Court File and Parties
Information No.: 998-18-25108-00
Ontario Court of Justice
Her Majesty the Queen v. James Reesor
Before: The Honourable Justice M. Block
Heard: November 26, 2020, at Oshawa, Ontario
Publication Order: s. 486.4
Appearances
M. Newell – Counsel for the Crown
C. O'Connor – Counsel for James Reesor
Reasons for Sentence
Mr. James Reesor pled guilty on May 15, 2018, and on yesterday's date we affirmed the plea that, on the 1st day of December in the year 2016, or actually between that date and the 17th day of February in the same year, he communicated with a person namely M.A, who was believed to be under the age of 16 years, for the purpose of facilitating the commission of an offence under section 152 of the Criminal Code, with respect to her. And further that, between February 1st of 2017, and the 17th day of that same month, in Oshawa in the Central East Region, knowingly distributed an intimate image of that person knowing that she did not give her consent to that conduct or was reckless as to whether that consent was given.
Nature of the Offences
This is an ugly and sordid crime. The damage in respect of count 2 not lessened but, in fact, increased through the means of the technology employed to carry it out. The internet, both a vehicle for the rapid dissemination of learning, the facilitator of communication between friends and loved ones isolated through distance, or pandemic and also a vehicle for idiot conspiracy theorists and, in this case, sexual predators.
What we have here is the tawdry sexual violation of a bare adolescent though the medium of social media and then a savage vengeance directed at her through that social media when the victim of the sexual violation appeared to move away from the control of the perpetrator. M.A was thirteen years old when she met the defendant through the internet in the latter part of 2016.
Facts Regarding the Offences
After a period of communication with this girl, the defendant induced her to perform a number of sexual acts and at least one act of self-harm on video. At least four of these sexual acts and one act of self-harm were captured in screen shots. The capture of the act of cutting done by the victim on herself, itself suggested the accused's approval and potential counselling of that self-abuse. The language of the communication between M.A and Mr. Reesor, leaves no room for doubt that the defendant counselled the sexual acts therein depicted.
When M.A apparently moved on to an interest in a local boy of the same age, the defendant having acquired access to her Gmail account, distributed the screen shots described above to two teenage boys in her community. I disagree with the assertion that Mr. Reesor simply sought to deter the boy he thought was his sexual rival through the dissemination of these images through the peers of M.A. It is clear that the defendant reacted with fury from the language used in the contemporaneous messages sent by him on February 12, 2017.
This crime had a brazen quality. Wrongly believing himself to have escaped police investigation that he knew had been on going in respect to these crimes. The defendant contacted the girl to restart his manipulation as late as April 29, 2017.
Harm to the Victim
The attendant damage was enormous. It is clear that knowledge of this material swiftly became widespread in this girl's school and in her neighborhood.
She found herself shamed and shunned by her age cohort. She became terrified to go outside and meet people who might be in the know. She was bullied in school, her academic performance fell and she suffered from anxiety and depression. Her victim impact statement introduced us an exhibit in this proceeding, is troubling in eloquent summation of the multiple kinds of chaos that this crime caused her family. As might be expected, there was enormous family stress as a result of this.
This young girl attempted suicide, she had to change schools, had to live with the embarrassment caused by the disfiguring marks that were the results of the cutting. She engaged in prolonged therapy and there were attendant uninsured medical costs for her family. As she believed as a result of Mr. Reesor's communications that he lived in her community, she worried, not only his presence in the community, but potentially running in to him.
In sum, the girl's relationship with her peers was destroyed, the sense of comfort in her community was destroyed, her family was badly damaged, and she was herself intensely psychologically damaged in her formative years by these acts. The law protects 13-year-olds from sexual interference by adults because, while they may take the physical form of adults, 13-year-olds intellectual capacities are in transition from those of children.
Emotional Bond as Mitigation
I wish to make a point clear. I disagree with the inference suggested that the emotional bond between the 13-year-old victim and accused in some way mitigated this offence. It is not unusual in sexual assaults or domestic assaults for such a connection to exist. Mr. Reesor worked with a purpose to establish such a bond. In this case, that bond was preparation for the crime he perpetrated.
The fact that one of the images was that of this girl cutting herself indicates that Mr. Reesor's emotional attachment to the victim, if any, had a savage and morbid character. Who indeed preserves and distributes images of a loved one cutting herself? It is a necessary and obvious conclusion that the stress of participation as a witness in this case was prolonged by the actions of the defendant. These matters came up for trial in May 2018.
Procedural History and Guilty Plea
On the second day of trial, May 15, 2018, after the complainant had been prepared to give testimony in this matter and was about to be called as the next Crown witness, the defendant applied to change his plea to guilty and did so after a thorough plea comprehension inquiry. The matter was then adjourned till October 2018 for sentence hearing. At that time, the defendant advised that he wanted to strike his guilty plea. Counsel was removed from the record.
