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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 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.

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 — (1) 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.

Court Information

Ontario Court of Justice

Date: 2018-10-30

Court File No.: Hamilton Information No. 16-3908

Between:

Her Majesty the Queen

— AND —

D.G.

Before: Justice J.P.P. Fiorucci

Sentencing Submissions Heard: October 26, 2018

Reasons for Sentence Released: October 30, 2018

Counsel:

• J. Booy, counsel for the Crown
• S. Bernstein, counsel for the offender D.G.

FIORUCCI J.:

INTRODUCTION

[1] On April 16, 2016, D.G. sexually assaulted E.C., a seven year old girl. E.C. was the daughter of T.L.'s common law girlfriend. T.L. and D.G. were friends. The sexual assault was videotaped by T.L. using a cellphone.

[2] D.G. entered a plea of guilty to Sexual Interference. He entered a not guilty plea to Making Child Pornography. Following a trial, I convicted D.G. of Making Child Pornography.

[3] The following are my reasons for sentence with respect to the two offences for which D.G. has been convicted.

[4] Very few offences shock the collective consciousness, and shatter the trust of a community like those perpetrated by adult sexual predators who prey upon and exploit defenceless, innocent children for their own sexual gratification. It is at this point, where the unimaginable intersects with reality that a sentencing Judge is called upon to perform the most difficult task of imposing a just and fit sentence for the particular offender, knowing full well that no sentence can begin to heal the devastating harm inflicted on the young victim, her family, and the community at large.

[5] For the sentencing Judge, there is no mathematical equation into which data is inputted to compute the appropriate sentence. As one Justice rightly observed, sentencing is "an enterprise of the heart and mind, not the impersonal product of a computer".

[6] However, the Ontario Court of Appeal has offered clear guidance that "when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it". While an "offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence".

THE OFFENCE

[7] D.G.'s sexual assault of E.C. involved him partially penetrating E.C.'s vagina and anus with his penis, while T.L. held his cell phone videotaping the abuse. This act was committed after D.G. watched child pornography videos that T.L. had previously created of E.C., showing T.L. sexually abusing E.C., and after D.G. watched T.L. sexually assault E.C. live.

[8] The sexual assault occurred in E.C.'s own home, in the early morning hours when others in the home were asleep. I will discuss the circumstances leading to the offences and the details of the offences more fully when I review the aggravating factors.

IMPACT ON THE VICTIM

[9] T.L. was convicted and sentenced for offences committed in relation to E.C. In sentencing Mr. L., Gage J. noted that Mr. L. had orchestrated participation by at least three other adults in the sexual abuse of his step-daughter, E.C.

[10] I was provided with the reasons for sentence in T.L.'s case, as well as the sentencing decisions relating to the other individuals who participated, to varying degrees, in T.L.'s web of abuse of E.C.

[11] I mention these other offenders at this point, while discussing the impact of D.G.'s offences on the victim, because it is important to give proper context to the victim impact statements which were filed in D.G.'s case.

[12] E.C. drew a picture which was filed as Exhibit 9 in the proceedings. This same drawing was also filed in the proceedings relating to another offender who sexually abused E.C., in R. v. DaSilva. Agro J. described the picture as depicting two "stick" people. I accept Agro J.'s interpretation of E.C.'s drawing:

One such person I take to be E.C., with long blonde hair, a sad face and what appears to be multiple tears streaming from each side of her face. The other "stick" person is clothed in black with the word "you" over the head and additional text that is difficult to interpret.

[13] Agro J. notes that the drawing emphasizes the loss of innocence of "a seven year old who is only able to express herself in drawings".

[14] It is important to note that the picture appears to depict a female person under "you". E.C.'s drawing, and the Victim Impact Statement submitted by her aunt, T.C., understandably address the harm occasioned by all those who committed offences as part of what I have described as T.L.'s "web of abuse of E.C.". Mr. G. was part of that web, and contributed to the impact upon the victim and her family. It is understandable that for E.C. and T.C. it is difficult, if not impossible, to unravel and distinguish the harm committed by each offender.

