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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 —
HEATHER HARRIS
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
K. Hepburn counsel for the accused Heather Harris
1Heather Harris faces sentencing having entered a plea of guilty to one count of make child pornography contrary to Section 163.1(2) 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.
12Of the material seized, there were 983 images found involving HK specifically; many of HK’s images meet the definition of child pornography. Six sexual abuse sessions were videotaped and/or photographed.
B. Circumstances of the Offender
13Ms. Harris is 48-years of age. She has 4 children: a daughter who is 28-years old and 3 sons whom she shares with Mr. Reid. She has a grade 12 education and has sporadic employment. Currently, she is on Ontario Disability for underlying mental health issues.
14Ms. Harris does have significant family support from her three sons. Over the past year she has lost both her mother and her partner which has been very traumatic for Ms. Harris.
15At the time of this offence, Ms. Harris was in a toxic and abusive relationship with Mr. Reid. She lacked economic stability and was very much dependent upon Mr. Reid for financial support. She is and was an alcoholic and was using substances at the time of the offence as well. She has been diagnosed with an alcohol abuse disorder, a major depressive disorder and anxiety. She was assessed by Dr. Bradly to be a low-risk to reoffend and is very likely a one-time sexual offender.
C. Position of the Parties
16Counsel have jointly submitted that the appropriate disposition for this offence is 5-years in custody along with a series of ancillary orders.
D. Legal Principles & Analysis
17The 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.
18Sentencing 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.
19Following 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.
20The 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.
21The 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.
22First a sentencing court ought to consider the accused’s likelihood to reoffend. Ms. Harris also comes before the court with a Criminal record, although for offences that are unrelated. She has also had an assessment which reveals a long-standing addiction to alcohol. Significant to the joint submission is the finding of Dr. Bradley that Ms. Harris has a lower level of moral blameworthiness as she is not the primary sexual perpetrator in the factual matrix before this court. She certainly participated and understood the consequences of her actions but was not the primary perpetrator. The assessor determined that she is a low risk to reoffend sexually.
23Second, 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.
24Thirdly, 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.
25Fourth, 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.
26Fifth, 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.
27In terms of mitigating factors, I take into account the following:
28This 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.
29The 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.
30I take into account that Ms. Harris has some significant mental health issues for which she recognizes she needs treatment. Her addiction to alcohol is at the forefront of issues that she needs to address on her road towards rehabilitation. Alcohol has impaired her judgment, affected her ability to work and left her vulnerable financially and emotionally. The insight she has demonstrated into her addiction supports Dr. Bradley’s conclusion that her rehabilitative potential is positive.
31Having regard to all of the aggravating and mitigating circumstances in the case the joint submission presented is appropriate and is not contrary to the public interest. As such, I will accede to the joint submission and impose a sentence of 5-years in custody.
32I also make the following ancillary Orders.
33Pursuant to Section 109(2)(a) and (b) of the Criminal Code, Ms. Harris 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.
34Ms. Harris has been convicted of a primary designated offence for the purposes of forensic DNA analysis. Accordingly, I order that Ms. Harris provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.
35Pursuant to Section 490.013(2)(b) of the Criminal Code, I make an Order in Form 52 requiring Ms. Harris to comply with the Sex Offender Information Registration Act. This order applies for 20 years since the offence she has been convicted of has a maximum term of imprisonment of 14 years.
36Pursuant to Section 161(1)(a) of the Criminal Code, Ms. Harris 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 except when in the presence of another adult that has knowledge of this order.
37Pursuant to Section 161(1)(b) of the Criminal Code, Ms. Harris 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 14 years.
38Pursuant to Section 161(1)(c) of the Criminal Code, Ms. Harris is prohibited for life from using a computer system within the meaning of Section 342.1(2) of the Criminal Code of Canada for the purpose of communicating with a person under the age of 16-years.
39Pursuant to Section 161(1)(d) of the Criminal Code, Ms. Harris is prohibited for life from using the Internet or other digital networks or devices for any unlawful purpose.
40Lastly, 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