ONTARIO COURT OF JUSTICE (TORONTO REGION)
HER MAJESTY THE QUEEN Applicant
– AND –
JASON EWING Respondent
Ruling on Application for Assessment under s.752.1 of the Criminal Code
Heard: 30 April 2021; Judgment: 11 May 2021 (105 paras.)
Counsel for the Applicant: Jennifer Stanton Counsel for the Respondent: John Fennel
WARNING: This Ruling involves reference to matters governed by a court ordered publication ban pursuant to s.486.5 of the Criminal Code.
Libman J.: -
Introduction
[1] Following his guilty pleas to possessing and accessing child pornography, contrary to ss.163.1(4) and (4.1) of the Criminal Code, the Crown applies for an assessment under s.752.1 in order to determine whether the accused might be found to be a dangerous offender under s.753 or a long-term offender under s.753.1 of the Code.
[2] Mr. Fennel, on behalf of Mr. Ewing, resists the application.
[3] The narrow issue in dispute is whether the subject offences meet the definition of “serious personal injury offence”, which is a condition precedent for the assessment to be ordered.
Overview of Position of the Parties
[4] The Crown concedes that the offences in question do not fall within the definition of offences stated under s.753.1(2)(a). Hence, the assessment can only be made if the offences in question qualify as serious personal injury offences.
[5] The definition of “serious personal injury offence” is set out in s.752. It reads, in part:
(a) an indictable offence, other than high treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more … [emphasis added]
[6] The Crown has elected to proceed by indictment in this case. Possessing and accessing child pornography are each offences punishable by ten years imprisonment. These two components of the serious personal injury offence are thus acknowledged by the parties to be met.
[7] However, it is the criteria “inflicting or likely to inflict severe psychological damage on another person” where the Crown and defendant part company. The Crown submits that the subject offences do so qualify and therefore fall under the serious personal injury offence definition; the defence argues that they do not, and as such the application for assessment must be dismissed.
[8] It is to this issue that I now turn. I begin with a description of the offences and the criminal antecedents of Mr. Ewing.
Circumstances of Offence
[9] The subject offences of which the defendant pled guilty consist of a collection of 1,286 images and 42 videos which meet the Criminal Code definition of child pornography. Most of the images uploaded by the defendant consist of female children, from infancy to approximately 12 years of age. Some of the children are partially clothed; others are not. There are images where the dominant characteristic depicted is the child’s breast, vagina and/or anal region. In other images, children are engaged in sexually explicit activity with one another or an adult. The collection also contains animated drawings depicting children engaged in sexually explicit activity, including with babies and toddlers.
[10] Several images depict children that are sexualized or exploitative in nature. There are pictures of children with their tongues sticking out and mouths open, and the words “fuck me” written on their bodies. Other pictures are of children appearing to be asleep wearing clothing pulled away so as to expose their genitals; some children are wearing heavy makeup on their faces while dressed in provocative style lingerie. In others, female children are bound at the wrists and ankles.
[11] In the accused’s video collection, there are female children depicted having sexually explicit activity with adult males, including fellatio, vaginal and anal penetration. Other videos are self-exploitative, and depict female children exposing their sexual organs and engaging in masturbation. There are also animated depictions of men performing sexual acts with babies. The female children in this video collection range in age from less than one year old to approximately 11-years of age.
[12] There were also a number of devices located within the accused’s image collection. These include female children’s underwear, infant figurines and baby doll parts, and voyeuristic style up-skirt shots, a number of which appear to be from underneath an elementary school child’s desk. Some of the female children have red hair. The accused admitted in his statement to the police, in fact, that red-head girls are his favoured sexual preference.
[13] The accused’s collection also contains images of children who have been identified by law enforcement agencies throughout the world. These include online child abuse files depicting victims who have been identified in Germany, Switzerland, Lithuania and the United States.
[14] As for the accused’s internet/online activities on his Samsung Galaxy S7, these include chatting with unknown individuals about child pornography and sexually abusing siblings, animal characters with human characteristics (furries) and cartoon-like images which depict pre-pubescent children or infants engaged in explicit sexual activity (anime). He also searched online for terms such as “mannequin child for sale” and “baby figurine nude”. In addition, he accessed URLs for sites such as xvideos, Pornhub and incest tube.
[15] On his RCA Tablet, the accused searched online for terms such as incest chat, and accessed URLs for sites including yourporn.com, mytaboo.net, familytaboo.net, incestxxx.net and incest.net. Other online searches were for terms including, “How to get my daughter to expose herself”, “Daddy my pussy is yours”, “Daughter daddy private time”, “Daddy’s girl” and “This Father and Daddy pair”. Other search terms included, incest, redheads, loli blonde girl, wolf girl, teenfidelity and cute teen.
Circumstances of Offender
[16] Mr. Ewing will turn 47 years old this coming June. He has a criminal record. It includes a conviction for possession of child pornography and make available child pornography, imposed on February 15, 2007. He was sentenced to a total of 15 months’ imprisonment, after being given credit for 4 months and 2 weeks of pre-trial custody, and placed on three years’ probation. An order under s.161 of the Criminal Code was imposed, prohibiting the defendant from attending public places where persons under the age of 16-years old was also imposed for a period of 10 years.
