WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:
486.4 (3) Child pornography.— In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 Offence.—(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.
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
WILLIAM CLAVERIA
Before Justice André Chamberlain
Pleas of Guilty taken December 20, 2019
Reasons on Sentencing read in court on September 1, 2020
Reasons for Sentence released on June 21, 2021
Ms. Patricia Garcia and Ms. Elizabeth Stokes counsel for the Crown
Mr. Jeff Chapnick counsel for the accused William Claveria
CHAMBERLAIN, J.:
1William Claveria is a 33-year-old man who lives with his family in Toronto. He is gentle, mild-mannered, pleasant and accommodating. Friends and family have described him as a “good son,” polite and courteous, diligent, and always sensitive to things that need to be done; and, being “quick to his feet and sensitive to things that need to be done.” Mr. Claveria was also described as positive, friendly, always willing to write down his emotions and “not violent,” if not a little immature and socially awkward. Indeed, even here in court, Mr. Claveria was extremely deferent, respectful and polite. But there was a dark side to Mr. Claveria that was under the surface of this pleasant presentation. It involved collecting a large amount of sexually explicit materials involving young children. Mr. Claveria also pled guilty to four counts of sexual assault on four different children; one of which remains unknown; the making of his own sexually explicit videos while he assaulted these four young girls, estimated to be between the ages of six and 12 years of age.
2Mr. Claveria entered guilty pleas before me on December 20, 2019, on ten counts consisting of: transmitting child pornography, possession of child pornography, four counts of making child pornography for taping the four subject sexual assaults of four children, identified in this judgement as A.A., C.C., S.D., and one unknown child. None of the young female victims had yet reached puberty.
3Submissions on sentencing and the presentation of the evidence were put over to the 4th of March for the purpose of obtaining a Pre-Sentence Report to assist the Court on sentence. Following submissions in person in March, a worldwide pandemic was declared and all appearances following have been remote. On April 2, 2019, the Supreme Court of Canada released it’s judgement and reasons in the R. v. Friesen, [2019] SCJ No 100, 2020 SCC 9, 2020 CSC 9, [2019] ACS no 100, 444 DLR (4th) 1, 2020EXP-902, EYB 2020-350618, 2020 CarswellMan 122. On our return May 13, 2019, I asked for submissions from counsel with respect to the applicability of that case to Mr. Claveria’s situation. The matter was then ultimately adjourned to today’s date for my judgement and sentencing. Parties submitted an Agreed Statement of Fact, which I have relied upon below.
4Two LACE Reports were filed with the court, which provided an analysis of the content on Mr. Claveria’s devices. One of the LACE Reports pertained to the child pornography still images and the other to the child pornography video images. According to the Reports, Mr. Claveria was in possession of 2,987 child pornography still images and 1,379 videos of child pornography. Detective Constable Don Bai, with the Toronto Police Service, Child Exploitation Unit, testified and I was shown all the videos made by Mr. Claveria which pertain to the making of child pornography and sexual assault charges. I also viewed ten video clips and ten still photographs of child pornography materials that were said to be a representative sample of the total materials seized on Mr. Claveria’s devices. I was also shown the three images that were uploaded to Facebook by Mr. Claveria, which were the genesis of the investigation, leading to his arrest on these charges.
Transmit Child Pornography
5On November 8th, 2018, a Facebook user with the name of Wil Claveria and email address rvx2015@hotmail.com attempted to upload three images to his own account. Two of the images were considered child pornography and as such, Facebook closed the account and reported the incident to the National Center for Missing and Exploited Children (NCMEC). IP address logs were also sent to NCMEC. The NCMEC sent their report to CyberTip, who determined that the IP address originated in Toronto and forwarded their information to the Toronto Police Service.
6DC Don Bai of the Child Exploitation Section of the Toronto Police Service viewed two of the images uploaded by Mr. Claveria to Facebook and determined that they were consistent with the Criminal Code definition of child pornography. The third image was of Mr. Claveria taking a photo of himself. IP address logs were also provided by Facebook.
7A disk containing the images uploaded by Mr. Claveria to Facebook was prepared by DC Bai and filed as a sealed exhibit in these proceedings.
8The Court was shown three images. I reviewed these images and I make the following findings of fact: the first image was a ‘selfie’ or self image of Mr. Claveria himself; the second and third images were of the same young girl, a child, with a very pained look on her face, in obvious distress, as she is being penetrated vaginally by an adult male’s erect penis.
9A production order was drafted in relation to the associated IP address at the time that Mr. Claveria uploaded these images. The production order was granted by a Justice and sent to Bell Canada. Subscriber information revealed that the address associated to the upload was that of Mr. Claveria and his family in Toronto.
10On June 12th, 2019, members of the Child Exploitation Section executed a search warrant at the residence of the Claverias. Mr. William Claveria was located in the basement of the residence.
Forensic Examination of Devices
11An on-scene forensic analysis of Mr. Claveria’s computer revealed he was in possession of child pornography images and videos. The examination also uncovered videos Mr. Claveria had taken of himself sexually assaulting two children.
12Mr. Claveria was arrested and taken to 32 Division where he was held in custody. While at 32 Division, Mr. Claveria provided an inculpatory statement admitting to both the child pornography offences, and to the sexual assaults of the children. However, Mr. Claveria refused to provide investigating officers with the identity of the children who he had sexually assaulted.
13A further forensic examination of Mr. Claveria’s devices revealed that he was in possession of videos and images he had taken himself that depicted him sexually assaulting two other children, as well as voyeuristic sexual images of child victims.
14I was also shown photographs of the Mr. Claveria’s living space in the Claveria home. Mr. Claveria shared the large room in the basement with his sister, their living spaces being partitioned off by sheets or curtain. Visible on the computer were distinct images of sexually explicit materials involving children. Police also located laminated collages of nude or semi-nude prepubescent girls.
