CITATION: R. v. Ratcliffe, 2021 ONCJ 316
ONTARIO COURT OF JUSTICE
Old City Hall - Toronto
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ROBERT RATCLIFFE
For the Crown
L. Vandersteen
For the Defendant
L. Adler
Submissions heard: March 17, 2021
REASONS for SENTENCE
A. THE CIRCUMSTANCES OF THE OFFENCE
1On November 13, 2020 I found the offender, Robert Ratcliffe, guilty of the following offences:
- Making child pornography on or about October 15, 2017 contrary to s. 163.1(2) of the Criminal Code;
- Possessing child pornography on or about October 17, 2017 contrary to s. 163.1(4) of the Criminal Code;
- Accessing child pornography on or about October 17, 2017 contrary to s. 163.1(4.1) of the Criminal Code;
- Making child pornography on or about October 17, 2017 contrary to s. 163.1(2) of the Criminal Code;
- Making an arrangement, on or about October 16, 2017, by means of a telecommunication device to commit the offence of sexual interference contrary to s.172.1 of the Criminal Code;
- Distributing child pornography on or about October 17, 2017 contrary to s. 163.1(3) of the Criminal Code;
- Counselling the commission of sexual interference between October 15 and 17, 2017 contrary to s. 464(a) of the Criminal Code;
- Counselling the commission of sexual interference between October 15 and 17, 2017 contrary to s. 464(a) of the Criminal Code;
- Counselling the commission of sexual interference between October 15 and 17, 2017 contrary to s. 464(a) of the Criminal Code; and
- Counselling the commission of sexual interference between October 15 and 17, 2017 contrary to s. 464(a) of the Criminal Code.
2What follows is a summary of the details of these offences. My trial judgment, R. v. Ratcliffe, 2020 ONCJ 554 sets out the circumstances of the offences in greater detail.
3On October 15, 2017, D.C. Steven Mailer, during his work as an investigator in the Sexual Assault Squad of the Toronto Police Service, came across an advertisement in the Casual Encounters subsection of the personal ads section of the website, Craigslist. That ad read as follows:
Special Little m4w (Ajax)
OK. There are a million “daddy” ads on here, which is to be expected. Of course an older man wants a young adult girl to fuck and caress. But this is different. Yes, I’m older, and yes, I love young adult girls. Especially little petite girls with older man fantasies who had these fantasies since you were a young. Some of you acted on that with a lucky older man when you were legal. Some of you didn’t. I’m only looking for legal (18+), of course and must prove you are. You must be tiny, pretty and clean. VERY filthy and kinky is a plus. If you just want an older man and the following things I’m going to list you might not be willing to do. Then I am not the Daddy for you. But if you get wet and excited reading it, if you recognize your own filthy incest fantasies in mine, you HAVE to reach out to Daddy to talk so we can meet up. Also, unlike a lot of these other CL daddies, I’m a REAL Daddy of a real daughter. I know what little girls actually love and want and need.
Here’s some of what I’m looking for:
Storytime! Telling stories in bed until you fall asleep sucking your thumb then Daddy molests you while you sleep. I’ll play with your holes. Smell them. Lick them. Kiss them. And fill them with my fingers. Then my perfect Daddy cock.
Punishment! Spanking. Bare assed across Daddy’s lap. Until you’re red and crying. Then Daddy will comfort you and molest you and make you feel tiny and safe again.
Bath time! Daddy will give you baths before and after. Sometimes Daddy will join you in the bath. Sometimes I will just wash you and dry you and brush your hair.
Night molesting! Sometimes Daddy will sneak into your room when you’re asleep and Mom’s asleep in the other room and Daddy will cover your mouth so Mommy won’t hear and Daddy will have his way with you and your tiny holes like you used to dreammmmmm about. You’ll be scared but you’ll be so happy and proud to take care of Daddy better than Mommy. To know that Daddy loves you more than her. To know that you were made for Daddy.
Training! Daddy will worship you and train you to be the perfect fucktoy daughter. Daddy will show you every trick to being a good little girl slut, how to use all your holes and you perfect tiny body parts to please Daddy. This is what you most desire. To submit and be owned and humiliated and trained and worshipped completely. This is the best part!
Family outings! It doesn’t have to be all sex. We can and should do real Daddy/daughter dates. We will go to the mall. WE will get ice cream. We will go see kid movies. You will be my little girl in public as well as private You will sit on my lap and feel Daddy get hard beneath you while you giggle and squirm and make all the other little girls jealous. We will sneak off at the mall and find a corner to fuck in. Daddy will pump you full of come and then we will walk around the mall with it dripping out of you while we walk around with everyone else.
