COURT FILE No.: Toronto – 11 -10J12332 – 00

Citation: R v JDM, 2014 ONCJ 29

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J.D.M.

Before Justice P.H. Reinhardt

Heard on 11 January & 16 April 2013

Reasons for Sentence released on 14 January 2014

Darren Hogan ............................................................................................................ for the Crown

Catherine Currie ...................................................................................................... for the accused

REINHARDT J.:

[1] On 11 January 2013, the Crown elected to proceed by indictment, and J.D.M. pleaded guilty to a total of five counts, Counts 1, 2, 7, 8 & 9 on the Information. The most serious count is a single count of “making available child pornography” on 4 May 2011. The following offences were also admitted; “between and including 4 May and 9 November 2011”:

(2) possession of child pornography;

(3) accessing child pornography;

[2] Finally, two counts of fail to comply, without reasonable excuse were admitted to have been committed between and including 4 May and 9 November 2011, in breach of specific prohibitions found in the probation order of the Hon. Justice Lauren Marshall, dated 12 August 2008, as follows: “unless specifically approved by his conditional sentence supervisor or probation officer prior to such use”:

(a) not to use or possess any computers on any device capable of storing data in digital format including digital cameras, digital camcorders, camera phones, personal data assistants, except as required by his employment and in the workplace for the purposes of employment;

(b) not to access the internet or use email; nor possess any device capable of accessing the internet unless required and for the purposes of employment and in the workplace.

1: Position of the parties

[3] Both sides agree that J.D.M. faces a period of incarceration and a further period during which his liberty in the community should be subject to supervision.

[4] Both sides agree that the principles of denunciation and deterrence must be the primary principles in sentencing J.D.M..

[5] This is because of the interdependent relationships between the offences of possession, making available and making child pornography.

[6] The possession of child pornography is not a “victimless” offence.

[7] As set out in the Ontario Court of Appeal judgment in R. v. Stroempl 1995 CanLII 2283 (ON CA), [1995] O.J. No. 2772, (Ont. C.A.) the possession of child pornographic visual images requires the initial creation of those images and is therefore a causative link to the “contact’ offences of child sexual abuse and the sexual assault of children.

[8] The following quote from the judgment of The Hon. John Morden, speaking for the Court of Appeal for Ontario in Stroempl reflects this understanding and the rationale for sentencing of child pornography offenders:

8 The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors such as the appellant instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of pro-spective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place.

9 Having regard to the nature of this offence, the trial judge was right in giving primacy to the principles of general deterrence and denunciation.

[9] The question before this court in this hearing, of course, is what do the principles of general deterrence and denunciation require, in fashioning an appropriate sentence for J.D.M.?

[10] The Crown submits that the appropriate sentence for J.D.M., globally, should be incarceration in the range of three to five years, to be served in the Federal penitentiary, with statutory remission and the jurisdiction of the Federal Parole Board.

[11] The Crown’s submission is that because J.D.M. has re-offended and breached his probation after initially offending in 2006 and being sentenced in August of 2008 for possession of child pornography, the principles of denunciation and deterrence require a penitentiary sentence.

[12] The defence submits that the appropriate sentence is incarceration in the provincial reformatory for two years less a day, followed by probation for three years during which he would be required to take sexual offender counselling.

[13] The defence also submits that I must craft a sentence that addresses the principles of rehabilitation and protection of the public as well as denunciation and general deterrence.

[14] I have concluded that the appropriate sentence in this case is that proposed by the defence. These are my reasons.

[15] In the sentencing hearing I heard from the following witnesses:

(1) Detective Paul Krawczyk, #7451, Investigating Officer

(2) Jennifer Holt, M. Ed (Counselling), C.C.C.

(3) Jeffrey Abracen, MD, Clinical Psychologist, Chief, Toronto Area, Correctional Services Canada.

[16] In addition, filed in the hearing were the following exhibits:

(1) An Image Categorization Report, 1 May 2012, by Detective Krawczyk;

(2) Criminal Record of J.D.M.;

(3) Letter, 10 January 2013, from Cathy Norris, Probation Officer;

(4) Psychiatric Assessment, 7 August 2012, by Andrew W. Morgan, MD, FRCP(C);

(5) Curriculum Vitae, Jennifer Holt, M. Ed (Counselling), C.C.C.;

(6) Psychiatric Assessment, 18 December 2006, by R. Dickey, MD, FRCPC, Head, Sexual Behaviour and Gender Identity Clinics, Centre for Addiction & Mental Health and Staff Psychiatrist, Oak Ridge Division, Mental Health Centre, Penetanguishene;

(7) National Correctional Program Descriptions, Correctional Services Canada, November 2010;

(7B) Correctional Programs Descriptions, June 2009;

(8) Synopsis, prepared by Investigating Officer Krawczyk, portions of which were admitted by the accused, through defence counsel.

2: Summary of the Evidence on Sentencing

The Offender

[17] J.D.M. was born […]1976, and is thirty six years old.

[18] J.D.M. was the victim as a child of extensive sexual abuse between the ages of twelve and sixteen at the hands of his elder brother, Tim. This abuse included fellatio, masturbation and analingus. This occurred initially approximately once per week for the first two years until J.D.M. told his brother to stop. After that Tim continued to come to his brother’s room and perform similar acts for two additional years until. In grade eleven, J.D.M. disclosed the abuse to a sexual abuse hotline he learned of at his school following the suicide of a classmate.

[19] J.D.M.’s disclosure resulted in a police investigation but no charges resulted against his brother. J.D.M.’s parents, according to J.D.M., “pretended like nothing had happened” and he and his parents have never discussed the abuse.