[15] T.C.'s Victim Impact Statement was filed as Exhibit 7 in the proceedings. It explains in great detail the harm she has suffered, as E.C.'s aunt, as a result of the offences perpetrated by each of the adults invited by T.L. to sexually abuse E.C. She feels that she failed her niece and that somehow she "should have noticed the warning signs… but there were none". No doubt she will continue to live with "the feelings of guilt, shame, anger, sadness and loss." She has gone into isolation, struggled with anxiety, depression, and nightmares. T.C., and the rest of E.C.'s family, will continue to struggle with the loss of E.C.'s innocence occasioned by the actions of each of the perpetrators, of which D.G. is one.

CIRCUMSTANCES OF THE OFFENDER

[16] I have considered the Pre-sentence Report, and the Book of Documents for the Accused, which was made Exhibit 10 in the proceedings, and the submissions of Mr. G.'s counsel.

[17] D.G. was 35 years old when he committed these offences. He is now 38 years old. He has no prior criminal record. He is being sentenced as a first offender.

[18] Mr. G. started drinking alcohol as a teenager and he reports a problem with alcohol since then. He regularly consumed alcohol on the weekends and always to the point of intoxication. He acknowledged that alcohol affected his finances, employment and family relationships.

[19] Mr. G. has also experimented with drug use. He described himself to Dr. Mamak as a daily user of marihuana. He reports that he was introduced to methamphetamine about ten years ago, which he used about once or twice a week over the course of three years. When he discontinued the meth use, he experimented with cocaine a few times in 2016. According to D.G., T.L. introduced him to cocaine about a year before his arrest. He used cocaine on occasions with T.L., and also when he was on his own.

[20] Mr. G.'s mother and sister both expressed concern about Mr. G.'s alcohol and drug use. His sister described him as a "severe alcoholic".

[21] Mr. G. reported to the preparer of the Pre-sentence Report that he tried to attend a rehabilitative program unsuccessfully in the past. He also expressed an interest in attending an addictions program.

[22] Dr. Mini Mamak, a Psychologist, conducted a psychological risk assessment of Mr. G. to assist for sentencing. Her original report, dated November 20, 2016, was filed with the Court. Dr. Mamak conducted a phallometric evaluation of D.G. on January 17, 2017, the results of which are contained in Dr. Mamak's letter dated February 1, 2017, which has also been filed with the Court.

[23] Dr. Mamak's report states that Mr. G. has not been involved in any programming during his detention at the Hamilton Wentworth Detention Centre awaiting trial and sentencing for the current offences.

[24] Mr. G. was born and raised in Timmins, Ontario. He described his childhood to Dr. Mamak in mixed terms. He has a twin brother, two older brothers, and one older sister. He stated that his mother and father separated when he was a baby, and that he had little contact with his father growing up. His mother became involved with a man who abused alcohol and was physically and emotionally abusive towards her and the children.

[25] Mr. G. stated that his mother would drink alcohol to excess on occasion, but he was hesitant to describe her drinking as being a problem. Mr. G. has had limited contact with his mother since he moved to Hamilton. He has a close relationship with his sister and twin brother, who both reside in Hamilton, but not with his other siblings. He described his sister as his primary social support.

[26] Mr. G. reported to Dr. Mamak that, in addition to the physical abuse he experienced at the hands of his step-father, he was also sexually abused on one occasion by one of his brother's friends when he was 11 years old. He was also sexually abused by his step-father's son on several occasions over the course of a one year period. He believes he was 12 years old at the time. The details of the sexual abuse are contained in Dr. Mamak's November 20, 2016 report.

[27] Both Mr. G. and his twin struggled in school. Mr. G. attended a vocational high school and enrolled in basic level classes. He dropped out of school in grade 10.

[28] Mr. G. has three children. He and his high school girlfriend had a daughter together, who is currently 18 years old, and was raised by Mr. G.'s mother. Mr. G. reported to Dr. Mamak that he had very limited contact with this daughter. Mr. G. also has two more children from a common-law relationship – a 14 year old son, and a 10 year old daughter.

