Court File and Parties

Date: June 28, 2018

Court File No.: 0411-998-17-2008-00

Ontario Court of Justice

Her Majesty the Queen

v.

Darren Partsch

Sentence

By the Honourable Justice T. Brown

on Thursday, June 28, 2018, at Ottawa, Ontario

Appearances

• K. McVey – Counsel for the Provincial Crown
• D. Lamb – Counsel for Darren Partsch

Reasons for Sentence

BROWN, J.: (Orally)

Darren Partsch appeared before me on April 4th, 2018 and pled guilty to possessing child pornography between February 1st, 2017 and June 1st, 2017, contrary to Section 163.1 of the Criminal Code of Canada.

The Crown elected to proceed by indictment in this matter. The facts were read in at that time and a number of exhibits filed and I made the requested finding of guilt. The matter was adjourned to June 13th, 2018 for the Crown to supplement the record with further evidence and for the submissions of Crown and defence counsel as to the appropriate sentence in this case.

The Crown's election triggers, of course, the application of mandatory minimum penalties set out in the Criminal Code for the possession of offence of child pornography. This means that Mr. Partsch faces a minimum of one-year incarceration. The facts in this case are as follows:

Facts

On April 24th, 2017, Detective Casimir of the Ottawa Police Service, Internet Child Exploitation Unit commenced an investigation into a report of child pornography being uploaded by an unknown person from a site known as "Chatstep". The upload of seven suspected images of child pornography was reported by Chatstep to the National Reporting Centre. Detective Casimir reviewed the images and determined that all seven met the legal definition of child pornography. The Internet Protocol address for the upload was associated to the accused before the Court, Mr. Partsch, and his residential address.

On June 1st, 2017, a search warrant was executed at Mr. Partsch's home. Detective Casimir confirmed the presence of child pornography on a computer inside the residence. A number of CDs were also located, with labels cataloguing their contents by age, the nature of the abuse, and/or the gender of the children being abused. In total, the police discovered 2,053 images of child pornography, 863 of which were unique images; the remaining 1,190 images were duplicates. The police also discovered six videos of child pornography, five of which were unique, and one of which was a duplicate. Ultimately, Mr. Partsch was arrested at his place of employment.

Although the Crown has established and Mr. Partsch has admitted his possession of these images and videos, the Crown did not seek to prove as an aggravating factor on sentence in this case that Mr. Partsch uploaded the images. Mr. Partsch has always maintained that he did not upload those images and I do not consider that information as part of my sentence.

Detective Casimir reviewed and categorized the images and videos discovered in Mr. Partsch's home. The images were mostly of females between the ages of two to ten years of age, but also included some infants. The images were sexually explicit in nature, and many depicted these children in acts of oral, vaginal and anal intercourse with adult males.

Crown Evidence on the Sentencing Hearing

To assist the court in understanding the severity of the abuse depicted in the child pornography possessed by Mr. Partsch, the Crown called evidence from Detective Casimir at the sentencing hearing. Detective Casimir put together a representative sample of five images from the collection of 863 unique images, along with the five unique videos of child pornography, and showed them to the Court. The images selected were not necessarily the "worst" of those contained in Mr. Partsch's collection, but were meant to provide a fair sense of the general nature of the abuse depicted in the collection.

One of these images depicts a four-year-old girl holding an erect adult penis in her mouth, while her vagina is exposed. A second image depicts a six to eight-year-old girl with her legs spread apart and her vagina exposed. A third image shows a roughly 12-year-old girl wearing transparent lingerie, sitting and facing the camera with her legs spread apart. A fourth depicts a four-year-old girl naked on a bed, her legs spread, exposing her vagina. Her hands are bound with rope that is attached to the bed. The fifth image is an approximately two-year-old girl, sleeping naked on her back. Her legs are spread, her vagina exposed, and her stomach and vagina are covered in semen. An erect penis is seen near her vagina. All of these images involve actual people; none are cartoons or drawings.

