R. v. Marratt, 2019 ONCJ 618

Court File and Parties

Ontario Court of Justice

Date: September 5, 2019

Court File No.: Toronto 18-15002279

Between:

Her Majesty the Queen

— and —

Todd Marratt

Before: Justice Patrice F. Band

Counsel:

• Ms. D. Moskovitz, counsel for the Crown
• Mr. G. Pfeiffer, counsel for Mr. Marratt

Reasons for Sentence

I. The Guilty Pleas

1These are my reasons for sentence in the matter of Mr. Todd Marratt who pleaded guilty to the following indictable Criminal Code offences on July 30:

• Make available child pornography, contrary to s. 163.1;
• Possession of child pornography, contrary to s. 163.1; and
• Arranging or agreeing with another person to commit the s. 151 offence of sexual interference contrary to s. 172.2(1)(b).

II. Words of Caution

2Mr. Marratt, it is a principle in Canadian criminal law that it is wrong to place too much emphasis on attempting to make an example of one offender in order to deter other like-minded people.

3It might seem to you that I am doing just that, because I have decided to present your case as a learning experience. But I want to reassure you that my main purpose in that regard is not to make you, personally or unduly, an example to other would-be offenders. Rather, it is the criminal justice system and its participants who can learn from how this case unfolded and the subject-matter that it involves. It is with that goal in mind that I begin with a caution, as Chief Justice Strathy recently did on behalf of the Ontario Court of Appeal in R. v. J.S., 2018 ONCA 675:

It is unfortunately necessary to describe the offences and the circumstances surrounding them to some degree in order to have proper appreciation of the nature and gravity of the offences to which Mr. Marratt has pleaded guilty.

III. Brief Summary of the Facts

4The offences took place during a three-week period in March 2018. Mr. Marratt participated in an on-line chatroom focused on the sexual abuse of children. He engaged in chats with an "adult female" who claimed to be the mother of two girls, aged 12 and nine years. During these chats, the two discussed engaging in sexual activity with each other and the nine-year-old girl. They also made arrangements to meet for that purpose. Mr. Marratt also suggested that the adult female sexually abuse her daughters at home as they bathed or slept. The discussions were graphic.

5Mr. Marratt also sent five videos containing child pornography to the "adult female" using a social media app.

6In fact, the "adult female" was a police officer. Police later seized Mr. Marratt's smart phone, where they found 60 videos and 11 images containing child pornography. 56 of the videos and 10 of the images were unique. The videos involve children ranging in apparent age from approximately 2 to 11 years. They are being sexually abused by adults, including vaginal and anal penetration, watching adults engage in sexual activity, or both. In at least one of the videos, the small child is clearly in distress.

IV. The Mechanics of the Proceedings

7Because of the way events unfolded during the sentencing hearing, I believe it is important to repeat here what I have previously stated in another case: R. v. Shaw, [2018] O.J. No. 537. My intention is not to be self-indulgent; rather it is to attempt to spur on and continue an increasingly important conversation about the trauma that justice system participants can suffer by being exposed to disturbing material such as child pornography.

8Science shows, and it stands to reason, that frequent and repeated trauma can lead to more serious and lasting impacts on our mental health. This can include decreased productivity, work-avoidant behaviour, work absence, interpersonal problems, relationship difficulties, depression and substance abuse, among others.

9Recently, there has been considerable focus on the mental health of jurors after particularly difficult trials. This has led to free support and counseling services being offered through the Ministry of the Attorney General – and rightly so. However, every such case also requires the participation of some or all of the following people: court staff, court officers, victim witness workers, counsel and judges. Moreover, it is well-known that the vast majority of these and other criminal matters are dealt with in the provincial courts. In light of recent changes to the Criminal Code, it is reasonable to expect a significant increase in our over-all case-load, including cases of sexual offences involving children.

10For these reasons, I believe that it is my responsibility and that of my colleagues to take an active and leading role in this discussion rather than to sit by and passively leave the door open for harmful evidence that is either unnecessary or presentable in an attenuated form.

