ONTARIO COURT OF JUSTICE
REASONS FOR SENTENCE
Her Majesty the Queen v. Ronald L. Merrick
Before: The Honourable Justice B. Pugsley Date: April 25, 2013 Location: Orangeville, Ontario
IMPORTANT PUBLICATION BAN
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE, BY ORDER OF JUSTICE OF THE PEACE T. MCKEOGH ON DECEMBER 7, 2012
APPEARANCES
J. Rodger – Counsel for the Crown
M. Henein / M. Gourlay – Counsel for the Defendant
REASONS FOR SENTENCE
PUGSLEY, J. (Orally):
Thank you for your patience. Some things take the time they take and I owed it to the parties to spend the time I needed on this matter.
Lance Merrick is a highly successful business man, an intelligent person, well liked by his peers and respected by his friends and family. He also compiled a collection of tens of thousands of child pornography images and hundreds of child pornography movies.
A major police investigation into international child pornography distribution in the City of Toronto led to the seizure of a customer database. Mr. Merrick's name figured in purchases totalling some hundreds of dollars of some of the material sold by the target of that investigation. The investigation subsequently branched off in Mr. Merrick's direction.
On December 7th, 2011, Mr. Merrick was arrested by the O.P.P. in Caledon, Ontario, on charges of possessing and accessing child pornography. He was released on terms of bail. Two computers and an external hard drive were analyzed and large quantities of child pornography were found. Exhibit 2 represents a sample of that material.
On August 9th, 2012, Mr. Merrick was charged with breaching his recognizance and possession of more child pornography. He was again released on strict terms of bail. Another computer containing child pornography was seized but not analyzed.
Mr. Merrick now stands before me for sentencing after pleas of guilt to one time frame count of possession of child pornography from the O.P.P. investigation and the breach of recognizance and one count of possession of child pornography from the Peel Regional Police Service investigation.
Mr. Merrick decided early on that he was going to resolve these charges and waived in the Peel charges to Orangeville for that purpose. Indeed, from early in the court process and before the second set of charges arose, Mr. Merrick's plan was to accept responsibility for his offence. To that end, I have conducted several judicial pre-trials with counsel for the defence and the Crown, culminating in a final pre-trial before Mr. Merrick's plea was entered this morning.
In preparation for those pleas, Mr. Merrick has engaged in an intensive course of assessments and counselling. Crown and defence cooperated in the creation of an Agreed Statement of Facts. The parties agreed that a selection of some representative images and movies from the mass of seized material would be created, viewed by me, summarized and filed as Exhibit 2 herein. Counsel have also helpfully filed their respective case books in a timely fashion to assist me.
The defence has collated and filed an Assessment and Treatment Brief, now Exhibit 4 and a Reference Letter Brief, now Exhibit 5.
Crown and defence have presented what is essentially a joint submission here, save for some slight divergence on some ancillary orders sought by the Crown on sentence. Counsel both fairly summarized the mitigating, neutral and aggravating features of Mr. Merrick's case and agreed on the general range of sentence suggested by the case law for similar offences. Counsel depart from their joint submission only with regard to the wording of some terms on a proposed probation order and whether the entire order of prohibition sought by the Crown under subsection 161(1) of the Criminal Code ought to be imposed.
LEGAL PRINCIPLES
Possession of child pornography is a very serious criminal offence which, upon conviction, engages a mandatory minimum jail sentence. Child pornography is child abuse. The fact that the images and movies of the abused children are of anonymous children, perhaps in a faraway place, does not insulate the viewer from the abuse. The very fact of the viewing of the images perpetuates that abuse, perhaps forever, as the images have no possibility of recall once spread throughout the world on the internet.
There is no suggestion that Mr. Merrick created the images, nor shared them, nor disseminated them. Rather, he represents the end customer for whom an apparently large web of enterprises exists to serve. Without people like Mr. Merrick, who purchase and collect the end product, there is little reason for the creation of such profoundly obscene, abusive and degrading material.
Mr. Merrick's own collection on a total of three computers and a hard drive, contains tens of thousands of images of child pornography and tens of hundreds of movies containing child pornography. This collection tells a tale of incredible child abuse, of tears and degradation. None was created by Mr. Merrick; all of it was created for people like Mr. Merrick. The virtual presence of those thousands of sad young boys watch as he is sentenced today.