Fuck sisters! We will find other little girls like you to share and train. We will have lots of little sisters to train together after Daddy has trained you, and we will play with them whenever we feel like it. But you. You will always be the first. The best. Daddy’s perfect little come daughter. You know who you are. You’re soaking now. So write and send pics. Daddy is only looking for a short window because I want a fuck daughter to train soon and worship for a long time. Not just once. [Emphasis added]
4D.C. Mailer, posing as Sara, responds to the Craigslist ad by e-mail and tells Mr. Ratcliffe that she lives in Scarborough, is a 33-year-old nurse – a single mother with two children who is sexually aroused by Mr. Ratcliffe’s ad and may share his interests. He tells her that he is looking for “a little one that will be submissive and obedient”. She says that she too “likes littles”. D.C. Mailer, who pretends to be Sara right up until Mr. Ratcliffe’s arrest four days later, takes up Mr. Ratcliffe’s suggestion that they continue chatting on the Kik messenger service
(a) The Kik Conversations
5It is during the Kik conversations that matters progress over the next two days culminating in the commission of the various offences charged.
6The Kik conversations begin with Sara making it clear to Mr. Ratcliffe that she is not looking for role playing. She also asks him if he is interested in anything other than role playing. He says that role playing is only one of his interests and she asks him what other avenues he might want to explore. Given that Mr. Ratcliffe’s Craigslist ad was all about role playing, this new direction is clearly initiated by Sara.
7Mr. Ratcliffe responds by mentioning various kinky, yet legal sexual activity he would like to pursue, and Sara responds by telling Mr. Ratcliffe that she has “incest fantasies”. He responds by asking if she imagines herself being under 18 and she says: “Sometimes I fantasize that I’m an adult too and my relationship is with under 18”. He then asks if she fantasizes that she is with one of her children. She responds by asking if that turns him on too and he says that it does. She tells him that she found breastfeeding her children to be erotic and he agrees that it is erotic. He tells her how much he wants to have sex with her “right now” and she asks: “What if one of the girls was with me in bed?”. He asks if she would be awake or asleep and adds that he “would love for her to be pretend sleeping and watching me eat your pussy. Then watching you suck and lick me”. Sara says: “She would be awake…asking questions”.
8And then begins a discussion of what would transpire in such a scenario with Mr. Ratcliffe where Mr. Ratcliffe asks Sara if she would let her child try licking her and if she would show her child how to give a blow job. She then tells him that she sometimes thinks of touching her own children. He asks how old they are, and she tells him they are “12 and 9”. He then suggests that she should masturbate with her door open so that her children can see her. She tells him she must sign off and suggests they chat again the next day. He sends her a picture of his penis and tells her he’d like to watch her being licked by her daughter.
9Mr. Ratcliffe tells Sara about a sexual escapade he had with a boy he used to babysit and then tells her that he had stumbled on some online child pornography. She tells him she’d love to see those images. He then tells her that he had once previously “coached a man how to get his girlfriend’s daughters involved in having sex”. Sara tells Rob that she hopes that “this is real” and he assures her that it is. Before signing off for the night, Mr. Ratcliffe tells Sara that he will share with her “ways we can get your girls interested in sex with you”.
10She sends him a picture of herself clothed and they discuss meeting. One of the last things he tells her before signing off is that he “would love three tongues on my cock”.
11The next morning, he tells her that he thought of her and the girls last night before he fell asleep. She asks him what he was thinking, and he tells her “I was thinking about how I’d coach you in the art of seduction of your own girls. That you would follow my instructions. I’d want to share the rewards. Ideally, I want to participate in bed with you and your daughters. Perhaps one at a time. I’d show your daughters how to pleasure you with their tongues and fingers. We would enjoy sucking your tits together”. Sara tells Rob that she has been looking for someone to show her how “all this could and should happen” and asks him for his “1st instruction”.
12What follows is a lengthy discussion between Mr. Ratcliffe and Sara as to how they themselves will prepare, and prepare the children for an eventual sexual experience that Sara will have with her children and that all four of them will participate in. The discussion is replete with Mr. Ratcliffe describing the sexual encounters in graphic terms and providing Sara with instructions on what drugs to obtain to administer to the girls with a view to sedating them, thus rendering them more vulnerable to the seduction. She again asks to see the child pornography that he alluded to on the first day of their Kik chat and he obliges her by sending her some pornographic photos featuring children.
