WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JEFFREY REID
Before Justice A.J. Camara
Heard on October 14, 2021 and February 8, 2022
Reasons for Judgment released on February 25, 2022
G. Akilie................................................................................................. counsel for the Crown
C. McKenna.............................................................. counsel for the accused Jeffrey Reid
1Jeffrey Reid faces sentencing having entered pleas of guilty to two counts of possession of child pornography, one count of make child pornography and one count of sexual interference, contrary to Sections 163.1(4), 163.1(2) and 151 of the Criminal Code of Canada.
A. Circumstances of the Offence
2In November 2020, Hamilton police service was dispatched to 200 Wentworth Street North in the City of Hamilton after the homeowner had located a grey plastic bag in the ceiling rafters of his basement containing three photo albums of suspected child pornography and two compact disks.
3The photo albums contained numerous images of young children in various states of dress and undress. Many of the images met the definition of child pornography.
4A search warrant was granted for the police to search the two compact discs. While analyzing the media extracted from the compact discs, investigators noted a series of images which showed a white male with long blond hair pictured with a female child. The child was between 8 and 13 years old. Numerous images showed the male exposing himself and masturbating on or near the child who appeared asleep or unconscious. Several other images were located which pictured the male placing his erect penis on the child's vagina, placing his penis in between the girl’s buttocks, and inserting objects into her vagina.
5Investigation confirmed that the male in the images was Jeffery Reid. His ex-wife Heather Harris was also found in some images prepping the victim for the photos. Heather Harris was present at the time of the offenses and was operating the camera.
6Mr. Reid and Ms. Harris were arrested and interviewed. Both provided inculpatory statements. An additional search warrant was authorized for a former address of Jeffery Reid at 5702 Byng Ave. Niagara Falls. At the time of his arrest, Mr. Reid was staying with his son at 6405 Lundy's Lane Unit 4 Niagara Falls . A search warrant was conducted at that address as well and a multitude of electronic devices were taken from Jeffery Reid's room.
7In February 2021 police learned the identity of the victim HK. She was interviewed and confirmed that Mr. Reid and Ms. Harris would babysit her while her mother was at work. At the time of the offence, HK was 8-years old.
8The material seized from Lundy’s Lane was analyzed and police discovered additional photo sessions from February 2, 2003 and March 2, 2003. Mr. Reid is seen on both sessions. The February 2 , 2003 session includes HK unconscious while Mr. Reid performs oral sex and smiles at the camera while her face is covered with a white veil. Mr. Reid places the heel of a stiletto in the child's vagina. Mr. Reid is seen manipulating HK's nude body under extreme lighting, and she appears completely unconscious. Mr. Reid places his erect penis on the child's foot and masturbates. Ms. Harris can be seen performing oral sex on Mr. Reid over top of the unconscious child.
9The March 2, 2003 session includes Mr. Reid performing oral sex on the unconscious victim and placing his penis on HK's buttocks. There are close-up images of the child's vagina, Mr. Reid masturbating over top of the child and touching her vagina.
10The child in the images is unconscious – the product of drinking an unknown beverage provided by the accused prior to all the photo sessions.
11Ms. Harris is pictured in one session but is believed to be taking all photographs and being fully complicit in all the sessions.
12In total, 8210 total images were discovered which constituted child pornography as defined in the Criminal Code. There were 983 images found involving HK specifically; many of HK’s images met the definition of child pornography. Nineteen videos were located and many of the hard copy photographs in the photo albums also met the definition of child pornography.
B. Circumstances of the Offender
13Mr. Reid is now 51 years old. At the time of the offences he was in his early thirties. In the 2-3 years leading up to the index offence Mr. Reid was in the throes of substance and alcohol abuse. He had closed a company and there had been an accumulation of debt contributing to the increasing amount of stress Mr. Reid was experiencing.
14Growing up Mr. Reid had been exposed to inappropriate sexual activity at a very early age. His mother was an alcoholic and died when he was 15-years old. Following her death, he went to live with his grandmother who suffered from dementia.
15Jeffrey Reid had been in a relationship with Ms. Harris from 1998 to 2016 which by all accounts was toxic, unhealthy, and marred by substance abuse. From that relationship, Mr. Reid and Ms. Harris share three sons. Mr. Reid also has a 4-year-old daughter with his current wife whom he is now separated.
16Since being arrested on these charges, Mr. Reid has been seen by a physician and is prescribed medication which has helped address some mental health issues.
17Mr. Reid has expressed remorse for these offences and has expressed a desire to seek treatment to address his behavior.
18A risk assessment has been conducted on Mr. Reid. The assessor has determined that Mr. Reid is in the low-range to reoffend sexually.
