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ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD PATTERSON
Defendant
Mihael Cole, for the Crown
Frank Bernhardt, for the Defendant
HEARD: August 7, 2018
Bawden J.:
1Richard Patterson has been convicted of possession and access to child pornography. The Crown seeks an Order that Mr. Patterson undergo an assessment pursuant to section 752.1 of the Code as preliminary step towards an application to have Mr. Patterson declared a dangerous offender under s. 753(1). The defence contests a finding that the two offences are serious personal injury offences (“SPIO”).
2In order for Mr. Patterson to be declared a dangerous offender, the court must be satisfied that one or both of the two convictions meet the definition of an SPIO which is set out in section 752 of the Code. That section reads as follows:
Serious personal injury offence means
(a) an indictable offence, other than high treason, 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,
(b) An offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault),
and for which the offender may be sentenced to imprisonment for ten years or more.
3The Crown argues that the essential elements of possession and access to child pornography meet all of the criteria to be SPIO offences and, as such, any conviction for either of these offences will necessarily constitute a serious personal injury offence.
4If that argument fails, the Crown maintains that the manner in which Mr. Patterson committed these two offences constitutes a SPIO.
5If both of those arguments fail, the Crown seeks an order for assessment under s. 752.1(1) in furtherance of an application to have Mr. Patterson declared a Long Term Offender.
6The defence contests all of these applications and submits that Mr. Patterson should be sentenced in the conventional fashion.
Are Possession and Accessing Child Pornography Necessarily SPIO Offences?
7The Crown argued in oral and written submissions that every conviction for possession or access to child pornography is necessarily a serious personal injury offence. The argument proceeds as follows:
The making of child pornography is an inherently violent act which causes severe psychological harm to the victims.
Anyone who is in possession of child pornography is guilty as a party to the making of the pornography and is hence also responsible for any injury done to children.
Although the possessor of child pornography may not be as directly tied to the violence and severe psychological harm as the maker, any violence to a person is sufficient to fulfill the SPIO criteria.
Is making child pornography inherently violent?
8The making of child pornography can constitute an SPIO and many courts have made that finding. Making child pornography necessarily involves the sexual abuse and exploitation of a child. It is highly likely that the victim will suffer severe psychological damage either in the creation of the images or as a result of knowing that his or her images will exist in perpetuity on the Internet. The same can be said of the violence which is inherent to the making of many forms of child pornography. But the Crown argues in his factum that “in cases involving child pornography, every image represents violence towards children.” That assertion demands careful scrutiny.
9The court proposed a hypothetical to test the Crown’s submission. 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?
10The Crown adamantly maintained that he had. By taking the pictures into his possession for a sexual purpose, he had committed an act of violence against the children even though the pictures were taken by their own parents and the unidentifiable subjects would never know that their photographs had been used for an illicit purpose.
11I cannot accept such an all-encompassing definition for the word “violence” as it appears in the SPIO definition.
12The SPIO requirement for dangerous offender proceedings establishes an essential link between the predicate offence and the sentence of the court. It is the gateway to dangerous offender proceedings. I accept that the Ontario Court of Appeal in Lebar recommended an expansive approach to the word “safety” in interpreting the SPIO definition and that the Supreme Court of Canada in Steele concluded that no objective level of violence is necessary to designate an offence as an SPIO. Those authorities are highly pertinent to determining whether the particular offences committed by Mr. Patterson meet the SPIO definition. But the Crown seeks a much wider ruling than that. The Crown asks this Court to find that every possession of child pornography will, by definition, amount to a SPIO based on unrealistically expanded definitions of violence, safety and severe psychological damage. To adopt the definitions proposed by the Crown would greatly expand the range of offences which would be eligible for dangerous offender proceedings.
Is the possessor of child pornography a party to the making of that pornography?