[20] Following his disclosure of the abuse J.D.M. continued to live at home with his brother, for a further year and one-half during which there was no further abuse. However, J.D.M.’s personal situation deteriorated as he was dismayed and could not understand why the police had “done nothing” and his brother remained in the home.

[21] Although he had been a good student initially, and scored quite high in school intelligence testing, in grade twelve J.D.M.’s marks began to decline and he developed a more indifferent attitude towards his education.

[22] That year he was suspended for ten days after breaking into the school and damaging school property.

[23] Following his suspension, J.D.M. spent two weeks in a psychiatric unit in hospital for observation. Following his release J.D.M. was permitted to take the rest of the semester off and had no further disciplinary problems at school following his return. These events did result, however, in youth charges and eventually, convictions for theft and mischief to property.

[24] J.D.M. had no history of criminal convictions as an adult, until 12 August 2008, at which time he pleaded guilty before the Hon. Justice Lauren Marshall to one count of Possession of Child Pornography, contrary to section 163.1(4)1 of the Criminal Code and received an eighteen-month conditional sentence and a further three years of probation.

[25] J.D.M. was referred initially to the Centre for Addiction and Mental Health (“CAMH”) in October of 2008 and then to the Manasa Clinic on 14 October 2008. J.D.M. attended and completed the “Options” group therapy program offered by the clinic from 7 January to 24 June 2009.

[26] On 24 June 2009, J.D.M. was further referred to the CAMH treatment clinic for Sex Offender Relapse Prevention and attended sessions there from 15 July to 21 October 2009.

[27] On 23 November 2009 J.D.M. completed the relapse prevention group for child pornography offenders in the Sexual Behaviour Clinic at CAMH.

[28] In a probation and parole office transfer summary dated 13 April 2010; his probation officer stated that there were no further Ministry programs currently available to J.D.M., but that he was regarded as open to continuing treatment. The transfer summary stated that J.D.M. had, at that time:

Great insight into his behaviour and is open about his thoughts and feelings. He is able to apply skills learned in treatment to his everyday life.

The Offences

[29] In this hearing J.D.M. admitted that on 4 May 2011, just over one year after successfully completing the treatment programs available from Probation and Parole services, referred to above, he re-offended.

[30] J.D.M. admitted that while at the Cyber Café, located at Yonge Street and Gerrard Street West in Toronto, he used software on a computer to access the internet and using a file-sharing computer program, “make available” images of child pornography to others, including an undercover officer, Detective Krawczyk.

[31] On that date, Detective Krawczyk observed child erotica and he downloaded twenty-three images to his computer that J.D.M. admitted met the definition of “child pornography” in section 163.1(1) of the Criminal Code.

[32] In addition, on the following dates undercover officers were able to observe J.D.M. on-line and as a result, on most dates download additional images or videos from J.D.M. that are admitted to have met the definition of “child pornography”:

(1) 29 May 2011 – 19 images, 1 video, in 19 files;

(2) 13 August 2011 – 1 image;

(3) 28 August 2011 – accused online and sharing;

(4) 9 November 2011 – five images

[33] On that date, 9 November 2011, J.D.M. was arrested at the Cyber Café while still on-line, and taken to 52 Division.

[34] At the time of his arrest, J.D.M. was in possession of six “thumb drives”. On these drives officers discovered 36 images which met the Criminal Code definition of child pornography and 32 other images which were of child nudity.

[35] At 52 Division J.D.M. gave a videotaped statement to the police in which he admitted that the reason that he shared material with others was that, in exchange for his sharing, other individuals would then share with him.

[36] J.D.M. also explained in his statement that, in order to avoid detection, he would take child pornography home on his thumb drives or USB cards and view the images using his DVD player, which is unable to store images.

[37] J.D.M. then explained that when he tired of the images he had retained, he would erase the material at the library on Dawes Road in Toronto and then go back to the Cyber Café to obtain more images.

[38] In the “Image Categorization Report” which was filed as Exhibit 1 in this proceeding, Detective Krawczyk did an analysis of the six thumb drives seized from J.D.M., and summarized the images found on the drives in a graph on page three of the report. The summary is as follows:

(1) Child pornography – 29 images

(2) Child Nudity – 23 images

(3) Other Relevant Material – 44 images

(4) Other Material – 3279 images

[39] In note on page two of the report and in his testimony, Detective Krawczyk indicated that both categories (3) and (4) were of problematic significance. Category 3 was defined in the notes as explicit sexual images of individuals which were apparently under the age of eighteen but for which the investigator could not be certain, often referred to by officers as “Age Undetermined”. Category 4 was of “other digital images” not specifically related to the child pornography investigation.

[40] Detective Krawczyk testified, in summarizing his review of the images, that most were pre-pubescent boys. The images broke down as approximately one-half posed pictures of sexual organs, one-half sexual activity. There were also a few images of sexual violence or bondage.

[41] One of the images observed by the officer and agreed to in the agreed facts was of a nude, prepubescent girl hanging upside-down with a rope around her. Her arms are bound behind her back and her mouth is covered by a bandana. There is a marker inserted in her vagina.

[42] Another image admitted as part of the agreed facts in the hearing shows an adult male urinating into the mouth of a prepubescent boy.

Jennifer Holt – Ongoing Counselling & Rehabilitation

[43] Jennifer Holt testified of her clinical work with J.D.M.. J.D.M. came to her as a referral from Cathy Norris, J.D.M.’s probation officer, in December of 2011, following his new set of charges.

