COURT FILE No.: Toronto
DATE: 2014.03.27
Citation: R. v. L.(D.), 2014 ONCJ 305
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
D.L.
Before Justice Fergus ODonnell
Heard on 28 March, 2013 and 13 February, 2014
Reasons for Judgment Delivered on 27 March, 2014
Ms. A. McPherson & Mr. A. Hannah-Suarez........................................................ for the Crown
Mr. A. Goldkind....................................................................................... for the defendant, D.L.
ODonnell, J.:
Overview
D.L. has pleaded guilty to a single charge of possession of child pornography. The Crown has proceeded by indictment and argues that a sentence of imprisonment of two-years-less-a-day plus the maximum three years of probation is appropriate. This offence, proceeded with by way of indictment, is one of the relatively few criminal offences in Canada that engages a mandatory minimum sentence, in this case a minimum of forty-five days’ imprisonment at the time of the offence. That mandatory minimum sentence has since been significantly increased by Parliament, but D.L. is entitled to be sentenced on the basis of the law as it stood at the time of his offences. Mr. Goldkind, for D.L., argues that a more appropriate sentence would be somewhere around the nine-month mark and that from that starting point D.L. should be given credit for the nearly two years that he has spent under house arrest while awaiting disposition of the charge.
The facts placed before me on D.L.'s plea were quite sparse, namely that an undercover officer from the Toronto Police Service Child Exploitation Unit was trolling the internet and came upon a person at a particular IP address who was involved in child pornography activity. Follow-up on that IP address and a search warrant at the home D.L. shares with his mother uncovered his computer, which contained just over 2,000 images and sixty-three videos that were classified as child pornography. Although his mother stood up for him, D.L. admitted his guilt right away.
In the course of the plea I was given details of the titles given to some of the images and videos, which may provide some insight into the nature of the images involved, although the second title was so rambling and all-encompassing[^1] that I cannot place much if any emphasis on it in determining the actual content of the file. When I asked during sentencing submissions if I was to be told more about the nature of D.L.’s collection, the Crown said that they were not relying on any further detail. I say this not to suggest in any way that there is any form of child pornography that is not repugnant. Repugnance is inherent in the very term “child pornography”. The act of “mere” possession is odious because without “mere” possessors there would be no market to sustain those who engage in the even more odious activities of selling and sharing child pornography and especially those who engage in the original acts of child exploitation that generate the pornographic images, acts from which, in an electronic age, the victims will never be entirely free. However, it is the sad reality of child pornography and human nature that there are enormous variations in the seriousness of the harm inflicted on the child victims, including in many cases images of rape and other forms of violence. This engages the concept of “relative depravity”, which is addressed by Molloy, J. in R. v. Kwok, 2007 ONSC 2942, to which I make reference below. In the present case, what I have to base sentencing upon is the number of images and videos (which is substantial) and the text descriptions provided by the Crown. In terms of the information available to me upon which to sentence D.L., the collection, while substantial in size, appears to fall far short of the degree of depravity reflected in many collections in the reported cases.
The Criminal Code sets out principles and considerations that judges are to apply in determining a fit sentence. A quick reading of those considerations makes it clear that some of them compete with, or conflict with, others. As a result, the imposition of a fit sentence is more art than science. As observed by the Supreme Court of Canada in R. v . M.(C.A.), 1996 SCC 230, at para. 91:
The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at the same time taking into account the needs and current conditions of and in the community.
- The appropriate balance of those competing factors may vary depending on the type of offence involved. It is clear that denunciation and deterrence are objectives of particular concern in relation to child pornography offences, including the offence of "mere" possession. In R. v. E.O., 2003 ONCA 2017, the Court of Appeal for Ontario made the following comments:
[7] Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further, the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of the offence: see R. v. Sharpe 2001 SCC 2, (2001), 150 C.C.C. (3d) 321 (S.C.C.) and R. v. Stroempl 1995 ONCA 2283, (1995), 105 C.C.C. (3d) 187 (Ont. C.A.).
- In R. v. Kwok, 2007 ONSC 2942, Molloy, J. provided a list of aggravating and mitigating factors that she had distilled from the case-law. I note that the Court of Appeal for Ontario refers to and recites this compilation in R. v. D.G.F., 2007 ONCA 10):
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).