The defendant was then briefly represented by another counsel who then asked to be removed from the record. He was then assisted by amicus appointed by the court and then retained Mr. O'Conner in February 2020. We are now on the second day of a sentence hearing, though this hearing was set some months ago as the second of three days for the application to strike the guilty plea. The court became aware only Tuesday that this matter would proceed as a sentence hearing.
It has been 30 months since the complainant could reasonably have expected sentencing to be conducted in the near future, and 25 months that she has been living with the possibility that she would face giving evidence in this matter. A full four years has elapsed since the events before this court began. At this extraordinarily late date, the course of action taken by Mr. Reesor reflects no actual remorse.
The May 15th, 2018 plea reflected the overwhelming Crown case. It was simply, in my view, a recognition of the inevitable. The belated abandonment of the application to strike the guilty plea, reflects the reality that the plea comprehension hearing on May 15, 2018 was thorough, and that the proposed application had no merit. The tortured path towards the place we are now is not an aggravating factor. I want to emphasize that it is not an aggravating factor, but it does deprive Mr. Reesor of the mitigation that a timely plea would have merited. And still less can Mr. Reesor claim mitigation in the form of court resources saved by his course of action.
The two-years long campaign to resile from the guilty plea was abandoned at the last moment. It required a multitude of appearances, the appointment of amicus, the continued involvement of court resources including preparation for the anticipated application and other assets of the province over the two-year period. The course taken by the defendant has not saved court resources, it magnified their use.
Mitigating Factors
There is some mitigation in the fact that the defendant was 24 years old at the time of these crimes, and he does stand before me as a first offender. I am also prepared to find that Mr. Reesor has significant mental health issues which have been described to me as Pervasive Developmental disorder, which I understand to be a phrase that incorporates Autism. I do not believe for a moment that he did not understand the illegality and the consequences of his acts.
I am prepared to find that he enjoys considerable family support, that he had a childhood bereft of a genuine father figure and that his childhood featured the abuse of his mother by his father. He also appears to have taken full advantage of jail programming and that is helpful sign for his future conduct. Developments of the law have made it clear that in acts of this kind, crimes of this kind, the rehabilitation of the offender takes a back seat to other considerations.
Sentencing Principles
In full, those considerations of course are captured in Section 718 of the Criminal Code.
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.
(c) to separate offenders from society, where necessary.
(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 acknowledgement of the harm done to victims or to the community.
Section 718.01 provides: When a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
As we can see from the governing statute, rehabilitation has, in this case, a tertiary importance.
Supreme Court Guidance on Sentencing for Child Sexual Abuse
We are also given guidance by the case of Her Majesty the Queen v. Friesen, 2020 SCC 9. At paragraph 107, the Supreme Court of Canada commented:
"We have determined to ensure that sentences for sexual offences against children correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points.
(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence.
(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and,
(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child."
I have been referred to paragraph 114 of that decision in the Crown's submissions, and it is apt for our present circumstance.
"D.D., Woodward, J.S, and this Court's own decisions in M.,(C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament statutory amendments have strengthened that message.
It is not the role of this court to establish a range or an outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance. As Moldaver J.A. wrote in D.D., "Judges must retain the flexibility needed to do justice in individual cases" and to individualize the sentence to the offender who is before them.
Nonetheless, it is incumbent on us to provide an overall message that is clear. That message is that mid-single digit penitentiary terms for sexual offences against children are normal. And that upper single-digit, and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there is only a single instance of sexual violence and/or a single victim."
The Supreme Court of Canada has in this case, to borrow Justice Doherty's metaphor, "Taken a wire brush" to the thick patina previously governing sentencing in child abuse cases.
Sentence Imposed
In my view, the Crown's suggestion of sentence in this matter is appropriate. I impose five years of penitentiary minus pre-trial custody for Count 2, and three years concurrent for Count 3. It is my intention to discount from the penitentiary terms both pre-trial custody but also discount from the nominal figure of five years in totality, which is the sentence imposed in this court, an additional 68 days credit, which when considered with the one and a half to one credit that I am going to give for pre-trial custody at the front end, will be subtracted from the five years in order to account for 135 days of lockdown, and apply it to the overall sentence.
In effect, this means of course Mr. Reesor will obtain two for one credit for each day of lockdown whether full or partial. Apart from the lockdown, there is no evidence to support any effect of Covid on the accused while in custody. I will not give additional credit for that purpose. Future effects of Covid are purely speculative, and appropriate submissions can be made to the national parole board if necessary. This means that the sentence on Count 2 before any deduction for pre-trial custody is going to be four years and 297 days, and of course three years concurrent on the other charges. No change necessary there. In addition, as of today's date, my understanding is there are 344 days of pre-sentence custody. I am going to give that the usual figure of multiplying it by 1.5 to reflect a pre-sentence figure of 516 days.