[44] Jennifer Holt is a counsellor and consultant specializing in service to clients who have either engaged in a sexual offence or are the survivors of sexual abuse. She received her M. Ed. degree in Counselling Psychology from the University of Western Ontario in 1998 and she currently is employed in providing sex offender rehabilitative program in the counties of Middlesex, Perth, Elgin, Lambton, Chatham-Kent and Oxford, as well as engaging in a private practice.

[45] At the time of testifying, Ms. Holt had seen J.D.M. on seven occasions during 2012 over a period of seven months, and had scheduled further sessions with him commencing in May of 2013.

[46] In addition, J.D.M., from July of 2012 to 16 April 2013, the final date of this sentencing hearing, had attended eighteen individual counselling sessions at Family services Kent, in Chatham, Ontario with Cheryl Bootsma, M.A.

[47] Ms. Holt testified from her perspective as a therapist working with J.D.M. since December of 2011 after his re-offending and her continued work with him pending disposition on the new sexual offences now before this court.

[48] Ms. Holt testified that J.D.M. is very up front with her and that, in her opinion, they have established a good therapeutic relationship.

[49] Ms. Holt testified that, where in the past J.D.M. might have denied the seriousness of the offences, or attempted to blame others, this was no longer the case, in her opinion.

[50] Ms. Holt testified that since at least March of 2012, J.D.M. has expressed to her his remorse and the recognition of the seriousness of his offending behaviour.

[51] Ms. Holt testified that J.D.M. also has expressed to her his lack of a continuing urge or inclination to attempt to access child pornography.

[52] Ms. Holt testified that in her view, J.D.M. has never had any inclination or desire to actually assault children in the community.

[53] Ms. Holt referred me to Exhibit 4 (See below, paragraphs 59 to 64), the psychiatric consultation and risk assessment prepared by Dr. Andrew Morgan, and testified that she agreed with Dr. Morgan’s findings and recommendations.

[54] Ms. Holt testified to her on-going work in the treatment of sex-offenders and sex-abuse victims in conjunction, in many cases, with the staff at the Ontario Correctional Institute (“OCI”), Brampton, including Chief Psychologist Dr. James Cheston, Site Supervisor Dr. Ainslie Heasman and staff clinician and trainer Dr. Smita Tyagi.

[55] Ms. Holt is familiar with, and reviewed the assessment, counselling and group therapy programs offered at OCI which would assist J.D.M., including the Sex Offender Responsibility Program (“SORP”) and the Self-Regulation Good Lives Program (“SRGL”).

[56] Ms. Holt testified that she agrees with the therapeutic distinction between offenders who simply access child pornography on-line and those who commit sexual assaults on children in the community, and the resultant differences in treatment approaches, as discussed by Dr. Morgan at page eighteen and following in his report.

[57] Ms. Holt testified that, in her view, the best hope for the ongoing treatment and recovery of J.D.M. would be found in sentence that placed J.D.M. initially at the OCI, 109 McLaughlin Street, Brampton, and then provided for coordinated and continuing long-term therapy in the community through a probation order.

[58] In cross-examination on this recommendation, Ms. Holt conceded that she was not as familiar with the Federal Penitentiary Programs existed that might be comparable to the provincial programs, but she felt that the ability for co-ordination of the provincial programs inside and outside of the prison setting would provide J.D.M. with a continuity of therapeutic approach and treatment.

Jeffrey Abracen, Phd

[59] Dr. Abracen is the Chief Psychologist for the Federal Department of Corrections in the Toronto area and is knowledgeable regarding and programs for offenders in the federal system.

[60] Dr. Abracen was called by the Crown to review the federal programs that could effectively be utilized by J.D.M. if he were sentenced to a penitentiary term of two years or more.

[61] Dr. Abracen testified that he is a specialist in the “high intensity” clinical programs but that those specific programs that were formerly available to offenders are no longer available in the Federal system as they have been closed down. He reviewed programs that are now offered, including on-line and self-management programs, generally, that are accessed through the internet.

[62] Dr. Abracen testified that there are new “pilot” programs being developed that are available in medium security settings.

[63] Dr. Abracen testified that with regard to risk assessment and re-integration into the community, the current federal assessment tools such as the “STATIC 99R” focus on offenders who have molested or raped children and there are no assessment tools specifically able to do risk assessment of offenders who have been sentenced for “Child Pornography” type offences.

[64] Dr. Abracen testified that he saw no reason why “Child Pornography” offenders couldn’t be helped to build re-integration skills under the current set of federal programs, but that he was more familiar with the OCI programs that provided these services.

[65] In cross-examination he admitted that the OCI programs were of longer duration and included treatment by psychological therapists.

[66] However, he also suggested in cross that if J.D.M. received a federal penitentiary sentence that this court might wish to include recommended parole terms such as treatment by a psychological therapist.

[67] In re-examination he concluded that from his perspective, there are ample programs available to meet J.D.M.’s needs in the federal system.

Dr. Andrew Morgan’s Risk Assessment & Report, Exhibit 4 – Diagnosis & Risk

[68] Dr. Andrew Morgan was not called as a witness in this proceeding but, on consent, his psychiatric consultation and risk assessment, dated 7 August 2012, which was peer-reviewed by Dr. Scott Woodside was placed before the court and filed as Exhibit 4 in this proceeding. I summarize his findings here.

[69] Dr. Morgan concluded that J.D.M. does not suffer from a major mental illness but has in the past suffered from depression which now is in “full remission”.