The five videos vary in duration from 4 to 20 seconds a piece. Video 1 shows two naked girls between 10 and 14, kissing on a bed. Video 2 shows a naked girl between 8 and 10 years old having vaginal intercourse with an adult male. Video 3 shows a naked girl and boy, each between 8 and 10 years old, having sexual intercourse. Video 4 shows two naked boys between 10 and 14 having sexual intercourse. And Video 5 shows two naked boys between the ages 10 to 12 masturbating one another.

The Crown also filed the evidence of Detective Carr given before my colleague Justice Doody of the Ontario Court of Justice at the sentencing hearing in R. v. Inksetter. That evidence establishes, as was noted by our Court of Appeal, when the Inksetter case reached that court, that the incidents of child pornography seems to be increasing and expanding as technology becomes more sophisticated; that child pornography is more readily and easily accessed as the technology develops; that the number of reports of child pornography crime coming into the Ottawa ICE unit is more than they can keep up with; and that the images and videos of child pornography that they investigate continues to become more depraved.

I have described the child pornography materials seized in this matter in the level of detail that I have for two reasons: First, in these courts, we have a natural tendency to want to summarize and provide generic descriptors of the images and videos of child pornography that we encounter. This is a natural self-defence mechanism used by Crowns, defence lawyers and judges to deal with the traumatic content of these images, and this is not meant to be taken in any way as a criticism. But general descriptors risk glossing over just how depraved and disturbing these images of abuse can be, and it is important that we give due recognition to them for what they are.

Second, I want to make the point that as graphic as the written descriptions can be, written descriptions seldom do justice to the actual content of the images and videos themselves when viewed. Adjectives inadequately capture just how horrific and how truly haunting, the abuse suffered by these young victims really is. The pain, shame, confusion and humiliation suffered by these children can often be seen etched on their faces. And it is important for us as criminal justice system participants to be witnesses to their suffering, to acknowledge it, confront it and to deal with it. We need to do so in order to ensure that the victims of these offences and the community at large can be satisfied that our courts have a real appreciation for the gravity of this form of abuse.

Defence Evidence

Mr. Partsch is a 42-year-old first offender with mild cerebral palsy. He graduated from university with a bachelor in science, has had a stable employment history, and until his workplace arrest he had been working at MBNA. His arrest led to the termination of a good job that paid him 48 thousand dollars a year. His outstanding charges left him with dim employment prospects, and the only work he could find after being terminated was at a Tim Horton's restaurant, from which he was laid off when the minimum wage requirements were increased. He has a good and supportive family. He pleaded guilty to these charges at a fairly early opportunity, considering that his counsel had to await the breakdown and classification of the child pornography materials seized in this case before advancing the case to plea stage.

Defence counsel filed with the Court a volume of materials for the Court's consideration. The volume includes a letter authored by Mr. Partsch himself, in which he demonstrates remorse for his actions, empathy for the victims abused in the materials he collected, and a commitment to receiving treatment to address his sexually deviant feelings.

There is a letter jointly authored by Mr. Partsch's parents, who speak of Mr. Partsch as a fundamentally good-hearted person who, despite the challenges that cerebral palsy have placed before him, had until the point in time when he was charged, led an otherwise exemplary life.

There are letters of support from two of Mr. Partsch's aunts. Both speak of Mr. Partsch himself calling them to break the news of his arrest. Both speak of Mr. Partsch taking responsibility for his actions, of acknowledging to them his wrongdoing and of the shame and remorse he expressed for his conduct.

There is a letter from the Ottawa Hospital confirming Mr. Partsch's diagnosis of "relapsing remitting multiple sclerosis" and the medication he requires to take via weekly injection to slow the spread of this serious neurodegenerative disease.

Lastly, there is a report from Dr. Jonathan Gray, a psychiatrist in the Integrated Forensic Program of the Royal Ottawa Health Care Group that outlines the results of a sexual behaviours assessment voluntarily undertaken by Mr. Partsch. This assessment included a phallometric testing component. Dr. Gray concluded that Mr. Partsch met the diagnostic criteria for a diagnosis of pedophilic disorder, non-exclusive type, sexually attracted to females. He was assisted in arriving at this conclusion by Mr. Partsch's open admission to developing a sexual interest in pre-pubescent girls over the two to three years prior to his arrest; to acting out on these urges by repeatedly accessing and viewing child pornography material despite knowing it was illegal; and to having made several failed attempts to stop accessing child pornography.