As these offences involve the abuse of those under 18 years of age, Section 718.01 of the Criminal Code directs me to give primary consideration to the objective of denunciation and deterrence of such conduct.
EARLY ACCEPTANCE OF RESPONSIBILITY
Early on in his journey through the judicial system, Mr. Merrick decided to take responsibility for his criminal acts and engage in a program of assessment and counselling. That program continued after Mr. Merrick was caught with more child pornography in August of 2012, in Peel Region.
Indeed, Dr. Jonathan Rootenberg, a forensic psychiatrist who assessed Mr. Merrick twice, was able to update his extensive report by a further opinion which considers the second occurrence.
AGGRAVATING FACTORS
In submission, the Crown notes as aggravating factors on sentence, the sheer size of Mr. Merrick's collection, over 100,000 photographs and 1900 movies, the fact that the majority of the images and movies were kept easily accessible for ready viewing, the fact that some material was purchased as opposed to being viewed online on the internet, the nature of the images, going well beyond mere nudity and the somewhat guarded nature of the initial assessment by Dr. Rootenberg.
In his initial report, Dr. Rootenberg notes Mr. Merrick's questioning of whether direct harm was caused to the children in the material and Mr. Merrick's belief that he was going to be able to give up his very frequent accessing of child pornography without any difficulty.
The psychological assessment done at Dr. Rootenberg's request noted that Mr. Merrick was not then motivated to engage in treatment for what was referred to as his child pornography addiction.
As mentioned, Dr. Rootenberg saw Mr. Merrick for a follow-up report after Mr. Merrick was charged in August of 2012. Dr. Rootenberg's diagnosis was not changed and Dr. Rootenberg noted that Mr. Merrick's relapse was seen by the defendant as a wakeup call, such that Mr. Merrick now has greater insight into the steps that he needs to undertake to change his addictive behaviour.
Crown counsel noted that Mr. Merrick was assessed by Dr. Rootenberg as being at a low to moderate risk of reoffending and that he had neither produced nor distributed child pornography. These were said to be neutral factors in sentencing.
MITIGATING FACTORS
Both counsel highlighted a number of features in mitigation of sentence which I adopt.
First, Mr. Merrick has pled guilty. He accepts responsibility for his crimes and demonstrates remorse and a positive attitude towards his rehabilitation. He has no criminal record and is of previous good character. He has the support of his family and the community. He has early on and continually accessed appropriate and focused community resources to address his past criminal tendencies. He has no demonstrated psychopathy. There is no diagnosis of pedophilia nor hebephilia. He has cooperated in the investigation and assessment, including intrusive testing.
His breach of recognizance by way of the possession of further child pornography is, unusually, a sign of a positive insight into his situation where it was present to a lesser degree before. In other words, since being apprehended, Mr. Merrick has largely taken all the right steps to address the root cause of his criminal activity. This is a positive sign for his continued rehabilitation.
The defence submissions also note Mr. Merrick's candour throughout the counselling and assessment process and his insight into the future help he knows he will now need to manage his proclivity to access child pornography. He has, it is submitted, a new understanding of the harm done by his collection of abusive images and movies and that he cannot address his problems alone.
He is a successful business man and has a good relationship with his children and stepchildren, illustrated by the two magnificent reference letters from his own sons. The defendant submits that the nature of the images and movies are less risible, my word, not Ms Henein's, than many and thus the prognosis for treatment is significantly better that than of many sex offenders.
The assessor and Mr. Merrick explored the possible root causes of his child pornography habits and this, too, may lead to a path towards future treatment. Mr. Merrick is not aggressive, does not represent a threat of future physical violence and is very amenable to future treatment.
SENTENCING DECISION
Counsel both reviewed in their material case law supporting a range of sentence in the 6 month to 18 month term of incarceration. On these facts, counsel jointly recommend a sentence of 15 months in jail, with a recommendation that Mr. Merrick be immediately considered for placement at the Ontario Correctional Institute in Brampton where programs exist to allow him to continue his treatment and counselling while in jail.