[17] This 2007 conviction involved a search of devices located at the defendant’s residence after he posted an image of child pornography on the Internet. The search revealed a total of 6,951 images of child pornography stored on his devices as well as 73 child pornography stories. There were also 292 videos of child pornography; the actual viewing time for all of the child pornography videos was approximately 15 hours. A quantity of young girl’s underwear was located in his closet, which the accused admitted he used as a prop while he masturbated. The child pornography content included the depiction of very young children including babies, under the age of 2-years old, being forced into explicit sexual activity, including vaginal and anal intercourse. In one video, a pre-pubescent female is shown being shackled and burned by hot wax as two masked assailants sexually assault her.
[18] On October 18, 2012 the accused was found guilty of sexual assault, sexual interference and failing to comply with a recognizance. He was sentenced to 162 days’ imprisonment for sexual assault (after credit for 248 days pre-trial custody) and three years’ probation; 14 months’ imprisonment consecutive for sexual interference and two months’ consecutive for fail to comply. A s.161 order for 20 years was imposed as well.
[19] The fail to comply charge was in relation to the accused being on bail for sexual assault and sexual interference. He was subject to a house arrest condition. However, he breached the order by attending a library where he used a computer while not in the presence of his sureties. The victim of the sexual assault and sexual interference offences was the defendant’s female cousin who was 5-6 years old. On two occasions while in the basement of the defendant’s grandmother’s home, he pulled down her pants and touched and licked her vagina.
[20] In imposing sentence for these offences, the sentencing judge, Justice Nakatsuru (as he then was), commented that while the defendant had previously only been charged with child pornography charges and there was no indication at that time he had acted out on his inappropriate sexual fantasies, and indeed denied having such fantasies, he now admitted and had been tested “to having such abhorrent sexual fantasies.” (Transcript of Sentencing Proceedings, October 18, 2012, p.19, l25-28).
Victim Impact Statement
[21] As noted above, the accused’s collection in the subject offences contains images of children who have been identified by law enforcement agencies throughout the world. One such victim is Cara, which is a pseudonym. That is, Cara’s image is one of the ones contained in the defendant’s collection. She is now 31 years old. Her sexual abuse was captured on video and disseminated by her biological father on the internet. These images continue to be widely distributed internationally, according to the record before me.
[22] A victim impact statement from Cara has been put before the court and prepared for this case. She indicates in it that although her abuse occurred approximately 20 years ago, the circulation of her images is always on her mind. She experiences flashbacks. Her on-line exploitation causes her to fear for her safety and the safety of others. It has affected her ability to feel connected with her husband. It has also affected her relationship with her own children. She does not allow them to go on social media. Neither does she let her children go anywhere else unless she knows the parents and trusts them. She does not let them play outside. She does not allow them to go to neighbourhood friends, unless she is present.
[23] In her victim impact statement, Cara states that she has “really bad anxiety”, does not like people, and does not like going into places. She suffers from panic attacks and anxiety attacks. She has been diagnosed with major depressive disorder.
[24] Cara goes on to say that she identifies that what continues to happen to her with her online exploitation has caused “my whole life to be a mess”. She has feelings of worthlessness and not being good enough. She wishes to be alone. She also identifies that her anxiety and depression have set her back in terms of school and employment. She fears that someone could recognize her from her online exploitation. Cara has also expressed that she wishes for people to know that just because her abuse happened to her as a child, that does not mean it no longer affects her as an adult. She wants people to know she is a person.
Community Impact Statements
[25] Community impact statements have also been filed by the Crown in these proceedings. One is from the Canadian Centre for Child Protection Inc. It is a registered charity with a mandate of preventing the sexual exploitation and abuse of children. It has direct contact with survivors of child sexual abuse material and their families.
[26] It is noted in this community impact statement that child sexual abuse material is permanent and persistent. Whereas victims have expressed that their hands-on sexual abuse was horrific, it did come to an end. On-line exploitation crimes, on the other hand, exist in perpetuity. Moreover, victims continue to be re-victimized every single time someone looks at the images and videos of their online sexual abuse. Some victims reported ongoing sensitivity to picture taking; others were sickened by the knowledge that their content was being used for a sexual purpose online.
[27] A number of survivors of online child sexual abuse reported suffering from anxiety, depression, suicidal ideation, self-harm, substance abuse, post-traumatic stress disorder, and dissociative disorders. Some identified living in fear that they would be recognized from their images of their online abuse. A number also reported that their fear about being recognized from their online sexual abuse material caused hyper-vigilance and anxiety, feelings of being suspicious of people, limiting social interactions or remaining in their homes, and feeling shame and worrying about being stalked or harmed.
[28] A survey of such survivors revealed that the majority were either currently in therapy or had received therapy in the past. A majority reported that they anticipated needing ongoing or future therapy. The need for such therapy is to address the continuing victimization that results from knowing the images exist and are being viewed by subsequent offenders. Hence, for victims of these particular offences, “their past is their present.”
[29] There is another community impact statement from the Phoenix 11. This group consists of 11 survivors of child sexual abuse that has been recorded and shared on the internet. This community impact statement has likewise been created in relation to the defendant’s collection.