15There was also a great deal of items of interest to children among his belongings, such as branded materials from Disney and Pokémon.
The Sexual Assault and Make Child Pornography Offences: Background
16Mr. Claveria was a member of a church in his community. Children at this church would remain in a daycare area while their parents attended services in another part of the building. Notwithstanding that Mr. Claveria did not have children at the daycare and was not a teacher there, Mr. Claveria frequented the daycare area of the church, while other adults were attending services elsewhere in the building. This was not a restricted area.
Make Child Pornography and Sexual Assault (Unidentified Child)
17Mr. Claveria was in possession of images depicting himself and an unidentified female child, approximately 10 to 12 years of age. In this image, Mr. Claveria has his arm around the child, over her shoulder and his hand resting on her left breast area (provided the image is not reversed by the camera). This photo was taken at the church that Mr. Claveria frequented. Police have been unable to identify the child in this image. It was not obvious that this young girl in question was aware of the inappropriateness of the assault.
Make Child Pornography and Sexual Assault (A.A.)
18Mr. Claveria was in possession of a video depicting himself and a female child known as A.A., who was approximately six years old at the time. This video was also taken at the church attended by the child, her parents and Mr. Claveria. Mr. Claveria took this video himself. Mr. Claveria filmed the video with the camera pointing up the child’s skirt. In the video, Mr. Claveria picks the child up and focuses the camera lens on the child’s genital area. Mr. Claveria then grabs the child’s buttocks and vaginal area through her underwear. The viewer can clearly see the face of Mr. Claveria while he is looking directly at the camera and filming his hand on her buttocks and genitals through her underwear.
Make Child Pornography and Sexual Assault (C.C.)
19Mr. Claveria was also in possession of videos and still photographs in relation to a child known as C.C.; a young girl who was approximately six to eight years old at the time. Mr. Claveria took these videos himself. Mr. Claveria filmed himself picking C.C. up and grabbing her by the buttocks though her pants. He also kissed her repeated on the lips.
20This video and the photographs were taken at the church attended by the child, her parents and Mr. Claveria.
Make Child Pornography and Sexual Assault (S.D.)
21Mr. Claveria was also in possession of several videos in relation to a child known as S.D., who was approximately seven years old at the time. Mr. Claveria took these videos himself. There are nine videos depicting S.D. In some of the videos Mr. Claveria is in S.D.’s home. In one of the videos, he filmed himself holding S.D. on his lap while she is clothed. He spreads her legs apart and focuses the camera lens on her genital area. He then digitally manipulates her genital area, tapping and rubbing the child on her vulva over her clothing.
22In further videos, Mr. Claveria is at the church attended by the child, her parents. Mr. Claveria and the child S.D. are in the daycare area of the church. Mr. Claveria repeatedly filmed himself digitally manipulating S.D.’s genital area, tapping and rubbing her genital area, tapping and rubbing over her clothes. Mr. Claveria also filmed voyeuristic videos up S.D.’s skirt with his lens focused on her genital area.
23In reviewing this particular video, the Court noted that as Mr. Claveria was filming himself and his victim, he would look directly at the camera and on occasion, adjust the angle or position of the phone camera to get a clearer or unobstructed view of the child’s genital area. This is significant because it suggests and I find, he is using a front facing camera feature on his phone, as is pretty standard on most smart phones these days, that allows the user to get a real time image of the video being filmed while in progress, to make such adjustments.
24The filming of this video also requires more context with respect to the effect on the young girl victim S.D., who I noted earlier is estimated to be about seven years old at the time. As noted above, Mr. Claveria, while he is holding her on his lap and adjusting the camera to optimize his angle and view, we can hear a children’s television program playing in the background. The camera is angled so it also captures his hand stimulating her vulva over her underwear, rubbing and tapping back and forth somewhat lightly, but enough that any person would be able to feel the contact and be aware of the physical rubbing.
25At the beginning of video, she seems to push his hands away or perhaps adjusts his hands and then moves her hands away. Mr. Claveria looks at the camera and then S.D. looks at the camera as he continues to manipulate her outside of her clothing. Based on my earlier finding, as proven by Mr. Claveria’s actions in looking to the camera and adjusting it, it was apparent to me that she appeared conscious and aware of the stimulation that was happening which, the front facing camera would have confirmed as she looked at herself being assaulted by Mr. Claveria. It was clear to me that the child would have seen that the camera was on, that it was filming them, and that it was filming her assault. On more than one occasion during the video, the child looks away from what they are seemingly watching and also looks directly at the camera. Each time, after looking at the camera, her attention returns to the program they are watching, and she does not react or move away from Mr. Claveria.
26The Crown informed me that the parents reported after the incident came to light, that their child S.D. had no memory of the incident happening. I will address this further in the victim impact section of this judgement.
27Mr. Claveria was also in possession of videos he took himself while in S.D.’s bedroom at her home. Mr. Claveria filmed S.D. while she slept. He undressed her by unzipping her one-piece pajama, revealing her nude body underneath. Mr. Claveria then videotaped himself as he digitally manipulated and penetrated S.D.’s vaginal area.
28There were other “up-skirt” videos taken of this victim at the daycare centre of the church, where he places the camera strategically on a chair opposite where she and another child are sitting at a table and records the view of her genital area in her underwear under her clothing. There was also another disturbing video in her room, which is too darkly exposed to be able to determine his actions in her room that night.
29It is worth pointing out the nature of the serious breach of the child’s security and well-being in the creation of these videos, not to mention the very sexual assaults themselves. Mr. Claveria has endeared himself to this girl and her family, resulting in being invited into their home, and while there as a guest, has secreted himself into that young girl’s bedroom, after she has fallen asleep, and perpetrated violence upon her in the safety and security of her own home, and perhaps even more aggravating, into the sanctity of her very bedroom while she is sleeping.