This represents the higher end of the appropriate range of sentence in recognition of the aggravating features of Mr. Merrick's situation, most notably the large amount of material and the breach of his recognizance in a completely related manner.
Such joint submissions, particularly when made by the exquisitely experienced Crown and defence counsel here, deserve a high degree of credit with the Court in sentencing. Here I find that the joint submission itself is not just credible, but in my view, fully appropriate in all of the circumstances. It strikes a proper balance of denunciation, deterrence and rehabilitation, particularly when combined with the recommendation, joined by Dr. Rootenberg, that Mr. Merrick's sentence be served at OCI. I fully endorse that recommendation.
The facts here call out for the fullest denunciation by the Court of the collection and possession of the abusive and repulsive movies and images collected here by the defendant. It is apparent from Exhibit 5 that Mr. Merrick has two very fine and intelligent sons. One need only contemplate how Mr. Merrick would have felt had images of his sons shown up on his computer to put a face to the anonymous international abuse of children that takes place daily to service the desires of people such as him. Every boy in those thousands of images and movies is someone's son, brother, nephew, playmate or friend.
PROBATION CONDITIONS
Counsel agree that after serving his sentence, Mr. Merrick should be placed on probation for three years on protective terms. Counsel disagree on how extensive the restrictions ought to be on Mr. Merrick's ability to access communication devices, which, as a collateral function, may be used to access e-mail or the internet.
Further, the defence submits that only a Section 161(1) (b) order is required on the facts of this case. Other ancillary orders are made on consent. In my view, the suggested terms of probation need not address every possible way that Mr. Merrick might end up accessing e-mail or the internet. If he is going to do so in the next four years, then he will likely find a way to do so and will bear the consequences of his breach.
It is through counselling and self discipline, more than the strong arm of the law, that Mr. Merrick will come to address in a continuing way his past criminal proclivities. I see no basis on this record to restrict Mr. Merrick's activities under subsection 161(1) (a), rather, I rely upon the available medical evidence that Mr. Merrick does not personally represent a risk to children that he may come into casual contact with. I am going to ask you now to stand up, please, Mr. Merrick.
THE SENTENCE OF THE COURT
The following is, therefore, the sentence of the Court:
On the O.P.P. count of possession of child pornography, you are sentenced to serve 15 months in the Provincial Reformatory. On the breach of recognizance from Peel, the sentence is 30 days concurrent. On the possession of child pornography from Peel, the sentence is 15 months in custody concurrent. The total sentence is, therefore, 15 months in custody.
The Warrant of Committal shall be endorsed with my strong recommendation that Mr. Merrick serve his sentence at the Ontario Correctional Institute in Brampton. A copy of these reasons prepared please, on an expedited basis, shall be made available to the Correctional authorities as soon as possible. Copies of Exhibit 4, the Treatment and Assessment Brief shall be sent by the court office to the Probation Officer as soon as possible.
PROBATION ORDER
Upon release, Mr. Merrick will be placed on probation for three years. The terms of that probation are as follows:
You will keep the peace and be of good behaviour.
You will return to court as required.
You will report to a Probation Officer forthwith upon your release from custody and thereafter as required by your Probation Officer.
You will take such counselling, assessment and/or treatment as may be directed by your Probation Officer, including in any event, the following:
You shall contact Manasa Clinic within one week of your release in order to make arrangements for treatment and/or counselling and shall attend and be amenable to treatment from that clinic until discharged from such care.
You will cooperate in the flow of information back to your Probation Officer with respect to any counselling, treatment and/or assessment that you may become engaged in, including signing any releases necessary so that the Probation Officer can access the service providers directly.
You will promptly notify your Probation Officer of any change in your address, employment or occupation.
You will not possess any weapons as defined by the Criminal Code of Canada.
You will not associate with any other person convicted of a sexual offence, save and except as may be incidental to your treatment or counselling.
You will reside where approved of by your Probation Officer and shall not reside in a residence where children under 18 years of age reside, save and except your child or stepchild.
You will remain within the Province of Ontario, save and except with the written permission of the court or your Probation Officer, such permission to be specific to each absence from Ontario.
You will have no contact or communication with a child under 18 years of age, other than your child or stepchild, unless in the company of an adult over 21 years of age who is approved of in advance by your Probation Officer.