13Eventually Sara and Rob agree to meet to have sex and further prepare for sex with Sara’s daughters.
14As is apparent, by the end of these chats Mr. Ratcliffe had offered to coach Sara in how to engage her putative children in sexual acts, arranged to engage in sexual acts with Sara and her children, graphically described various sexual acts involving the children and sent pictures to Sara that are child pornography.
15On October 19, 2017, the day Mr. Ratcliffe and Sara had arranged to meet, Mr. Ratcliffe was arrested by D.C. Mailer and his colleagues. Several of Mr. Ratcliffe’s electronic devices, including some at his home were searched. Some of these devices contained child pornography, some of which were the images Mr. Ratcliffe had sent Sara.
B. THE CIRCUMSTANCES OF THE OFFENDER
16Mr. Ratcliffe is 58 years old. He is the father of three grown children. He has no prior criminal record and an inconsistent employment history.
17Documents filed by Mr. Adler demonstrate that Mr. Ratcliffe was diagnosed as early as 2011 as suffering from chronic anxiety and depression. He is also said to suffer from Borderline Personality Disorder. He has a history of marital disaccord.
18In January 2018 Mr. Ratcliffe began religious-based counselling. Those who organize the program in New Brunswick speak highly of Mr. Ratcliffe’s commitment to the program. Lisa Godin, his prior spouse and current surety, is extremely supportive. His current partner, Connie Mantyka, also speaks highly of him. According to her, the offences in question are completely out of character for him. Other long-term friends have also expressed their shock and continuing support.
19Dr. Kent Somers, a clinical and forensic psychologist has recently met with Mr. Ratcliffe for approximately nine hours and has provided a report. In Dr. Somers’s opinion, Mr. Ratcliffe is not a pedophile. That conclusion is based in part on Mr. Ratcliffe’s insistence that the interest he demonstrated to Sara in her children, was nothing more than a fantasy he shared with her with a view to having sex with her. I do not accept that characterization by Mr. Ratcliffe. The Kik chats make it clear to me that he indeed intended to become sexually involved with her children. It is also clear that he intended to convince Sara to sexually abuse her children. Mr. Ratcliffe believed that Sara’s children were real. He asked for pictures of them. He asked Sara for confirmation that she had done the things he had counselled her to do to her children. For those reasons, I am skeptical of Dr. Somers’s conclusion. That having been said, there is no history of sexual interest in children as attested to by his many friends and family and there was no child pornography found on his devices that predated the 3-day encounter with Sara. No phallometric test results were referred to on the sentencing hearing.
20Dr. Somers offers the opinion that Mr. Ratcliffe poses a low to moderate risk of re-offending. This opinion is based on a battery of somewhat objective test results, Mr. Ratcliffe’s sexual history, his insight into the offences and his account of his role and his intentions in the commission of the offences. I must discount the reliability of Dr. Somers’s opinion for the same reason that I discount his opinion as to Mr. Ratcliffe’s sexual interest in children, insofar as it is based in part on an account from Mr. Ratcliffe that I do not accept as true.
C. THE POSITIONS OF THE PARTIES
21Mr. Vandersteen argues for a sentence in the range of four – five years in the penitentiary and various ancillary orders.
22Mr. Adler seeks a non-custodial sentence.
D. THE PRINCIPLES OF SENTENCING
23The principles of sentencing are set out in Part XXIII of the Criminal Code.
24According to s. 718 of the Criminal Code, 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, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
25Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
26Section 718.2 of the Code also dictates that, in imposing sentence, the court must also apply a number of principles including the following:
A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
27Section 718.01 further mandates that: “when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” The possession and making of child pornography are also considered such offences: R. v. Inksetter, 2018 ONCA 474, at para. 3.
E. THE AGGRAVATING CIRCUMSTANCES
(a) The child pornography
28While the collection of child pornography was not large, it contained several very disturbing images. They are not like the vilest images that are often seen in cases like this, but they are nonetheless some distance from the least serious end of the spectrum.
(b) Is the Craigslist Ad child pornography?
29Mr. Vandersteen submits that, even though Mr. Ratcliffe was not charged with a child pornography offence pertaining to the Craigslist ad, it is nonetheless child pornography and is properly considered an aggravating circumstance.
30In my view the Craigslist ad does not meet the definition of child pornography in s. 163.1(1)(c). It is not “written material whose dominant characteristic is the description…of sexual activity with a person under the age of eighteen years that would be” a criminal offence.