Possession of Child Pornography
30As stated earlier, a forensic examination was completed of Mr. Claveria’s devices. Police used LACE software to determine the number of “pre-categorized” images and videos in his device. Police then confirmed this categorization by visually examining each image and video. Police produced a LACE Report regarding the number of images and videos in Mr. Claveria’s possession. Mr. Claveria was in possession of 2,987 child porn still images and 1,379 videos of child pornography. A disk containing these LACE Reports was filed as Exhibit 1 in these proceedings.
31Mr. Claveria was also in possession of hard copies of child pornography images. These were laminated and hung on the walls of his living area at his residence. The photographs of these laminated collages of child pornography were filed as sealed exhibit four in these proceedings. The laminated pages appeared to be approximately 2 x 3 feet in size and had multiple photos of young, mostly pre-pubescent, girls posed, individually or in small groupings of two to four, seemingly posing casually for the camera, either fully undressed or semi-nude.
32It was agreed by both parties that a representative sample of the images found in Mr. Claveria’s possession be filed as a sealed exhibit in these proceedings. It was also agreed that a representative sample of the videos found in Mr. Claveria’s possession can be filed as a sealed exhibit in these proceedings.
33The child pornography found in Mr. Claveria’s possession included images and videos of children from pre-school age to pre-teen, being vaginally and anally raped by adult men, being forced to perform acts of bestiality, being bound, and being subjected to physical pain, among other acts.
34The videos I reviewed were a small sample of what was found in Mr. Claveria’s possession and included:
A young, pre-pubescent girl, I would estimate perhaps about 12 years of age, self-inserting a pencil in her own vagina, clearly another person video taping as indicated by the camera movement. The girl’s face obscured digitally by mouse ears and nose, as is now commonly seen in posted videos of individuals that provide a cartoonish appearance to the individual’s face; in this instance, probably to protect the identity of the victim but primarily to protect the identity of the perpetrator, no doubt.
A young girl, estimated to be a pre-teen, being penetrated anally by an adult male’s erect penis. The video is being filmed by the man penetrating the girl, as the angle is clearly coming from the direction of the perpetrator’s face and head. The male removes his penis from her anus, rubs it on her pubis and re-enters her anus.
A pre-teen girl, wearing a dog collar, fellating an animal, presumably a large dog. The type of animal is unclear only because we cannot see the animal’s head in the shot. The camera is located to the side of the animal, directly below the animal’s chest and abdomen, providing a clear view of the girl on the other side of the dog, with her face facing the camera as she has the animal’s penis in her mouth. At times, this young girl looks up at the camera while holding the animal’s penis and smiles broadly for the camera. This video was described to me by the Crown as part of the “Series 1” of videos which depict acts of bestiality.
A young, pre-teen female child is fellating an adult male to the point of orgasm. The young girl is forced to continue sucking the adult male’s penis as she gags on his ejaculate. This video was described to me as having been part of the “Series 2”, depicting a now known and rescued victim. This identified survivor of child abuse and child pornography, was about eight or nine years old at the time the video was captured. A related Victim Impact Statement was filed as part of this hearing.
A young girl, seemingly under the age of ten, being penetrated by a personal vibrator, both in her vagina and anus. This child was well-groomed: she poses for the camera in what passes as seductive looks and poses in adults.
A video of a young girl, estimated to be approximately five years old, is lying back while an adult male repeatedly rubs his penis against her vagina until he ejaculates all on her.
An adult male performing cunnilingus on a young girl, estimated to be three to five years old. The perpetrator restrains the child by pinning her hands to a bed at the side of her body as he victimizes this young child orally.
A three or four-year-old girl is masturbating a man’s penis, while in a bathtub, to ejaculation. This video is part of what has been referred to as “Series 3” videos. There is a related Victim Impact Statement from the mother of the victim in this video.
A young girl, probably about eight years old, is being anally penetrated repeatedly by an adult male’s penis. The child is crying and in distress, seemingly in pain throughout the video.
A pre-pubescent child is performing fellatio on an adult male while he is inserting a vibrator in her vagina. Clearly the child is displaying that she is in distress throughout.
35The photographs depicted similar still photos of young girls being sexually abused and by adult males. I note, once again, that the videos and photographs I reviewed were, but a small sample of the materials seized. I was told they were randomly selected and that they are representative of what was seized and in the possession of Mr. Claveria:
A female child, pre-pubescent, has her legs spread and her vagina is clearly visible to the camera. She is probably about ten years old and there are no signs of sexual maturity on this child.
A young girl, probably around six, is photographed with an adult male penis in her mouth.
A young girl, under the age of ten, is posing with an adult male’s penis in her hand next to her mouth. The penis and her mouth appear to have ejaculate on them; the girl is nude, and you can clearly see her undeveloped breast.
A young child, who looks to be less than three, is nude; she is being held by an adult male in his hands over his erect penis. Her vagina is clearly visible.
A child of approximately ten years of age has her legs bound by rope. Her vagina and underdeveloped breast are clearly visible.
A young girl, estimated to be under ten years of age, is standing and both her legs and wrists are bound by leather cuffs. She is blindfolded. Her vagina and underdeveloped breasts are visible.
A closeup of a child, estimated to be around eight, with ejaculate spilled over her genitals. There is no indication of sexual maturity.
A naked young girl, probably around 12 years old with some early signs of puberty, showing an adult male’s finger in her exposed vagina.
What appears to be a screen capture of a video of a young girl, probably younger than five or six, with a large erect penis inserted into her anus; her vagina and underdeveloped breasts are clearly visible.