[29] J.G., D.G.'s daughter, provided a letter of support, which was filed with the Court. In this letter, J.G. describes Mr. G. as a good and loving father, and speaks at length about the regular contact she has had with her father, and the positive influence he has been on her life.

[30] Mr. G. has had what Dr. Mamak describes as "a generally stable employment record". His employment history is documented in detail in the Pre-sentence report, and especially in Dr. Mamak's November 20, 2016 report.

[31] Dr. Mamak stated in her report that it seems that Mr. G. is "vulnerable to peer influence given not only the index offence, but his reports of being introduced to methamphetamine by a co-worker".

[32] According to Dr. Mamak, psychological testing confirms that Mr. G. functions in the extremely low range. Dr. Mamak states that he "did minimize his offending behaviour" during the assessment, "but it is suspected that he did so out of embarrassment/shame rather than an attempt to deceive".

[33] In terms of Intellectual/Cognitive Functioning, psychological testing confirmed that Mr. G. has low intellectual functioning, with particular weaknesses in the areas of attention and memory, and relative strength in language and visuo-spatial skills. Dr. Mamak notes, however, that despite these limitations, his adaptive functioning has been a significant strength. His judgment was found to be "well within the average range, suggesting intact problem solving and judgment skills". In this regard, Dr. Mamak noted that he was involved in a relationship for 12 years, held stable employment for many years, and has been able to live independently.

[34] Dr. Mamak conducted testing to assess Mr. G.'s risk of re-offending sexually. She notes that the results of this testing suggest that Mr. G. is a low risk to re-offend in a sexual manner. However, she notes that areas of concern include his association with anti-social peers and poor problem solving.

[35] With the information available to her, Dr. Mamak's opinion is that "Mr. G.'s offences are a function of his involvement with Mr. L. rather than an underlying paraphilia (although this is to be ruled out with phallometric testing)". Dr. Mamak suspects that Mr. G.'s cognitive limitations and the effects of substances made him vulnerable to "the influence of a seemingly more deviant and antisocial male".

[36] Phallometric testing results for Mr. G. were inconclusive. In the February 1, 2017 addendum to her report, Dr. Mamak stated that "no conclusions could be made about his sexual interests, or the absence of deviant arousal". Accordingly, "the presence of a deviant sexual preference cannot be ruled out". Dr. Mamak stands by her initial risk assessment, unless additional information comes to light, such as a valid profile on another phallometric test.

[37] Dr. Mamak proposes treatments for his Alcohol Abuse Disorder and Cocaine Abuse Disorder, as well as treatment to address his ability to manage peer influence and relationships as a means to further ameliorate the risk of re-offending.

[38] Dr. Mamak states in her report that Mr. G. accepts responsibility for his offending behaviour and his expressions of remorse appear to be sincere. Although he minimized key details, she suspects that this is due to shame and guilt rather than attempts to evade responsibility.

AGGRAVATING AND MITIGATING FACTORS

[39] I find the following to be aggravating factors in D.G.'s case:

(1) D.G. became aware of T.L.'s sexual abuse of his step-daughter a month to two months before April 16, 2016, when he watched about ten different homemade videos of T.L. sexually abusing E.C.;

(2) On April 16, 2016, T.L. invited D.G. to come over to his house to sexually assault E.C. D.G. accepted this invitation and went there with the intention of sexually assaulting E.C. He conceded that his decision to take his turn with E.C. was his own "free choice" and that he decided to do it because he wanted to try it;

(3) As a lead up to sexually assaulting E.C., T.L. and D.G. watched numerous videos of T.L. sexually abusing E.C., and a video T.L. surreptitiously made of his 16 year old step-daughter naked in the bathroom. After watching this homemade child pornography, T.L. brought E.C. from her bed, in the early morning hours, and sexually abused her, while D.G. watched the abuse. D.G. was comfortable watching firsthand the perpetuation of the egregious breach of trust perpetrated by T.L. on E.C.;

(4) When D.G. took his turn with E.C., he partially penetrated her vagina and her anus while T.L. participated and assisted in the sexual assault. Two adult males sexually abusing a defenceless child in her own home in the early morning hours;

(5) E.C.'s young age at the time of the sexual assault;

(6) D.G.'s sexual abuse of E.C. was videotaped by T.L., which made further homemade child pornography available to T.L. to entice others to participate in his web of abuse of E.C.;

(7) The long-lasting and devastating effects the sexual abuse will have on E.C., and her family.