31The ad goes into considerable detail about the sexual activity that Mr. Ratcliffe envisioned would take place between him and the person responding to the ad. What is described is not sex between Mr. Ratcliffe and a person under the age of 18 years, but rather, sex between him and an adult woman pretending to be under the age of 18 years and pretending to be his young daughter.
32The fact that it is not child pornography does not end the inquiry. The conduct of an offender may fall short of being criminal yet still, in some circumstances, be aggravating. Many in our society would consider the ad immoral and condemn it as tending to undermine important social values. Such individuals are entitled to their point of view, but as concerns matters of consensual sexual expression, people should not be punished for their non-criminal thoughts and fantasies, no matter how bizarre they may seem to most members of society.
(c) Other aggravating circumstances
33I agree with Mr. Vandersteen that the following conduct is aggravating. Mr. Ratcliffe counselled Sara to drug her own children. Those putative children were only 9 and 12 years of age. He asked Sara to take naked pictures of the children and send them to him. The fact that the children did not exist does not mitigate the seriousness of this conduct.
F. THE MITIGATING CIRCUMSTANCES
34Mr. Ratcliffe’s offences took place over a relatively short period of time. His child pornography collection was not amassed prior to his brief involvement with Sara and was not distributed to anyone but her.
35Mr. Ratcliffe has made significant efforts towards confronting his demons, and I accept his expressions of remorse as genuine. While he did not plead guilty, he did make significant concessions at trial and concentrated on the entrapment argument, which was not frivolous.
36Mr. Ratcliffe has no criminal history, and there is no suggestion of any past aberrant sexual behaviour with children. He has strong family and community support.
37Dr. Somers’s report suggests that Mr. Ratcliffe’s chronic depression and anxiety may have played a role in these offences. This diminishes Mr. Ratcliffe’s moral responsibility to a small degree.
38As I ruled in the trial, Det. Mailer’s investigative technique did not rise to the level of entrapment. But it is important to note and account for the degree to which Det. Mailer was responsible for moving the discussion along in the direction of criminal conduct. That distinguishes this case as less serious than those where the offender sets out to commit the offences, which I do not believe is the case for Mr. Ratcliffe. In my view, when Mr. Ratcliffe posted his ad on Craigslist he was not looking to get involved sexually with any children. He was seeking an adult with whom to indulge in incest fantasies. Yet, after hearing what Det. Mailer communicated to him, he soon moved beyond his originally intended fantasy and began to zealously counsel Sara to abuse her children, with and without him.
39In further mitigation of sentence is the extensive damage to Mr. Ratcliffe’s reputation. I see this as simply another example of the negative consequences that an offender may suffer as a result of being convicted of a crime, such as loss of employment, or immigration status. It is generally understood that the more severe are these consequences, the less severe should be other consequences within the sentencing judge’s control, such as the length of the term of incarceration. It is a balancing question.
40As concerns Mr. Ratcliffe’s future risk to the community, while I am not prepared to accept Dr. Somers’s opinion on this issue, I nonetheless believe that the consequences to Mr. Ratcliffe of his crimes, along with what I accept and understand of Mr. Ratcliffe’s psychological profile, make it unlikely that he will re-offend.
G. THE CASELAW
41It is a well settled principle of criminal law that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. Criminal Code, s. 718.2 (b); R. v. Lacasse, 2015 SCC 64 at para 2.
42That parity principle notwithstanding, the Supreme Court has made it clear in R. v. Friesen, 2020 SCC 9 that the range of sentences for sexual offences against children must be increased. New knowledge of the impact of child pornography and offences of violence against children, as well as the proliferation of such crimes shows that more severe punishment is required to achieve the primary goals of sentencing in such matters, i.e. denunciation and deterrence. Sentences for sex offences against children prior to Friesen should not overly constrain sentencing judges.
43That does not mean that pre-Friesen jurisprudence has entirely lost its relevance. Mr. Adler and Mr. Vandersteen have both supplied useful pre-Friesen precedents for my consideration. I will now summarize those that I find are particularly helpful.
(a) R. v. Levin, 2015 ONCJ 290
44Mr. Levin was a successful 63-year-old with no criminal record. In the words of McArthur J.at para.2:
Mr. Levin also had a hidden, dark side. Unbeknownst to his friends, colleagues and family, he had become deeply immersed in a deviant and depraved on-line world. He collected images of child pornography. He frequented chat rooms devoted to topics of incest and the sexual exploitation of children. As a result of his forays into this insidious realm, where the sexual abuse of children was not only accepted but celebrated, Mr. Levin came to the attention of three undercover officers. He wrote a story detailing the violent sexual abuse of a child, while engaged in an internet chat with one officer. He counselled another officer, posing as a young mother, to sadistically sexually assault her eight-year-old daughter.