[30] According to this statement, it is indicated that possession of child pornography is not a victimless crime. The children in the images are actual people who struggle to survive their victimization daily. It is indicated that they will never really be free because although their sexual assaults have ended, they were also recorded. They believe their imagery can be accessed by anyone, anywhere, anytime; they live their lives in “a perpetual state of vigilance and fear”. In addition, they worry about being recognized from their online images or that someone they know will see them. This causes them, in turn, to be impaired socially and experience ongoing difficulty forming relationships. Some members of the group have even changed their appearances. Those of the group who are parents also worry constantly about the safety of their children: they do not feel their children are safe unless “they are with us, and only us”.
[31] The members of the group have stated that they feel powerless as it relates to their child sexual abuse material as it was made without their consent and continues to be seen without their consent. There is a feeling of being re-victimized every time the imagery of one of them is accessed or stored by another person. They feel shattered that their images may be used to perpetuate violence against other children. The mere existence of the imagery invokes feelings of intense fear in each of them. They have experienced a variety of stress and mental health related conditions as a result of their online abuse, including complex PTSD, insomnia nightmares, seizures, panic attacks and migraines.
[32] It is expressed in this community impact statement that is “infuriating, as victims of this type of victimization” to be repeatedly made aware that there are people who will find and keep photos and videos of children they do not know and have never met, “in the most horrible of circumstances”, and not understand that that they have no right to see or have such material. If there were not people wanting to look at and possess this kind of imagery, it is stated, “our abuse may not have ever been recorded, and it certainly would not be out there now for people to see.”
Position of the Parties
[33] The defence takes no issue with the Statement of the Facts from Part II of the Crown’s 60-page Factum, as I have summarized it to this point. The point of departure between the two arises from whether or not the offences for which the defendant has pled guilty qualify as serious personal injury offences as defined by s.752 of the Criminal Code. The Crown submits that they do; the defence contends that they do not.
[34] The Crown begins its submissions by acknowledging that the designation of a serious personal injury offence is the gateway provision for a dangerous offender or long-term offender application under Part XXIV of the Criminal Code. She notes in this regard the 2015 amendments to the Code pursuant to the “Tougher Penalties for Child Predators Act” raising the maximum sentence for child pornography to 10 years and adding child pornography to the ‘designated offence” definition in s.752. Previous amendments to the Criminal Code added the subject offences of possession and accessing child pornography as enumerated offences for the long-term offender category. This evidences, in the Crown’s view, a legislative intention to make a Part XXIV application eligible for such offences.
[35] Ms. Stanton relies on the authorities that support the proposition that every image of child pornography involves the sexual abuse or exploitation of children, and there is immense harm in possessing and accessing child pornography. Those who do so encourage the sexual abuse of children. Simply stated, such offences are tantamount to violence against children: see, for example, R. v. Kwok, [2007] O.J. No. 467 (S.C.J.), at para. 49; R. v. Bock, 2010 ONSC 3117, at paras. 31-32; R. v. Ashkewe, [2010] O.J. No. 5372 (S.C.J.), at para. 20.
[36] Moreover, the threshold for ordering an assessment under s.752.1 may be described as being “very low”. If there are reasonable grounds to believe that the offender “might” be a dangerous offender or long-term offender, then the court “shall” order the assessment. This provision, in other words, is procedural in nature, and not substantive: R. v. Albert, 2001 SKCA 57.
[37] Both parties have made reference in their written materials, and oral argument, to the Supreme Court of Canada’s decision in R. v. Steele, 2014 SCC 61, where the Court discussed the interpretation of serious personal injury offences in the context of a robbery where no actual violence was used, but only threatened. It was held in that case that all robberies against the person involving violence, or the threat of violence, constitute serious personal injury offences. It was an error, in the courts below, to therefore consider the objective seriousness of the level of violence in so characterizing the offence.
[38] The Supreme Court in Steele stated that the primary or “dominant” purpose underlying Part XXIV of the Criminal Code is public protection which enables the court to accommodate its sentence to the common sense reality that the present condition of the offender is such that he/she will not be inhibited by normal standards of behavioural restraint such that future acts can quite confidently be expected of that person (para. 29).
[39] It went on to explain that the serious personal injury offence requirement plays a crucial role in the operation of the dangerous offender and long-term supervision order scheme. The function of such requirement is twofold: first, it serves as a “gatekeeper” for entry into the dangerous offender or long-term offender system, pursuant to s.752.1; second, where the Crown applies for a finding that the offender is a dangerous offender, it serves as a requirement for the making of such a finding under s.753(1) (paras. 34, 35).
[40] A finding that an offence is a serious personal injury offence therefore serves to trigger the application process.” Thereafter, the sentencing judge must be persuaded that a designation under Part XXIV of the Code should be made (para.37).
[41] Steele has been interpreted to mean that there is no requirement on the Crown to prove that an offence meets the definition of a serious personal injury offence beyond a reasonable doubt. To the contrary, whether or not an offence falls within this definition is not an evidentiary burden, but a legal question: see R. v. Burton, 2016 ONCJ 153, at paras. 42-46, per Greene J.
[42] To be sure, the underlying essential elements of the serious personal injury offence must be proven by the Crown beyond a reasonable doubt, an issue for the trial judge in Burton where the accused plead not guilty to a number of different offences in relation to two young women. In the instant case, the matter does not arise, of course, given the accused’s guilty plea.