13The Crown further argues that anyone who is in possession of child pornography is necessarily a party to the making of that pornography. This argument rests on the premise that possessors create the market for child pornography and without that market, there would be no production. Mr. Cole relies on a number of decisions rendered by sentencing courts which have denounced the evils of possessing child pornography and emphasized the need for punitive sentences for possession and access to decrease the market that drives production. The following is a small sampling of the many cases cited in the Crown’s factum:
a. “Collectors of child pornography seek to distance themselves from the direct physical and emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators… The existence of this ready and eager consumer base can only be seen as an incitement to those who would perpetrate further child abuse.” Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 at paragraphs 49 and 50 (Molloy, J.)
b. “…those who wish to possess child pornography encourage the sexual abuse of children and encourage the recording of this abuse by providing an audience or a market for those who produce child pornography… Each possession, viewing, sharing, downloading or uploading can be seen as a repetition of the initial hands-on abuse.” Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 at paragraphs 31-32 (Henderson, J.)
c. “The possession of child pornography is tantamount to violence against children. Victims are vulnerable and defenseless and this exploitation is at the very least notionally violent behaviour by all engaged in the practice.” Ashkewe, [2010] O.J. No 5372 at para 20, 22.
d. “The possession of child pornography poses a grave risk to children. The sentencing judge specifically noted the case law that characterizes the possession of child pornography as an abhorrent crime that causes extreme harm.” Schulz, 2018 ONCA 598, [2018] O.J. No. 3526 at para 53.
14The proposition that everyone who possesses or accesses child pornography is necessarily a party to the making of that pornography is a difficult one. The authorities quoted by the Crown suggest that possessors encourage the ongoing abuse of children and that possession is tantamount to violence. There is no authority, however, for the proposition that the possessor aids or abets the producer within the meaning of section 21 of the Code. It would be a substantial alteration of the basis for criminal liability if I were to accept the Crown’s argument. As Mr. Bernhardt fairly asked, if someone has cocaine in his pocket, does that make him a party to the importation of cocaine?
15Taking the argument at its highest, it might be said that a possessor who purchases or trades in child pornography abets the production of the pornography. As the Crown points out, even “free” pornography such as the images accessed by Mr. Patterson on non-subscriber websites are paid for by banner advertising. Any use of these sites generates revenue for the makers of child pornography. If Mr. Patterson is unaware of that fact, it is only because he is wilfully blind to the manner in which his behaviour contributes to the huge international market for child pornography.
16The Crown makes a very good argument that the possessors of child pornography are morally responsible for its production but Mr. Cole goes further than that. He claims that it is not only a moral but a legal responsibility which incurs legal culpability. He acknowledges that Mr. Patterson was not charged with making child pornography but suggests that he could have been charged and that the same facts which gave rise to his conviction for possession and access would have also founded a conviction as a party for the making of child pornography.
17I do not accept that submission. The sentencing authorities which Mr. Cole relies on are designed to explain the need for punitive sentences for possession and access to child pornography. They address the need for general deterrence by increasing the sentences for simple possessors, not the expansion of criminal liability for the making and distribution of child pornography. There is a crucial distinction between those who directly profit from the exploitation of children and those who create the market for that exploitation and no plausible reason has been advanced to conflate the two.
Is any degree of violence sufficient to fulfill the SPIO criteria?
18If the Crown had been successful in his first two arguments, he would finally argue that no qualitative minimum level of violence is necessary in order to fulfil the criteria in section 752. Any violence, even if it does not involve the hands-on application of force, is sufficient.
19I 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.
20In 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.
21At 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.
22For all of the reasons set out above, I respectfully dismiss the Crown's argument that possession and access to child pornography are, by definition, SPIO offences.
Did the manner of committing the offences in this case constitute an SPIO?
23The Crown alternatively argues that the manner in which Mr. Patterson committed his offences meets the SPIO definition. I will quickly summarize the relevant facts.
24Mr. Patterson used his laptop computer to surf pornographic websites. He collected many images, the vast majority of which were legal. In his Internet surfing, he repeatedly visited sites which presented images of prepubescent males in various states of undress. 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.
25Mr. Patterson took possession of two images of child pornography: a naked boy (now identified as J.) lying face down on a bed and a RAR file which held a number of sequential images of a boy removing his underwear. Mr. Patterson downloaded the RAR file but either was unable to view it or did not attempt to.
26Mr. Patterson was found guilty of accessing five images of child pornography:
An image of a 14 year old boy holding his erect penis while wrapped in a red blanket.
An image of a teen boy portrayed with ejaculate on his tongue.
An image of a boy on a yellow bedspread holding his erect penis.
An image of J. at approximately 12 years of age reclined on a couch wearing only a diaper.
An image of a boy removing a pair of white underwear.
27Mr. Patterson also accessed ten short videos which fell into three categories:
Two prepubescent boys engaged in explicit sexual activity
A prepubescent boy exposing his penis
Teenaged boys masturbating
28At least one of the websites that Mr. Patterson frequented (the M[…] Website) did invite comments from viewers but there is no evidence that Mr. Patterson posted anything. It does not appear that Mr. Patterson ever directly paid for any of the material that he accessed.