I have found this non-exclusive list of considerations helpful in determining the appropriate sentence for D.L.
A few other general observations are apt with respect to the determination of an appropriate sentence. First, the sentence must recognize the existence of a mandatory minimum. Second, guidance from previous sentencing decisions must consider not only the details of those cases but also whether or not those sentences were imposed before or after the creation of the present mandatory minimum sentence. Third, even where general deterrence and denunciation are pre-eminent the sentence must recognize the individual circumstances of a defendant. A sentence that fails to do that cannot be considered to be a just sentence.
A few observations with respect to mandatory minimum sentences are also apposite. Even in an environment in which mandatory minimums appear to have become more fashionable than they have historically been in this country, they are still a relatively rare phenomenon in Canadian law. There is some inconsistency in the application of mandatory minimums. Some counsel will argue that a mandatory minimum sentence will be appropriate even for defendants who exhibit a series of aggravating factors, on the theory that any harsher sentence would be unjust. This argument effectively ignores the choice Parliament has made in creating a mandatory minimum sentence and results in offenders of different levels of blameworthiness receiving the same sentence, i.e. the ideal offender and many offenders with aggravated circumstances would receive the same penalty. I am satisfied that the more sound approach is the one that says that a rising tide lifts all boats, i.e. that the mandatory minimum sentence is the starting point for sentencing, to be applied to the best-situated offender and that the application of mitigating and aggravating factors should then determine the fit sentence. This is the only approach that respects Parliament’s intention in creating a minimum sentence.
D.L. has been on house arrest since these charges were laid, a period of almost two years since his arrest on 18 April, 2012. It is clear as a matter of law that a period of time spent under house arrest may entitle a defendant to some credit or mitigation of sentence, a procedural distinction I shall elaborate on shortly. This principle was recognized by the Court of Appeal for Ontario in R. v. Downes, 2006 ONCA 3957. In that case Rosenberg, J.A. made it clear that this was not an area for hard and fast rules, but did note that a sentencing judge’s failure to address the issue of credit for strict bail terms would be an error in principle. Justice Rosenberg characterized Downes as a case in which there was little evidence about the actual effects on the defendant, who had a previous record, other than that the terms of the bail allowed him out of his home only in the presence of his surety, i.e. that it did not include exceptions for medical requirements, employment, etc. unlike most such “house arrest” bail orders. Justice Rosenberg concluded that on the record before him the eighteen months of house arrest was deserving of “relatively little weight.” In concrete terms that “relatively little weight” earned Mr. Downes five months credit for eighteen months house arrest, or slightly over one-quarter day for each day of house arrest.
Having just made the arithmetic computation of the amount of credit applied by the Court of Appeal for Ontario in Downes, supra, I should also make clear another observation by Rosenberg, J.A., namely that there is no precise formula. It also bears noting that in a subsequent decision of the Court of Appeal for Ontario on this issue, McPherson, J.A. noted rather succinctly, that “bail is not jail”: R. v. Panday, 2007 ONCA 598. The generally accepted treatment of onerous bail conditions now appears to have migrated conceptually away from the original approach in Downes, supra, and now treats onerous bail conditions as a mitigating factor, along with other mitigating factors, rather than calculating a numerical credit to be deducted once the proper sentence has been calculated: see the helpful exposition of this development as explained by Melvyn Green, J. in R. v. Johnson, 2001 ONCJ 77, at paragraphs 43 and 44. It is also clear from the majority decision of Justice McPherson in Panday, supra, that “credit” for onerous bail conditions, unlike credit for time in actual pre-sentence custody, cannot be applied to result in a final sentence that is lower than any mandatory minimum sentence.
While D.L. has spent twenty-three months on bail, longer than the defendant in Downes, supra, D.L.’s house arrest allowed exceptions for medical emergencies, for employment or in the company of his surety so the impact of the house arrest would be less severe. The bail, however also included other terms that are typical in cases of this nature, including a ban on possessing any mobile phone or smart phone and not to access the internet in any way. While these conditions are both typical and understandable for offences of this sort, that does not change the fact that they have an impact. It does not require evidence to establish that across all ages and social strata in the present day and age, but especially for people of D.L.’s generation, exclusion from the electronic world is in many ways the modern equivalent of exile, all the more so when there is a form of house arrest concurrently in effect. Bail may not be jail, but restrictive bail conditions are also not freedom.