Ultimately Dr. Gray concluded that Mr. Partsch's risk of future contact sexual offences against a child is very low and that his risk of committing further child pornography offences was low. Amongst other things, Dr. Gray recommended that Mr. Partsch attend at the Sexual Behaviours Clinic at the Royal Ottawa Hospital for follow-up upon his release from his eventual incarceration. He noted that Mr. Partsch expressed an enthusiasm to participate in treatment to address his pedophilic disorder, a condition which was distressing to him.

Positions of the Parties

Crown counsel seeks a sentence of two years less a day jail, less as well with two days of pre-sentence custody that Mr. Partsch served, followed by three years of probation. The ancillary orders sought are a DNA order, which is mandatory in the circumstances, a 20 year Sexual Offence Identification Registration Act order of 20 years, which is also mandatory in the circumstances, a Section 161 order for 10 years, and forfeiture of the seized evidence.

Defence counsel acknowledges that the facts of this case require a sentence somewhat above the mandatory minimum of one year. It is submitted that in the overall circumstances of this case, a 15-month sentence of imprisonment followed by lengthy probation would adequately serve the sentencing principles at play.

Both counsel agree that in sentencing accused persons for child pornography-related offences, the principles of denunciation and deterrence are the primary considerations. As noted by our Court of Appeal in Inksetter by enacting Section 718.1 of the Criminal Code, Parliament made clear that denunciation and general deterrence must be primary considerations for any offence involving the abuse of a child. Further, that court has repeatedly stated that denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography. The courts have very few options, other than imprisonment, to achieve the objectives of denunciation and general deterrence.

The rationale for this approach which is set out at paragraph 16 and 17 of the Inksetter decision is addressed at paragraph 22 of that same decision where the Court of Appeal says the following:

Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2, the Supreme Court of Canada described how possession of child pornography harms children. As Justice Fraser wrote in R. versus Andrukowis, 2012 ABCA 148 at para. 29, "Possession of child pornography is itself, child sexual abuse." The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing and making available his vast and terrible collection to others, the respondent participated in the abuse of thousands of children.

The Inksetter court noted that the incidents of child pornography appears to be increasing as technology becomes more sophisticated. It also noted that the courts have continued to be on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately. The Court clearly signalled the propriety of a trend towards more significant sentences for child pornography-related offences.

Aggravating Factors

The aggravating features in this case include the following:

1. The size of Mr. Partsch's collection. Eight hundred and sixty-three unique images and five unique videos. This was a substantial collection of child pornography.

2. The nature of the child pornography that formed the collection. Many of the images that Mr. Partsch collected were of particularly young, vulnerable children engaged in actual sexual activity with adults and other children. They depicted oral, vaginal and anal sex. The most heart-stopping involved children bound by rope to a bed. The extent of the victimization here is significant.

3. Mr. Partsch's crime was calculated. He not only downloaded, but organized and catalogued the images in his collection. These were deliberate, conscious steps that suggest a high level of moral culpability.

Mitigating Factors

The mitigating factors are as follows:

1. Mr. Partsch comes before the courts for the first time and is otherwise of good character.

2. Mr. Partsch has entered pleas of guilty, and thereby taken accountability for his conduct.

3. Mr. Partsch has shown insight into his problem. Though his suggestion to Dr. Gray that he did not know where the CDs came from causes me some concern, I accept that overall, he understands the depth of his wrongdoing. His insight is evident in his letter of apology, the comments that he made to the court when he addressed the court, his disclosure to close family members of his conduct, and what he told Dr. Gray.

4. Mr. Partsch has demonstrated genuine remorse. He truly regrets his actions and is sorry for them.

5. Mr. Partsch has shown a genuine desire for treatment. It is apparent to me, as it was to Dr. Gray, that this man finds his pedophilia distressing and wants help in addressing it.

