Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 11 22 COURT FILE No.: Halton Info # 20-2072

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

S.B.

Before: Justice Scott Latimer

Heard on: July 18, 26 & November 10, 2022 Reasons for Sentence released on: November 22, 2022

Counsel: Monica MacKenzie & James Coppolino...................................... counsel for the Crown Vick Hundal..................................................................................................... counsel for S.B.

LATIMER J.:

[1] S.B. was found in possession of a significant amount of child pornography. He acknowledged responsibility for this offence almost immediately – in fact, he told the police officers he was responsible during the search warrant execution – and has pleaded guilty to possession following a series of judicial pre-trials. In these reasons, I seek to explain why I imposed an exceptional sentence in his case.

I. Facts – The offence

[2] S.B.’s case is consistent with a disturbing modern trend – greater computing capacity and faster internet speeds correspond with greater amounts of accumulated child pornography. S.B.’s self-acknowledged pornography addiction led to him accessing and viewing child pornography on a significant scale – over 40,000 images and 600 videos.

[3] A police officer presented a representative sample of the material seized at the sentence hearing. The majority of the images depicted prepubescent children engaged in sexual acts with adults. The quantity of this material and its depiction of intrusive sexual acts involving young children are significant aggravating features that more than justify – when the offence is viewed in isolation – the Crown’s sentence recommendation of two years less one day incarceration.

II. Facts – The offender

[4] Mr. Hundal, on behalf of S.B., acknowledges the severity of the offence but directs my attention to S.B.’s individualized circumstances. This inquiry has been greatly aided by the Gladue report prepared in this case. This report, exhaustively researched, details S.B.’s experiences and the impact of his father’s childhood traumas on his later negligent maltreatment of S.B. and his siblings. [1]

[5] Mr. B. Sr. was sexually and physically abused during his childhood before being sent to a provincially run school for boys with “behaviour problems”. He describes atrocious violence and horrid living conditions within the school; conditions which have been independently corroborated by media reporting and civil litigation. [2] The treatment was particularly torturous for Indigenous children:

On my birthday, I got punched in the face [by a guard] and fell down three flights of stairs and split my head open. I was in the sick bay at the school, but I don’t know how long, maybe six months or a year. Other times I had to piss and shit in a little room, and freeze: a cold room and I wore a kind of potato sack. I’ve seen kids get killed. They get beaten, and taken away all bloody, and then we never saw them again. Where are they? Maybe they’re on the property; it’s a big place. But the only proof I got is in my head.”

[6] This provincially run school did not prepare Mr. B. Sr. well for life. He describes turning sixteen years of age and being “released into public to fend for himself”. His world view and low self-worth had been beaten into him after a lifetime of abuse: “after you get beat so much, you don’t care anymore. You say, ‘that’s all you got? Just fucking kill me already”.

[7] S.B.’s father did not possess the life skills to suitably raise his own children and was often abusive in his parenting approach. S.B.’s mother was largely absent from his life. Both parents impressed upon S.B. that his Indigenous heritage was something to be ashamed of, something to keep hidden from others.

[8] I accept, on the entirety of the evidentiary record before me, that there is a linkage between the state-run abuses his father suffered and his subsequent inability to properly care for his children. S.B.’s sister, R., told the Gladue report writer:

When we were children, if we would have gotten the help we needed, we wouldn’t be the way we are. We had a nice house and enough food and stuff, but there was no love. My dad was brought up in one of those “boys’ homes”, and he didn’t know how to love us. If not for our childhood, S.B. wouldn’t be in the situation that he’s in. The abuse from my dad and, for S.B., from my mom – he needs a chance”. (Gladue report, p.10)

[9] S.B.’s childhood was riddled with abuse – both physical and sexual. He was socially isolated from other children during preadolescence, in part because of poverty and the family’s transient existence:

Kids would have rock fights with us. Like them against us boys [S.B. and his brothers]. People would pick fights with me all the time, so I started to fight. We all did. I didn’t have an easy time at school, or home, or nowhere. (Gladue report, p.9)

[10] S.B. attempted to run away from home on multiple occasions, starting at age 10, and began smoking and using cannabis at an even younger age: “I smoked at eight, sold at nine”. He subsequently quit smoking marijuana but continued to traffic in order to make a modest amount of money.