[43] The Crown goes on to submit that while Steele provides guidance to sentencing courts on the issue of serious personal injury offence, ultimately the determination entails consideration of the specific circumstances of each case. This is not limited to the elements of the offence only but includes the totality of the circumstances of the conduct outlined in s.752. As the Alberta Court of Appeal put it in R. v. Goulet, 2011 ABCA 230, at para. 12, the definition of serious personal injury offence in particular, and criminal liability generally, “focus on the conduct of individuals”, but such conduct “does not happen in a vacuum” and the context in which criminal acts take place “will be relevant.”
[44] It is noted, in this regard, that children are particularly vulnerable victims and child pornography has become “an area of criminality that increasingly menaces our young people and threatens our values as a society”: see R. v. Stroempl, at para. 6. The possession of child pornography was described by the Court in Stroempl as being “a very important contributing element” in the general problem of child pornography (para. 8). Children are particularly vulnerable. Throughout their formative years, they are “manifestly incapable of defending themselves against predators”: R. v. D.D., at para. 35.
[45] Further, there is a link between possession of child pornography and committing like offences involving children, as the Supreme Court noted in R. v. Sharpe, 2001 SCC 2 where it stated at para. 28: “Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences.” It may be observed in this regard that Mr. Ewing’s conviction for possession of child pornography was followed a few years later by convictions for sexual assault and sexual interference of a child.
[46] The Crown relies, further, on authorities which indicate that in many serious personal injury offences, the nature of the offence will inherently be likely to cause severe psychological damage to the victim: see R. v. Tremblay, 2010 ONSC 486, at para. 79. For victims of child abuse, however, it may take many years for the full extent of serious psychological harm to be apparent, much less understood by the victim: R. v. D.D., at para. 38.
[47] Most recently, the Supreme Court of Canada in its seminal decision in R. v. Friesen, 2020 SCC 9, where it provided sentencing guidance for sexual offences involving children, commented that courts have been on a “learning curve” in understanding “both the extent and the effects of sexual violence against children”, and that sentencing has evolved in response to the prevalence of such crimes (para. 49). It noted, in this regard, that technology can make sexual offences “qualitatively different too”, adding:
For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be assessing the films or images, which may resurface in the child’s life at any time (para. 48).
[48] The Supreme Court went on to hold that a proper understanding of the wrongfulness and harmfulness of sexual violence against children is important for sentencing judges in order to craft fit and just sanctions. It itemized the following six factors for particular consideration in this regard: (i) the prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity and equality of children; (ii) sexual violence causes additional harm to children by damaging their relationships with their families and caregivers; (iii) the Criminal Code recognizes that the harm flowing from an offence is not limited to the direct victim against whom the offence was committed; (iv) the protection of children is one of the most fundamental values of Canadian society; (v) sexual violence has a disproportionate impact on girls and young women; and (vi) children who belong to groups that are marginalized are at a heightened risk of sexual violence that can perpetuate the disadvantage they already face.
[49] The Supreme Court’s discussion of the psychological harm caused by sexual offences against children is not confined to “hands-on offences”, notes the Crown, given its inclusion of luring in its list of sexual offences under consideration. Indeed, the Court went on to caution sentencing judges to consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence, notwithstanding the absence of actual harm at the time sentencing takes place (paras. 83-84). The fact that a child has not been identified, rescued, located or even known to be alive does not negate the fact the child exists or existed, and continues to be exploited in perpetuity as a result of their images being disseminated on the internet (para. 93).
[50] Following the Steele decision, the Crown submits that all child pornography offences should be regarded as serious personal injury offences. Friesen’s comments about the harm to children from all manner of sexual offences also supports this designation, she argues. Hence, just as violence is a necessary requirement for a finding of guilt in every robbery of a person, and as such every robbery is a serious personal injury offence, so too does every image of child pornography of an actual child represent violence towards children, and likewise constitute a serious personal injury offence.
[51] The only reported decision to consider whether possessing and accessing child pornography qualifies as a serious personal injury offence is the case of R. v. Patterson, 2018 ONSC 5395. Both the Crown and defence rely upon it in support of their respective positions. While Justice Bawden declined to find that the offences so qualified in the circumstances of the case, he left open the question as to whether they might in certain instances.
[52] Justice Bawden began his analysis by accepting the proposition that the making of child pornography can constitute a serious personal injury offence and noted that many courts have made such a finding. He went on, however, to question the Crown’s assertion that in cases involving child pornography, every image represents violence towards children.
[53] The Court tested the Crown’s position with the following hypothetical scenario at para. 9:
Suppose that an offender collected family photographs of unidentifiable, naked children. None of the images would individually meet the definition of child pornography but if the offender assembled a number of such images into an album and labeled the pictures in a way which established that they had been collected for a sexual purpose, the album would meet the definition of child pornography. Could it be said that he had committed an offence of violence against the children?
[54] Justice Bawden rejected the Crown’s assertion that in the hypothetical he posed an act of violence had been committed. He noted that the pictures had been taken by children’s parents and the unidentifiable subjects would never know that their photographs had been used for an illicit purpose. Hence, in his view, to find that every possession of child pornography would, by definition, amount to a serious personal injury offence, constitute “unrealistically expanded definitions of violence, safety and severe psychological damage” (para. 12). This, in turn, would greatly expand the range of offences which would be eligible for proceedings under Part XXIV of the Criminal Code.