[70] With respect to his sexual behaviour, Dr. Morgan diagnosed J.D.M. as suffering from “pedohebephilia”, or “an erotic preference for prepubescent and pubescent aged children” which is often compatible with adult sexual activity and partners, but as a “sexual interest” is unlikely to ever fully disappear.

[71] Thus, Dr. Morgan, in evaluating J.D.M.’s “risk” of reoffending, stated, on pages 19 & 20 of his report:

Significant factors mitigating J.D.M.’s risk for re-offence include the absence of psychopathy or antisocial personality disorder. He does not appear to have ever abused alcohol or illicit substances. Also significant is the lack of any reports of violence or the threats of same. He has no adult criminal charges or convictions other that those related to the use of child pornography. I am not aware of any charges or allegations of contact sex offences. J.D.M. has been seeing a counsellor for individual therapy which he has found beneficial and he indicated a desire to continue with psychological treatment.

J.D.M.’s risk for future offences should be considered in two domains; on-line child pornography and hands-on sexual offences. In my opinion, taking into consideration the above risk factors, he represents a moderate-high risk of accessing online child pornography and a relatively low risk of committing a contact offence. His risk can be further reduced through implementation of the treatment recommendations below.

[72] Dr. Morgan’s recommendations included, while incarcerated, treatment at an institution that offers sex offender treatment such as the Ontario Correctional Institute (“OCI”) or Warkworth Penitentiary.

[73] Dr. Morgan recommended as well that, given the diagnosis of pedohebephilia as a life-long condition, upon his release from custody J.D.M. should not have unsupervised contact with children in perpetuity.

[74] Dr. Morgan also recommended longer-term psychotherapy treatment after incarceration to help J.D.M. develop strategies to manage his sexual fantasies and to assist him in developing meaningful relationships, work through his own history of sexual abuse and develop appropriate occupational goals.

3: Legal Framework

The Criminal Code Sentencing Provisions

Sentencing Ranges

[75] Where the Crown proceeds by indictment:

(1) 163.1 (3)(a) – “Make Available”– Minimum sentence of 1 year, maximum of 10 years;

(2) 163.1 (4)(a) – “Possess” – Minimum sentence of 45 days, maximum of 5 years;

(3) 163.1 (4.1)(a) – “Access” – Minimum sentence of 45 days, maximum of 5 years

Purposes and Principles

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

The Case Law

[76] I am grateful to both counsel for assisting me with casebooks of authorities which provided the court with a cross-section of the sentencing approaches taken by both trial and appeal courts in Canada in dealing with the profoundly harmful offences before this court.

Principles

[77] In R. v. Sharpe (2001), 2001 SCC 2, S.C.J. No. 3 at paragraph. 158, Chief Justice Beverly McLachlin of the Supreme Court of Canada summarized the harm inherent in possession of child pornography in this way:

158 The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on pre-existing inequalities.

[78] In R. v. Smith, [2008] O.J. No. 4558 (S.C.J.) at paragraph 37, Justice Robert Clark further explains the pernicious nature of all of these types of offences:

37 It is self-evident that without the broad base of persons who desire to possess this material it would not exist, at least not on the scale that it presently does. Accordingly, even mere possession contributes to the aforementioned exploitation and degradation of children and, by extension, society in general. In recent years, the advent of the internet has greatly augmented the production and distribution of this vile and pernicious material. The ability to access child pornography in the privacy of one's own home makes it all the more insidious. Therefore, sentences that serve to deter people from accessing this material are required to reduce, in some measure at least, the exploitation of children for this purpose.

Sentencing Factors

[79] The sentencing factors in relation to child pornography offences are clearly summarized by Justice Anne Molloy in R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 (S.C.J.). In that case she stated at paragraph 7:

7 Not surprisingly, each case turns on its own particular facts. However, an analysis of the case law does reveal an emerging consensus on the relevant factors to be taken into account: see, in particular, R. v. Parise, [2002] O.J. No. 2513 (Ont.C.J.); R. v. Mallett, [2005] O.J. No. 3868 (S.C.J.).

Generally speaking, any of the following are considered to be aggravating factors:

(i) a criminal record for similar or related offences;

(ii) whether there was also production or distribution of the pornography;

(iii) the size of the pornography collection;

(iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted);

(v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and

(vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.

Generally recognized mitigating factors include:

(i) the youthful age of the offender;

(ii) the otherwise good character of the offender;

(iii) the extent to which the offender has shown insight into his problem;

(iv) whether he has demonstrated genuine remorse;

(v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment;

(vi) the existence of a guilty plea; and

(vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).

[80] Recent decisions on sentencing for possession and “making available” child pornography, provided by the Crown, that resulted in penitentiary sentences include:

(1) R. v. Bauer [2010] O. J. No. 1900 (Ont. C.A.) upholding the reasoning of Justice Michelle Fuerst at trial [2008] O. J. No. 5982 (S.C.J.) in which Justice Fuerst gave a thirty-four-year-old offender a sentence of four years and three months where the accused, with a prior record for making child pornography for the purposes of publication in 2002, and possessing and distributing in 2005, was rearrested in 2008 for two counts of breach of recognizance and one count of unlawfully accessing child pornography in 2007 and 2008. The most aggravating factors of the breaches of his recognizance included the installation of sophisticated computer programs for file sharing immediately preceding the hearing of pre-trial motions in the case; and

(2) R. v. Connor [2009] O. J. No. 6369 (S.C.J.) in which Justice Anne Molloy gave a sentence, after trial without a jury, of three years and nine months where the accused, a forty-eight-year-old first offender, was found guilty of two counts of possession and two counts of making available child pornography, two counts of possession of marijuana, one count of possession of a firearm without a licence and three counts of possession of a prohibited weapon; and

(3) R. v. Lynch-Staunton [2012] O.J. No. 313 (S.C.J.) in which Justice Lynn Ratushny gave a total sentence of five years where the accused, a fifty-six-year-old first offender, pleaded guilty to possession and distribution of child pornography. The accused actively engaged in chat-room encounters with the undercover officers in which he advocated for sexual activity with children. He was found to have 2097 child pornography pictures, 1763 child pornography stories, 574 child pornography movies or movie clips, for a total of 12.1 gigabytes of data from twenty-one computer hard disk drives.