[11] The Gladue report writer, in documenting S.B.’s childhood, referenced the Adverse Childhood Experiences (ACE) study, which found:

[…] many mental health problems, including chronic depression, anxiety and substance abuse in adulthood, are related to early childhood toxic stress. Vulnerability is cumulative and increases with the number of risk factors present and prolonged exposure to these. The study found that adults who had experienced four or more childhood exposures to harm or disadvantage during childhood were four to 12 times more likely to experience alcoholism, drug abuse, depression and suicide attempts than those where experienced none. [3]

The ACE study identified those risk factors as:

• Exposure to psychological abuse
• Exposure to physical abuse
• Exposure to sexual abuse
• Exposure to violence against mother
• living with household members who were substance abusers
• living with household members who were mentally ill
• living with household members who were suicidal
• living with household members who were ever imprisoned

[S.B.] has experienced four of these identified childhood exposures to harm or disadvantage during his childhood. (Gladue report, p.17)

[12] S.B.’s criminal record is limited and quite dated. His last entry is from 2002 and involved simple possession and breach of a court-ordered condition. He received a fine and 10 days in jail.

III. Legal Framework – child pornography sentencing principles

[13] There has been an appreciable shift in the past two decades in how sentencing courts approach child pornography possession cases. That shift is largely predicated on how this criminality is perceived. Where once possession of child pornography was treated as a non-violent offence, we now better appreciate the underlying abuse and trauma associated with the creation of this material: R. v. DGF, 2010 ONCA 27, at para. 21; R v Inksetter, 2018 ONCA 474, at para. 16. In 2005, Parliament added section 718.01 to the Criminal Code, which instructs trial judges to give primary consideration to the objectives of denunciation and deterrence in cases involving “the abuse of a person under the age of eighteen years”.

[14] This provision is applicable to child pornography possession. As Justice Woollcombe of the Superior Court of Justice wrote in R. v. John, 2018 ONSC 810, at para. 26, “[i]nherent in the possession of child pornography is the abuse of children”. More recently, the Supreme Court of Canada addressed a wide range of child sexual abuse sentence issues in R. v. Friesen, 2020 SCC 9. At paragraph 51 of the judgment, the Court wrote:

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. This Court recognized the importance of these interests in Sharpe in the context of the production of child pornography. As this Court reasoned, the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime.

[15] The Supreme Court’s decision in Friesen amplified instructions the Court of Appeal for Ontario had been providing sentencing courts since the DGF decision in 2010. In June 2022, the Court provided a further, post-Friesen, reminder of those principles in R. v. MM, 2022 ONCA 441, at paras. 15-16:

The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 OR (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.

Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.

IV. Legal Framework – Gladue sentencing principles

[16] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society. [4] Judges seek to fulfil this goal by considering and applying principles contained in either the Code or the common law. Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. [5]

[17] Sentencing courts are directed to pay close attention to the particular circumstances of Indigenous offenders, a historically disadvantaged population. Very recently the Supreme Court of Canada reminded us – once again – of the “undeniable” crisis of Indigenous overincarceration: R. v. Sharma, 2022 SCC 39, at paras. 3, 142. In her minority opinion, Justice Karakatsanis wrote:

In 1999, this Court called the situation a “crisis in the Canadian criminal justice system” (Gladue, at para. 64). Thirteen years later, citing Professor Rudin, it asked: “If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?” (Ipeelee, at para. 62, citing J. Rudin, “Addressing Aboriginal Overincarceration Post-Gladue: A Realistic Assessment of How Social Change Occurs” [citation omitted]. Words failed then, and they fail now. The time for mere concern has long since passed. Put simply: we must do better. [emphasis added]

[18] Sections 718.2(d)-(e) of the Code provide a mechanism to address this ongoing crisis, with 718.2(e) referring directly to “the circumstances of Aboriginal offenders” during the provision’s overall codification of the restraint principle. The restraint principle refers to the duty of judges to consider all options short of jail that may be appropriate in an offender’s individualized circumstances. This principle applies to all offenders but with greater emphasis when the offender is Indigenous.