6. Mr. Partsch has suffered deeply for his actions, including the loss of his employment following his very public arrest in his work place for these charges.

Sentencing Analysis

Given the seriously aggravating factors and the compelling mitigating factors, the actual sentence to be imposed in this case presents a considerable challenge. The range of sentences is understandably and properly trending upwards. The sentence I impose must reflect how severely the courts view offences of this nature, while not wholly forgetting the principle of restraint.

Both counsel have pointed to sentences imposed in earlier cases in support of their respective positions. I have reviewed all of these cases and in ascertaining the range of sentence that would be appropriate in a case of this nature. I agree with Crown counsel that the sentences imposed prior to the most recent amendments are of little practical assistance to this Court, particularly in light of the Ontario Court of Appeal's comments to this effect in Inksetter. As noted by the Crown, the most material cases for a reference point are those decided since the amendments took effect.

There is of course no case where the circumstances of the offence and the circumstances of the offender are on all fours with Mr. Partsch's. In determining the range of sentence to impose in this case, I have been guided in particular by the reasons of my colleagues from the Ontario Court of Justice in this jurisdiction in R. v. Schock, a decision dated March 23rd, 2017 of Justice Alder; and R. v. Johnston, a decision of Justice Webber dated November 18th, 2015, both of which were included in Crown counsel's casebook.

Sentencing decisions in analogous cases are clearly important reference points.

In Schock, the 24-year-old offender with no prior record pleaded guilty to one count of possession of child pornography and one count of making available child pornography. With respect to the possession charge, a forensic analysis uncovered 4500 images of child pornography, 1,500 of which were unique; and 204 videos of child pornography, 142 of which were unique. He made a single image of child pornography available for two days. The videos and images in Mr. Schock's collection were more aggravating in number and severity than even those in this case. Mr. Schock participated in a court ordered sexual behaviour assessment and had commenced counselling at the time of his sentencing. His insight was less than the insight displayed by Mr. Partsch in this case. Mr. Schock received a two-year sentence for the possession charge and one-year consecutive sentence for the making available charge.

In Johnston, the 53-year-old accused with no prior record pleaded guilty to the possession of child pornography. Forensic analysis of his computer revealed the presence of more than 600 total unique images of child pornography and 20 videos of child pornography.

The images and videos in that case were similar in their number and in their vulgar and degrading nature to those uncovered in this case. Despite a number of mitigating factors, including genuine remorse, participating in a court ordered assessment, and successful treatment, Justice Webber imposed a sentence of 12-months' incarceration. I recognize that this is a pre-amendment case, and the mandatory minimum in place at that time was only six months. Having read His Honour's reasons carefully, I would infer that were Justice Webber to decide that case today, in circumstances where the mandatory minimum is now one year, the sentence he imposed would have been considerably longer, and certainly in the range of 18 months imprisonment or more.

Mr. Partsch's crime is a deplorable one. Every time Mr. Partsch downloaded, viewed, catalogued and stored child pornography materials over the lengthy period of time that he did, he had to have known that what he was doing was morally repugnant. It could not have been lost on him that he was playing an important role in perpetuating the ongoing sexual victimization of children in the most egregious way. No one who views those images could fail to see that. He simply chose to overlook it. He willingly participated in a market that has at its very foundation, the sexual exploitation of children. His moral culpability is high.

The only means of achieving the primary objectives of denunciation and deterrence are to impose meaningful sentences of imprisonment. It is the only means available to the courts in their attempts to address the harm done by those who choose to seek out, download, and catalogue the suffering of children, the most vulnerable people in our society. The objective of rehabilitation, while important, is clearly the secondary concern in a case such as this.

A sentence of 15 months as suggested by defence counsel inadequately reflects the objectives of denunciation and deterrence. At the same time, I believe a shorter sentence than that suggested by the Crown in this case can adequately address those principles while still respecting the principle of restraint and while not wholly disregarding the importance of the prospects of rehabilitation of the offender before the Court.

Sentence Imposed

Mr. Partsch, can you stand, please, sir?