45I consider Mr. Levin’s criminal conduct as worse than that of Mr. Ratcliffe. Mr. Levin’s on-line activities were roughly of the same nature as Mr. Ratcliffe’s, but they were more serious in that they went on for years and involved discussion with over 1,000 participants, at least three of which were police officers. Mr. Levin’s pornography collection (which he too dispatched to some of his interlocutors) was viler than Mr. Ratcliffe’s and it was clear that he had possessed it for longer. An expert opined that Dr. Levin was at low risk to re-offend, which McArthur J. accepted.
46Mr. Levin received a global sentence of three years.
(b) R. v. Cooper, 2019 ONCA 953
47Mr. Cooper responded to an on-line ad posted by police. The ad offered sexual access to the poster’s child. Mr. Cooper had extensive and extended explicit and vile on-line conversations with the officer who was posing as the child’s mother. An arrangement had been made for the offender to have sex with the child. The offender was arrested when he arrived for that meeting with the “mother and child”. He had purchased all sorts of items that further proved his intention to abuse the child. No child pornography was found in his possession.
48The offender was on probation at the time.
49The offender was convicted of arranging to commit a sexual offence against a child contrary to s. 172.2 of the Criminal Code and breach of probation.
50The trial judge sentenced him to 4 years' imprisonment, less 35 days in presentence custody, plus one year concurrent for breach of probation, imposed a DNA order, a 20 year SOIRA order, and a lifetime blanket prohibition of using the Internet or digital network pursuant to s. 161.
51The Court of Appeal upheld the length of the sentence but amended the s. 161 order.
(c) R. v. Rodwell, [2016] O.J. No. 6843
52The trial judge in this case described the offender’s conduct as follows at paras. 3 - 8:
Mr. Rodwell came to the attention of police when he entered an incest chat room using the screen name "Olderperv" and initiated a private online chat with a person using a screen name "AirFrceMomW3yo." That person was actually a Special Agent, Scott Beagle of the US Department of Homeland Security Internet Child Exploitation Unit in San Jose, California.
During the chat, Mr. Rodwell asked air force Mom if she was active with her child, meaning sexually active, and then asked would you like to see her with a guy. As the conversation progresses, Mr. Rodwell as "Olderperv" and Special Agent Beagle as "AirFrceMomW3yo" reach an agreement that "Olderperv" will rape the child while the mother watches. "Olderperv" describes in graphic detail how he intends to rape the child writing "I would like to fuck her cunt and ass and make her suck me" and she is going to cry, will that excite you? Mr. Rodwell as "Olderperv" and Special Agent Beagle as "AirFrceMomW3yo" then exchanged personal information about flights between Trenton and the Sacramento Air Base, but there is no evidence that he booked a flight or took any other steps before he was arrested…
When Mr. Rodwell was arrested, he was in possession of 43 still images and 5 videos depicting the sexual exploitation and abuse of young children.
He exchanged and viewed these images and videos and in chat logs seized from his computer. He discusses in violent, salacious detail the content of the images and videos with other users in the incest chat rooms. Several images and videos depict children being sexually assaulted. One video received and viewed by Mr. Rodwell lasting five minutes depicts the anal rape by an adult male of a female toddler with a tampon. Mr. Rodwell comments after viewing the video. The comments are detailed in my earlier reasons for conviction and his comments make it clear that he watched and enjoyed watching the sexual violation of a toddler. Over 4,000 pages of internet communications and chat logs between Mr. Rodwell using the screen names "OPGent" or "Olderperv" and other incest chat room users were filed as evidence at trial. In these chats, Mr. Rodwell communicates mainly with other users who identify themselves as mothers with young children. He frequently asked these users if they are active with their children and if they would like to watch their children being raped. In a number of chats, he describes in graphic, horrifying detail of how he raped a former girlfriend's four year old son while the mother watched. Almost all of the communications involve graphic explicit discussions about Mr. Rodwell's wish to rape and sexually abuse young children while their mother watches.
53The criminal conduct lasted for months. Mr. Rodwell had no previous record. Expert reports supported a finding that Mr. Rodwell suffered from a pathological inability to appreciate the nature of his actions. He displayed no remorse.