MR. NEWELL: I agree.
THE COURT: Okay, thank you. DNA primary order. What other ancillary orders do you seek Mr...
MR. NEWELL: Your Honour, thank you. In relation to Count 2, it would be a primary offence. In relation to Count 3 it is a secondary offence for DNA.
THE COURT: Thank you.
MR. NEWELL: The Crown applied for a SOIRA order pursuant to Section 490.013 of the Criminal Code. As the sentence for Count 2, the maximum sentence is 14 years, it would be a 20-year order. The Crown applies for a 10-year Section 161 order in relation to Count 2. The Crown also requested a Section 109 prohibition order for 10 years.
CLERK REGISTRAR: Which count?
MR. NEWELL: In relation to Count 2 please.
CLERK REGISTRAR: Thank you.
THE COURT: Okay. So, the 109 order means Mr. Reesor that for that period of time 10 years, no firearms, ammunition, explosive substances, crossbows et cetera, in your possession. 161 provides a whole bunch of clauses. Some of them may not be apt in this circumstance Mr. Newell.
JAMES REESOR: So, I am confused. How much time am I getting in total?
THE COURT: Just discuss it with Mr. O'Connor. But you are getting five years and 297 days.
JAMES REESOR: Oh wow. I am not getting any covid time?
THE COURT: You are. You can discuss it with... Not specifically covid. You are getting time for the lockdowns. I don't want to enter into a dialog with you Mr. Reesor, I mean no offence. But these are questions you can put to Mr. O'Connor who will note on with interview when we are done here. Looking up 161.
MR. NEWELL: The prohibition regarding employment or volunteer work would in my submission be applicable.
THE COURT: Sorry, I haven't quite got the section here yet. Sorry, back to you Mr. Newell. What are you asking for?
MR. NEWELL: Your Honour, I would seek the prohibition to address sub clause [a], attending public parks or any place reasonably expected, and includes daycare centers, that language. [b], the employment, or voluntary work that involves being in a position of trust, and authority of persons under the age of sixteen. I had not turned my mind to conditions that the court might impose in relation to sub [d], use of the internet, or other digital network unless in accordance with conditions set by the court. I would seek a term that condition would be to preclude any communication with persons under the age of sixteen years. That would address the elect before you in the manner in which it was committed.
THE COURT: Just in reference to [d], what about a clause substituting for that? Because he may have family members who are well guarded, or he may decline to commit such offences in the future. But a clause that says unless he provides the password IP address, and any email address he uses to Peace Officers in general, or I can just use the phrase police officers on demand. And that means that if he is living in a particular area that he loses his Section 8 rights in respect to his internet use but is not otherwise restricted.
MR. NEWELL: I am not opposed to the proposal Your Honour.
THE COURT: Mr. O'Connor what do you think?
MR. O'CONNOR: I am just at a loss for words Your Honour. Quite frankly, I don't know what to say right now.
THE COURT: Okay. Well, if you do not have anything to say on this, I am imposing this. Mr. Newell, turning my attention to 161(1)(a), a blanket restriction for 25 years on essentially public parks or public swimming area.
MR. NEWELL: I only sought a 10 year order Your Honour.
THE COURT: Okay, it is troubling to me. These are recreation areas.
MR. NEWELL: Yes, that is true. The order under Section 161 very much focuses on places where children tend to be, and I see offenders abound by those orders struggle because it prohibits areas such as libraries for example. You would be making that order based on the facts that you found, and that your perception of the need to provide specific protection to children, acknowledge the context of this matter. This offence is very different than someone say, the setting in a park.
THE COURT: I am just throwing this out here for consideration because I am not interested in dually restricting his life after he gets out of prison. Clause [a] can be amended to; not to speak to a person apparently under the age of sixteen or not communicate with a person, or associate with a person apparently under the age of sixteen unless in the direct presence of a parent, or guardian of that person. Which would account for say, attendance with family members potentially.
MR. NEWELL: May I just have the court's indulgence?
THE COURT: Yes, of course.
MR. NEWELL: The reason I was pausing Your Honour, is in relation to the discretion you have to issue the order or to not issue the order in light of the other orders that are in place. But, if you are issuing the order, the section reads, "may make a..." Actually, "Subject to conditions or exemptions, the court directs an order prohibiting..." So, you are not strictly bound by the wording of the section, and the exemptions are realistic. The exemption that you are attempting the fashion permits him to have normal familial relations with relatives, and it provides protection for the people involved in those, and it would be very much tailored to the risks that are evident before you.
THE COURT: Thank you. Now, that exemption madam clerk will only apply to public park, public swimming area. And I'm going to...
CLERK REGISTRAR: I didn't follow along with the exceptions. We will have to go from...