(4) R. v. Hutchings 2012 ONCJ 347, [2012] O.J. No. 2583, (O.C.J.) in which Justice Mel Green gave a global disposition of thirty-six months to a forty-three-year-old repeat offender with a previous conviction in 2010 for one count possession of child pornography who had received an original sentence of four and one-half months in jail and three years of probation. The accused pleaded guilty before Justice Green to two counts of distributing child pornography, one count of access and one count of possession where, the accused, within weeks of his release from jail, in direct violation of his probationary conditions, began to access and possess child pornography through the internet.

(5) R. v. Pattison 2012 SKQB 330, [2012] S.J. No. 546, (S.C.Q.B.) in which Justice M.L. Dovell sentenced a twenty-two-year-old accused with one previous un-related conviction to five years where he pleaded guilty to fifty-three counts of making child pornography available to others, spanning thirteen months, in which he posted images on Facebook, distributed child pornography by e-mail and participated in chat-room conversations in which he advocated the committing and participation in “contact” offenses. His file-sharing was significant over thirteen months, in which he had 4,380 files of child pornography which he shared with 433 different contacts.

(6) R. v. Stupnikoff [2013] S.J. No. 175, (S.P.C.) in which Judge Q.D. Agnew sentenced a fifty-eight-year-old repeat offender to a five year sentence where he pleaded guilty to one count of possession child pornography and one count of “making available” child pornography in April of 2013, where he had previously, in 2005, pleaded guilty to one count of possession of child pornography and received an eighteen-month conditional sentence. Judge Agnew found that offender had been a compliant and model participant in the sexual offender counselling until the completion of his conditional sentence but virtually on the completion of his conditional sentence had begun collecting again and had amassed, by the time of his second arrest 80,393 images or videos of child pornography, estimated at ten times the volume of his original collection, and the second-largest collection on record in Canadian cases canvassed by Judge Agnew. Judge Agnew also found that on his arrest for his new set of charges, the accused minimized his culpability and appeared to lack insight into the harm his activity had caused the community.

[81] The defence book of eight cases all involved first-offenders who received reformatory sentences followed, in all cases, by three-year probations:

(1) R. v. Cuttell [2010] O.J. No. 1624, (O.C.J.) – My colleague, Justice Leslie Pringle gave a sentence of 18 months in jail plus three-years-probation for a 67 year-old, for three counts of possession of child pornography, two counts of “making available” child pornography through peer-to-peer file sharing and one count of “making” child pornography by transferring images from his computer onto CD’s. A search warrant resulted in the seizure of a computer with 1320 child pornography images and an additional 1254 images and 10 videos of child pornography stored on CD’s.

(2) R. v. G.R. [2011] O.J. No. 4989, (O.C.J.) – My colleague, Justice Kenneth Lenz gave a sentence of 14 days incarceration plus three-years-probation for an adult in a heterosexual relationship who had been sexually abused by a neighbour as a child. Seized were 90 images and 753 movies.

(3) R. v. Oakey [2011] O.J. No. 4116, (O.C.J.) – My colleague, Justice Peter Harris gave a sentence of nine months incarceration plus three-years-probation for a 51 year-old free-lance book editor in a long-term same sex relationship who pleaded guilty to possession and “making available”. Seized were 14 accessible and 855 inaccessible child pornography photographs on a computer, child pornography images on a Flickr account, 7 pictures on a USB drive and 18 pictures of child pornography and 14 images of child nudity on an external drive.

(4) R. v. Ryan [2011] O.J. No. 3111, (O.C.J.) – My colleague, Justice David Harris gave a sentence of 18 months incarceration plus three-years-probation for a 25 year-old single male who stated in his pre-sentence report that he sexually preferred pubescent children in the range of 14 to 16 years-old and now understands that this is concerning to others. Police investigators testified that Mr. Ryan downloaded particularly vile digital child pornography photographs by means of the LimeWire peer to peer file sharing software.

(5) R. v. Smith [2008] O. J. No. 4558, (S.C.J.) – Justice Robert Clark of the Superior Court gave a sentence of 21 months incarceration plus three-three-years-probation for a 43 year-old professional actor, married for eight years with two children, ages 7 and 4, whose career in acting and advertising was effectively destroyed as a result of the charges coming to public knowledge. The plea was to possession and “making available”. Seized by the police were both hard drive and computer discs containing child pornography that was down-loaded and shared by the offender through a peer-to-peer file-sharing network that permits user/subscribers to readily access material on the computers of other participants in the network.

(6) R. v. Tinkler [2010] O.J. No. 2811, (O.C.J.) – My colleague Justice Jack Nadelle gave a sentence of 20 months incarceration plus three-years-probation for a very remorseful, highly-intelligent 68 year-old retired professor who pleaded guilty to one count of distributing and one count of possession of child pornography. Seized were 342 images of child pornography and 2 child pornography movies. In a risk assessment filed with the court, the accused was found to have a very small likelihood of re-offending.