An adult female is performing fellatio on a male child, probably under the age of ten. There are no signs of sexual maturity on this young boy.
36It is evident that the level of depravity in these materials is significant. The sexual abuse of children, of any kind, is serious and disturbing. But to involve a child in activities that in adults require significant negotiations and respect of personal boundaries, such as bondage or any kind of penetration, is particularly aggravating. To partake and possess these materials, whether for the purpose of personal enjoyment or whatever other disturbing motive, is equally troubling and aggravating.
37I have to say that the images of these sexual assaults stayed with me a long time. And what remained was not the sexual actions depicted in the images, but it was the expressions on the children’s faces. At first, watching the photos and video images of the children in distress and pain were clearly very troubling. I wondered about the pain and suffering these children must be facing long after the abuse was done.
38But on reflection, I found myself being more troubled by the suggestive poses and smiles of the children who had been so well-groomed, that they seemed to be active participants, mugging for the camera, masking their pain and suffering to please their abusers and the audience, the multitude of criminals who download and share these troubling images of their rapes and torture, both physical and psychological.
Background of Mr. Claveria
39William Claveria is 33-years-old, unmarried, though reportedly was engaged to be married to a woman from the Philippines he had met only online. Their relationship has been on going since 2017. That relationship seems to have ended when he was incarcerated on these charges. Mr. Claveria was himself born in the Philippines. Until he was arrested on these charges, he resided with his parents and younger sister in Toronto. He has two older brothers who still live in the Philippines. He has a close relationship with his family, maintaining weekly contact with his brothers back home. He reports that he still has the support of his family at this time and speaks almost daily to his mother.
40Mr. Claveria’s family is aware of these current matters and remain supportive. They are a religious family and he reports his childhood was positive. He reports he never experienced any neglect or abuse as a child. The family immigrated to Canada in 2013. William Claveria holds permanent resident status in Canada.
41Mr. Claveria’s mother confirmed the family’s situation and expressed that the only concern she had was that because Mr. Claveria’s father was a foreign worker who for 32 years worked abroad, seeing his family only once a month, William Claveria was quite shy and sometimes depressed. She reports that the family attended religious services regularly and that Mr. Claveria attended Sunday school during his youth and childhood. William Claveria reports that he has never used alcohol or other mood-altering drugs and reported no other mental health of physical concerns.
42Mrs. Claveria also reported that because of his mood, William did not socialize a lot and was always on the computer. Mrs. Claveria reports that she has lived with William his entire life and describes him as a “good son.” She reported that she was very surprised about the current charges and clearly, she was fully aware as she has appeared at every sitting before this Court, even during the guilty plea and sentencing submissions.
43William Claveria completed high school and college in the Philippines in Technology Skills and Animation. He also completed a college program in Toronto in 2016 for Digital Design. His employment history consisted mostly of freelance work in digital design, designing posters, wedding and birthday invitations, and fixing computers for members of his church and community in Toronto. He reports that he was active in his community church from 2014 until his arrest on these charges.
44Mr. Claveria’s father only expressed concerns for his son in the Pre-Sentence Report, suggesting he was spending the majority of this time drawing cartoons and he described William as secretive. He also expressed surprise at these charges. Some of Mr. William Claveria’s extended family also reported his tendency to be quiet, positive; they noted his love of children and willingness to help the elderly, as well as his lack of positive relationships with adults his own age.
45The pastor at the church when some of these offences occurred, reported that he has known William for approximately three years, and described Mr. Claveria as someone who loved kids and would often take selfies with them. The pastor described him as childish in nature, which he attributed to his lack of peers his own age. He also reported that Mr. Claveria would often volunteer to take photographs at various church events. Like everyone else in Mr. Claveria’s family and social circle, he expressed surprise at the matter before the Court, reporting that he trusted Mr. Claveria until he was informed of the charges by police.
Remorse and insight into the offence:
46Mr. Claveria’s own view on the matters before the Court provide very little insight into his motives or psyche, and gave me even less confidence in his prospects for rehabilitation given his lack of insight. William Claveria acknowledged his involvement in these offences, citing only “curiosity” as his motive. He expressed to the Pre-Sentence Report writer that he had no sexual interest in children under the years of 16, though he did indicate a willingness to undergo treatment and phallometric testing.
47In court, he expressed remorse and was extremely deferent with the Court, indicating he acknowledged that the Court must do the right thing. It seems clear that Mr. Claveria has little insight into his own behaviours, and it is unclear whether he has any real insight into the harm he has done to these children, the ones he abused directly; and the damage he has done in perpetuating the harm done to the victims of child pornography by continuing to victimize them through his obtaining, as I indicated earlier, some 2,987 child porn still images and 1,379 videos of child pornography. This lack of insight is, in and of itself, not aggravating, but as noted, it does raise concerns about the possibility to rehabilitation and risk to the public.
Victim Impact Statements:
48With respect to the child pornography charges, I was presented with three Victim Impact Statements; that of the child victim in the “Series 2” images; that of the mother of the child victim in the “Series 3” videos; and finally, a Community Impact Statement provided by the Canadian Centre for Child Protection Inc.
49The Canadian Centre for Child Protection Inc. is a Canadian charity which has created Cybertip.ca, Canada’s national child pornography tip line. Since its inception in 2002 until March 31, 2017, they have received and processed over 230,000 reports from the public about child sexual abuse materials. They state that “the community impact statement is submitted on behalf of identified and unidentified victims of child pornography to provide the Court and the community with information about the types of harm or loss generally suffered by members of the community as a result of individuals who make, access, possess, make available and/or distribute such material.” See page 2.