(8) D.G. did nothing to stop the abuse against E.C., that he must have known would likely continue.

[40] The following are mitigating factors in D.G.'s case:

(1) He entered a guilty plea to Sexual Interference which is an acknowledgement of responsibility and willingness to be held accountable for that offence. His not guilty plea to Making Child Pornography is not an aggravating factor, nor is his continued assertion of innocence following the guilty verdict I rendered following the trial;

(2) His guilty plea to Sexual Interference, and the manner in which he conducted his trial on the charge of Making Child Pornography spared E.C. from having to testify at trial;

(3) D.G. has no prior criminal record;

(4) He expressed genuine remorse for having sexually assaulted E.C.;

(5) Notwithstanding the challenges he has faced in his life, including his intellectual/cognitive limitations and the abuse, including sexual abuse he suffered, he has been able to maintain regular employment and has family supports. If he is sincere about addressing his substance and alcohol abuse through treatment, he has positive prospects of rehabilitation. On the facts as known to Dr. Mamak, D.G. is a low risk to re-offend in a sexual manner, although the results of phallometric testing to date are inconclusive.

SENTENCING PRINCIPLES

[41] I have reviewed the numerous authorities provided to me by counsel for the Crown and counsel for D.G. Sentences for these types of offences range from single digit to high double digit penitentiary terms, depending upon the particular circumstances of each case, and the circumstances of the offender. As noted above, the objectives of denunciation, deterrence, and the need to separate sexual predators from society take precedence.

[42] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[43] Evidence that an offender, in committing the offence, abused a person under the age of eighteen years is a statutorily aggravating factor.

[44] A sentence for possessing or producing child pornography must be consecutive to any sentence of imprisonment imposed for another sexual offence against a child.

[45] The Ontario Court of Appeal decision of R. v. D.D. is often cited in cases involving the sexual abuse of children. The words of Moldaver J.A. highlight the importance of denunciation and deterrence when dealing with those who sexually assault children:

Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!

[46] Moldaver J.A. recognized that sentencing ranges are not meant to be fixed and inflexible:

On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

[47] In R. v. D.G.F., the Ontario Court of Appeal spoke about the creation and dissemination of child pornography in the following terms:

Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.

POSITION OF THE PARTIES

[48] The Crown seeks a sentence of 8 years jail less credit for pre-sentence custody served. The Crown also seeks various ancillary Orders.

[49] Counsel for D.G. submits that a review of the authorities, including the sentence received by T.L., and the circumstances of D.G., support a sentence of 5 ½ years at the high end of the range less credit for pre-sentence custody.

THE SENTENCE

[50] The sentencing decisions for T.L., and the other perpetrators who sexually abused E.C., or participated in child pornography offences involving E.C., are of assistance in arriving at a fit and just sentence in D.G.'s case. The parity principle in section 718.2(b) states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances".

[51] T.L., and the others involved in the abuse of E.C., were sentenced in accordance with the particular circumstances of the offences they committed and the particular circumstances of each offender. I am required to do the same for Mr. G. I recognize that I am not tasked with sentencing T.L. Nor is my task to simply do a mathematical assessment or comparison of the relative seriousness of D.G.'s offences vis a vis T.L.'s offences.

[52] Counsel for Mr. G. urges me to recognize that D.G. was not co-accused with T.L. and must be sentenced only for sexually assaulting E.C. one time, when he was vulnerable to the effects of cocaine and alcohol, and the influence of the more deviant T.L.

[53] However, T.L.'s abuse of E.C. is properly one factor which must be considered when imposing sentence for all those who accepted his invitation to be actors in his perverted show, with E.C. the innocent prop. Those who accepted Mr. L's invitation, including D.G., encouraged the perpetuation of his horrendous victimization of his step-daughter and, in a way, aided and abetted in the continuation of his egregious breach of trust. Without those willing participants, including D.G., T.L. would not have had the actors necessary to continue to produce the homemade child pornography, and to continue to victimize E.C. in the process of producing the child pornography.