11In Shaw, I wrote the following:

In my experience in the criminal courts, child pornography involves the kind of traumatizing imagery that can affect even those of us who believe we are "thick skinned" or that we have seen it all. The effects can be serious and lasting. They can, in combination with others, have serious impacts on our mental and physical health and our relationships.

In our profession, and others, direct and vicarious trauma are topics that are rightly becoming the topic of study and discussion. This discussion must continue.

I also want to commend the Crown for not taking the tack that some of her colleagues have. That is, to present and file representative imagery in the context of sentencing proceedings in which the nature and quality of that imagery is not at issue. In my view, the costs of doing so over the long term outweigh the perceived benefits.

12Mr. Marratt's matter is not only a case-in-point, but an experience we can all learn from. During a judicial pre-trial, Crown counsel indicated that she would select a representative sample of the child pornography to show at the sentencing hearing. I urged both counsel to do their best to agree to a mutually satisfactory verbal description of the contents of the material so as to protect courtroom participants (including themselves and me) from unnecessary exposure to potentially trauma-inducing raw material. This approach is permissible in certain circumstances. Among the relevant considerations are the existence of an agreement between the parties as to the facts and whether, owing to his or her professional experience, the sentencing judge is able to "fully appreciate the sickening horror of such pornography": see R. v. M.P., 2012 ONCA 162, [2012] O.J. No. 1148 at para. 34 (C.A.). For my part, I continue to be able to call to mind very disturbing imagery from a seconds-long video I viewed as defence counsel over 12 years ago. Of course, I have been exposed in other cases as well.

13Counsel reached such an agreement, and I am grateful for their professionalism and compassion. As a result, the facts were presented in a combination of ways. First, by way of an agreed statement of facts concerning the child pornography, which the Crown proposed to read into the record. Second, by way of a representative summary of the "chats" Mr. Marratt engaged in with the "adult female." Third, by way of a CD-ROM containing the material in its entirety. These were entered as sealed exhibits on consent. During the hearing, I sought and received an acknowledgment from both parties that the verbal summaries were sufficient to allow me to perform my duties in this case.

14Nonetheless, as the Crown was reading the description of the material, a member of the court staff began to quietly weep. To my discredit, I did not notice immediately, and I am grateful to Ms. Moskovitz for bringing it to my attention. Naturally, we took a break.

15I wish to be clear that there is no shame in that staff member's reaction. It was one of a number of natural responses to disturbing material, and the break that followed did not affect these proceedings or any other. To the contrary, the break allowed Crown counsel time to make the considered decision to cease reading the descriptions and simply to rely on the written record, which I took with me to review. Ms. Moskovitz's decision was the right one in this case, and once again I am grateful for it.

V. Lessons Learned

16The lessons I would draw from this case are these, and I take responsibility for failing to advert to them sooner. In the appropriate case, once the parties have agreed to present the evidence in a summarized verbal form, they should be canvassed as to whether it can simply be filed as a written exhibit to be reviewed by the judge alone. In such a case, there is no need for court staff to be exposed to it or the source material. In the age of electronic evidence of all kinds, some of which, while relevant and admissible, is so voluminous that it is neither displayed in court nor ever directly accessed by the parties or the trier of fact, this should not present as a difficult concept.

17In instances where that is not appropriate, thought should be given to whether some court staff can be excused during the presentation of the evidence. With some forethought, a hearing and evidence can be organized in such a way that the court clerk can accept and mark the exhibits at one time, either before or after they are presented.

18At the very least, counsel wishing to present the evidence, or the presiding judge, should provide a warning concerning its nature. That way, court staff and victims can raise any concerns with the presiding judge. This will also allow members of the public to decide whether or not to remain in the courtroom.

19Those staff or witnesses who remain in the courtroom should be made to understand that it is acceptable to request a break or, as happened in the Shaw matter, seek to be replaced by a colleague.