[55] Neither did Bawden J. accept the Crown’s argument that anyone who is in possession of child pornography is necessarily a party to the making of that pornography. He noted that there is no authority for the proposition that the possessor aids or abets the producer within the meaning of the party provisions set out under s.21 of the Code. The accused in the instant case had not been charged with making child pornography. Moreover, there was a crucial distinction between those who directly profit from the exploitation of children and those who create the market for such exploitation. No “plausible reason”, in the Court’s view, had been advanced to conflate the two (para. 17).
[56] It is upon Justice Bawden’s treatment of the issue that followed, namely, whether any degree of violence is sufficient to fulfill the serious personal injury offence criteria, that Crown counsel places particular emphasis.
[57] The Court observed, at the outset, that had the Crown been successful in its first two arguments, it would have gone on to argue that “no qualitative minimum level of violence is necessary in order to fulfill the criteria in section 752” and that “any violence, even if it does not involve hands-on application of force, is sufficient” (para. 18).
[58] Justice Bawden accepted the Crown’s argument in this regard. He stated the following at paras. 19-21:
[19] I agree with that submission. Possession and access to child pornography are offences which may or may not be found to constitute serious personal injury offences depending on the manner in which they are committed.
[20] In the case of the hypothetical offender who collected family photographs of unidentifiable children and assembled them into a pornographic album, there would be no violence committed to the children or any basis to fear for their safety or psychological well-being. Possession of child pornography in that instance would not be a SPIO offence.
[21] At the other end of the spectrum, an offender might subscribe to a website which propagated images of expressly violent child pornography for a regular fee. If the website promised fresh images on a regular basis and invited suggestions for additional content from the subscribers, the connection between the making of the pornography and the actions of the possessor would be tangible. In those circumstances, a court might well find that the possessor had committed an SPIO offence based on any of the criteria set out in the definition. In this hypothetical, the Crown’s submission that the court must not import a qualitative minimum level of violence into the SPIO definition would be well placed.
[59] Accordingly, while the Court dismissed the Crown’s argument that possession and access to child pornography are, by definition, serious personal injury offences, the Crown submits that the door was left open as to characterize these offences as such, having regard to the particular circumstances of the case.
[60] One further argument was raised by the Crown in Patterson, which is likewise relied upon by the Crown in the case at bar. It was submitted, alternatively, that the manner of committing the offences could constitute a serious personal injury offence. However, Justice Bawden did not accede to this argument.
[61] The Court noted in this regard that the accused used his laptop computer to surf pornographic websites. He collected many images. He also participated in a Facebook group which was devoted to the exchange of images of child pornography and where members engaged in “fantasy chat” relating to the abuse of children. There was no evidence, however, that Mr. Patterson posted anything or directly paid for any of the material that he accessed.
[62] Bawden J. acknowledged that there is no requirement that the offence be a hands-on offence to be a serious personal injury offence and there is “no minimum qualitative level of violence or endangerment of safety” which must be met before the designation can be made (para. 31). Mr. Patterson, however, was “a low end consumer of child pornography” (para. 32). There was no evidence that he did anything to encourage the creation of child pornography apart from committing the essential elements of his own offences. The two images that he possessed did not depict a sexual assault on either of the subjects. The videos that he accessed were few in number and of limited visual quality. He did not attempt to take possession of them.
[63] The accused’s participation in the Facebook group was the aspect of the offence that came the closest, in the Court’s view, to fulfilling the definition of a serious personal injury offence. In one such exchange, he chatted with another Facebook user who represented himself to be a 12-year old boy. The other party sent the picture of the child lying on the bed and pretended that he was the boy in the picture. This prompted a conversation between the accused and the other party where Mr. Patterson fantasized about engaging in sexual activity with the supposed 12-year old.
[64] The Court commented that had it believed that the accused seriously thought he was talking to a 12-year old boy when he was engaged in this chat, it might well take a different view as to whether the access charge met the definition of a serious personal injury offence. However, the Court had found that the accused knew he was speaking to a fellow adult who, like himself, was posing as a child for the purposes of engaging in fantasy conversations. This factual finding, as Bawden J. put it, “discourages a finding that in committing his offences, Mr. Patterson used violence against a child, endangered a child or was likely to inflict severe psychological damage to a child” (para. 35).
[65] In summary, the Crown submits that the accused in the case at bar has engaged in conduct that is likely to inflict severe psychological damage on another person. It relies, in this regard, on the significant number of images in his collection, he is no “low consumer” like Mr. Patterson, the contents depict sexually explicit acts of an invasive nature, such as forced fellatio and vaginal and anal intercourse inflicted on children by adults, as well as sexually explicit acts of an incestuous nature. In addition, the accused engaged in online chat about child pornography and exchanging pornography.
[66] The primary position of the defence, in turn, is that the child pornography offences in question are not serious personal injury offences. Relying on the Supreme Court of Canada’s decision in Steele, Mr. Fennel notes that an unduly broad interpretation of the words of the subject offence, in that case “use or attempted use of violence”, would dilute the gatekeeper function of the serious personal injury offence requirement and jeopardize the scheme’s objective of proportionality (para 36).
