WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:
486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. K.R., 2022 ONCJ 344
DATE: 2022 07 26
COURT FILE No.: Region of Niagara 998 NR20 3740 & N22 0889
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
R. (K.)
Before Justice J. De Filippis
Heard on April 7 and June 29, 2022
Reasons for Sentence released on July 26, 2022
Mr. M. Sokolski................................................................................... counsel for the Crown
Mr. D. Protomani............................................................................. counsel for the accused
De Filippis, J.:
1The defendant pleaded guilty to the following Criminal Code offences; making child pornography, distributing child pornography and impaired operation of a motor vehicle. The Crown proceeded by Indictment. The child pornography offences were facilitated by acts of sexual interference.
2The offender is a woman, without a criminal record. In a separate and unrelated case, I received a guilty plea to similar charges by another, albeit younger, woman, also without a criminal record. I advised all counsel that I would hear submissions with respect to both cases before deciding sentence and delivering reasons.1
3The child pornography offences were discovered after local police received information from the American Department for Homeland Security. That information revealed that a man in California, “James Sacramento”, had exchanged messages, via facebook, with the defendant and that the latter had also provided the man with photographs. The messages and photographs meet the definition of child pornography. This happened between January 2019 and September 2020.
4The impaired charge arose recently. In March 2022, the defendant was found, passed out in the driver’s seat of a car in a parking lot for a LCBO store. A “drug pipe” was in the console and she later provided breath samples that resulted in a blood alcohol reading of 240, almost three items the legal limit.
5On consent of the Crown and Defence, I viewed the messages and images in my office. These were seized, pursuant to search warrants, in Niagara Region and California. To give context to these reasons, it is necessary to describe what I read and saw. At the time, the offender was 29 years old, and her children were six (a girl) and five (a boy).
James asks for nude photographs of the children;
The offender sent a photograph of herself with her children, all naked;
There are numerous messages exchanged about introducing the children to masturbation. James tells the offender that she can teach them to do so. The parties discuss how this can help relieve stress and promote sleep. James adds that this is an opportunity for the offender to bond with her children. The offender later reports that she assisted her son in masturbating and that he seemed to enjoy it. She notes that it looks like he will be “well hung”. James finds this to be “awesome”.
The offender sent James images of her daughter posing in adult clothing and several images of her son’s penis and bum.
The offender also sent James videos of her children, both naked, and jumping on the bed. In one scene the boy holds his penis while his sister looks. It appears he is being coached. In another both children dance while naked. It appears that they are being coached.
James tells the offender he looks forward to joining the family and watching her “do what you do” [with her children] and adds that he might have suggestions.
6As a result of a presentence report, I understand the following:
7The offender was born in Brampton, Ontario. She has been diagnosed with borderline personality disorder and has a history of drug abuse. She described growing up in a family that lacked emotion. Her parents avoided conflict by ignoring issues. The offender does not have significant ties to her family. One sibling, her brother, was removed from the home when he was 13 years old and the offender was eight years old as they were found together in a bedroom in which the brother was naked and the offender had, at his request, exposed her vaginal area.
8The offender is now 30 years old. She has three children. The first two are the victims of the present offences and are currently with their biological father. The offender was estranged from this man before these offences. Following the breakup of that relationship, the offender met another man who encouraged her increased substance abuse and introduced her to methamphetamine. He was abusive. The offender became isolated from family and friends and described feelings of low self-worth. She engaged in casual sex and joined online forums dealing with polyamory and BDSM. During this period, she became pregnant with her third child, who was born days after she was arrested for the present offences. This child was apprehended by child welfare authorities and placed in the care of her parents. The offender has supervised access to the baby and continues to breast feed her. The offender completed a post-secondary educational assistant program in 2014. However, her employment history has not been successful due to poor attendance and lack of interpersonal skills.
9The author of the presentence report noted the following:
In discussing the sexual offences before the Court, the subject acknowledged poor decision making and accepted culpability while offering some minimization. She reasoned at the time of the offences she was experiencing low self-esteem and enjoyed the attentiveness offered by her online relationship. She denied her offending behaviour was motivated by sexual interest but rather to appease her partner. The subject reported a sexual preference of adult males and refuted any deviant preoccupations. She offered regret for violating her child’s privacy and advised the male never had direct access to her son.
