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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, 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.T.
Before: Justice Maria Speyer
Heard on: July 30, 2019
Reasons for Judgment released on: September 23, 2019
Counsel:
- Kim Motyl, counsel for the Crown
- Wayne Cunningham and Alfred Herman, counsel for P.T.
Judgment
Introduction
1On July 30, 2019, P.T. pled guilty to 5 child pornography related charges and one count of sexual assault of his daughter Z.T. The facts giving rise to the charges are appalling in nature and involve the most grievous breach of trust that a parent owes to his child. Regrettably, this is not the first occasion where P.T. has committed child pornography crimes. In order to understand the seriousness of these offences, an outline of the evidence is required.
The Facts
2In 2017, Toronto Police Service received information from Interpol that a male, later identified as P.T., had been involved in online chats with an individual in the UK in which they discussed sexually assaulting their own children and exchanging child pornography images.
3On December 7, 2017, Toronto police executed a search warrant on P.T.'s home where he lived with his wife, his minor step-son and his daughter Z, who was born in 2010 and was 5 at the time of these offences.
4Police seized a number of electronic devices belonging to P.T. There they located 212 (80 unique) child sexual abuse images and 2 (1 unique) videos depicting child pornography. Representative samples of these images are contained in Exhibit #1.
5The video depicts a young female between the ages of 3-6 being anally and vaginally penetrated by an adult male's penis. The video is 22 seconds long.
6The images are photos of male and female children, ages ranging from toddlers to prepubescent, depicting the following:
- Female children performing oral sex on adult male;
- Male children performing oral sex on adult male;
- Adult males anally penetrating male children;
- Adult males vaginally penetrating female children;
- Female children with their hand on an adult penis;
- A male child being anally penetrated with a finger; and
- Children posing where the focus is on their sexual organs.
7In addition, P.T.'s collection included child pornography images of 2 of the UK offender's children and 5 images of Z. in various poses. The central focus of these images is Z's exposed vaginal and anal area. Her face is not visible in these images.
8Police also discovered photographs of young girls out in public taken surreptitiously from the cab of P.T.'s truck. Prior to his arrest, P.T. was employed as a truck driver.
9The investigation revealed that in 2015, P.T. and the UK offender had engaged in lengthy conversations using the internet and a webcam. The two could see each other over Skype but used typed text messages to converse. As a result, the police were able to obtain a record of their conversations, in which they explicitly discussed the sexual assault of their own children and each other's children. A copy of these text conversations is filed as Exhibit 2.
10During these conversations, P.T. sent images of his family and images of Z. to the UK offender. One of the images he sent is entitled "z in tub". When investigators reviewed the UK offender's computer, they located a photo of Z in a bathtub, naked, saved to his computer. It was further determined that the UK offender took a "screen capture" during one of the conversations, showing P.T. seated in front of his computer, without a shirt on, with Z seated in his lap. The UK offender was also depicted at his computer and could clearly see P.T. and Z.
11P.T. also actively encouraged the UK offender to send him images of his children, including child sexual abuse images. The two men also used the webcam to show each other live video of their erect penises and their children. At one point in the conversation, Z. is described as being in front of the camera. The UK offender commented that she likely saw him masturbating.
12On his arrest, P.T. admitted to police that he would shower naked with Z. On at least one occasion, P.T. had Z. touch his penis while in the shower. On another occasion, P.T. touched Z.'s belly button with his erect penis. Z. complained about these actions to her maternal Grandmother, her own mother and her minor brother, but nothing was done until P.T. was arrested on the child pornography charges.
13P.T. pled guilty to the following charges:
- Making child pornography contrary to s. 163.1(2);
- 2 counts of accessing child pornography contrary to s. 163.1(4.1);
- Make available child pornography contrary to s. 171.1(2);
- Possession of child pornography contrary to s. 163.1(4); and
- Sexual assault of Z.T. contrary to s. 271.
Position of the Parties
14P.T. has been in custody since his arrest on these charges on December 7, 2017. The Crown proceeded by indictment on all of the above charges. Crown counsel is seeking a sentence of 8 to 9 years less pretrial custody, which as of today's date is 655 actual days, or 983 days on 1.5 to 1 enhanced credit. Defence counsel submits that a sentence of 5 to 6 years less pretrial custody is sufficient to give effect to the applicable sentencing principles in this case.
The Offender
15P.T. is 49 years old. Prior to his arrest he was a short-distance truck driver. A letter from his employer, dated in December of 2017, states that this employment will be available to him upon his release from custody.