(7) R. v. Warn [2007] O.J. No. 3581, (O.C.J.) – My colleague Justice Marion Lane gave a sentence of 16 months incarceration plus three-years-probation for possession and distribution. The accused was a single 25 year-old pursuing a career as a commercial pilot who was extremely remorseful, immediately sought and began counselling with, Dr. Michael Irving who specializes in the counselling of sexual abuse victims and perpetrators, and at the time of sentencing was working as a “chipper” in constructing a Child Abuse Survivors Monument prior to sentencing. Mr. Warn admitted to Dr. Irving and his probation officer that he had a long-standing interest in child pornography starting at 12 or 13 years of age but also was not considered a person who would ever act out his fantasies about sexual interaction with children or harm children that he encountered in his life. Mr. Warn, according to his assessors, recognized that he would face a life-long struggle to control his urges but had demonstrated to the assessors a very real shame and remorse for the damage his viewing of this type of material caused to the child victims. Seized from his computer were 15,063 child pornography images, 50 child pornography videos and 1093 child erotica images. He had a personal collection on compact discs of 783 child pornography images, 1093 child erotica images, 166 child pornography videos and 27 child erotica movies. His collection focused predominately on young girls between the ages of five and thirteen, and included images of some as young as three or four years old.

(8) R. v. Yaworski 2000 CanLII 4400 (ON CA), [2000] O.J. No. 2613, (Ont. C.A.) – On appeal, the Ontario Court of Appeal increased a trial judge’s sentence of 90 days to 12 months imprisonment for a 20 year-old who had been sharing and distributing child pornography over the internet. The offender had misled the trial judge as to his academic achievements; and at the time of the appeal was not enrolled in University and had criminal charges pending regarding his academic standing.

[82] It is clear from a review of the above cases provided by counsel and the leading authorities cited in those cases that the courts in Canada, when sentencing offenders in the area of possession and distribution of child pornography are developing a growing understanding of the extraordinary harm that child pornography causes our society.

[83] This has resulted in a tendency in our courts to administer enhanced penalties where appropriate, for possession and making available child pornography and especially in circumstances where actual “contact” child abuse is present. As stated by Justice Richard Blouin in R. v. Bainbridge 2010 ONCJ 450, [2010] O. J. No 4224, at paragraph 9:

9 In my view, the pre-eminent authority in this province is the very recent decision of the Ontario Court of Appeal in R. v. D.G.F., 2010 ONCA 27, [2010] O.J. No. 127. Although, as always, the facts are different from the case before me (and in many ways are much more aggravating in that they amount to sexual assaults of the defendant's four year old daughter), D.G.F. illustrates an emerging judicial trend focusing on the gravity of these types of offences.

[84] This understanding is informed in recent years by the courts’ awareness that the increasing sophistication of internet technology creates a toxic and damaging opportunity for individuals to almost effortlessly transform a personal computer and other personal high-tech devices and peripherals into purveyors of disgusting and damaging images of the most brutal kinds of child abuse over computer digital networks.

[85] In a technological world in which advances in computer technology, search-engines and social media have enriched the lives of so many by making available educational opportunities, immediate access to learning, entertainment and the communication with friends and loved-ones, it is ironic that these same technological advances can also cause so much harm.

[86] As a result, law-makers, legal counsel and the courts are all struggling to find an appropriate societal response through the defining of new criminal offences and penalties.

[87] In this process our courts are tasked with enforcing our new laws and when doing so weighing the competing societal interests in coming to an appropriate sentence in individual cases.

[88] It is trite law to say that in this exercise, each case turns on the particular facts of the offence and the particular circumstances of the offender.

[89] It is also trite law to say that an appropriate sentence must respect and implement the principles set out in s. 718 and following in the Criminal Code and as interpreted by judges in the common law.

[90] Because of the pernicious and vile impact that child pornography has on the social, economic and sexual status of children in our society, judges cannot flinch from their duty to protect children in a meaningful way when fashioning the appropriate sentence in any particular case.

[91] This is the duty of judges, in sentencing to protect children, by treating denunciation and deterrence as primary where the offence before the court involves the abuse of a child:

Objectives — offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[92] This has never been more clear than in two cases referred to above, R. v. D.G.F., 2010 ONCA 27, [2010] O.J. No. 127 (Ont. C.A.), and R. v. Bainbridge 2010 ONCJ 450, [2010] O.J. No. 4224 (O.C.J.).

[93] In R. v. D.G. F. Justice Kathryn Feldman, for the Court of Appeal, increased a four sentence by the trial judge to the seven years originally sought by the Crown for a 35-year-old first offender who pleaded guilty to seven sexual offences against children, including two counts of sexual assault of his four-year old daughter, three counts of making child pornography using his four-year old daughter, one count of possession of child pornography and one count of distributing child pornography. The horrific culminating act in that case was a live sexual assault of his daughter transmitted by webcam in an internet chat room set up for pedophiles.

[94] In R. v. Bainbridge 2010 ONCJ 450, [2010] O. J. No. 4224, my colleague Justice Richard Blouin, sentenced a first-time offender to a sentence of five years for possession, distribution and making child pornography. In Bainbridge police retrieved and catalogued twenty computer hard-drives at the accused’s (“L.B.’s”) residence containing 35,000 unique child pornography images, 110,000 images of child nudity and 485 child pornography videos. Again, the most aggravating and horrific aspect of this case was that among the seized material were extensive images of L.B. with young females of approximately six and seven years-old, respectively, in which the genitals or genital region of the young females were exposed.