20From a broader institutional perspective, thought should be given to establishing procedures to flag such matters at the pre-trial or scheduling stage in order to allow time for staffing decisions to be made in a trauma-informed and sensitive way. Likewise, consideration should be given to allocating resources and space where staff can debrief in a timely fashion. The best I could do as a lay person was to have a private conversation with my staff in which I attempted to reinforce some of what I have written here and encourage them to take care of themselves.

21Forewarned is forearmed.

22I believe that, as members of the judiciary, we should also encourage and participate in continued research in this field should such opportunities arise. By taking the lead in this area, we can hope to develop a trauma-informed approach not only to procedure but also quite possibly to the rules of evidence. For instance, it is conceivable that some of the impacts I have discussed above could be raised within an inquiry into the prejudicial effect of a proposed piece of evidence.

VI. The Positions of the Parties

23The Crown seeks a global jail sentence of two-years-less-one-day to be followed by a probationary period of three years. She also seeks ancillary orders including DNA, SOIRA (for life), a s. 161 order (for at least 10 years) and a s. 109 order.

24Defence counsel recommends a global sentence of 15 months to be followed by a probationary period of two years. He accepts that the DNA and SOIRA orders should issue. He initially opposed to the s. 109 order because Mr. Marratt is a licensed firearm owner who enjoys target-shooting as a hobby. He also opposed any s. 161 order arguing that probation would be sufficient. Should a s. 161 order be made, he recommends that it be crafted like Mr. Marratt's bail to allow Mr. Marratt to continue to reside in the same home as his brother, who has children.

25Just prior to delivering my reasons, I gave defence counsel an opportunity to re-address the s. 109 issue based on the cases I have cited below. He endorsed them as a correct approach.

26The parties agree that I should recommend that Mr. Marratt serve his jail sentence at the Ontario Correctional Institute ("OCI").

VII. Mr. Marratt's Circumstances

27Mr. Marratt is 33 years old. He suffered from abuse at the hands of his father as a young child. While he left high school in grade 10 in order to work, he completed his diploma as a young adult. He does not suffer from any major mental disorders and does not abuse drugs or alcohol.

28Mr. Marratt is employed in the transit industry and is also a business owner who employs others, including his brother. He has also volunteered with Habitat for Humanity.

29He has been in a relationship with the same woman since 2013. She is supportive and attended the sentencing hearing. Mr. Marratt's mother and brother are also supportive.

30Mr. Marratt agreed to be assessed by Dr. Mark Pearce, a forensic psychiatrist. This included phallometric testing. The results of the phallometric testing were inconclusive. This is not unusual. However, clinically, Dr. Pearce diagnosed Mr. Marratt as a pedohebephile. That is, he has a sexual preference for pubescent and prepubescent children; however, that interest is not exclusive. Dr. Pearce described Mr. Marratt's insight as "fair" – he understands what he did wrong, but he is not sure he needs treatment. Dr. Pearce concluded that Mr. Marratt represents a low to moderate risk of reoffending. His solid work history is among his "protective factors."

31Through his employment, Mr. Marratt was able to attend some counseling, which he found helpful. That said, the counselor was not qualified to treat sexological conditions.

VIII. Applicable Legal Principles

32The parties rightly agree that the principles of deterrence and denunciation occupy a central role in sentencing proceedings where sexual offences have been committed against children. While central, they are not the only principles to consider. Mr. Marratt's prospects for rehabilitation, parity and the need for restraint – particularly in the case of a relatively young first offender – are also in play.

33In R. v. Lacasse, 2015 SCC 64, 2015 S.C.J. No. 64, the Supreme Court of Canada affirmed that, ultimately, a fit sentence is one that is proportional. That is, it must reflect the gravity of the offences and the moral blameworthiness of the offender. To the extent that there exist pre-established sentencing ranges, they are guidelines, not straight-jackets.