[67] He cautions the same principle of restraint must apply here in response to the Crown’s argument that every image of child pornography involving actual children represents violence towards children, and therefore mandates a finding that offences such as accessing and possessing child pornography constitute serious personal injury offences.
[68] Mr. Fennel submits that the Crown’s reliance on Steele would be apt when applied to someone who contrived to produce child sexual abuse material through the use or attempted use of violence. In such a case, just as in a robbery against a person, a victim would be created when the images were created. However, the contention of the Crown extends this link, given its position that the victims from the creation of the child sexual abuse material are also harmed when the material is merely viewed or possessed by others, after its creation, as is the case with the accused’s crimes.
[69] The defence points out, though, that the Crown’s reliance on “the psychological harm strand” of the serious personal injury offence consists of crimes without actual violence that have been found to come within this designation of offence, such as criminal harassment, which involve targeting individuals in a way that severe psychological harm is the likely result. That is, the targeting makes the perpetrator the perpetrator the proximate cause of the victim’s psychological suffering.
[70] Defence counsel notes, further, that the cases referred to by the Crown that discuss the harm suffered by victims of child sexual abuse offences, such as Friesen, arise in the sentencing context. In that milieu, there is no requirement that the victim experience severe psychological harm, or that the Crown prove same. Indeed, he adds, there is no reported decision by any court, at any level in Canada, where the offence of possessing child pornography has been found to be a serious personal injury offence.
[71] It is further argued by the defence that while those who pay others to create child sexual abuse material are engaged in a marketplace and create demand, there is no evidence of the accused paying anyone or exchanging any goods for the child sexual abuse material he possessed or accessed, as was the case in Patterson. The accused, in fact, obtained the materials he did as a “free rider.” His ability to obtain child sexual abuse material without paying for it therefore provides no evidence that he was contributing to an economic marketplace creating incentives for the abuse of children.
[72] With respect to the hypothetical scenario in Patterson where the Court posited that the actions of a possessor of pornography could transform the crime into a serious personal injury offence, such as where subscribers of a website which propagated images of expressly violent child pornography for a regular fee provided suggestions for additional content, the defence notes that is not the case here. In the hypothetical example posed by Justice Bawden, there is a context in which a consumer of child sexual abuse material could be said to be at least a contributing cause, if not a proximate cause, to the harms suffered in creating the contraband. Mr. Ewing, on the other hand, did not subscribe to a website producing child sexual material for a fee. Instead, he obtained the material in question from internet sources freely available to himself and others.
Analysis
[73] While no court to date has found that the offences of possessing and accessing child pornography have constituted serious personal injury offences, neither does it follow that such a designation is neither available nor possible. In my respectful opinion, these subject offences may well so qualify, depending on the particular circumstances of the case.
[74] The fact that the context of a case may or may not lead to a serious personal injury offence designation has been explicitly recognized, both as a general proposition, and indeed, in relation to the offences under consideration.
[75] In the Alberta Court of Appeal’s decision in Goulet, the issue arose, more generally, in relation to whether or not an offence constituted a serious personal injury offence for the purposes of eligibility for the conditional sentence regime in the Criminal Code. The accused in that case pled guilty to leaving the scene of an accident and was given a conditional sentence. The Crown appealed the sentence on the basis that this offence constituted a serious personal injury offence and therefore precluded the availability of such a sentencing disposition.
[76] The Court of Appeal held that the circumstances of the offence might well result in a serious personal injury offence in one instance, but not another. It explained at para. 9:
The Crown concedes that any particular offence is not invariably a “serious personal injury offence”. There are some offences (for example, aggravated assault) which will likely always be serious personal injury offences. There are, however, offences which might sometimes be serious personal injury offences, and sometimes not, depending on the particular facts underlying the conviction. The Crown concedes that “leaving the scene” is the type of offence which might sometimes be a serious personal injury offence, and sometimes not. This view of the law is supported by cases like R. v. Ponticorvo, 2009 ABCA 117, at para. 16; R. v. C.P.M., 2009 ABPC 58, at paras. 30-31; and R. v. Foley, 2010 NSSC 449, at paras. 31-33.
[77] The Court went on to find that a conditional sentence was available for the offence of failing to remain at the accident scene, so long as the safety of the injured driver was not endangered or likely to be endangered by the accused’s leaving of the scene. It added that the sentencing judge was entitled to consider the “whole context” in deciding the issue and was not limited to examining the accused’s conduct (Goulet, para. 19).
[78] With respect to the importance of context in assessing whether an offence qualified as a serious personal injury offence, the Court added this comment at para. 12:
The definition of serious personal injury offence, and criminal liability in general, focus on the conduct of individuals. But conduct, including criminal conduct, does not happen in a vacuum. Particularly in the case of offences that relate to the creation of risk, the context in which the criminal act takes place will be relevant. For example, starting a fire may be benign (even useful), or it may be arson, depending on the entire context. Likewise, leaving the scene of an accident can have very different consequences, depending on the overall context. Abandoning an injured person on a warm day in a crowded place is a criminal act, but it is quite a different thing from abandoning an injured person on a remote country road in the middle of winter. The former might be eligible for a conditional sentence in some cases, the latter not. The context is crucial.