[95] Included in the material seized by investigators in Bainbridge were chat logs between L. B. and others to whom he distributed the child pornography in which L.B. expresses his desire and enjoyment of sex with children of tender years. Included in the seized material were images of adult sex with infants, toddlers and other images of female toddler sexual abuse.

[96] It is important to note, in the context of these two cases, that where the only offences are possession and “making available” many of the same sentencing considerations apply. As set out above by the Ontario Court of Appeal in R. v. Stroempl, supra, even in cases where the offences are not sexual assault, as in D.G.F. or the actual making of child pornography with children (both D.G.F. & Bainbridge), and merely possession or “making available”, the deterrence of the latter conduct is essential aspect of the deterrence and elimination of the former.

[97] Thus the “duty to protect” our children from “contact” sexual assault and sexual abuse requires sentencing judges to understand the fact that there is a societal connection between the possession of and “making available” of child pornography, and the actual contact offences.

[98] I now wish to turn to the facts in the case at bar.

4: Findings & Disposition

Aggravating Factors

[99] It is aggravating that some of the images shared by J.D.M. with the undercover officer were of essentially the torture of young children for the sexual gratification of adults who were either in the pictures or assumed to be observing.

[100] It is an aggravating factor in this case that J.D.M. has a previous conviction for possession.

[101] It is clearly aggravating that despite an almost unblemished participation in therapeutic counselling and treatment for a period of over a year, he ended up re-offending after his counselling was completed.

[102] It is not only aggravating but troubling that he would receive such a positive final report from his probation officer, and then set about to reoffend just over one year after successfully completing the treatment programs available from the Probation and Parole services.

[103] It is also aggravating that J.D.M. had developed a scheme to evade police detection, when he started to re-offend while still on probation.

The Weighing of Legal Factors

[104] The legal framework, which includes statutory guidelines and emerging factors in the case law must be considered carefully and thoroughly by the sentencing court in fashioning the proper sentence.

[105] After a review of the Code and case law, I am not persuaded by the Crown’s submission that J.D.M.’s re-offending requires a penitentiary sentence of two-years or more.

[106] Although J.D.M. re-offended, and developed a scheme to do so, while on probation, I do not find that he is in any material way in the same circumstances as the offenders who were given penitentiary sentences, in the cases cited. For example:

(1) R. v. Bauer – Mr. Bauer’s initial offences for which he was convicted in 2002 included making child pornography for the purposes of publication, and in subsequent years he continued to offend, including breaches of recognizances that occurred up to the commencement of pre-trial motions in the proceedings before Justice Fuerst, in which he was eventually sentenced to consecutive sentences that totalled three years and ten months.

(2) R. v. Connor – Unlike Mr. J.D.M., Mr. Connor was convicted after trial of multiple offences, including possession of firearms, weapons and drugs, and either lied to his assessor or was in complete denial regarding his pedophilic interests. According to Justice Molloy he was completely lacking in personal insight, had deep-seated antisocial tendencies and expressed no remorse.

(3) R. v. Lynch-Staunton – The Crown placed before the court three volumes of online conversations between 2000 and 2008 including Internet chats with teens as young as 13 who the accused counsels to engage in sexual acts with adults. In other conversations he described himself 47 year-old nudist living in Canada with an interest in having sex with the twelve and thirteen year-old daughters of his friends. The accused had amassed 12.1 gigabytes of child pornography and data before his arrest, and seemed entirely unaware of the harm of what he was doing.

(4) R. v. Hutchings – Justice Green found that Mr. Hutchings re-offended almost immediately on release from jail and failed to continue his therapy when outside the institution.

(5) R. v. Pattison – This case involved a much higher volume of material, over thirteen months, the use of social media and the advocacy of “contact” offences.

(6) R. v. Stupnikoff – Again, a re-offender, the accused had amassed from the time of his completion of his conditional sentence the second-largest collection of child pornography on record in Canada at the time. He minimized his behaviour and appeared to have no insight into the harm caused by his conduct.

[107] It is also clear from the guiding authority of the case law in the Ontario Court of Appeal that trial judges must shape a sentence that maximizes the potential for rehabilitation while imposing a sufficient penalty to adequately reflect the needs for general deterrence and denunciation, even where these needs are clearly primary. (See R. v. Whalen 2011 ONCA 74, [2011] O.J. No. 312 (Ont. C.A.), paragraphs 6 thru 8.)

[108] I am also mindful of the fundamental requirement in s. 718.1:

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[109] I have therefore concluded that a reformatory sentence of two-years less a day is within the range of the appropriate carceral sentence for J.D.M..

Mitigating Factors

[110] In my view, there are significant mitigating factors in this case.

[111] There is, of course, his guilty plea and his expression of remorse for what he has done.

[112] It is also mitigating that J.D.M. has pursued a consistent course of treatment since these new charges came before the court, and is considered by his therapist to be on a positive course of recovery.

[113] In this context, it is mitigating that J.D.M. is himself a survivor of sexual abuse as a child, and the assessment and therapeutic evidence I have is that he has made strides to deal with the abuse he received as a child, and is developing insight into his personal demons.

[114] It is a mitigating factor and I find as a fact that J.D.M. is now genuinely remorseful and understands the harm, both direct and indirect that his offending has caused to society.

[115] It is also mitigating that Dr. Andrew Morgan, in his Risk Assessment and Report of 7 August 2012, found that J.D.M. does not exhibit any psychopathy or antisocial personality disorders, nor does he appear to have ever abused alcohol or illicit substances, and there is no hint of violence or threats of same as an adult.

[116] In this context I also have no difficulty in finding that J.D.M. is an essentially decent person, with many pro-social personal characteristics, who is going through the difficult process of personal recovery through therapy, and is gradually beginning to develop insight and understand his circumstance in order to move forward in his life and become a contributing member of society.