16At the time of these offences, P.T. was married to I. She has a son from a previous relationship who considers P.T. his father. They have one daughter together, the victim of these offences, born in 2010. P.T. also has an adult son from a previous relationship. P.T. described a fairly normal uneventful upbringing. He is close to his mother who has been supportive of him through these proceedings. He does not suffer from any psychiatric illnesses or substance abuse disorders.
17P.T. was convicted in 2010 for possessing and importing child pornography. He had been arrested at the Canada-US border with 300 child pornography images. He pled guilty to these offences and was sentenced to a total of 1 year in custody. He was also placed on probation for 3 years and the court made an order pursuant s. 161 for 5 years. In March of 2011, he completed 8 sessions of the Sex Offender Risk and Relapse Prevention program.
18Prior to his guilty plea, P.T. submitted himself to an extensive therapeutic assessment by Dr. Monik Kalia, a clinical and forensic psychologist. The report, filed as exhibit 7, provides a great deal of information about the offender. During this assessment, P.T. acknowledged that he had a long-standing attraction to female children. He admitted grooming Z. by encouraging her to be naked in their home and by pursuing his interest in attending nudist beaches with his family and Z. He recognized that child pornography and internet chats allowed him to normalize his offending behaviour and to act on his attraction to children. He expressed remorse for his actions and the harm he did to Z. and his family. He also admitted that when he was convicted in 2010 for similar offences, he was "in denial" and did not realize the seriousness of his actions. He admitted that because of this attitude of denial, the counselling he received did not help him. He told Dr. Kalia that he was now prepared to engage in meaningful counselling.
19Dr. Kalia opined that P.T. is likely a pedophile but also has a strong interest in heterosexual relationships. She concluded that he is "at least a moderate risk to reoffend". His acceptance of responsibility and insights are good indicators that he will benefit from counselling. She concludes that P.T.'s risk to reoffend can be attenuated if he makes a concerted effort to engage in meaningful counselling and follow recommendations for "risk management".
Victim Impact
20I did not receive a victim impact statement from Z. or Mrs. T. In the psychological assessment, Mrs. T. expressed her shock on learning of these offences. She said she had no idea that her husband was sexually interested in children. She knew that he had a previous conviction for possessing child pornography but believed P.T. when he told her that the images on his computer belonged to his father. She said their marriage is over and that she would not trust P.T. with any child. On the other hand, she would like to support her husband as a friend and believes he could benefit from counselling.
21S.S. is the wife of the UK offender. Her victim impact statement was filed in these proceedings. The devastating impact of the UK offender's crimes upon his family and children cannot be understated. I recognize that P.T. is not solely responsible for the pain inflicted on that family. Nonetheless he shares some of that blame by actively encouraging the UK offender to sexually abuse his children and to send him images of that abuse.
Applicable Sentencing Principles
22Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute 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:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
23When dealing with crimes against children, s. 718.01 of the Code requires courts give primary consideration to the objectives of denunciation and deterrence of such conduct.
24The parties have provided me with cases in which sentences for somewhat similar circumstances as the one before me were considered. As can be seen from the wide range of sentences imposed, sentencing is a highly individualized process. No one fact situation is the same as the other and each offender is unique. What is clear, is that sentences for these types of offences have been increasing as courts become more aware of the prevalence and harm done by offenders who prey on children. As was stated by Justice Feldman in R. v. D.G.F., 2010 ONCA 27 at para 22:
"Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators."
25It has long been recognized that in sentencing adult sexual predators, the paramount objectives are denunciation, both general and specific deterrence and the separation of the offender from society. Absent exceptional circumstances, these objectives must take precedence over other recognized sentencing objectives such as rehabilitation. This approach is required to protect children and to reflect the long-term damage done to them by offenders. Predators who abuse children to satisfy their own deviant sexual needs must know they will pay a heavy price. (see R. v. D.D., 163 C.C.C.(3d) 471 at paras. 33 - 35; R. v. J.S., 2018 ONCA 675 at para. 55). Similar objectives apply when sentencing offenders who possess, produce and distribute child pornography: R. v. Inksetter, 2018 ONCA 474, para. 16.
26As I stated in R. v. M.M., [2017] ONCJ 733, the evil at the root of all child pornography offences is the hands-on sexual abuse and sexual exploitation of children by those who produce it. Child pornography captures this abuse in an electronic image, creates a record of that abuse, and permits the perpetrator to share that abuse with others throughout the world. By downloading these images, the offender also participates in and encourages the existence of a market for these terrible kinds of crimes. Chat-rooms and on-line discussions provide a forum in which purveyors and consumers of child abuse can exchange their stories and images. These forums encourage participants to believe that what they are doing is accepted and admired by others. This perpetuates and compounds the problem by fuelling the growth in creation and distribution of child pornography. See: R. v. Sharpe, 2001 SCC 2, 150 C.C.C. (3d) 321; R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277, at paragraphs 30 and 31; R. v. Dumais, 2011 ONSC 276, [2011] O.J. No. 116 at para. 13; R. v. Kwok, [2007] O.J. No. 457 at paragraph 50.