50They emphasize that the vast majority of victims of known child sexual abuse materials are still unidentified by police. They point out, based on the experience of the survivors of child pornography and their families and supports, how pernicious the proliferation of child pornography is in its persistence and permanence. Which means that, even if a child is rescued from their abuser(s), and so many do not seem to be, they continue to be revictimized, fearing their identity will be disclosed, and knowing they continue to be fodder for the disturbed pleasures of others who perpetuate their pain and suffering through the viewing and sharing of the images of their violent abuse. This Victim Impact Statement makes that clear.
51The mother of young victim in the “Series 3” provides a statement that brings the perspective of the family, who is also traumatized by the abuse imposed and perpetuated on these children who are victims of child pornography. As part of the “Series 3” collection of child pornographic materials, her daughter deals with the types of emotional and psychological scars you might expect.
52She explains how her daughter struggles to get past the harm and scars left by the abuse and its proliferation: “She doesn’t want to be defined as a victim, but she cannot escape the victimization, and she can never put it in the past, because it is ongoing.” She knows this because in that mother’s mind: “she is forever that little girl, caught in those images that are repeatedly viewed by the defendant and his ilk.”
53The Victim Impact Statement of child depicted in the “Series 2” videos of sexual abuse materials, was provided in a video recording and in written format. The DVD of the Victim Impact Statement was played, and a paper copy was made Exhibit 6a. she describes how her victimization, unlike other crimes, is on-going, never ending; every day offenders are sharing images of the most brutal violence perpetrated on her. Distribution grows bigger and bigger every day. She walks in a world that has seen and enjoyed images of the most brutal incidents of her life. Every download is a further perpetration of the violence against her. She has been stalked by individuals who have found her and attempted to re-victimize her. While the perpetrator of this sexual violence against her remains in jail and the memory of the rape gets farther and farther away in her memory, the victimization that is on- going in the distribution of these images perpetuates the other side of her victimization. She continues living daily with emotional turmoil: she has troubling nightmares of being victimized. She describes losing time several times a month in what sounds like dissociative episodes. She also suffers from Post Traumatic Stress Disorder. She has struggled with day to day activities. She has returned to school but struggles with maintaining her grades. She has been stalked often, sometimes online and through social media, resulting in having to remove herself from social media platforms which has led to further isolation and pain.
54We as Canadians and citizens of the world are quickly learning that our digital life and footprints are not our own. Privacy is illusive, even for those of us who are merely living our lives day to day, not being victims of sexual crimes. But child victims of these crimes of a sexual nature, whose abuse and the horrific indignities to their bodies and persons are broadcast to the world on the internet, even in the darkest corners of the internet, face a particularly deep kind of pain and suffering. They not only have to deal with the trauma of their abuse and the physical, emotional, and mental scars of their abuse, but they must also live with the knowledge that their pain and suffering is being broadcast and shared with a community of individuals who will feast on their pain and suffering for a very long time. The victims go on, knowing that these images cannot be scrubbed from the online world. They live with the fact that many individuals will find sick pleasure in their pain and suffering, daily.
55I was grateful for the input received from the Victim Impact Statements provided to the Court. The broad perspective covering the perspective of the community, hearing the voice of a mother whose child was a victim of sexual assault and is part of a known collection of child sexual abuse materials describing the impact on her child, her family and herself. And most importantly, hearing from a victim of repeated sexual assaults that were distributed widely all over the world in digital formats, who carries that burden with her every day, and continues to face the indignities of a victim being re-victimized by their distribution and by internet trolls who seek to continue inflicting their abuse on her, psychologically and physically. I trust all of these statements are true representations of the real pain and suffering these kinds of offences inflict on those who have the highest claim to our protection and care: our children.
Victim Impact Commentary for the Victims of Sexual Assault
56Officials did canvass with the known families of the victims of sexual assaults perpetrated by Mr. Claveria. A.A.’s family and C.C.’s family noted that their child had no apparent conscious knowledge of the impact and provided no input.
57The parents of S.D., whose abuse was much more significant and who, in my view showed clear indications of grooming, offered that their daughter reported no memory of the abuse inflicted upon her by Mr. Claveria. As such, they were not able to provide any input as part of the victim impact process. I will comment further on my findings in respect of the harm done to this particular victim, S.D. later in my ruling.
The Position of the Parties
58The Crown argues that an appropriate sentence for Mr. Claveria would be eight years and seeks a number of ancillary orders, including SOIRA for life, section 109 for life, DNA primary, section 161 a) to d), and section 743.21, non-communication with victims and their immediate families.
59On the issue of possession of child pornography, the Crown suggests that I must consider the relative depravity of the image and points out the range of assaultive behaviour in those videos which contain some of the worst acts of depravity that could be part of child pornography: bondage, bestiality, children in active and vocal distress, and adults who are unbothered, and perhaps even aroused by the children’s distress.
60In respect of the sexual assaults and the corresponding child pornography made by Mr. Claveria, the Crown points out that the victims were estimated to be between the ages of five to 12 and points out that none of these young girls had yet reached puberty. She suggests that some did not even appreciate that they were being abused by Mr. Claveria. She also highlights the particular vulnerability of these young children and how some of the children are sexually abused in the presence of other children in a busy daycare facility; a daycare facility located in a place where families attend to find spiritual solace and community among like-minded members of the congregation. They were violated in an area where parents trusted they would be safe, in an area reserved for children. Some of the assaults and videos of the victim S.D. were perpetrated in the family’s home, in her bedroom, in the evening.
61The Crown was prescient in pointing out that with denunciation and deterrence as the primary focus of sentencing in these matters, there is an ever-increasing range in sentencing tariffs, especially since the recent release of the R. v. Friesen decision from the SCC.
62Defence takes the position that a sentence of three to five years would be appropriate in this case. Conceding that perhaps more towards the five-year range given the recent pronouncements of the Courts on the issue of child sexual abuse cases. He points to Mr. Claveria’s immature nature and characterizes him as an almost youthful offender.
