Count 20 sexual assault with a weapon involving EK – 5 years (less PTC of 2 years 9 months) which is 2 years, 3 months
Count 13 making child pornography (12 home made videos involving EK) 2 years consecutive
Count 26 sexual assault on DK (during 35 homemade videos) – 2 years consecutive
Count 46 sexual interference involving T 1 year consecutive
Count 30 sexual interference involving KH - 1 year consecutive
Count 14 sexual interference involving JT – 1 year consecutive
Count 7 possession of child pornography (a homemade video) 5 years concurrent
Count 24 making child pornography (35 home made videos involving DK) 5 years concurrent
Count 29 making child pornography (2 home made videos involving KH) 2 years concurrent
Count 33 making child pornography (42 videos involving KB) 5 years concurrent
Count 35 did record KB for a sexual purpose 2 years concurrent
Count 38 did record RB for a sexual purpose 1 year concurrent
Count 21 did record JT for a sexual purpose – 1 year concurrent
Count 45 did make child pornography (6 home made videos involving T) 2 years concurrent
Count 2 assault on Alisha Campbell – 90 days consecutive
Count 1 fail to comply with probation – 90 days concurrent
Count 3 utter threat to Alisha Campbell- 90 days concurrent
Count 6 assault on Nicole Burshaw – 60 days concurrent