27The facts of this case provide chilling support for these observations. P.T.'s on-line discussions and collection of child abuse images allowed him to delude himself that the children portrayed in those images enjoyed the abuse and that the perpetrators were acting from a place of "love". It is this shocking insensitivity to the real pain inflicted on children that this sentence must address.
28Section 718.1 of the Code states that a fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires the court to examine the particular circumstances of the offence as well as of the offender such that, ultimately, the punishment fits the crime. This entails an analysis and balancing of the aggravating and mitigating circumstances of the offence. A sentence will be increased or reduced to account for aggravating or mitigating factors.
29A related sentencing principle that I must consider is totality. Section 718.2(c) provides that where consecutive sentences are imposed, the combined sentence must not be unduly long or harsh. Nor are each of the offences to be looked at in isolation. The sentencing judge must consider the overall culpability of the offender and impose a cumulative global sentence that does not exceed culpability (see R. v. J.S., supra, paras 64 – 66).
30Section 163.1(2) of the Criminal Code, making child pornography and s. 163.1(4.1), accessing child pornography, carry a one-year minimum jail sentence, as does s. 163.1(4), simple possession of child pornography, when proceeded by indictment. Section 171.1(2), making available child pornography to a minor, carries a 6-month minimum sentence. Section 271, sexual assault on a person under the age of 16 years is punishable with a minimum sentence of 1 year when the Crown proceeds by indictment, which it did in this case. In addition, s. 718.3(7), requires that a sentence for an offence pursuant to s. 163.1 must be served consecutively to any other sentence of imprisonment imposed for a sexual offence against a child. Accordingly, the sentences for count 1 to 5 may be served concurrently to each other, but must be served consecutively to count 10, sexual assault.
31In R. v. Kwok, supra, at para. 7, Justice Molloy set out a number of applicable mitigating and aggravating factors to consider when determining the appropriate sentence for child pornography offences:
Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).
32With these sentencing principles in mind, I consider a fit global sentence in this case to be 8 years less pretrial custody of 983 days. I come to this conclusion based on the following aggravating and mitigating factors:
Mitigating Factors
33P.T. pled guilty. Notwithstanding the strength of the Crown's case, by pleading guilty, he not only accepted responsibility for his behaviour, he also spared Z. and his wife I. from testifying.
34P.T. has expressed his remorse publicly to this court and to Dr. Kalia during the psychological assessment. He also seems to have some insights into the wrongness of his behaviour and the factors that led to these offences. He accepts that he may be a pedophile. He said that he is now prepared to engage in meaningful rehabilitation programming. To this end, P.T. plans to connect with the Circles of Support Program when released. This is a program which supports sexual offenders in the community to reduce their isolation and risk of reoffending. Dr. Kalia believes that P.T.'s willingness to engage in counselling will reduce his risk of reoffending in the future.
35I accept that P.T. appeared genuine in his statements to Dr. Kalia. However, I am troubled by the fact that he was not always candid about the nature of his collection of child abuse images. He seemed to have led the doctor to believe that the images were mostly of naked children as opposed to children being sexually abused in the most harmful painful manner possible. Similarly, he told his wife that the child abuse images from the 2010 conviction were from his father's computer, when in fact he had amassed his own collection as well.
36The sexual assaults on Z. comprised of only two instances of inappropriate touching in the shower. On the other hand, I am disturbed by the extent to which P.T. was grooming Z. to accept that this type of behaviour is normal. Thankfully there is no evidence that P.T. acted on the more depraved fantasies he shared with the UK offender.
37Similarly, P.T. sent only one child abuse image of Z. to the UK offender. There is no evidence he shared that image with others or that he posted it in public chat-rooms. Having said that, I have also considered that the image he sent to the UK offender showed Z.'s face and that he told the UK offender her name. We do not know whether the UK offender shared that image with others. The pernicious nature of child pornography is that the images are on the internet for an indeterminate length of time. The children are re-victimized every time someone views their images.
Aggravating Factors
38The aggravating factors in this case cannot be overlooked. First, P.T. is a repeat offender. He was obviously not deterred by the 1-year jail sentence he received for possessing and importing child pornography in 2010. He also did not benefit from the counselling he received in 2011. His behaviour from 2010 has escalated from viewing and collecting child pornography to abusing his own child and to making child pornography. In light of his past behaviour and pattern of reoffending, I do not share Dr. Kalia's confidence in P.T.'s ability to rehabilitate. In my view, he poses a significant risk of reoffending.