63He points out that most of the assaultive behaviours were surreptitious, even to victims, and argues that there was no clear evidence of grooming, that these events were opportunistic, and that there were no threats or overt physical violence by which, I believe he meant to argue that there was no violence or coercion of a non-sexual nature as part of the violent nature of the sexual assaults themselves. He also points out that there was no intercourse or masturbation on Mr. Claveria’s part involved, not as a way of minimizing the harm done but, simply pointing out that some of the aggravating features too often seen in these cases was absent in Mr. Claveria’s case. Counsel argues that the lack of the many more serious and most aggravating features of many of the reported cases places Mr. Claveria at the far end of seriousness of cases. He posits whether that means rehabilitation is a possibility.
The Applicable Legislation:
Relevant Sentencing Provisions:
718 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;
. . . and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
718.01 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.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
The New Legal Framework
64The scope of sentencing tariffs for cases involving sexual violence against children shifted soon after submissions as I began these deliberations. As mentioned earlier, the Supreme Court of Canada, in R. v. Friesen (supra), stated in its very first paragraph:
1 Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.1
65It was a landmark decision that addressed a number of issues directly related to this case and the circumstances involving Mr. Claveria and his child victims: those direct victims of his abuse, those known to us, the one victim who remains unknown to investigators and the court, and the countless victims portrayed and victimized in the thousands of still images and videos seized from Mr. Claveria’s devices.
66In particular, the Court addressed the issues of the gravity of the offence:
76 . . . We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.
67The Court also made a clear statement on the issue of potential harm, in other words, even when there is no clear evidence of physical or psychological harm to the child victims of these crimes. Specifically, the Court stated:
82 We would emphasize that courts should reject the belief that there is no serious harm to children in the absence of additional physical violence (Benedet, at p. 299). As we have explained, any manner of physical sexual contact between an adult and a child is inherently violent and has the potential to cause harm.
68Even in cases where the more serious, typically aggravating circumstances may be absent, such as in some of these assaults where three of the children, the unknown child, A.A. and C.C., who were probably unaware of the serious violation of their bodily integrity, I need not rely on the lack of evidence of actual harm as communicated to the Court.
86 . . . Courts may be able to find actual harm based on the numerous factual circumstances that can cause additional harm and constitute aggravating factors for sexual violence against children, such as a breach of trust or grooming, multiple instances of sexual violence, and the young age of the child. We stress that direct evidence from children or their caregivers is not required for the court to find that children have suffered actual harm as a result of sexual violence. Of course, we do not suggest that harm to the child is the exclusive lens through which to view aggravating factors.
69I wish to address one other legal case in my oral reasons that is significant in my analysis. Justice Malloy, of the Superior Court of Justice, in the Kwok decision, listed the significant aggravating and mitigating factors for consideration in matters of possession of child pornography but are equally compelling on issues of sexual assaults and make child pornography. Her reasons hold true today and are worthy of review here; see para 7:
. . . 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). 2
Legal Analysis Specific to Offences
Possession of Child Pornography Charges and Sexual Assault:
70As noted earlier, Mr. Claveria was in possession of 2,987 child porn still images and 1,379 videos of child pornography: an extensive collection of disturbing materials. The primary focus of the material seemed to centre around young pre-pubescent girls. The nature of the abuse depicted in video and photo format showed incidents of significant sexual violence perpetrated on young children. Aside from the images of children posing nude, there appear to have been multiple images of what would be considered varsity level activity among consenting adults. Children were subjected to penetration by full grown adults, orally, through vaginal intercourse and anally penetrated. They were submitted to acts of bondage. Many of these young victims depicted showed clear trauma and distress in their reactions and perhaps more troubling, many showed signs of cooperation, posing suggestively and mugging for the camera as they were victimized. The clip of bestiality was significantly troubling as there is no justification for such behaviour in adults, consenting or otherwise, much less when involving children. This factor was seriously aggravating.
71When coupled with the acts of sexual assault perpetrated by Mr. Claveria on the four young girls, the Court is left with the impression that he is perhaps more of a risk to children and the community than what was suggested by his counsel, notwithstanding his lack of related criminal antecedents. His lack of insight, as mentioned earlier, claiming to have collected these materials out of “curiosity” leave the Court troubled on the possibility of rehabilitation.
72Though I have made findings with respect to his having inserted himself into places of trust, a children’s daycare facility in a church, and in the very home where parents are meant to provide ultimate protection to their children, I cannot find as an aggravating factor that he, himself was in a position of trust as an aggravating factor. It is aggravating on the facts, but not to the level as listed in section 718.2(a)(iii).
73In reviewing the case of S.D., the victim of sexual assault and the subject of nine separate videos depicting her assaults by Mr. Claveria, I find that there was clear evidence of grooming involved. Up-skirt or surreptitious videos, or photographs of individuals who are unsuspecting, require no grooming or preparation by the perpetrator necessarily. Likewise, sneaking into a child’s bedroom at night, while in the home, with the parents nearby, is repugnant but requires no grooming, though one might suggest it requires some grooming of the parents to build the trust to insert yourself into those locales.
74But to get to the point where a perpetrator can openly record videos of a conscious child watching television while sitting on his lap, fidget with the camera in full view of the child victim, and while the child victim herself looks at the camera a number of times, which I have already determined would have been front facing, depicting the real time video of her assault being recorded, and that she simply return to viewing what they are watching on television, requires preparation and grooming. Coupled with his propensity for child-focused materials as found in his living area in his home at the execution of the search warrant, I conclude beyond a reasonable doubt that significant grooming was involved in the assault of S.D.. This was a seriously aggravating factor.