[117] I am also satisfied, on the evidence called by the defence in this hearing and specifically the testimony of Jennifer Holt, his therapist, that the current treatment he is receiving can best be complemented and pursued in a sentence that permits him to stay in the provincial reformatory system, and to have continuity of treatment through the programs available to him at the Ontario Correctional Institute (“OCI”), Brampton, including the Sex Offender Responsibility Program (“SORP”) and the Self-Regulation Good Lives Program (“SRGL”).

[118] I was not convinced by the testimony of the Crown witness, Jeffrey Abracen, MD, that the programs offered in the Federal Penitentiary system are either comparable to those offered in the provincial system or appropriate to J.D.M.’s therapeutic requirements.

[119] Finally, I have been persuaded by the case law cited, including the appellate authority that the fit and appropriate sentencing range for these offences and this offender is one that keeps J.D.M. within the provincial reformatory system.

[120] In my view, a reformatory sentence coupled with the three-year probation and ancillary orders will bring home to both the general public and this offender the gravity of his offences and conduct in re-offending.

[121] In my view, the incarceration, probation order and ancillary orders herein do express the need for general deterrence and denunciation while giving effect to the most feasible and appropriate plan for his recovery and rehabilitation.

[122] In my view, by keeping J.D.M. in the provincial system, I am able to make a probation order that, coupled with the ancillary orders mandated by the Code, will place him under the supervision of the courts now for almost five more years, in an appropriate therapeutic environment, while providing long term protection for the community.

Disposition & Ancillary Orders

[123] In the result, there will be a sentence of two-years-less-a-day, followed by three- years-probation.

[124] In these reasons I have expressed my respect for the sex offender counselling and rehabilitation programs available at the Ontario Correctional Institute (Brampton) and my conclusion that those programs, within the available facilities in Ontario that have been discussed in this sentencing hearing, would best meet J.D.M.’s therapeutic requirements. I am therefore recommending that J.D.M. be permitted to serve his carceral sentence at that facility if that is possible, as recommended by Dr. Morgan.

[125] I am further ordering, in addition to the requirement to report and to keep the peace and be of good behaviour the following conditions as part of his three-year probation order:

(1) Make reasonable efforts to seek and maintain educational placement and/or employment;

(2) To reside at an address approved of by your probation officer;

(3) Not to possess any computer or device capable of storing data in a digital format, including digital cameras, digital camcorders, camera phones, personal data assistants, the only exception being for work related activities, with the specific approval in writing of your probation officer prior to such use;

(4) Not to access the internet or use email or possess and device capable of accessing the internet, unless required to do so for employment, and then only in the workplace and where no other employee is able to do the job, with the specific approval in writing of your probation officer prior to such use;

(5) Not to possess or access child or adult pornography or erotica, or possess and access images of children, depicted to be or whom appear to be under the age of 18, who are naked or portrayed in a sexual manner;

(6) Not to utilize any “wiping” or encryption software or other device that could preclude an examination of any approved computer or device you are permitted by your probation officer to use in work-related activities;

(7) During the term of your probation, to permit access to your residence by the probation officer or police any time between the hours of 8:00 a.m. and 8:00 p.m. for purposes of ensuring compliance with the conditions of this probation order, and reside only at a residence where the lawful owner or tenant will permit such access;

(8) Not to be in the company of anyone under the age of 18 unless that person is a family member, and you have the permission of the lawful guardian of that child, and the written permission in advance for such access from your probation officer;

(9) To attend for any assessment, treatment or counselling as recommended by your probation officer, including but not limited to your current counselling and treatment, and to not discontinue your attendance without the consent of your probation officer;

(10) To sign such releases as are necessary to authorize your probation officer to confirm your attendance, to consult with your counsellors or other treatment professionals and to permit the disclosure of your progress in counselling and/or treatment to the probation officer in order to give effect to this probation order.

[126] In addition, I am also making a series of ancillary orders regarding J.D.M.’s property rights and future conduct in the community that are mandated under the Criminal Code, and, in my view, consistent with Dr. Morgan’s findings:

(1) Under s. 161(1)(a) of the Code, you are prohibited for 15 years from your release from gaol from accessing any public park or swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school ground, playground, and community centre;

(2) Under 161(1)(b) of the Code, you are prohibited for 15 years from your release from gaol from seeking or obtaining any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(3) Under s. 161(1)(c) of the Code, you are prohibited for 15 years from your release from gaol from using a computer system within the meaning of s. 341.1(2) for the purposes of communicating with any person under the age of 16 years;

(4) Under s. 164 of the Code, I order the forfeiture of any computer equipment, disks or drives or other recordable data containing child pornography or nude images of children who appear to be under 18 seized during the investigation of the charges now before the court;

(5) Under s. 487.04 of the Code, any offence under s. 163.1 qualifies as a primary designated offence, and you will be required to give a sample of your blood suitable for analysis and entry into the DNA databank;

(6) Under s. 490.011 of the Code, any offence under s. 163.1 is a designated offence and you will be required under 490.012 and 490.013(4) to register and comply with the Sex Offender Information Registration Act for life;

[127] I am also ordering that exhibits 1, 2, 3, 4, 5, 6 & 8 in this hearing, including the 21 page psychiatric risk assessment of J.D.M. prepared by Dr. Andrew Morgan, dated 7 August 2012, and these written reasons for sentence be attached to the warrant of committal herein.

Released: 14 January 2014

Signed: “Justice Paul H. Reinhardt”