You will not possess nor access any images of children who are, are depicted to be, or appear to be, under the age of 18 years who are naked or who are portrayed in a sexual manner.
You will not possess any device capable of accessing the internet or composing, transmitting or receiving electronic mail or any digital text communications unless the possession or use of such device is required for the purposes of employment and the possession or use of such device is required at the place of employment only, and you have obtained the written permission of the Probation Officer for the proposed possession of the device in these circumstances and for the purposes of employment only.
Further, even where written permission is obtained by you from the Probation Officer to possess any electronic device for the purposes stipulated therein, you shall not be permitted to have an electronic mail account without the prior written approval of your Probation Officer. Where approval for an electronic mail account is granted, you are permitted to have only one e-mail account, which you will not change or use to create any other e-mail account and, in addition, you shall provide the Probation Officer with accurate, up-to-date information regarding your internet service provider account. This information includes, but is not limited to, the name of the internet service provider and your account number and billing address.
You will not use any electronic device to communicate with a person under the age of 18, save and except your child or stepchild.
You will not use any electronic device to access internet chat rooms or social networking sites and you will provide any encryption codes or encryption passwords necessary to permit the random inspection of your electronic device for the purpose of monitoring your compliance with the terms of this order.
Do you understand those terms of probation, sir?
RONALD MERRICK: Yes.
THE COURT: It is a serious matter to breach this court order. If you do so and you are convicted of that, you could quite easily go back to jail. Do you understand?
RONALD MERRICK: Yes.
THE COURT: If this order needs to be reviewed or changed, and three years is a very long time, you can bring the matter back before the Court and ask the Court to consider whether to change the terms of the order. You can do that through your lawyer or your Probation Officer or even by going to the counter at the courthouse yourself, and your request will be placed before the Court for consideration.
In a few minutes you will receive a copy of this probation order. It sets out what your rights are but also what your duties are under that order. Please make sure you understand your rights and your legal obligations. If you have any questions, take them up by talking to your lawyer or your Probation Officer to clear those questions up.
ANCILLARY ORDERS
Pursuant to subsection 161(1) (b) of the Criminal Code, you are hereby prohibited from seeking, obtaining or continuing any employment, whether or not the employment is renumerated 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.
You will provide a sample of your DNA to the National DNA Databank today, before being transported from the building.
The computer equipment seized by the O.P.P. and the Peel Regional Police Service shall be forfeit to Her Majesty. I am assuming there is a draft order.
MS RODGER: There is, Your Honour.
THE COURT: Has it been shown to your friends?
MS HENEIN: It has, thank you.
THE COURT: All right. I will sign that order then.
Under Section 110 of the Criminal Code, for 10 years you will not possess any firearm, explosive device and for 10 years under the SOIRA Sexual Offences Registry, you will be registered under that registry. Have I forgotten anything, counsel? It is fairly complicated.
MS HENEIN: Just the, just the length of time, Your Honour, on the 161(1)(b). It's discretionary and I believe my friend had submitted for 10 years.
THE COURT: I didn't note that. Is there any issue with that from the standpoint of, I see that on the item I received during the pre-trial. So the 161(1)(b) order will be for 10 years, sir. Again, anything else I missed. It is a fairly dense order.
MS HENEIN: No, thank you.
MS RODGER: I don't think so, thank you, Your Honour.
THE COURT: All right. The other counts?
MS RODGER: They, they, I would request they be marked withdrawn.
THE COURT: All right, the other counts are marked withdrawn at the request of the Crown and, Madam Clerk, the Warrant of Committal will make the endorsement for OCI that I already mentioned. The defendant is going to have to take some steps as well to try and make sure that that is given effect to on a fairly speedy basis.
MS HENEIN: Thank you.
THE COURT: I think it is an excellent place. That is where you are going to continue your counselling, sir and I have the best of hopes for the future, for you and your relationship with your family and the world at large because you are smart enough to know how to stop this.
RONALD MERRICK: Absolutely.
THE COURT: All right, good luck, sir.
WHEREUPON THIS MATTER CONCLUDES
TRANSCRIPT INFORMATION
Transcript Ordered: April 25, 2013
Transcript Completed: April 30, 2013
Ordering Party Notified: April 30, 2013