29At about the time that he was accessing child pornography and engaging in fantasy chats about abusing children, Mr. Patterson established a Facebook relationship with a 15 year old boy named Matthew D. Mr. Patterson created a Facebook account in which he pretended to be a 15 year old gay male who was looking for companionship. Matthew sent a friend request to Mr. Patterson’s fictitious account and the two became friends. Mr. Patterson was acquitted of a charge of internet luring under section 172.1 based on a reasonable doubt as to his intention to facilitate the commission of a secondary offence. The acquittal did not alleviate concerns arising from the fact that Mr. Patterson was falsely representing himself to be 15 years old in order to engage in fantasy chat with real teenagers.
30The Crown argues that in committing these offences, Mr. Patterson used violence against the children who appeared in these images. He also alleges that Mr. Patterson’s conduct endangered their safety and was likely to inflict severe psychological damage upon them. Mr. Cole has provided me with a victim impact statement from the mother of J., a boy who was prominently featured in the M[…] website and who was depicted in the image found in Mr. Patterson’s possession. The statement outlines the tragic effects on J.'s life as a result of being exploited by child pornographers. The statement establishes a foundation for a finding that the maker of the images inflicted severe psychological damage to J..
31The Crown does not bear any particular burden to establish that an offence meets the SPIO criteria. The Crown must prove the essential elements of the index offences beyond a reasonable doubt whereupon the court will make a legal determination as to whether the offence constitutes an SPIO. The offence need not be a hands-on offence to be an SPIO and there is no minimum qualitative level of violence or endangerment of safety which must be met before the designation can be made. Notwithstanding the Crown's very able and determined efforts, I am not satisfied that the criteria in this case have been met.
32Mr. Patterson was a low end consumer of child pornography. There is 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. One of the images that he accessed (the boy with ejaculate on his tongue) did depict evidence of a sexual assault but on the scale of such images, this was on the less serious end. The videos showing sexual activity between prepubescent boys are clearly the most disturbing images but they were few in number and of limited visual quality. There is no evidence that Mr. Patterson ever attempted to take possession of them.
33Mr. Patterson's possession and access to child pornography did not play any part in his conversations with Matthew D. In those conversations, Mr. Patterson made no reference to pornography. He received non-pornographic images from Matthew but did not send any images himself despite repeated requests from Matthew.
34Mr. Patterson's participation in the Facebook group is the aspect of the offence which comes closest to fulfilling the definition of a serious personal injury offence. In one exchange, Mr. Patterson chatted with another Facebook user who represented himself to be a twelve year old boy. The other party sent the picture of J. lying on a bed and pretended that he was the boy in the picture. The picture prompted a conversation between Mr. Patterson and the other party in which Mr. Patterson fantasized about engaging in sexual activity with the supposed 12 year old boy.
35If I believed that Mr. Patterson seriously thought that he was talking to a 12 year old boy when he engaged in this chat, I might take a different view as to whether the access charge met the definition of a serious personal offence. But for the reasons set out in the Reasons for Judgment, I am convinced that Mr. Patterson knew that he was speaking to a fellow adult who, like himself, was posing as a child for the purposes of engaging in fantasy conversations. However disturbing that may seem on its face, 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.
36For all of these reasons, I find that the offences committed by Mr. Patterson were not serious personal injury offences and I decline the Crown's request for an assessment order on the basis of section 753(1) of the Code.
Has the Crown demonstrated that there are reasonable grounds to believe that Mr. Patterson might be found to be a Long Term Offender?
37The Crown submits in the final alternative that even if the index offences are not serious personal injury offences, an assessment should still be ordered because there are reasonable grounds to believe that the respondent might be designated to be a long-term offender pursuant to s. 753.1 of the Code. If so, the court must order that Mr. Patterson undergo an assessment under section 752.1(1).
38There are three criteria which must be met to make out a long term offender designation:
That a sentence of two years or more would be appropriate for the index offences;
That there is a substantial risk of reoffending; and
There is a reasonable possibility of eventual control of the risk in the community.
39I do find that a sentence of two years or more would be appropriate for these offences given Mr. Patterson’s lengthy and related criminal record.