THE COURT: Okay. Mr. Newell and Mr. O'Connor this is what I propose to do is, for public parks, public swimming areas, and community centers because activities for adults do take place in these areas. He is not to communicate or associate with any person under the age sixteen years unless they are in the direct presence of a parent or guardian. Mr. O'Connor, do you wish to be heard on this issue?
MR. O'CONNOR: No, Your Honour, I don't.
THE COURT: Thank you. Do you have that madam clerk? So, 161 Sub (1) clause [a].
CLERK REGISTRAR: Yes. I'm taking out the standard wording and adding in...
THE COURT: You can say not to attend... Actually, you know what would make it significantly easier, is just to apply exception to all of those areas since Mr. Reesor is not going to do any damage at a daycare center, school ground, or playground unless he is in the direct company. So, perhaps I can fashion it in this way. Here is what I will do. Madam clerk, so clause [a] it will read, he is prohibited from attending a public park, or swimming area, or community center where persons under the age of 16 years are present, or reasonably be expected to be present. Except... No, that won't work either. While attending, how is this? A public park, or public swimming area, or community center where persons under the age of 16 years are present, or can reasonably be expected and present, not to communicate with a person apparently under the age of 16 unless or associate...
CLERK REGISTRAR: Sorry, I'm having a hard time hearing you because of the coughing.
THE COURT: Okay.
CLERK REGISTRAR: Not to communicate with a person under the age of 16 years yes.
THE COURT: Apparently under the age of 16 years.
CLERK REGISTRAR: One second. Yes.
THE COURT: Or associate with unless they are in the direct presence of a parent, or guardians.
CLERK REGISTRAR: Thank you.
THE COURT: And not to attend a daycare center, school ground, or playground at all.
CLERK REGISTRAR: Thank you.
THE COURT: [b] will go as indicated.
CLERK REGISTRAR: With no exception?
THE COURT: Yes.
CLERK REGISTRAR: Thank you.
CLERK REGISTRAR: Was [c] included in this order?
THE COURT: Mr. Newell are you asking for [c]?
MR. NEWELL: No, thank you.
CLERK REGISTRAR: No [c], thank you.
THE COURT: And then down to [d].
CLERK REGISTRAR: yes.
THE COURT: Not to use the internet or any digital network.
CLERK REGISTRAR: Yes.
THE COURT: Unless the password's IP address...
CLERK REGISTRAR: And any email address he uses to police officers on demand?
THE COURT: And any other identifying information is given to a police officer on demand.
CLERK REGISTRAR: Sorry, Your Honour.
THE COURT: That is all right.
CLERK REGISTRAR: The wording is changed from in the beginning, originally you said, "unless he provides a password's IP address, and any email address he uses to police officers on demand."
THE COURT: I like that. That will work for me.
CLERK REGISTRAR: Okay, thank you.
THE COURT: Thank you. I'm sorry, this is for a term of 25 years?
MR. NEWELL: The Crown in its application sought 10 years.
THE COURT: 10 years. Thank you. And then the SOIRA is for 25.
CLERK REGISTRAR: 20?
THE COURT: I think it was 25, is it not?
CLERK REGISTRAR: There is 10, 20 and life. Those are the options.
MR. NEWELL: It's a 20-year order I believe, Your Honour.
THE COURT: Okay, 20 will be fine.
CLERK REGISTRAR: Thank you.
THE COURT: Are there charges to be withdrawn Mr. Newell?
MR. NEWELL: Count 1 I believe is still before the court. The Crown is withdrawing.
THE COURT: Marked withdrawn. Thank you.
MR. O'CONNOR: Your Honour, just before you leave, I am a little confused as to what the actual sentence was. I heard five years, and that's less exactly what time if I could ask the court?
THE COURT: Well, at the front end, the pre-trial custody at 1.5 to one is removed, and that's 516 days. So, five years less 516 days. And the sentence itself is going to be five years less the further 68 days. I am subtracting because that is half the time he was on lockdown, and I think it is just appropriate to subtract that from the global sentence as opposed to add it to the pre-sentence custody. So, the figure we are actually working with is a nominal sentence as a result, not five years but four years and 297 days. And from that sentence, pre-trial custody one and a half to one of 516 days will be deducted. So, what you are looking at really... I do not have a calculator with me.
CLERK REGISTRAR: If you tell me the numbers, I can type it in the calculator.
THE COURT: All right. Well, three times 365
CLERK REGISTRAR: Thousand ninety-five.
THE COURT: Plus, three thousand... Sorry, three hundred and sixty-six representing leap year, and then an additional 297 days on Count 2, minus 516. Okay, are there any other matters to be addressed?
CLERK REGISTRAR: So, it was just Count 1 on the information, there was a plea of not guilty. How are you addressing that today?
MR. NEWELL: Count 1 is being withdrawn please. I would ask the courts lead to withdraw that charge.
THE COURT: Thank you officers.