C. Position of the Parties
19It is the position of the Crown that the appropriate disposition for Mr. Reid is 10-12 years in the penitentiary followed by a series of ancillary orders.
20Defence counsel, on behalf of Mr. Reid submits that the appropriate sentence is 7-8 years less pre-trial custody. Defence agrees that the ancillary orders sought by the crown are appropriate.
D. Legal Principles & Analysis
21The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society.
22Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community.
23Following Section 718.01 of the Criminal Code, the primary consideration when imposing a sentence for an offence that involves the abuse of children is denunciation and deterrence.
24The Supreme Court of Canada in Friesen1 provided important instruction and guidance with respect to sentencing offenders who have committed sexual violence involving children. The Supreme Court of Canada held that courts must strongly denounce this type of violence through the sentences they impose. Courts must impose sentences that are commensurate with the gravity of sexual offences against children and that reflect the normative character of the offender’s actions and consequential harm to children.
25The intentional application of force of a sexual nature on a child is highly morally blameworthy activity. The intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable. The Supreme Court of Canada in Friesen set out the significant factors to consider in determining a fit sentence.
26First a sentencing court ought to consider the accused’s likelihood to reoffend. Mr. Reid does come before the court with a criminal record, although for offences that are unrelated. He participated in an assessment that concluded that he does have an attraction to underage females and a sexualized interest in clothing and costumes. He also has an attraction to adult females and at the time of the report, the author concluded that Mr. Reid has been able to redirect his sexual interests towards adult females. He has been determined to be a low risk to reoffend since he has stopped his substance use and engaged in a more pro-social life.
27Second, the Supreme Court of Canada in Friesen indicated that whether the offender was in a position of trust or authority over the complainant is a factor to consider. Any breach of trust increases the harm to the victim and thus the gravity of the offence. A child will likely suffer more harm from sexual violence where there is a closer relationship and a higher-degree of trust between the child and the offender. In this case, Mr. Reid and Ms. Harris were placed in a position of trust towards HK as babysitters. This is of course a statutorily aggravating factor as well pursuant to Section 718.2(a)(iii) of the Criminal Code. There were 991 images of HK that were found in the possession of Mr. Reid. Not all of these images are child pornography. The non-child pornographic images demonstrate the grooming and the cultivating of a trusting relationship that Mr. Reid and Ms. Harris developed with HK.
28Thirdly, the duration and frequency of sexual violence is an important factor in sentencing. Obviously, the frequency and duration can significantly increase the harm to the victim. In this case there were multiple instances of sexual violence which occurred over a period of time and which were all videotaped.
29Fourth, the age of the victim is a significant aggravating factor since the power imbalance between children and adults is even more pronounced for younger children who are often helpless without the protection and care of their parents. Further, children who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life. In this case the victim was 8-years old. The age of the victim is statutorily aggravating pursuant to Section 718.2(a)(ii.1) of the Criminal Code.
30Fifth, the degree of physical interference is recognized as an aggravating factor because specific types of physical acts may increase the risk of harm. In this case, the victim was rendered unconscious. She was manipulated and posed. She had objects inserted into her vagina. She was masturbated on. And these assaults were recorded and preserved. There was a significant degree of physical interference with HK.
31The size of Mr. Reid's child pornography collection is also an aggravating factor. There were 8210 unique child pornographic images found in Mr. Reid’s collection. Additionally, there were 18 unique child pornographic videos found that totalled 41 minutes.
32In terms of mitigating factors, I take into account the following:
33This is a guilty plea and I do accept this guilty plea to be a sincere form of remorse. This guilty plea was a public acknowledgment of the offences committed.
34The guilty plea has saved significant court time in an era when court time is a very precious commodity. Moreover, this guilty plea spares the complainant in this matter from having to attend court, recount and learn more about the abuse that she has suffered.
35I take into account Mr. Reid's dysfunctional and sad childhood and the fact that he was exposed to sexual activity at an early age not to excuse his conduct but to assist in giving context to his actions and understanding the reason that he lacked the moral compass that should have deterred him from victimizing HK.
36Pursuant to R v. Marshall2 I take into account the exceptionally punitive conditions in the institution where Mr. Reid is currently housed to be a mitigating factor on sentence. As an example of the punitive conditions at the institution, I have been advised that Mr. Reid has been outside for a total of 1-hour since his arrest. Lockdowns in the institution have been frequent and Mr. Reid has had to endure COVID-19 outbreaks which occurred at the institution.
37Both counsels have provided a number of cases to bolster their submissions as to the appropriate length of Mr. Reid's custodial sentence.