75The mitigating circumstances are as follows:
Mr. Claveria comes before this Court as a first offender with otherwise good character as enunciated by his family, immediate and extended, as well as two letters of support from parish priests from his church.
His very early plea, notwithstanding the overwhelming nature of the evidence against him, I accept as a true indication of his remorse.
Also, regardless of his seemingly lack of insight into the offence, he has indicated in the Pre-Sentence Report, a willingness to explore and undergo treatment.
Also mitigating is the extent to which Mr. Claveria has already or is very likely to suffer as a result of his transgressions: as a landed immigrant, it seems likely he will be deemed inadmissible and deported soon after his release.
He is facing a significant period of incarceration for a first offender and as a sexual offender with children as victims, his time is unlikely to be easy. Some of this may have already been evident in the time he has spent in custody prior and since his plea in provincial institutions: The Toronto South Detention Centre and the Toronto East Detention Centre.
76Currently being 33 years of age, I cannot accept that he is a youthful offender, despite his reported lack of maturity. A lack of maturity or ability to form age appropriate relationships is not aggravating but neither can it be considered mitigating. Likewise, the lack of any overt physical manifestation of any non-sexual violence or threats cannot be considered as mitigating but is neutral in nature. It is not a reflection of a lack of damage or harm done to the children victims of his crimes.
77In concluding on aggravating factors, and in light of the facts surrounding this matter, given that three of these children were probably not consciously aware of the sexual violence being perpetrated on them by Mr. Claveria, save and except for S.D. who, as I mentioned earlier, despite the parents’ denial that she remembers anything, may well have been conscious and very confused of the breach of her personal integrity and probably baffled by the coupled attention which she would not have been equipped to recognize as grooming behaviour meant to facilitate the abuse, it is still incumbent on the Courts to recognize the harm done to all child victims of sexual violence
Societal factors: The Prevention of Harm
78I do not accept Mr. Claveria’s justification for the possession of these materials as credible. In his Pre-Sentence Report he disclosed “curiosity” as his motivating factor. The large number of sexually explicit materials belie that contention. Someone who is curious about collecting items, may avail themselves of a small number of items to determine their appeal. But to continue collecting to the point where you have some 2,987 child porn still images and 1,379 videos of child pornography, to refer to yourself as curious, defies all logic. I cannot accept his explanation for the possession of these materials. At its worst, it shows a lack of true remorse for his actions. At the very best, it shows a complete lack of insight into his own psyche and predilection for violent, sexually-explicit material victimizing children.
79Contrary to the position of the defence, his behaviour was not isolated and impulsive. Inserting himself into the daycare locale, endearing himself to the children and their families to the point he is invited to their homes and then sneaking into one of the children’s rooms (victim S.D.) at night to open the pyjama of a sleeping child to film and sexually assault her is not an opportunistic act. It requires planning and deliberation, surreptitious execution to quietly steal away into a child’s room while the child’s parents are in another part of the house.
80Having reviewed these videos, a number of things were striking. It is obvious in their clumsy production values that Mr. Claveria is very deliberately filming himself sexually assaulting this young girl. You can see the calculation in the deliberate and awkward placement camera on his cellphone to make sure he is placing his camera in just the right position to capture the view of her crotch area and trying to capture the interaction. As mentioned earlier, it is also obvious that he is using the front facing camera option on his cellphone.
Make Child Pornography (4 counts)
81I have already mentioned the serious aggravating nature of the sexual assaults perpetrated on these young children by Mr. Claveria. That he recorded those assaults is troubling, as it sears into a digital record his already depraved behaviour and creates a record, that if shared, will further their pain and suffering. He is subject to mandatory minimum sentences of 1 year on each count.
Totality
82The totality principle represents a final assessment of a cumulative sentence to ensure that the total aggregate sentence does not exceed the overall culpability of the offender. Global sentences should never be so reduced in response to individual factors of the offender that the sentence ceases to be proportionate and becomes out of alignment with the nature of the criminal conduct. Rather, where the offences committed are separate and distinct, the gravity of the offence is high, and the circumstances of the offence are highly aggravating, a sentencing Court should be careful when considering the applicability of the totality principle not to reduce the gravity of the overall criminal conduct.
27 Although the totality principle must always be considered when sentencing for multiple offences, the sentence imposed cannot thereby become inadequate to properly recognize the overall gravity of this conduct that victimizes children in the most horrendous way.
28 In his reasons, the trial judge referred to the decision in Kwok for the principles to be applied in a case of possession of child pornography. However, the circumstances in that case were not at all similar to this case, and the sentence of 12 months, which Molloy J. stated to be in the middle of the applicable range, may have misled the trial judge in assessing the range of sentence applicable in the egregious circumstances found here.
29 By upholding the 15-year sentence imposed by the trial judge in L.M., [2005] J.Q. no 15934, the Supreme Court made it clear that the range can reach well into the double-digit level, depending on the number of offences, and the confluence of circumstances that may exist in each case.
30 In my view, this case called for a very significant sentence in order to adequately meet the essential sentencing objectives of denunciation and deterrence for this category of crimes. The effective sentence of four years imposed by the trial judge was, in these circumstances, manifestly unfit and in error. However, because the trial Crown asked for a sentence of seven years, and the guilty plea was entered on that basis, I would not impose a sentence higher than 7 years on this appeal.3
83But ultimately the sentence must still reflect society’s revulsion with Mr. Claveria’s actions, while giving meaning to the principles of fairness and restraint. T
Summers Credit and Other Credit While in Custody
84The parties agree that Mr. Claveria should be granted credit for his pre-trial custody in accordance with R. v. Summers, 2014 SCC 26, 2014 S.C.C. 26 on the basis of 1.5. That is, credit for 448 days @ 1.5 = 672 days.