Sir, having considered the aggravating and mitigating factors in this case, the prior case law, and the clear direction of the courts to prioritize denunciation and deterrence over other sentencing objectives, I sentence you to a period of incarceration of 19 months in addition to the 2 days in custody that you have already served. I will endorse on the warrant of committal my recommendation, sir, that this sentence be served at the St. Lawrence Treatment facility so that you may receive appropriate treatment.

Your jail sentence will be followed by a period of probation of three years. The terms of which are as follows - and all of this, sir, will be written down on paperwork that you will receive.

You are to keep the peace and be of good behaviour;

Attend court if and when required to do so;

Report to a probation officer within two days of your release and thereafter at all times and places as directed by probation services or anyone authorize by probation to assist in your supervision;

You are to attend and actively participate in all assessments, counselling and rehabilitative programs as directed by your probation officer and complete them to the satisfaction of the probation officer, and you are to sign any releases that will enable the probation officer to assist in your supervision.

Ancillary Orders

Dealing with the ancillary orders requested by the Crown:

The Crown's request for a DNA order is granted.

You are ordered under the Sex Offender Information Registration Act for the period prescribed by the statute, which is 20 years in the circumstances of this case is granted. I grant the Crown's request for a forfeiture order and what I would like to do at this point is invite Ms. McVey to address me on the Section 161 order, particularly given Dr. Gray's views that Mr. Partsch represents a very low risk of contact offences and a low risk of offending in the nature that he has in this case.

All right in respect to the issue relating to Section 161 of the Criminal Code, in order to try and strike the appropriate balance between the legitimate submissions of both counsel here, I am going to impose a Section 161 order for a period of 10 years. Mr. Partsch will be prohibited from attending any public swimming area or persons under the age of 14 years are present or can reasonably be expected to be present, except in while he is in the company of a family member, who is aware of his prior conviction under 163.1 of the Code, and I am not expanding that to any parks or any school grounds, daycares, et cetera. As Ms. McVey pointed out, the issue is more kids that are not very clothed.

I am not making the order in relation to future employment or volunteer capacity, given my comments that I have already made regarding Dr. Gray's report.

I do make an order for Section 161.1(c) of the Criminal Code, that for the period of 10 years, Mr. Partsch will not use a computer system within the meaning of Section 342.1(2) for the purpose of communicating with a person under the age of 14 years, except for immediate family members.

Further, under Section 161.1(d) of the Code for a period of 10 years, Mr. Partsch will be prohibited from using the internet or any similar communication service to (a) access any content that violates the law; or (b) directly or indirectly access any social media sites, social network, internet discussion forum or chatroom, or maintain a personal profile on any such service, for example, Facebook, Twitter, Tinder, Instagram, or any equivalent or similar service.

As Ms. McVey points out, should that become an issue for him in the future, for example, the need to access online dating services as we see in the Barnes case, then he can bring an application at that time.

Mr. Partsch, sir, I fully appreciate that this sentence will be perceived as devastating to both you and your family members. I know you regret your actions and that you are committed to getting help. I can see that you, despite participating in this deplorable conduct, that you are at the core, a good person. I know that you have got shame that you are going to have to work through going forward, but it is important that you do so, and I wish you success in your rehabilitation, sir. Good luck.

MS. MCVEY: The remaining counts could be withdrawn, please.

THE COURT: Thank you, Ms. McVey.

MS. MCVEY: And I [indiscernible] but there's a victim surcharge.

THE COURT: Yes. Mr. Partsch, there will be a surcharge of $200 which applies in the circumstances, which seems ironic. Ms. McVey, the one thing I would ask you to do, if you could, and I neglected to do this when Detective Casimir testified... we often overlook how difficult a task it is to do what he had to do here, which is sort through hundreds of images in order to provide a representative sample before the Court, and he and the other officers in that unit should be commended for their work.

MS. MCVEY: Thank you. I'll pass that along, Your Honour.

THE COURT: Anything further, counsel?

MS. MCVEY: Was the forfeiture order signed?

THE COURT: I'm sorry, it's here to be signed. I'll sign it.

MATTER IS COMPLETED