40I am also satisfied that there is a substantial risk that Mr. Patterson will reoffend. I come to that conclusion for two reasons:
Possession and Access to child pornography are offences listed in section 753.1(2)(a). That section requires the court to find that there is a substantial risk to reoffend if at least one of the additional criteria set out in section 753.1(2)(b) are met.
41Section 753.1(2)(b)(ii) is one of those criteria. That subsection reads:
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
42I find that this criteria has been met. The index offences in this case form part of a pattern of sexual offences which Mr. Patterson has been committing against children since he was 17 years old. In the course of his many sexual offences, Mr. Patterson has caused significant injury and pain to many victims. I am certainly satisfied that there is a likelihood that he will cause similar injury, pain or “other evil” to others in the future through similar offences. The following is a brief summary of the pertinent aspects of Mr. Patterson’s criminal history.
April 14th, 1985 - Aged 17 years
43Mr. Patterson isolated an 8 year old boy from his friends, pulled down his pants and sucked on the boy’s penis for several minutes. The boy finally managed to stop the sexual assault by pulling on Mr. Patterson’s hair. Mr. Patterson responded by punching the boy in the stomach.
August 5th, 1987 - Aged 18 years
44Mr. Patterson enticed a six year old boy into a car which was parked in an underground garage. He grabbed the boy’s arm and began to twist it. He put his fingers in the boy’s mouth and began to drag him towards the trunk of the car. When the boy screamed and fought to escape, Mr. Patterson slammed his head into a brick wall several times causing significant lacerations.
March 23rd, 1989 - Aged 21 years
45Mr. Patterson was visiting at a home. When all of the residents were asleep, he entered the bedroom of a 13 year old boy, lay down on top of him and began to rub his thighs. The boy tried to get up and Mr. Patterson asked him to perform fellatio on him. The boy’s mother came into the room and Mr. Patterson fled.
February 1988 to May 1989 - Aged 20-21 years
46Mr. Patterson repeatedly fondled his six year old stepbrother’s penis when escorting him to the washroom. He told the boy not to tell anyone or he would be sent to a foster home.
August 17th, 1993 - 22 years
47Mr. Patterson abducted a 13 year old boy who was riding his bicycle in a park. He held the boy for several hours, forcing him to perform fellatio on him and attempting anal intercourse.
48Mr. Patterson was remanded for psychiatric assessment. He escaped from the hospital and was unlawfully at large.
49On October 14th, 1993, Mr. Patterson entered a Hamilton public school claiming that he wished to enroll his 5 year old son. After leaving the school office, Mr. Patterson confined a 6 year old boy in a washroom stall, lay on top of him and told him that if he told anyone, he would shoot him.
50Mr. Patterson pleaded guilty to offences arising out of these three incidents and was sentenced to 14 years incarceration. He served the sentence right to his warrant expiry date without receiving any treatment for pedophilia.
January 20th, 2015 - aged 48 years
51Mr. Patterson was found guilty of sexual assault on an 18 year old male. The victim befriended Mr. Patterson while he was living in street residences. Mr. Patterson led the victim to an isolated area and offered to suck his penis. The victim declined and Mr. Patterson began to struggle with him saying words to the effect ‘don’t make it harder than it has to be’. The victim fell causing a slight injury but managed to get away from Mr. Patterson. Mr. Patterson was sentenced to 12 months incarceration.
52In addition to his convictions for sexual offences, Mr. Patterson has a lengthy and recent string of convictions for failure to comply with 810.1 recognizances, a SOIRA order and a probation order. Although the seriousness of his convictions has diminished over the years, there are obvious concerns arising from his inability to abide by community supervision orders.
53Mr. Patterson is now 51 years old. He has suffered from Type I diabetes for most of his life and that has taken a significant toll on his health. He is not a robust man.
54There was a significant gap in his criminal record during the time that he was being supervised in the community by a Mennonite group. It appears that he has never had a complete psychiatric assessment.
55Based on all of these facts, I am also satisfied that there is a reasonable possibility that Mr. Patterson’s risk can ultimately controlled in the community.
56I will therefore order a 60 day assessment under section 753.1 of the Criminal Code as a preliminary step in the Crown’s application to have Mr. Patterson declared a Long Term Offender.
Bawden J.
Released: September 18, 2018
CITATION: R. v. Patterson, 2018 ONSC 5395
COURT FILE NO.: CR-17-10000056-0000
DATE: 20180918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD PATTERSON
Defendant
REASONS FOR JUDGMENT
BAWDEN J.
Released: September 18, 2018