85I agree that it is important to avoid double counting of pre-trial credit, but I do find that time spent in custody during the pandemic has been particularly hard on inmates. There have been more frequent lockdowns, and it has clearly been a frightening situation resulting in harder time.
86It has been clear since R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575 that “individuals who have suffered particularly harsh treatments, such as assaults in detention, can often look to other remedies, including under s 24(1) of the Charter”: para 73. A sentencing judge may also take into account state misconduct that does not rise to a Charter breach in shaping an appropriate sentence: R. v. Nasogaluak, 2010 SCC 6 at para 53, [2010] 1 SCR 206.
The appropriate remedy here is credit as against sentence. In this case, the credit for breach of the accused’s s 12 rights, the time he has served and the mitigation he is entitled to because of the quality of the time he served, will be added together and applied to reduce what would otherwise be a proportionate response to his crimes.
87Mr. Claveria raised an issue about his treatment at the hands of some Correctional Officers and other inmates since he has been in custody. At some point early on there were news stories about his arrest and he claims he was assaulted and treated badly a number of times thereafter. He made reports to officials and to the Ombudsperson of Ontario with respect to “bullying, tormenting, harassing and intimidating” behaviours towards him following the news reports. The sentencing hearing was adjourned in order to gather records from the institutions (he was at the South and then the East detention centres). Subpoenas were granted but the institutions never provided the materials requested to Mr. Claveria’s counsel or to the court.
88Rather than seek a remedy through the court, counsel received instructions from Mr. Claveria to proceed based on materials he was providing to the court. It seems that through much of his incarceration, Mr. Claveria was keeping notes, very brief notes of a few words or lines, expressing his discontent with a number of issues, including incidents of harassment and assaults with little detail though. When asked if he wanted to provide statements to correction officials, he would decline. Notwithstanding the dearth of corroborated evidence of any of the events alleged to have occurred during his incarceration, I find on a balance of probabilities that I can accept that Mr. Claveria’s time in custody was spent having to deal with harassment and abuse, some perhaps even physical. I make no specific findings with respect to any assaults or any particular perpetrator as little evidence was led to corroborate any specific events. But the fact that Mr. Claveria was placed in protective custody given his status as a high profile inmate, and the fact that he was moved a number of times after he complained about his treatment, provides me with some assurances that he was subjected to some abuse and harassment and warrants some credit in light of that. Counsel declined to call any further evidence and simply requested I provide some credit for his experiences of abuse and for the lockdown credit.
89At paragraph 9 of Justice Leslie Pringle’s sentencing ruling in R. v. O’Neil KING, OCJ, April 8, 2020, (unreported), she states:
I agree with Justice Kozloff that additional credit for particularly harsh conditions during the pandemic is appropriate, however, I see an element of overlap and “double counting” if credit is enhanced first for lockdown days, and then again for lockdown days during Covid. While I concur that there is increased mental hardship and health risk posed by incarceration during the pandemic, (especially when there are known cases of Covid 19 at the institution), I would put the “Covid factor” at an additional .5 days to avoid double counting.
90Credit for his time in custody during the pandemic will be credited at .5 days. That results in 171 days @.5=86 days. Like the King decision noted above, some of the time for which he receives covid credit were also parts of the days where lockdowns were declared. I am mindful of not double dipping.
91I do not accept that Mr. Claveria’s time in custody rose to the level demonstrated in R. v. Persad, 2020 ONSC 188, for the excessive lockdown conditions noted in that decision.
92It is an unfortunate fact of life that hierarchies and biases exist in all facets of life, and those at the bottom of the ladder often bear more of the brunt of the unpleasantness than others. Mr. Claveria is entitled to some credit for this, though perhaps not as much as would have been entitled to had more cogent evidence been presented at sentencing hearing.
93With respect to the sentence, I have created a chart to reflect my sentencing calculation:
Charge
Sentence
Absent Totality & other credits
Totality calculation
- Transmit Child Pornography
1 year (MMP)
1 year
concurrent to count 4
- Possession of Child Pornography
3 years
2.5 years
Lead count
- Sexual Assault (A.A.)
9 months
9 months
consecutive
- Make Child Pornography
1 year (MMP)
1 year
concurrent to count 17
- Sexual Assault (C.C.)
9 months
9 months
consecutive
- Make Child Pornography
1 year (MMP)
1 year
concurrent to count 17
- Sexual Assault (unknown child)
6 months
6 months
consecutive
- Make Child Pornography
1 year (MMP)
1 year
concurrent to count 17
- Sexual Assault (S.D.)
2 years
1.5 years
consecutive
- Make Child Pornography
1.5 years
(MMP of 1 year)
1.5 years
consecutive
Total over all sentence
12.5 years
7.5 years
Summers Credit
448 days @ 1.5
672 days
Covid-19 Credit
171 days @ 0.5
86 days
Lockdown and Other Credit
158 days
Total Credit
(916 days)
Remaining sentence
5 years remaining
94I also impose the ancillary orders including SOIRA for life, DNA, and No Contact orders pursuant to section 743.21(1), as well as the section 109 order.
Released: June 21, 2021
Signed “Justice André Chamberlain”
Footnotes
- R. v. Friesen, [2019] SCJ No 100, 2020 SCC 9, 2020 CSC 9, [2019] ACS no 100, 444 DLR (4th) 1, 2020EXP-902, EYB 2020-350618, 2020 CarswellMan 122
- R. v. Kwok, [2007] OJ No 457, 2007 CanLII 2942, 72 WCB (2d) 533
- R. v. DGF, [2010] OJ No 127, 2010 ONCA 27, 250 CCC (3d) 291, 259 OAC 364, 98 OR (3d) 241, 72 CR (6th) 299, 2010 CarswellOnt 146