34Like other sexual offences involving children, child pornography offences are abhorrent offences of the utmost gravity. The reasons for this are described eloquently in a number of well-known authorities, including Justice Molloy's decision in R. v. Kwok, [2007] O.J. No. 457 (SCJ).

35The appropriate range of sentence for possession of child pornography offences is six months to three years imprisonment. Sentences vary within this wide and flexible range depending on a number of factors, including the following:

• whether the accused has a record for similar offences;
• whether there was also production or distribution of the material;
• the size of the collection;
• its nature, including the age of the children and the relative depravity or violence depicted;
• the extent to which the offender is seen as a danger to children – including whether he is diagnosed as a pedophile who has harmed children in the past;
• whether the downloads were purchased or downloaded for free; the former having the effect of fueling the profit derived from the victimization of children;
• the age of the offender;
• the otherwise good character of the offender;
• whether the offender is willing to undergo treatment or has begun to do so;
• the extent, if any, of the offender's insight into his problem; and
• the extent to which the offender has already suffered for his crime – for example, in his family, career or community.

36The offences of making child pornography available and of agreeing or arranging to meet for the purposes of committing an enumerated offence in s. 172.2(1)(b) both come with mandatory minimum sentences of one year when prosecuted by way of indictment.

37Sentencing authorities regarding s. 172.2 offences are not numerous. In those that I have reviewed, sentences ranging between one and two years are common where the Crown proceeds by indictment. The Defence provided me with one such case: R. v. Duplessis, 2018 ONCJ 912 in which, by analogy to cases involving luring, Justice Javed found that the applicable range was wide and flexible. He sentenced Mr. Duplessis to 12 months in jail on facts that were much more serious than those before me. Mr. Duplessis made a number of arrangements to engage in sexual activity, including intercourse, with a (fictional) three-year-old girl. He was arrested before an arranged meeting and found in possession of alcohol, sexual paraphernalia and a doll for the girl.

38I turn now to the aggravating and mitigating factors in this case.

IX. Aggravating Factors

The Child Pornography Offences

39I disagree with the Crown that the size of Mr. Marratt's collection, per se, is an aggravating factor. The authorities do not support such a finding. However, its nature, as I have described it above, is a serious aggravating factor. It is also aggravating that Mr. Marratt made some of the videos available in the context of making arrangements with the "adult female". Doing so constitutes an attempt to normalize the abhorrent depicted behaviour in the recipient's eyes in order to facilitate the commission of one of the enumerated offences.

Arranging or Agreeing to Meet

40The age of the girl (nine years), the lewd and graphically described acts that Mr. Marratt discussed and the fact that he encouraged the "adult female" to sexually assault her daughters are aggravating factors.

X. Mitigating Factors

41The mitigating factors are the following:

• Mr. Marratt intended to plead guilty and accept responsibility from the outset; this was tantamount to an early guilty plea in this case;
• Mr. Marratt is remorseful for his offending and appeared to me to be extremely embarrassed during the sentencing proceeding;
• Mr. Marratt has no prior criminal record;
• Mr. Marratt enjoys support from his girlfriend and his family;
• Mr. Marratt has a long and solid work history which, according to Dr. Pearce, is also a protective factor;
• Mr. Marratt is a relatively young man;
• Mr. Marratt is afflicted with pedohebephilia, a sexological disorder which, in his case, is not exclusive;
• Mr. Marratt undertook some counseling on his own initiative and is willing to continue with appropriate treatment and counseling;
• Mr. Marratt was cooperative with police and provided an inculpatory statement; through counsel, he was cooperative regarding the manner in which the offending material was presented in Court;
• While his bail conditions have not been stringent, Mr. Marratt has complied with them and the law generally since his arrest; and,
• Finally, the parties agree that Mr. Marratt's "low to moderate" risk of reoffending is a mitigating factor.