[79] Justice Bawden in the Patterson decision also referred to the importance of context in deciding whether the offences of possession and access to child pornography could be found to be a serious personal injury offence or not. It will be recalled in his hypothetical scenario that while the offender who collected family photographs of unidentifiable, naked children which he assembled into an album and labelled, such that they met the definition of child pornography, but did nothing more, failed to commit such an offence, whereas the same could not be said for one who subscribed to a website which propagated images of expressly violent child pornography for a regular fee, and invited suggestions for additional content from subscribers. The latter instance, it was stated, could constitute the serious personal injury offence.
[80] Mr. Patterson, in fact, was found to be a “low end consumer” of child pornography. He took possession of two images of child pornography and accessed five images of child pornography. He also accessed ten short videos, some of which were of very poor quality. The same cannot be said, however, of Mr. Ewing. His collection totals almost 1300 images and over 40 videos. There were also multiple search engines that he employed, including chat rooms. He is also a repeat offender, or a “regular consumer” to use the language of Bawden J., who has accessed such images multiple times in the past.
[81] Neither does Mr. Ewing bear any resemblance to the hypothetical offender in Justice Bawden’s scenario who collects pictures of unidentifiable, naked child subjects, taken by their families, but are never made aware that their images are being used for an illicit purpose. To the contrary, Cara is an identifiable victim. And she is acutely aware the accused and others, along with him, have accessed her images for such purposes.
[82] A significant distinguishing factor, then, from the Patterson case is the victim impact evidence that is before the court. Victim impact statements play an important role in measuring the impact of the offence and the harm that has occurred. In Friesen, which post-dates Patterson, and therefore was not available to Bawden J., the Supreme Court of Canada explained that in addition to the inherent wrongfulness of physical interference and exploitation, courts have recognized that sexual violence against children inherently has the potential to cause several recognized forms of harm. It stated that courts should be particularly mindful to two categories of harm: harm that manifests itself during childhood, and long-term harm that only becomes evident during adulthood. Victim impact statements can speak to the presence of such harm in a particularly poignant way.
[83] During childhood, the Supreme Court observed, in addition to the inherent wrong of interference with their bodily integrity, children can experience “physical and psychological harm that persists throughout their childhood” (para. 80). Sexual violence against children also causes many forms of long-term harm that may be manifest during the victim’s adult years, such as difficulty in forming loving, caring relationships with other adults (para. 81). I note that many of these harms are detailed in the victim impact statement of Cara, whose image was found in the accused’s collection, as well as in the community impact statements of other child abuse victims of pornographic images.
[84] At paras. 85 and 86 the Court in Friesen expanded on the evidence of harm that victim impact statements may furnish:
[85] When possible, courts must consider the actual harm that a specific victim has experienced as a result of the offence. This consequential harm is a key determinant of the gravity of the offence (see M. (C.A.), at para. 80). Direct evidence of actual harm is often available. In particular, victim impact statements, including those presented by parents and caregivers of the child, will usually provide the “best evidence” of the harm that the victim has suffered (R. v. Gabriel (1999), at p. 11). Prosecutors should make sure to put a sufficient evidentiary record before courts so that they can properly assess “the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it” (Woodward, at para. 76).
[86] Where direct evidence of the actual harm to the child is unavailable, courts should use the harm to the child as a lens through which to analyze the significance of many particular aggravating factors. Courts may be able to find actual harm based on the numerous factual circumstances that can cause additional harm and constitute aggravating factors for sexual violence against children, such as a breach of trust or grooming, multiple instances of sexual violence, and the young age of the child. We stress that direct evidence from children or their caregivers is not required for the court to find that children have suffered actual harm as a result of sexual violence. Of course, we do not suggest that harm to the child is the exclusive lens through which to view aggravating factors.
[85] In Patterson, the Court did make brief reference to a victim impact statement from the mother of a boy, J., who was featured in a website frequented by the accused, and who was depicted in an image found in his possession. This statement, according to the Court, “outlines the tragic effects on J’s life as a result of being exploited by child pornographers” (para. 30) Bawden J. went on to comment that the victim impact statement established a foundation for a finding that the maker of the images “inflicted severe psychological damage to J.” [emphasis added].
[86] It appears no community impact statements were put before the Court in Patterson.
[87] In the case before me, however, there are victim impact statements from multiple parties who have detailed the shame and fear they personally and collectively experience from the images of their abuse existing in perpetuity. The fear that it causes them in trusting others, especially in relation to their own children and other family members. Some are even afraid to appear in public, out of concern for being recognized. Others have changed their identifies, to try to prevent this from happening. Possession of their images, though, even in intangible form, is no less possession: see R. v. Morelli, 2010 SCC 8.
[88] Cara’s image, as I have noted, is one such image that the accused accessed. Although the abuse perpetrated on her occurred over 20 years ago, the scars have not left her. She still experiences flashbacks. As she details it, she has “really bad anxiety”, does not like people, and does not like going into places. She suffers from panic attacks and anxiety attacks. She has been diagnosed with major depressive disorder. Most particularly, she wishes for people to know that just because her abuse happened to her as a child, that does not mean it no longer affects her as an adult. The harm that she has suffered is indeed life-altering (Friesen, para. 85). To paraphrase the Supreme Court of Canada in Friesen, further, at para. 48, the online distribution of films or images depicting child pornography of Cara repeats the original offence, as she has to live with the knowledge that others may be accessing the films or images, which may resurface in her life at any time. Her past, in other words, is forever her present.