[19] More specifically, sentencing judges have an affirmative obligation to inquire into the relevant circumstances of an offender with Indigenous ancestry, and to consider the types of sentencing procedures and sanctions that may be appropriate because of his particular Aboriginal heritage or connection. The Court of Appeal for Ontario described this analysis in R. v. MacIntyre-Syrette, 2018 ONCA 259, at para. 13:

When sentencing Aboriginal offenders. Gladue requires courts to consider:

(1) The unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and

(2) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66)

V. Determination

[20] In S.B.’s case, the negative treatment his father received at the provincially run school led to S.B.’s childhood of neglect, maltreatment, and abuse. S.B. was robbed of, among other things, the support of family and community. His father is a member of the Tyendinaga Mohawk community. S.B., throughout his life, has been denied an opportunity to connect with his Indigenous heritage and his First Nations community. The Gladue report, however, presents a path forward in this regard, in addition to other sources of community stability such as further education.

[21] On July 26, I was to deliver my sentence judgment in this case. However, before I could begin, S.B. asked to address the court. He requested that I adjourn my sentence determination in order to allow him to begin Indigenous-centered counselling and treatment with Anishnawbe Health Toronto. I acceded to this request.

[22] I have since been updated on S.B.’s rehabilitative progress. The programming has continued through the Fall and involves “weekly meetings with a focus on addressing past trauma and [S.B.’s] problematic use of pornography”. The Counsellor, in an update letter dated November 9, 2022, wrote that “[S.B.] is grateful for the opportunity to finally get help and is eager to continue our work together should his circumstances permit”.

[23] Additionally, S.B. has also begun adult education with a goal of obtaining a GED diploma. He is working for his brother’s business, mainly doing deliveries, and has reconnected with his father through a mutual love of woodworking. They are in the process of building a woodworking shop on S.B.’s property.

[24] Child sexual abuse is a matter of pressing national concern. These offences exploit vulnerability and cause “profound harm to children, families and communities”: Friesen, at para. 5. S.B. committed such an offence, and his criminal conduct indirectly contributed to ongoing child sexual abuse. But, as the Gladue report documents, he is also the victim of such abuse.

[25] I cannot ignore the reality that S.B.’s present circumstances are the product of a legacy of childhood sexual and physical abuse – both against him and against his father. Abuses committed by family members, family friends and – in the circumstances of the atrocities his father suffered at the provincially run school – by the state. S.B. has failed the exploited children whose images he possessed, but our society failed him first. Failed to protect him from intergenerational trauma. Failed to protect him from child sexual abuse.

[26] This amalgam of failures demands a proportionate sentence. The offence itself requires jail. The offender’s reduced moral blameworthiness, and present circumstances, justify an adaptive approach to custody. Put plainly, I choose not to risk his present rehabilitative gains by placing him into a provincial reformatory. I am of the view that a conditional sentence of maximum length, coupled with restrictive terms and culturally appropriate rehabilitative options, presents the best path forward for S.B. and for our community. I am satisfied that a conditional sentence is both statutorily available and would not imperil public safety. While this sentence falls outside the typical current range for this offence, S.B. is not the typical offender. I believe the present facts fall within the narrow range of “exceptional circumstances” identified by the Court of Appeal in M.M. In taking this approach I am also applying the principles espoused by the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, [2013] 1 SCR 739, at para. 9:

As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2 (b) of the Criminal Code). In other words, “if the personal circumstances of the offender are different, different sentences will be justified” (C.C. Ruby, G.J. Chan and N.R. Hasan, Sentencing (8th ed. 2012), at §2.41). [emphasis added] [6]

VI. Disposition

[27] A two year less one day conditional sentence was ordered, along with various ancillary orders.

Released: November 22, 2022 Justice Scott Latimer

Footnotes

[1] I wish to express my appreciation to Desiree Duplessis for the quality of this report.

[2] See references in Gladue report, pp. 4-6.

[3] Felitti, MD, Vincent, J et al. Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults: The Adverse Childhood Experiences (ACE) Study 1998. American Journal of Preventative Medicine, 14:4 pp 245-258. (Referred to at p. 16 of S.B.’s Gladue Report)

[4] Section 718, Code.

[5] Section 718.1, Code.

[6] Additionally, I agree with and adopt the similar statements made by Justice Harris in R. v. Rytel, 2019 ONSC 5541, at paras. 68-9, 78-83.