All things considered, if we continued to assess the impact of onerous bail conditions similarly to the way we assess pre-sentence custody, I would have to conclude that D.L. would be entitled to at least as much credit as the five months allowed to Mr. Downes, probably something more. Translated into the current methodology described above, the restrictive bail conditions are, in my opinion, a very significant mitigating factor on sentence here.[^2]
D.L. is twenty-four years old. He was twenty-two at the time of the offences. He has no previous criminal record. He has pleaded guilty. It was apparent from early on in these proceedings, which I have pre-tried on several occasions since September, 2012, that there was going to be a plea.
I have been provided with various materials in relation to D.L. and his background, namely:
- A pre-sentence report;
- A psychiatric assessment from a few months after D.L.’s arrest by Dr. Hau Truong of the Rosedale Medical Centre;
- Two reports from within the last few months by Dr. Julian Gojer, a forensic psychiatrist;
- A letter from St. Stephen’s Community House, where D.L. was a volunteer;
- A letter from D.L.;
- A letter from D.L.’s mother.
D.L.’s family history and background, including his sexual exploitation by an older boy when he was very young can be distilled from his and his mother’s letters and from the psychiatrists’ reports and the pre-sentence report. I was impressed by the frankness inherent in both D.L.’s and his mother’s letters. They conveyed no sense of reserve, exaggeration, minimization or whitewashing of embarrassing histories. This bodes well for D.L.’s prospects for rehabililtation. The paragraphs below are a rather brief summary of a long and generally highly regrettable tale of how other people’s decisions and actions have created the collateral damage that has been much of D.L.’s life. His story is not unique, but it is a particularly aggravated and sad version and as I note elsewhere it is to D.L.’s credit that he has not been more deeply involved with the criminal justice system.
D.L. was born when his mother was sixteen years old. His father did not stick around. He had a sibling within two years. His mother married the father of that child, but they eventually separated because of his suspected infidelity. This was the only male person in his mother’s life that D.L. ever had as a positive role model and his departure was seen by D.L. as a significant downward step in his life. He has now re-appeared in D.L.’s life, serving as his surety.
D.L.’s mother babysat on weekends. One of those she babysat was a twelve year old boy, who sexually molested the four year old D.L. This repeated sexual abuse apparently involved fellatio and may have involved anal intercourse. D.L. recounted that he thinks of this abuse every time he defecates. The twelve year old’s activities came to light when he molested a four year old girl who was visiting the house. That child disclosed the abuse, but D.L. denied anything had happened to him until he was seven years old, at which time he disclosed the abuse to his mother. She told a therapist with the Children’s Aid Society, but since the seven-year old D.L. refused to talk about it with the therapist, nothing more was done. He was afraid to discuss the issue with the therapist and while he told his mother about some of what happened, he did not even tell her everything. Eventually, he chose to suppress what had happened and got angry with his mother if she raised it again.
D.L. was diagnosed with attention-deficit hyperactivity disorder. He was put in special classes at school, but this resulted in him being transferred frequently, meaning he lost the opportunity to develop any lasting social interactions. As a result of one of these transfers to an out-of-area school, the school D.L. was sent to assumed he was part of the incoming group of local students at a particular grade level. However, he had actually already completed that grade before being transferred. It took months for this error to come to light and it was around this time that D.L. dropped out of school.
D.L.’s mother’s second relationship was with a man who abused her physically for more than two years until he was deported from Canada. The children heard much of the abuse and saw the results of it. D.L.’s mother then married another man, who also abused her. D.L. frequently intervened in that abuse, trying to protect his mother. D.L. described this partner as even more abusive than the one before. This husband refused to allow D.L. to have any friends over to the house. This contributed to D.L.’s social isolation, as did his mother’s concerns about keeping him away from negative peer influences in his public housing neighbourhood. Ironically, D.L.’s mother supported the family by shoplifting, something that kept her away from home a lot and that resulted in D.L. feeling as if he was raising himself.
There was material before me to suggest that D.L. is of Metis ancestry, although that issue was not developed in any detail despite attempts to obtain more information.
The letter from St. Stephen’s Community House, dated 13 September, 2012 stated that D.L. had been a participant in their mental health case management programme for about six months at that time. They had referred him to Dr. Truong due to anxiety and depression. D.L. had also been a volunteer at the St. Stephen’s drop-in centre before he was charged and was described as respectful, polite and committed to improving the lives of others and himself.
