R. v. Graham, 2022 ONCJ 275

Court File and Parties

Ontario Court of Justice Date: 2022 06 14 Court File No.: Peterborough 21-0952

Between: Her Majesty the Queen

— And —

Christopher Graham

Before: Justice S. W. Konyer

Heard on: January 24 and May 24, 2022 Reasons for Judgment released on: June 14, 2022

Counsel: Ms. J. Hiland, for the Crown Ms. J. Di Lorenzo, for the accused Christopher Graham

Reasons for Judgment

KONYER J.:

[1]

Introduction and Charter Application

Christopher Graham pled guilty to a single count that he possessed child pornography between February 1 and April 29, 2021, contrary to s.163.1(4)(a) of the Criminal Code. The Crown proceeded by indictment.

2The defence brought an application, arguing that the mandatory minimum punishment of 1 year imprisonment for this offence when prosecuted by indictment infringes sections 7 and 12 of the Canadian Charter of Rights and Freedoms. Therefore, it argues that the mandatory minimum is of no force and effect in Mr. Graham’s case. The Crown did not file any materials in response to this application. In light of the decision of the Ontario Court of Appeal in R. v. John, 2018 ONCA 702, the Crown concedes that the mandatory minimum sentence here constitutes cruel and unusual punishment, thereby infringing s.12 of the Charter. In John, the Ontario Court of Appeal held that the 6 month mandatory minimum for the same offence, when prosecuted summarily, infringed s.12. I agree with the Crown’s concession and find that the 1 year mandatory minimum infringes s.12 of the Charter and therefore does not apply in Mr. Graham’s case. It is therefore unnecessary to deal with the s.7 Charter claim.

3As a result, there is no mandatory minimum sentence at play here. This means that a conditional sentence of imprisonment is an available sentencing option for Mr. Graham. The defence argues that a conditional sentence is appropriate in Mr. Graham’s circumstances, and I am required to give serious consideration to the merits of a conditional sentence. The Crown argues that a conditional sentence cannot adequately address the need to send deterrent and denunciatory messages, and seeks a sentence of 15 months imprisonment. The issue I must decide here is whether a conditional sentence is appropriate. The parties are in agreement that the sentence should also include a term of probation as well as a DNA order, a SOIRA order, and orders of forfeiture for any seized device containing child pornography. The Crown is also seeking prohibition orders under paragraphs 161(1)(a), (b), (c), and (d) of the Criminal Code for a period of 20 years. The defence argues that none of these orders are required in the circumstances of this case.

[4]

Sentencing Objectives

This is an offence involving sexual violence towards children. The children who were forced to perform the sexual acts that were recorded and found in Mr. Graham’s possession were all harmed, likely in profound ways, by the violent and degrading acts perpetrated upon them. Although Mr. Graham may not be directly responsible for the acts of sexual violence that were inflicted and recorded for posterity, he and other consumers of this vile material created a marketplace for it. The impact of the knowledge by the multiple victims that these acts were downloaded, viewed and preserved by others is incalculable. As the Ontario Court of Appeal held in R. v. Inksetter, 2018 ONCA 474, at para. 22: “child pornography is a pervasive social problem that affects the global community and its children.” The sentence must reflect the seriousness of Mr. Graham’s conduct and the harmed caused.

5As the Ontario Court of Appeal recently held in R. v. T.J., 2021 ONCA 391, at para. 25: “section 718.01 of the Code gives priority to denunciation and deterrence over other sentencing objectives where the offence involves the abuse of children.” A sentence expresses denunciation by condemning the violation of basic societal values. A sentence expresses deterrence by discouraging the offender and others from engaging in such conduct. These objectives are achieved primarily through the separation of offenders from society. The impact of s.718.01 is that these punitive objectives must be given more weight than other objectives, like rehabilitation.

6Ultimately, the sentence I impose must be proportionate to the seriousness of this offence and to Mr. Graham’s level of personal responsibility. I will therefore review each in turn.

[7]

Circumstances of the Offence and the Offender

The facts here are straightforward. The Peterborough Police Service acted on a tip received from the National Child Exploitation Centre and tracked an upload of suspected child pornography on February 1, 2021 to an address associated with Mr. Graham. A search warrant was obtained and executed on April 29, 2021. A number of his devices were seized and examined, and found to contain 17 video files totalling 10 minutes 27 seconds of footage plus 450 images that met the definition of child pornography. These mainly depicted prepubescent boys and girls posing in sexualized positions or engaging in sexually explicit acts with adults.

8Mr. Graham provided an inculpatory statement to police and entered an early guilty plea. A pre-sentence report was prepared. He is now 29 years old and has no prior record. He suffered a traumatic childhood marred by his father’s absence and alcohol abuse. On one occasion he witnessed his father sexually assaulting his mother, a highly traumatic experience which undoubtedly scarred him emotionally. He was also the victim of bullying at school. He is socially anxious and withdrawn, suffers from depression and has spent a good deal of his life alone and using the internet. He started watching pornography at a very young age and reports that he turned to child pornography after becoming desensitized to adult pornography. He denies any sexual interest in children. He has expressed remorse for his conduct but offered no real insight into his offending behaviour.

