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(1) 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(1), read as follows:
486.4 Order restricting publication — sexual offences.
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application.
In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
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.
Court Information
Court File No.: Not specified
Date: January 17, 2014
Location: St. Thomas, ON
Court: Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
-and-
J.S.
Counsel
Crown: D. Walker
Accused: G. Conway
Judge
Justice Jonathon C. George
REASONS FOR SENTENCE
BACKGROUND
Charges
[1] J.S. pleaded guilty to and has acknowledged responsibility for:
with his penis, touching the body of D.J.H. for a sexual purpose contrary to section 151 of the Criminal Code;
with his hands, touching the body of A.A.S. for a sexual purpose contrary to section 151 of the Criminal Code;
counselling another person to make child pornography contrary to section 163.1(2) of the Criminal Code; and
possessing child pornography contrary to section 163.1(4) of the Criminal Code.
Facts
[2] In September 2011, U.S. authorities arrested and charged a California resident for making child pornography. This individual had been sexually abusing several children under the age of four and distributing the videos and images of these assaults online. Through a collaborative law enforcement effort, J.S. was identified as one of the recipients. The investigation also revealed that J.S., through online communications, had made specific requests asking that certain sex acts be performed on the children.
[3] An undercover Toronto Police officer first made direct contact with J.S., ultimately referring the investigation to the Ontario Provincial Police (OPP).
[4] On January 11, 2012, the OPP received an investigation package from the U.S. authorities, which contained in it several images that were seized and which had been sent to J.S.'s computer. This package included 37 separate images of children, emails to and from J.S., and self-taken photographs of the U.S. based offender sexually assaulting a child (including anal penetration).
[5] The investigation to this point revealed that J.S. was in possession of other images, including:
in one file, 31 photographs of a young boy, who appears to be about 2 years old, being sexually assaulted. Other close-up images show this child's anal area to be red and irritated.
the remaining images, contained in a separate file, are of two children - a boy who appears to be about 2 to 3 years old and a female who looks to be around one. This file contained images of the boy's penis being fondled by an adult, while some show the boy lying down with an erect adult penis in the frame.
[6] On January 25, 2012, a search warrant was executed at J.S.'s home, at which time his computers and storage devices were seized and analyzed. This search revealed the following to be in his possession:
70 images on a Samsung hard drive. These are of young girls between the ages of 4 and 9. They appear to be captured in a studio environment with the girls wearing clothes, but posing with their legs spread apart.
194 images on a Toshiba hard drive. These are of naked females between the ages of 4 and 9, lying on their backs with their legs spread apart exposing their vaginas. Five are of females posing with an adult male with an erect penis. Two are images of an adult touching a girl's vagina.
[7] Several other images and videos were located. I am unable to describe each one but suffice it to say they are troubling. Both counsel described them as some of the more troubling they had ever seen. They are graphic, all showing either sexually charged poses or sexual activity. They include both boys and girls, and there appears to be a particular interest in younger children who are wearing diapers.
[8] Subsequent to J.S.'s arrest, an investigation was commenced respecting his children. J.S. is a step-parent to D.J.H. and the biological father of A.A.S.
[9] D.J.H. was interviewed and advised that on one occasion, when he was 7, he played "dress-up" with his father. He recalls his father insisting that they both wear diapers and that he rub his back. D.J.H. further describes lying on top of his father, at which time he was moved up and down on top of him while each only had diapers on. D.J.H. indicates that they were touching penis to penis and that his father's penis felt hard.
[10] A.A.S. was interviewed and disclosed that on one occasion her father placed her on his bed and proceeded to rub her "front and back bum" (referring to her buttocks and vagina). She states that she was lying on her side, on the bed and he was curled up behind her.
INFORMATION AND SENTENCING MATERIALS CONSIDERED
[11] An agreed statement of facts was filed, which expands upon the information just summarized and which informed my findings of guilt. Respecting sentence I have received and reviewed a pre-sentence report, victim impact statements (including from the two child victims) and both counsel provided authorities, some binding and others instructive only.
Accused History
[12] J.S. is 33 years of age. He has no prior criminal record.