54Mr. Rodwell was sentenced to a total of six years’ imprisonment and a s.161 order.
(d) R. v. Freeman, 2018 ONCJ 742
55Rahman J. summarized Mr. Freeman’s offences as follows at paras. 6 - 9:
The offender’s crimes took place during two different time periods and involved two different undercover police officers. The more recent offences of making an arrangement to commit sexual interference, and making written child pornography (counts 1 and 2), took place during April and May 2017, when the offender communicated online with Peel Police Cst. Caroline Losier. The other offence took place from September through November 2016, when the offender communicated online with Det. Mark MacPhail of the Victoria Police Department. The offender met both undercover officers in an online forum called 0!!!!!!!!!!PEDOMOMS.
The offender met Cst. Losier in the online forum mentioned above. The officer was posing as a mother of two, named Karen. After some brief chat in that forum, the offender suggested that they continue communicating through Yahoo messenger. Early on, the offender confirmed with Karen that she was not simply interested in fantasy but a real encounter. Over the next few weeks, the offender described in graphic detail what he wanted to do with Karen’s four-year-old daughter and how Karen could groom and prepare her daughter for such an encounter. He eventually made an arrangement to meet Karen for the purpose of abusing her daughter, although he never followed through and attended their arranged meeting.
The content of the chats between the offender and Karen constitute child pornography because they counselled the commission of sexual offences against a child. The offender recommended that Karen perform various sexual acts on her daughter. He would frequently ask for updates on what Karen had done and whether she was following his advice.
The offender met Det. MacPhail in the same online forum he met Cst. Losier. Det. MacPhail was posing as a mother named Lizzy, who had a five-year-old daughter. As he did with Cst. Losier, the offender told Lizzy he was not there for fantasy, but was “looking for real.” The offender encouraged Lizzy to perform sexual acts with her daughter. He also asked Lizzy if she had told her daughter about him and whether she had asked her daughter about performing various sexual acts with him. The offender also encouraged Lizzy to show her daughter child pornography.
56Mr. Freeman was a 59–year–old married father of two. He had a dated, unrelated record and was said to be a low risk to reoffend.
57Mr. Freeman was sentenced to a total of 30 months with various ancillary orders.
H. CONSECUTIVE v. CONCURENT SENTENCES
58Section 718.3 (7) reads as follows:
When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct:
(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1
59Mr. Vandersteen argues that this section mandates consecutive sentences as between the pornography offences and the sexual offences and consecutive sentences as between the sexual offences regarding the two putative children. Mr. Adler disagrees. He argues that this section is meant to apply only in situations involving contact sexual offences against real children.
60The only case that either party could find that deals with the issue is R. v. Freeman, supra, at paras. 27 – 35 where Rahman J’s ruling supports Mr. Adler’s position.
61Without repeating Rahman J’s reasoning, I must say that I find it persuasive.
62Nonetheless, in my view, the sentence to be imposed for the pornography offences should be served consecutively to the offences concerning Sara’s daughters. The gravamen of these two sets of offences are sufficiently distinct as to support this approach. Needless to say, the total sentence to be imposed must be decided upon first. R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.)
I. SHOULD SOME CHARGES BE STAYED?
63Pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, the conviction for accessing child pornography will be stayed as will two of the four counts of counselling.
J. CONCLUSION
64I sentence Mr. Ratcliffe to imprisonment for a total term of 30 months. From these 30 months I deduct 3 months as 1.5:1 credit for 2 months of pre-sentence custody and I deduct a further one (1) month in consideration for the extended period during which Mr. Ratcliffe was subject to a relatively strict form of release.
65The remaining 26 months will be apportioned as follows: 12 months on the pornography offences, to be served concurrent to each other and 18 months on all the offences concerning Sara’s putative children, to be served concurrent to each other but consecutive to the pornography sentences. The 4 months’ credit will be attributed to the child sex offences, reducing the time left to serve on those offences to 14 months.
66Pursuant to s. 161(1)(c) of the Criminal Code, Mr. Ratcliffe will be prohibited for 10 years from using a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years.
67Pursuant to s. 161(1)(d) of the Criminal Code, Mr. Ratcliffe will be prohibited for 10 years from using the Internet or any similar communication service to:
a) access any content that violates the law;
b) directly or indirectly access Craigslist, Kik, or any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service (e.g. Facebook, Twitter, Tinder, Instagram or any equivalent or similar service).
68There will be a primary DNA order and a SOIRA order for life.
Released on June 3, 2021
Justice Russell Silverstein