Court File and Parties
Court File No.: 1511 998 12 120901
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Rene Dansereau
Before: Justice P.T. Bishop
Heard on: 14 January, April 24 2014
Reasons for Judgment released on: 20 May 2014
Counsel:
- Tara Schuck for the Crown
- Robert Sinding for the accused R. Dansereau
Judgment
BISHOP J.:
[1] Rene Dansereau stands charged that on or about the 22nd day of March, 2012 in the Township of Red Lake did possess child pornography contrary to Section 163.1 of the Criminal Code.
[2] Mr. Dansereau plead guilty to one count of possession of child pornography and there is no dispute with respect to the facts. In total he possessed five hundred and thirty five images of child pornography and thirty-one pornographic digital movies. He downloaded them and stored them in a collection on his computer.
Examples of Digital Image Files:
This file depicted a nude pre-pubescent female about three to five years of age. A man's left hand is appearing to spread the labia of the child. An erect penis is observed at the entrance of the child's vagina.
This file depicted a pre-pubescent female about three to five years of age who is wearing a dress. The dress is lifted up exposing her vaginal area. A male's hand is observed around his penis attempting to penetrate the vaginal area of the child.
This file depicted a pre-pubescent female about six years of age who is nude from the waist down. An erect penis is penetrating the vaginal area of the child. A third person's hand is observed holding the left ankle of the child.
This file depicted a pre-pubescent female about three years of age who is seated on the stomach of a nude male. The male is lying on the bed. The male is masturbating.
This file depicted a pre-pubescent female about five years of age who is nude and laying on her back on a bed. A nude adult male observed putting his penis into the mouth of the child.
This file depicted a pre-pubescent female about ten years of age. There is no breast development for this female. The child is performing fellatio on an adult male's erect penis.
Examples of Digital Movie Files:
[3] i) This file depicted a nude pre-pubescent female about eight to ten years of age. A black fabric is draped over the child's torso in an attempt to mask her identity. An adult male erect penis observed penetrating the anal area of the child.
ii) This file depicted a pre-pubescent female about four years of age who is clothed. The child performs fellatio on an adult male erect penis while the male masturbates.
[4] It was Mr. Dansereau's practice to download files and create new files from the downloaded files. His collection of five hundred and thirty five child pornographic images and thirty-one pornographic movies is categorized as an average size collection when compared to other perpetrators.
[5] There is no agreement with respect to sentencing with the Crown seeking a reformatory term and the Defence asking for the forty-five day minimum sentence to be served intermittently.
[6] A Pre-Sentence Report was filed and it disclosed that Mr. Dansereau is fifty-six years of age and employed as shift boss at the Goldcorp Mine.
[7] He does not have a record and is concerned about losing his employment and his criminal activities being known to the public.
[8] Mr. Dansereau is more concerned about his own situation and his job and retaining his property and caring for his wife than taking responsibility for his criminal behaviour.
[9] By making the copies of the digital files, the definition of distribution is made out. His collected images of a certain age range was above average when compared to other perpetrators. He took steps to hide his illegal activity from his wife.
[10] Mr. Dansereau agreed to be assessed but at the time of the preparation of the presentence report on January 12 2014 he had declined to complete that assessment with respect to his proclivity for this type of activity. The matter was then adjourned to April 24 2014. On April 24 Mr. Dansereau filed a report from Dr. Mark Pearce a General and Forensic Psychiatrist as a result of a two hour assessment completed on March 20 2014.
[11] Dr. Pearce opined that Mr. Dansereau may suffer from a paraphilia, namely pedophilia, but notes that Mr. Dansereau's child pornography collection was small in relation to other images on his computer. He has not been sexually active with his wife in over a decade, which can suggest a paraphilia. He has not undergone phallometric testing. On a balance Dr. Pearce cannot conclude this meets the criteria for pedophilia.
[12] Dr. Pearce concludes that Mr Dansereau should participate in sexual offender treatment programing for child pornography to gain some insight and he should not be unsupervised in the company of children as he may suffer from pedophilia. He should be cautious in his use of alcohol. He should maintain employment.
[13] I have reviewed the case law submitted; R v Kwok [2007] OJ No 45, R v Hopps [2010] B.C.J. No 2698, R v Johansen 2009 ONCJ 305, [2009] O.J. No.2705, R v Dean [2010] O.J. No.5305, R v Aylesworth 2008 ONCJ 68, [2008] O.J. No. 726.
[14] I take into account that Mr. Dansereau does not have a record, is employed and plead guilty. I am urged by defense counsel to impose the minimum jail sentence and follow the reasoning in Aylesworth supra. I decline to do so as Mr Dansereau has no inkling of how serious these type of charges are, doesn't know why he has engaged in this criminal activity and has undergone no therapeutic counselling, as in Aylesworth. He remains a risk.
[15] In the circumstances, a sentence of fifteen months is appropriate. A minimum sentence of forty-five days is not appropriate as it does not fit the gravity of the crime. Although there are no named victims in these pornographic images and movies, the children are nonetheless victimized each time the perpetrator views the same pornographic photos or movies they become further victimized. This will be followed by probation for two years report, keep the peace and be of good behaviour, seek and maintain employment, attend participate and complete any counselling for sexual deviant behavior as recommended by your probation officer.
[16] A section 161(1)(a)(b)(c) order shall also issue for 10 years the only exception shall be for employment is approved in writing by his probation officer.
[17] I will also order that he provide a sample of your DNA and that you be placed on the Sexual Offender Information Registry for a period of twenty years. The primary principles of sentencing in this type of case are general deterrence and denunciation.
[18] There will also be an order forfeiting all of the pornographic images and movies to the Crown which will be destroyed.
Released: 20 May 2014
Signed: "Justice Peter T. Bishop"