[13] He is married with two children. His wife has a child from a previous relationship. Understandably, this relationship broke down upon these offences coming to light.
[14] At a young age, J.S. was diagnosed as having a learning disability. Medication was prescribed but it is unknown how long it was taken. Throughout his childhood and teen years, he experienced difficulties with peers; academically achieved at a low level; and at times was placed in what the report refers to as "special" classes. He did not complete high school but apparently has been working towards that while incarcerated. He has now been in custody awaiting resolution and sentencing in excess of twenty-three months.
[15] There is an employment history. At the time of his arrest he was self-employed in the forestry industry, which is what he plans to return to upon release.
[16] J.S. suffers from depression and likely other undiagnosed mental health issues. There appears, from the report, to be a history of family discord, in particular as it relates to his father and step-father. This is not fully expanded upon. There are gender identity issues, which are highlighted in the materials. This is relevant in order to fully understand J.S.'s life struggles, recognizing it would be highly irresponsible to conclude this played any role in the commission of these specific offences, as it doesn't in any way mean there is a predisposition. A John Howard Society caseworker, who has regularly met with J.S., characterizes it as him having issues with "finding his own identity". The following appears in the presentence report:
The subject's ex-wife reports no physical abuse towards her during their marriage but he was verbally abusive and belittling towards her, implying she was never good enough. As noted above, she advises the subject experienced difficulties dealing with turning thirty years of age after which he was involved in questionable behaviour including body piercings, digressing back to his teenage years, meeting younger females and wearing women's clothing. J.S. indicated the communication in their marriage decreased and he became more controlling.
[17] The most concerning aspect of the report is J.S.'s view of these offences and of his own moral culpability. I point this out, appreciating defence counsel addressed this issue in argument attempting to minimize its impact and to explain what he believed J.S. actually meant. Two passages concern me most, and they are set out below:
The subject reports the possibility of attending counselling when he returns to the community. When questioned about counselling focused on sex offending, the subject is unsure if this type of intervention is needed but did state he would attend if directed.
When questioned about the current offences before the court, the subject somewhat minimized his behaviour, stating it was not really inappropriate and also blames some of his behaviour on depression. As well, he mostly denied involvement in the pornography.
[18] Beyond the minimization, the latter appears to be a denial which would warrant the need for a trial. I am satisfied, however, that with counsel's clarifications, upon review of the agreed statement of facts, and given the admissions made, findings of guilt are justified respecting the two pornography counts.
Victim Input
[19] The victim impact is significant and alarming. Child victim impact statements were prepared and filed. I have reviewed them and they are powerful. I was somewhat surprised to see them, in light of what I understand to be the prevailing thought in this area, which is to not involve a child directly in this kind of proceeding beyond what is only minimally necessary. I hope, and will assume, that this approach was met with the approval of those who have been treating and counselling these young children. These children were traumatized and will forever have to deal with the impact of their father's conduct.
[20] Significant intervention will be required for them to lead a positive life, and to be able to put this past them. Absent appropriate intervention, they will sadly be riddled with confusion, sadness, and perhaps anger. These children deserve to be happy, healthy and protected. Their father has certainly not played his part in achieving that.
POSITION OF PARTIES
Crown
[21] The Crown characterizes the facts as beyond troubling and asks that I send the strongest possible message to the public in imposing sentence. It submits that this behaviour falls at the highest end of the range and that a seven year prison sentence is justified.
[22] It points out that this matter is a rare combination of pornography possession; some involvement in its production (through the counselling), and the sexual violation of two young children. It submits that what aggravates this already outrageous conduct is the fact that, respecting the sexual interference, it involves his children. It is suggested there is no greater breach of trust.
Defence
[23] The defence advocates for a sentence in the three to four year range. Distinctions are drawn between this matter and what I'll call "grooming" cases which seem to typically attract sentences in the six year range.
[24] Defence counsel describes the pornographic collection as "not that voluminous" and stresses the fact the counselling was not to commit an act of penetration. I'm also asked to give considerable weight to J.S.'s difficult history as a way to, in effect, explain his deviant behaviour and as a context to these offences. It is argued that these are mitigating in nature, as are the gender identity struggles and the ongoing and severe bouts of depression.