Dr. Truong’s assessment found D.L. to suffer from major chronic depression with anxiety, social anxiety and attention deficit disorder. He was also found to suffer from a learning disorder and relationship problems. He was described as an accurate and open historian, an impression that I myself formed during my dealings with D.L. and my review of his letter, to which I refer above. As a result of his family history, he became more and more isolated and dropped out of school in grade nine. His periods of depression could last several weeks, perhaps longer. He is sad most days. If he is on a balcony, he might ask himself “why not jump off?”, but doubted that he would ever actually do it.
Dr. Gojer’s reports were completed very close to D.L.’s sentencing proceedings. Dr. Gojer recounts D.L.’s family history in some detail, in a way consistent with the descriptions provided by D.L. and by his mother. Dr. Gojer describes D.L. as “a sad and withdrawn young man…both depressed and anxious” with rational thought processes and low-average intelligence. “His personality is one of low self-esteem, social isolation, low levels of confidence and general insecurity in life. He has been lacking in social skills and has not dated. He likely suffers from a learning disability.” Dr. Gojer notes D.L.’s history of being sexually abused in childhood and says that his symptoms are consistent with post-traumatic stress disorder, for which he has not received any formal treatment as an adult. Dr. Gojer concludes that the act of downloading child pornography suggests D.L. “has a sexual attraction to children, albeit in a virtual sense.” Dr. Gojer would not allow D.L. unsupervised access to children. It should be noted, however, that D.L. has had access to two younger sisters who were interviewed by the police and Children’s Aid Society and no issues were found. Indeed, D.L. stated that his awareness that some of the children in the images were the same age as his sisters was part of his realization that what he was doing was wrong. It is also worth noting that D.L. has a history of volunteer work with children and there also no concerns of inappropriate behaviour have come to light. I think that in light of my review of the totality of the evidence this is a case in which the 22 year-old D.L. was socially withdrawn and still in many senses emotionally and socially a youngish teenager. His engagement with both child and adult pornography in his early teens continued and while he grew in years his emotional and social development did not keep pace. I note that Dr. Gojer specifically states that he does not see D.L. as a predator. He sees D.L. as motivated to address his issues. Indeed, other material shows that D.L. sought treatment at the Centre for Addiction and Mental Health after his arrest but was turned down because his charges were outstanding.
D.L. was scheduled for a phallometric evaluation with Dr. Gojer, but showed up for the test intoxicated. Dr. Gojer said that no conclusions could be drawn from the results. While it is regrettable that D.L. drank before the testing, it is not entirely surprising that someone with his history of suppressed and un-addressed sexual abuse would not look forward to such testing. Indeed, D.L. told Dr. Gojer that the audiotaped scenarios played for him during the testing reminded him of the sexual abuse perpetrated on him and caused significant distress.
When I come to consider the aggravating and mitigating factors in this case, generally following the catalogue set out by Molloy, J. in R. v. Kwok, supra, I make the following observations.
In relation to aggravating factors:
i. D.L. has no previous record.
ii. There is nothing in the material before me to indicate any material involvement by D.L. in the sale or distribution of child pornography.
iii. With respect to the number of images and videos, this was a relatively large collection. It is not, however, at or near the top end of the range and is probably more fairly characterized as a low to medium size collection in terms of the types of cases for which the Crown would typically elect to proceed by indictment.
iv. On the record before me, there is no basis for me to conclude that the “relative depravity” of the collection qualifies as an aggravating factor.
v. On all the material before me, it would be perverse for me to conclude that D.L. is likely a danger to children. Other than his continued use of child pornography as his chronological age bypassed his emotional and social development, there appear to be no significant risk factors here.[^3] Dr. Gojer describes him as not being antisocial and not manifesting psychopathic tendencies. He has a history of access to young people and not the whiff of any suggestion of him acting out, even though inquiries have been made. He is aware of the wrongness of his actions and has sought assistance since his arrest, having understandably (given his development, the inherent taboo on the subject and his life-long poor access to general and mental health resources) been unable before his arrest to convert that awareness into action. I think that to describe D.L. merely as “not antisocial” likely damns him with faint praise. It is often true that the most telling insights into a person’s personality come from particular observations. In this case, I noted D.L.’s comment about not wanting to charge the person who sexually abused him, wondering “what if that person had himself been sexually abused?” This is the person who caused D.L. to have flashbacks of the abuse every time he defecates. That sort of empathy on D.L.’s part strikes me as potentially more informative of D.L.’s inherent personality than several pages of reports. His improved understanding of the choices his mother made when he was a child, choices that kept her away from him and his siblings at times, reflects similar empathy, despite the impact those absences had on him at the time.
vi. On the material before me, there is nothing to suggest that D.L. bought the pornography that was found on his computer.