39Dealing with the possession of child pornography charge, I agree that the size of P.T.'s collection was not particularly large. However, it must not be forgotten that from 2010 to 2015, he was on a s. 161 order which restricted his use of computers and the internet. He amassed the collection either during the existence of that order or as soon as he could obtain unfettered access to the internet. He also went to great pains to hide his internet activities from his wife. Accordingly, the fact that the collection is not as large as in other cases is not a mitigating factor.
40Moreover, the nature of the child abuse depicted in the images is highly reprehensible and a significant aggravating factor. The images are of very young children being sexually abused in the most depraved manner imaginable. The harm done to these children is jarring and obvious to anyone who sees the images. These types of images must attract a lengthier sentence to reflect the seriousness of the abuse perpetrated on the children.
41Dealing next with the sexual assault on Z., I must consider section 718.2(a)(ii.1) of the Code which states that an offence against a person under the age of 18 is an aggravating factor. It is also an aggravating factor when an offender abuses a position of trust or authority in relation to the victim – see s. 718.2(a)(iii). Clearly, both of these aggravating factors are present in this case. Z. was a small child entirely within the control of her father. By grooming and abusing Z. for his own sexual gratification, P.T. committed the most grievous breach of trust that a parent owes to his child. Moreover, he used Z. as a "prop" in his conversations with the UK offender and as a means of exchanging her image for images of the UK offender's children. While I do not have a victim impact statement from Z., I can easily conclude that these offences have had both immediate and long-term harmful consequences to her.
42Not only was P.T. content to victimize his own daughter, he also encouraged the UK offender to do the same with his children. I disagree with defence counsel's suggestion that P.T. was only asking for images of child pornography. A review of the chats establishes that he asked the UK offender to send child abuse images of his own children. In doing so he was a party to the victimization of those children. The harm done to them was clearly set out in S.S.'s victim-impact statement.
43A further disturbing factor in this case is that P.T. surreptitiously photographed children in public while engaged in his employment as a truck driver. He has asked for a sentence of 6 years so he can more quickly regain his truck driver's license on release from custody and return to this occupation. In the circumstances his return to that type of employment would be a mistake and pose an increased risk to the community.
44The sentence proposed by defence counsel would not adequately reflect the seriousness of the offences or the high moral culpability of P.T. He groomed and exploited Z. for his own sexual gratification for a lengthy period of time. A prior sentence of incarceration did not deter his behaviour. Indeed, his behaviour escalated in the years following his release from custody. In all of the circumstances, only a greatly increased sentence of incarceration will fulfil the applicable sentencing goals of this case.
Sentence
45P.T., the total sentence I would have imposed on you before credit for pretrial custody is 8 years. You will get credit for pretrial custody of the equivalent of 983 days. The sentence will be apportioned as follows:
46Count 1 to 5, the child pornography related offences, the sentence is 5 years concurrent to each other, less 983 days of pretrial custody, which I calculate to be approximately 2 years and 8 months. This will leave a balance to be served on those charges of 2 years and 4 months concurrent to each other.
47On count 10, the sexual assault of Z.T., I sentence you to 3 years to be served consecutively to counts 1 to 5. You will have no contact with Z. while serving your sentence.
48There will be ancillary orders as follows:
DNA – all offences are primary designated offences
SOIRA order – life
s. 109 firearms prohibition order – for 10 years
s. 164.2 forfeiture and destruction – of all child pornography images and devices seized that contained child pornography images or were used to store and transmit such images. This order will not come into effect until the conclusion of the required appeal period.
Section 161(1)(a) and (b) order – for 20 years
Section 161(1)(c) order – for 20 years as follows:
(a) Not to have any contact or communication with a child under the age of 16 years, including your own child, unless you do so with the consent and under the direct supervision of that child's parent or guardian who is aware of your criminal record and the existence of this order.
(b) Not to use a computer or similar device, including a smart phone with internet connection capability, or use the internet or any similar electronic communication service to:
i) Download, access, create, distribute or share any content that depicts child pornography as defined by the Criminal Code of Canada;
ii) Download, access, upload, share, post or distribute any electronic images of persons under the age of 16 years including your own children; and
iii) Communicate with a person under the age of 16 years, including your own child, except with the consent and under the direct supervision of that child's parent or guardian who is aware of your criminal record and the existence of this order.
Released: September 23, 2019
Signed: Justice Maria Speyer