APPLICABLE LAW & ASSESSMENT
[25] Several authorities have been filed by counsel. Many of them are distinguishable on the facts, but there are some instructing and binding principles to be applied. First and foremost, general deterrence and denunciation are paramount. That doesn't mean I'm naive enough to think that in sending a strong message I am going to dissuade other ill, mentally disordered people with deviant tendencies from committing crimes like this. That's a ridiculous thought. But I am nonetheless bound to at least attempt to translate that and have that concept reflected in the sentence.
[26] Sentencing is always a delicate matter. There are several, sometimes competing, interests and objectives. It is a difficult balancing act which leads to a result that will inevitably upset some.
[27] How is a fit and proper sentence determined? There is no good answer; no formulaic equation to apply. In R. v. D.G.F., 2010 ONCA 27, Justice Feldman, at paragraph 18, indicates that:
In order to determine a fit sentence, the sentencing judge must consider and assess the overall gravity of the offence or offences committed and the circumstances in which they were committed. This reflects the basic tenet of fairness that the punishment fit the crime.
[28] I believe this to be a tad simplistic, because any sentence that would "fit the crime", having regard to just the conduct itself, should always be adjusted, up or down, depending on the number of mitigating and aggravating features.
[29] It is not necessary for me to recite the societal factors at play. Although courts have generally been on a learning curve as it relates to the impacts of both child sexual victimization and child pornography, awareness is better than ever. The Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, discusses at length the impact of child pornography, the vulnerability of children, and the need to provide them heightened forms of protection.
[30] Both counsel provided several other cases, most of which turn on the facts and are distinguishable from this case, given J.S. is being sentenced for what I would characterize as four separate and distinct offences, all of which on their own, are horrendous. I am a strong believer in the need for a sentencing judge to place matters on the spectrum so to speak. Factually, this is a necessary exercise, despite it at times appearing to be minimization. In this case, however, the distinctions between a case that involves intercourse and one which doesn't; or a quantitative assessment of the pornographic images and videos is less relevant than it would otherwise be.
[31] These facts and offences speak for themselves. I believe the breach of trust is at its highest. I believe the counselling offence, which is akin to production, advances the seriousness of this case considerably. Because of that, notwithstanding Mr. Sawyer's difficulties and antecedents, the defence position is not one I can endorse. Beyond the guilty plea, which is an expression of remorse, there is little to be considered in mitigation.
ORDERS
[32] J.S. will be given credit for the time he has spent in pre-plea custody, which is in excess of twenty-three months. He will receive credit for an additional eleven months. Going forward, the sentence is three years. This amounts to a global, almost six year penitentiary sentence, taking into account the pre-plea custody. It will be apportioned as follows:
for the offence respecting D.J.H., in addition to the pre-plea custody there will be a one day sentence that is deemed served;
for the counselling offence there will be a three year sentence;
a concurrent three year sentence for the possession offence;
and finally a concurrent two year sentence for the sex offence on A.A.S.
[33] I will make a ten year prohibition under section 109 of the Criminal Code.
[34] This being a primary designated offence, a DNA order is mandatory. This order will remain valid until executed.
[35] An order under section 161 of the Criminal Code is warranted. Respecting subsection (a) the following will be added to the standard language - "as it relates to public parks and community centres, he will be permitted to attend if he is in the presence of a responsible adult, who is at least 21 years of age and has no criminal record". Although I am sometimes hesitant to do it, given the way we all now function and rely on technology, I am making the order under subsection (d) restricting his ability to access the internet, with the only exception being unless he does so at his place of employment and only for the purposes of employment. Should J.S. find this to be too restrictive, or should further clarification be required because he is self-employed, then he will need to commence an application pursuant to section 161(3) of the Criminal Code. This will be a ten year order, which will commence upon his release from custody.
[36] J.S. will be required to comply with the provisions of the Sex Offender Information Registration Act (SOIRA).
[37] Subject to further comments from counsel, I am prepared to order the forfeiture of all the items previously identified by the Crown, which I believe are contained in an appendix already filed.
Date: January 17, 2014
Judge: Justice Jonathon C. George