XI. Discussion and Sentence

The Fit Sentence

42Because of the serious nature and quality of the material in this case, I find that the appropriate sentence for the offence of possessing child pornography is between six and 12 months. For the offence of making it available in this context, I find that the applicable range is 12 to 18 months. I would find that the lower end of the same range is appropriate in relation to the s. 172.2 offence in this case.

43Notwithstanding his less than perfect insight and not insignificant risk of reoffending, I find that Mr. Marratt is a good candidate for rehabilitation. He has been cooperative, has undergone some counseling and is willing to continue as directed by the Court. His support in the community and his strong work ethic are also protective factors. It is also relevant that he is of prior good character and is relatively young.

44For these reasons, I am persuaded that the global sentence suggested by the Defence is a fit and proportional sentence for Mr. Marratt. It pays tribute to the primary principles of deterrence and denunciation while at the same time reflecting other considerations such as restraint, rehabilitative prospects and parity. It also recognizes the numerous mitigating factors that are present in this case.

45As a result, Mr. Marratt will be ordered to serve a global sentence of 15 months in jail. I would apportion it as follows:

• For make available child pornography (s. 163.1): 15 months;
• For possession of child pornography (s. 163.1): 9 months concurrent; and
• For arranging or agreeing with another person to commit the s. 151 offence of sexual interference (s. 172.2(2)): 12 months concurrent.

46Given his willingness to seek treatment and his rehabilitative prospects, I would recommend that Mr. Marratt be allowed to serve his sentence at OCI if he meets their criteria.

47Mr. Marratt will be placed on probation for a period of three years with conditions as presented by the parties. I decided to impose the maximum period of probation largely because Mr. Marratt needs treatment and counseling for a life-lasting and serious disorder, he represents up to a moderate risk of reoffending and his insight is, at this time, only "fair." This will assist in fostering his rehabilitation while at the same time protecting the public.

Ancillary Orders

48Mr. Marratt will provide a sample of his DNA; the offences before the Court are primary designated offences. He will also be ordered to comply with the requirements of the SOIRA for life.

49I have also decided to impose a s. 161 order for a period of 10 years. My reasons for doing so include the mechanics of Mr. Marratt's offending, such as the use of the internet to download and share child pornography, his use of it in the context of the s. 172.2 offence, the arrangements he made and the risk he continues to pose to children. The order will be crafted to allow him to maintain his current residence.

50The imposition of a s. 109 order is mandatory where a person is convicted or discharged of "an indictable offence in the commission of which violence against a person was used, threatened or attempted…" (among others). Clearly, Mr. Marratt's conduct demonstrated a threat or attempt to commit violence upon a nine-year-old girl. The question is whether a fictional nine-year-old girl is a person for purposes of the legislation. I find that the section applies in such cases and that, therefore, I am required to impose a prohibition order, notwithstanding Mr. Marratt's prior good character, lack of criminal record or evidence of past violence. I have come to this conclusion by analogy to the way a similar issue was addressed concerning s. 161 in R. v. Barnes, 2018 ONCJ 302. In that case, Justice Stribopoulos (when he was a member of this Court) held that, as a matter of modern and purposive statutory interpretation, it would give rise to incoherence within the statutory scheme to exclude from its ambit those whose intended victims were, unbeknownst to them, fictional.

51I would adopt Justice Stribopoulos's reasoning and apply it to s. 109. While s. 109 orders are to some extent punitive, like s. 161 orders, they are also preventative. They are to be given a large and liberal interpretation: see R. v. S.L., 2013 ONCJ 189, [2013] O.J. No. 1692, a decision of Justice Nakatsuru (when he was a member of this Court), at para. 18. Given that prohibition orders are mandatory when the conduct at issue is captured by s. 109, I am obliged to impose one in this case. While I might have considered tailoring it in such a way as to allow Mr. Marratt to continue to pursue his hobby, I have no discretion to do so.

Released: September 5, 2019

Justice Patrice F. Band

1In R. v. M.P., supra at para. 34, possible re-traumatization of the victim was seen by the Court of Appeal as a proper consideration during a sentencing hearing.