[89] In the mind of Cara, and other survivors of child sexual abuse who live in constant dread of their images being viewed by others, and especially of being recognized, there is no meaningful distinction between the maker of child pornography, or the viewer of same. They each inflict severe psychological damage on such victims, albeit at different times and in different ways, every time the image is viewed. The publisher may play the role of principal offender; the audience’s role as secondary offender. The performance may be “pay for view” or not. However, they remain offenders alike; they are all patrons of the same genre of harm. And in the case of Cara or the Phoenix 11 or others, they each cause incalculable harm and severe psychological damage to the victims’ self-worth, sense of dignity and personal autonomy.
[90] Mr. Ewing, to be clear, is no Mr. Patterson. He was not merely in possession or accessing a handful of images or poor quality videos, and taking part in an isolated fantasy chat. The quantity and quality of his offences was significantly greater. Both offenders may well be “free riders” or parasites who commit “hands-off” offences. But even parasites can cause serious harm. Whether they are parasites who are paying purveyors of images of child pornography or not. The potential for harm, long lasting and life altering harm, which inflicts or is likely to inflict severe psychological damage on another person, is manifestly present in this case. The victim impact statement of Cara and the other survivors admits of no other reasonable or possible conclusion.
[91] I have therefore respectfully found that the circumstances of this case mandate a finding that the possession and access offences committed by the defendant satisfy the definition of serious personal injury offence for the purposes of s.752 of the Criminal Code.
Nature of Assessment Order
[92] Having found that the Mr. Ewing has been convicted of a serious personal injury offence, I conclude these reasons by considering whether he might be found to be a dangerous offender under s.753, or a long-term offender under s.753.1 of the Code.
[93] The onus and burden on the Crown is to satisfy the Court that there are reasonable grounds to believe that the offender might be found to be such an offender. Section 752.1 does not require the court to consider whether such a finding will probably be made. The threshold is therefore a low one: see R. v. MacArthur, [1997] O.J. No. 5146 (S.C.J.), at para. 20; R. v. Torres, [2007] O.J. No. 1402 (S.C.J.), at para. 23; R. v. Jones, [2007] O.J. No. 1591 (S.C.J.), at paras. 20, 21; R. v. Naess, [2005] O.J. No. 936 (S.C.J.), at para. 76.
[94] With respect to the dangerous offender criterion, s.753(1(a)(i) provides for such a finding whether an offender who has been convicted of a serious personal injury offence constitutes a threat to the life, safety or physical or mental well-being of others on the basis of, among other things, a pattern of repetitive behavior by the offender that shows a failure to restrain his or her bahaviour. There must, additionally, be a likelihood of inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behavior.
[95] The defence notes that for a dangerous offender to succeed, there must be evidence of intractability and no real treatment prospects: R. v. Boutilier, 2017 SCC 64, at paras. 40 and 42.
[96] However, this issue does not crystalize at this stage of the proceedings. The fact that Mr. Ewing might be found to be a dangerous offender is not to say that he must or should be found to be such an offender.
[97] It is apparent that there is a pattern, on the accused’s part, of failure to restrain his behavior. The entirety of his criminal record consists of convictions for sexual offences in relation to children, either in pornographic form or in person. His child pornography convictions, over a period of 15 years, evidence many similarities in terms of the images he accesses and the predilections he expresses. See, in this regard, R. v. Jones, [1993] O.J. No. 1321 (C.A.), at p. 3; R. v. Payne, at para. 114.
[98] I am therefore satisfied that, in accordance with the criteria set out in s.752.1, Mr. Ewing might be found to be a dangerous offender.
[99] The same conclusion follows, in my respectful opinion, with respect to his potentially being found to be a long-term offender. The relevant criteria under s.753.1 are amply made out: it would be appropriate to impose a sentence of two years or more; there is a substantial risk that the offender will reoffend; and there is a reasonable possibility of control of the risk in the community.
[100] For the reasons discussed above, the substantial risk of reoffending factor is particularly of concern here, given the accused’s criminal antecedents. Indeed, the offences of possession of child pornography and accessing child pornography are among the enumerated offences under s.753.2(a). It is these very offences he has committed once again, this time after having acted out on them.
[101] I therefore conclude that Mr. Ewing might be found to be a long-term offender.
Summary of Conclusions
[102] The offences to which the accused in this case has entered guilty pleas, possession of child pornography and accessing child pornography, meet the definition of serious personal injury offences as set out under s.752 of the Criminal Code.
[103] I am satisfied, in addition, that Mr. Ewing might be found to be a dangerous offender under s.753 or a long-term offender under s.753.1 of the Code.
[104] An order shall therefore be made, pursuant to s.752.1(1), to conduct such an assessment, for a period not to exceed 60 days.
[105] It would be remiss of me to conclude this ruling without acknowledging the very high quality of the written materials and oral submissions made by counsel, for which I am extremely grateful.