38In R v D.G.3 Justice Fiorucci sentenced an offender for sexually assaulting a 7-year old girl by penetrating the child's vagina and anus with his penis. The act was done after watching videos of another offender assault the same child. D.G. was sentenced to 7-years in custody less pre-trial custody. I agree with counsel's submissions, that although this matter was decided prior to Friesen, the principals identified in Friesen are also identified by Justice Fiorucci.
39The additional aggravating facts in the case before me including that there were multiple instances of sexual assault as well as the size of the child pornography collection push the sentence appropriate for Mr. Reid above that which D.G. received.
40In the related case of T.L.4, Justice Gage sentenced the offender to 13-years and 3-months for the abuse of the same child. T.L. also videotaped the assault and distributed that child pornography to others. I agree with counsel's submissions that the aggravating fact of distribution of the created child pornography is not present in the case before me. Similarly, T.L. was the step-father to the complainant which is a more egregious breach of trust than in the case before me. The absence of these more egregious aggravating facts pulls the sentence lower than that which Justice Gage imposed on TL.
41In R v. DaSilva5, Justice Agro sentenced the offender to 8-years less pretrial custody following a guilty plea to two counts of sexual interference and two counts of making child pornography. The 7-year old victim was the same victim in D.G. and T.L. Following a posting of one of the videos T.L. made of himself assaulting the victim, Mr. DaSilva responded to the ad and attended T.L.'s home. DaSilva sexually assaulted the child on two occasions and the assaults were videotaped by T.L. Police also seized devices from DaSilva's residence that contained child pornography.
42The additional aggravating facts in the case before me, namely, the larger child pornography collection, the multiple instances of sexual assault and the grooming of HK, push the sentence higher for Mr. Reid than the one imposed by Justice Agro.
43Having regard to all of the aggravating and mitigating circumstances in the case before me the appropriate global sentence is 10-years less pretrial custody.
44The sentence on count 2 (make child pornography) will be 6-years in custody.
45Pretrial custody of 394 days enhanced to 591 will be applied to count 8 (sexual interference) and a further sentence of 869 days is to be served in relation to that count for a total sentence of 4 years consecutive to count 2.
46The sentence on count 1 (possession of child pornography) and count 10 (possession of child pornography) will be 4-years concurrent to the other two counts.
47I also make the following ancillary Orders.
48Pursuant to Section 109(2)(a) and (b) of the Criminal Code, Mr. Reid is prohibited from possessing any firearm, prohibited firearm, restricted firearm, prohibited weapon, prohibited device, prohibited ammunition, cross-bow, restricted weapon, ammunition and explosive substance for life.
49The offences for which Mr. Reid has been convicted are primary designated offences for the purposes of forensic DNA analysis. Accordingly, I order that Mr. Reid provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.
50Pursuant to Section 490.013(2.1) of the Criminal Code, I make an Order in Form 52 requiring Mr. Reid to comply with the Sex Offender Information Registration Act. This order applies for life since he has been convicted of more than one offence referred to in paragraph (a) of the definition “designated offence” in subsection 490.011(1) of the Criminal Code.
51Pursuant to Section 161(1)(a) of the Criminal Code, Mr. Reid is prohibited for life from attending a public park or swimming area where persons under the age of 16-years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre.
52Pursuant to Section 161(1)(a.1) of the Criminal Code, Mr. Reid is prohibited for life from attending within two kilometers of any dwelling-house where HK ordinarily resides, attends school or works.
53Pursuant to Section 161(1)(b) of the Criminal Code, Mr. Reid is prohibited for life from seeking, obtaining or continuing employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.
54Pursuant to Section 161(1)(c) of the Criminal Code, Mr. Reid is prohibited for life from contacting or communicating by any means with a person who is under the age of 16-years.
55Pursuant to Section 161(1)(d) of the Criminal Code, Mr. Reid is prohibited for life from using the Internet or other digital networks or devices unless its use is for a lawful purpose and you must not access, join or otherwise utilize any file-sharing (Peer-to-Peer) programs or platforms, including but not limited to Limewire, Phex, Shareaza, eDonkey, Bit Torrents and uTorrent, or any similar service designed to share digital content.
56Lastly, I have been provided a draft forfeiture order which has been jointly submitted as appropriate. Pursuant to Section 164.2(1) of the Criminal Code, all items seized and listed in appendix A is forfeited to Her Majesty the Queen in Right of Ontario to be disposed of as the Attorney General for the Province of Ontario directs.
Released: February 25, 2022
Signed: Justice Amanda J. Camara
Footnotes
- 2020 SCC 9
- 2021 ONCA 344
- 2018 ONCJ 770
- 2018 OJ No 940
- 2017 OJ NO 4546