[54] The case of R. v. DaSilva provides the most factually similar set of circumstances to D.G.'s case, with some exceptions of course. D.G.'s case lacks some of the aggravating features of the DaSilva case, such as the two acts of sexual interference and making child pornography, Mr. DaSilva's introduction of a third party, Sonya Lucas, to the abuse of E.C., and the possession of child pornography when he was arrested. Mr. DaSilva, also a first offender, received a global sentence of 8 years in the penitentiary less credit for pre-sentence custody.

[55] With respect to D.G., taking into account the aggravating and mitigating circumstances, which I outlined above, and having reviewed the authorities, I find that a global sentence of 7 years in the penitentiary less credit for pre-sentence custody is the appropriate sentence. Applying a credit of 1.5 days for each day served (892 days), I calculate the time served as 3 years and 243 days, or 3 years and 8 months.

[56] The 3 years and 8 months of pre-sentence custody served is applied to the Sexual Interference offence and a further 2 years jail is to be served in relation to that offence. For the offence of Making Child Pornography, Mr. G. is sentenced 1 year and 4 months jail consecutive to the Sexual Interference offence. The remainder of jail to be served, therefore, is 3 years and 4 months.

[57] I also make the following ancillary Orders.

[58] Pursuant to Section 743.21(1), while Mr. G. is serving the custodial period of his sentence, he is prohibited from communicating, directly or indirectly, with E.C., T.C., or any member of their immediate family.

[59] Pursuant to Section 109(2)(a) and (b) of the Criminal Code, Mr. G. 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.

[60] Both offences for which Mr. G. has been convicted are primary designated offences for the purpose of forensic DNA analysis. Accordingly, in relation to both the Sexual Interference and Making Child Pornography convictions, I order that Mr. G. provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.

[61] Counsel for the Crown and Mr. G. jointly provided me with a draft Section 161 Criminal Code Order that I have reviewed and find to be appropriate in the circumstances of this case. Accordingly, Mr. G., will be subject to the following Order for life:

(1) Pursuant to Section 161(1)(a), he is not to attend a public park or public 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;

(2) Pursuant to Section 161(1)(b), he is not to seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(3) Pursuant to Section 161(1)(c), he is not to have contact - including communication by any means - with a person who is under the age of 16 years, unless he does so during the course of legitimate employment while in the immediate presence of another person over the age of 18 years, or if he is visiting a family member under the age of 16 years and he is in the presence of another person over the age of 18 who is approved of by the young person's legal guardian;

(4) Pursuant to Section 161(1)(d), he is not to use or access the Internet or other digital network unless he does so for one of the following purposes:

(a) For the purpose of electronic banking at a financial institution or store;

(b) On his own personal telecommunications device:

(i) for which he has provided Detective John Tselepakis of the Hamilton Police Service or his designate, in writing the make, model, serial number, IMEI and service provider as well as any telephone number connected with the device;

(ii) which is equipped with software or hardware that blocks access to:

(A) Social networking sites (including but not limited to Facebook, Twitter, and Tumblr);

(B) Peer-to-peer file sharing networks (including but not limited to motherless, limewire, gnutella, bearshare); and

(iii) which does not have scrubbing software installed, and does not save files in an encrypted fashion.

(c) Where he is not self-employed, Mr. G. may use or access the Internet or other digital network at his place of business, for business purposes and in accordance with IT and other policies at his place of business;

(d) Mr. G. is not to use any telecommunication device to access the Internet or other digital network in order to access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material; and

(e) Mr. G. is to submit any computer or telecommunication device he may own to the Hamilton Police Service immediately when requested to do so by the Hamilton Police Service for forensic analysis to ensure compliance with these conditions, and he is to cooperate fully with the Hamilton Police Service in the conduct of that inspection.

[62] Pursuant to Sections 490.012 and 490.013(2.1) of the Criminal Code, I make an Order in Form 52 of the Criminal Code requiring Mr. G. 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.

Released: October 30, 2018

Signed: Justice J.P.P. Fiorucci