9Since being charged, he has engaged with counseling through Addictions and Mental Health Services of Hasting Prince Edward, The Peterborough Clinic, and the Canadian Mental Health Association. The services he has accessed include cognitive behavioural therapy, and counseling to address depression, anxiety and pornography addiction. He also received support for mindfulness, personal and family advocacy, education and independence. He has been described as open and receptive to therapy. He was also referred for a psychiatric consultation that notes a significant family history of mental illness and genetic vulnerability. Provisional diagnoses of major depressive disorder, anxiety disorder, panic disorder and post-traumatic stress disorder were made. He is clearly a young man with complex rehabilitative needs and he appears motivated to access services available to him to address his needs.

10Sentencing a vulnerable young man with no prior record for a serious offence is a challenging task. As mentioned previously, however, punitive sentencing goals must take priority over Mr. Graham’s rehabilitative needs. The focus of this sentence must remain squarely on the wrongfulness of Mr. Graham’s conduct and the harms caused by him. It is reasonable to infer that all of the victims here suffered profound harm and life-altering consequences as a result of their abuse. By consuming child pornography, Mr. Graham was a participant in that abuse. The sentence must be punitive in order to be proportionate to that reality.

11Mr. Graham’s level of personal responsibility for committing this offence is reduced as a result of his difficult personal circumstances. His life has been marred by the traumas he suffered as a child, which undoubtedly contributed to the mental health issues that continue to plague him. He was not raised in an environment where empathy and pro-social values were instilled. Further, there appears to be a link between his social isolation and the offending behaviour, which occurred online. All that said, however, there is no doubt that Mr. Graham understood the wrongfulness of his conduct. He must also have appreciated the harms that were being inflicted on the children he watched being sexually abused. He turned a blind eye to those harms for his own gratification. On balance, I assess his level of responsibility for this offence as being moderately high.

[12]

Appropriateness of a Conditional Sentence

A conditional sentence is legally available here. There is no mandatory minimum punishment and the Crown is seeking a reformatory length sentence. I also find that Mr. Graham would not pose an undue risk to the community were he to serve his sentence in the community subject to appropriate conditions. The more challenging issue, however, is whether serving a conditional sentence is consistent with the purpose and principles of sentencing in this case. As I have said, the punitive goals of denunciation and deterrence drive this sentence.

13I agree with the defence that a conditional sentence can have significant denunciatory and deterrent effect, particularly when it is longer than the period of imprisonment that would otherwise have been imposed, and when the conditional sentence contains punitive terms. It is also true, however, that there are some cases where the need to denounce the unlawful conduct is so pressing, and the need to send deterrent messages so overwhelming that a conditional sentence is simply insufficient to accomplish those goals. This, in my view, is one of those cases. A conditional sentence in these circumstances would fail to adequately address the harms caused by Mr. Graham’s conduct. Nothing short of a sentence of actual imprisonment would be proportionate. My conclusion here is bolstered by the recent decision from the Ontario Court of Appeal in R. v. M.M., 2022 ONCA 441 where the court held at para. 16 that “[t]hose who commit sexual offences against children must understand that carceral sentences will ordinarily follow.”

14Having concluded that a sentence of imprisonment is required, I must apply the principle of restraint in order to impose the least period of imprisonment necessary to achieve the punitive objectives here. Mr. Graham pled guilty at an early opportunity and has no previous record. His life has been challenging and he has made real efforts since being charged to address the root causes of this behaviour. I accept that he is remorseful for his conduct and has genuine rehabilitative potential. In all of the circumstances, I am of the view that a sentence of 10 months imprisonment is adequate. I recommend that Mr. Graham serve his sentence at the St. Lawrence Valley Correctional Institute.

[15]

Ancillary Orders

That will followed by a period of 2 years probation with terms requiring Mr. Graham to report and to attend counseling for sexual offending. There will also be a DNA order, a SOIRA order for 10 years and an order of forfeiture for any seized device found to contain child pornography.

16With respect to the orders sought pursuant to s.161, these create spheres of criminality which would have a significant impact on Mr. Graham’s liberty. Such orders are not to be made as a matter of course, but only where an evidentiary basis exists: R. v. Jongsma, 2021 ONSC 796, at paras. 80-84. There is no evidence before me that Mr. Graham presents a risk of committing hands-on offences. I therefore decline to make the orders sought pursuant to paragraphs 161(1)(a), (b) and (c).

17I do agree with the Crown, however, that the evidence supports a finding that Mr. Graham poses a significant risk of online offending. There will be an order pursuant to paragraph 161(1)(d) prohibiting Mr. Graham from using the internet or other digital network for a period of 10 years, except in accordance with the following terms:

• You may possess an internet capable device and use it to access the internet in accordance with the conditions below; however, you must do so on a device for which you are the sole owner and user. Further, the internet service must be in your own name or else provided through your employer or the education institution you are attending, if applicable.
• You may not access the internet using public wi-fi services, internet cafes, or via shared public computers (e.g. computers at a public library).
• You shall not use any encryption software or security program designed to prevent access to the contents of your internet capable devices or take independent action to encrypt any digital storage devices in your possession. You shall not install or permit to be installed on your internet capable device any software or service designed to defeat forensic analysis of the internet capable device.
• You shall not use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet (e.g. TOR browser).
• You shall not use or permit to be installed on any device in your possession any scrubbing software or software that saves files in an encrypted fashion.
• You are not to directly or indirectly access any Peer-to-peer file sharing networks (including but not limited to “kik” “discord” “Pinterest” “Skype” “motherless”, “LimeWire”, “gnutella”, “bearshare”).
• You are not to use any telecommunication device to access the Internet or other digital network in order to possess or access content that violates the law.

18The victim surcharge of $200 applies. Mr. Graham has 3 years to pay the surcharge.