Regarding the impaired driving offence, the subject admitted using alcohol to cope with a negative Family Court hearing outcome. She acknowledged the dangers of her behaviour and indicated she is amenable to addressing these concerns via counselling. The subject stated she is willing to accept any disposition as determined appropriate by the Court.
10When I asked if the offender had anything to say, she replied as follows; “This has affected my entire life, I have no contact with my kids...I never meant harm, I am extremely remorseful...I am taking programs...this will never happen again”. In making this statement, the offender was under obvious stress.
11These offences call for certain ancillary orders. They are not in dispute, and I will set them out at the conclusion of these reasons. The parties also agree that the offences call for a sentence of imprisonment, but they differ as to the quantum. The Crown submits that an appropriate term is five years in the penitentiary. The Defence position is that three and one-half years in jail is a fit sentence.
12The cardinal principle of sentencing is proportionality. This means that the severity of a sentence will depend on the seriousness of the offence (and its consequences) as well as the moral blameworthiness of the offender; see R v Lacasse 2015 SCC 64. Personal circumstances are relevant in determining proportionality in light of the seriousness of the offence, but they do not alter the seriousness of the offence: see R v Schofield [2019] B.C.J. No. 22 (BCCA).
13Child pornography offences often result in jail. Making available child pornography warrants longer sentences because allowing others to observe the images contributes to further victimization of children: see R v Inksetter, 2018 ONCA 474. In making and distributing the prohibited images in this case, the defendant sexually interfered with the children.
14Since this offence involves the abuse of a person under the age of 18 years, I must give primary consideration to the objectives of denunciation and deterrence. In applying these principles, I am guided by the decision, of the Supreme Court of Canada, in R. v. Friesen, 2020 SCC 9. Both counsel framed their submissions in light of this case.
15In Friesen, the Court provided comprehensive guidance to lower Courts by restating and reformulating certain governing principles in cases of sexual interference. These are the four messages that I take from Friesen: (1) Protecting children from wrongful exploitation and harm defines the legislative scheme of sexual offences against children; (2) Understanding this wrongfulness and harm is the critical duty of sentencing judges: (3) The performance of this duty means that those who commit this offence will usually go to jail; and (4) Exceptional circumstances, that justify a non-custodial sentence, are those that mitigate an offender’s moral responsibility, such as mental or cognitive disabilities.
16The Crown argues that Friesen commands trial judges to impose severe sentences for child sexual abuse and that mid-single penitentiary terms are to be the norm. In this regard, personal circumstances must not be elevated over denunciation and deterrence. Counsel adds that, in any case, the offender’s moral blameworthiness is high. As a mother, she is supposed to protect her children; instead, she molested them.
17The Defence submits that the offender committed the offences because of low self-esteem due to recent abuse, mental health issues and addiction. Counsel adds that the offences were not sexually motivated but conducted to please James Sacramento. I am reminded to consider her guilty plea, expression of remorse and lack of a criminal record. Counsel suggests that a five-year prison sentence will be crushing and hinder rehabilitation.
18The Crown counsel is correct in his characterization of Friesen; indeed, in that case, the Supreme Court adopted the comments in R v Woodward 2011 ONCA 610 at para 76
... when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.
19The harm caused to the two victims by the acts of sexual interference may be long lasting. While I hope they will forget what was done to them, I cannot be confident of this. Moreover, the images created by the offender not only depict their naked bodies; they also clearly show the children’s faces. These images are on the internet, and these children may be identified forever.
20I acknowledge the concerns expressed by Defence counsel about his client’s difficult past. However, the principles of denunciation and deterrence are especially important in this case because the defendant committed the offence while in a position of trust; see sections 718.01 and 718.2 of the Criminal Code. Indeed, it is hard to imagine a more egregious breach of trust than a mother sexually interfering with her children to make and distribute child pornography.
21I accept the position advanced by the Crown. The offender is sentenced to five years in the penitentiary for making and distributing child pornography. The sentences will run concurrently.
22The offender will provide a sample of her D.N.A. She will register with the federal sex offender registry, for life. In addition, pursuant to section 161 of the Criminal Code, the offender is prohibited, for life, from seeking, obtaining or continuing any employment, whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years
23The offender is sentenced to 15 days, to be served concurrently, for the offence of impaired operation of a motor vehicle. She is subject to a one-year driving prohibition.
24The offender must pay the victim fine surcharge in the amount of $200.00 per count.
Released: July 26, 2022
Signed: Justice J. De Filippis