In relation to mitigating factors:
vii. D.L. was 22 years old at the time of the offences, which places him as a youthful first offender. In terms of moral culpability, it would only be fair to recognize that his emotional age is lower than his chronological age as a result of his family background and social isolation. It has been clear from very early on that D.L. was going to resolve this case by way of a plea, despite the Crown withdrawing an earlier, much more generous, sentencing position and then taking a very long time to advance its final sentence position. I note that in cases such as R. v. Ellis, 2013 ONCA 739 and R. v. Batisse, 2009 ONCA 114, the Court of Appeal for Ontario has recognized that when there are mental health issues that play a role in the commission of the offence, the offender’s culpability is mitigated. As in Batisse, supra, D.L.’s deeply regrettable family history, his depression and his victimization as a young child cannot be divorced from his degree of culpability for the present offences.
viii. I think it is fair to say that D.L. has an otherwise good character. Despite growing up in an often fractured family environment and in a community where violence and gang activity were prevalent, he has stayed out of trouble, a significant achievement for a young, male high-school drop-out without a consistent positive male role model. He has volunteered in the community and has worked when work was available.
ix. I am satisfied that D.L. has shown significant insight into his offences. I do not think that any other conclusion is rationally available to me in light of the letters, pre-sentence report and doctors’ reports. There is no question in my mind that D.L. is motivated to embrace the resources that can be made available to him. He recognizes that what he did was wrong, recognizes some of the underlying causes and is now willing to address the hitherto suppressed abuse that likely forms a significant underpinning to his offence. On the material before me, the prospects for D.L.’s complete rehabilitation and for him to live a positive, pro-social life are extremely promising.
x. I accept that D.L. is genuinely remorseful. It goes without saying that the significance of a guilty plea can vary from one case to another. Some guilty pleas from some offenders simply reflect an awareness that there is nowhere to run. However, the material before me suggests that there was nothing strategic in D.L.’s guilty plea and that it reflects his immediate admission of his wrongdoing when he was arrested.
xi. D.L. is willing to participate in treatment and counselling to address both his behaviour and its root causes. Dr. Truong notes that D.L.’s upbringing was marked by inadequate access to medical and psychological resources, a shortcoming that can readily be rectified under the terms of a probation order. The contents of the doctors’ reports and of D.L.’s letter and my own impression of him satisfy me that he is open to whatever help is made available to him.
xii. One consideration on sentence is whether or not the defendant has already paid a significant price for his offence, such as loss of reputation or employment. The impacts of the house arrest certainly fit within this criterion, although I wish to make clear that that factor cannot be counted twice.
Sentencing is of necessity very much an individualized process, although at times, as with child pornography, some of the less individualized considerations such as denunciation and general deterrence necessarily compromise that individualized approach. Even where general deterrence and denunciation are concerns, however, the need to fashion a sentence that responds as much as possible to the individual defendant’s particular overall relevant circumstances still pertains. The Criminal Code makes it clear that incarceration is to be used with restraint and this is particularly so in relation to youthful first offenders. It is an error in principle for a sentencing judge to overemphasize general deterrence in relation to a first offender, to the exclusion of rehabilitation and the need for individual deterrence: R. v. Priest, 1996 ONCA 1381 (Ont.C.A.).
I believe the sentence imposed here reflects an appropriate balancing of the nature of the offences and the background of D.L. and is consistent with the range of sentences for crimes of this nature under the sentencing provisions in effect at the time of the offence.[^4] If one were to think of the “typical” offender in cases of this sort, with a “typical” set of mitigating and aggravating factors, it is hard to imagine that the sentence I am imposing here would be a fit and proper sentence. However, judges sentence the defendant before them and not on the basis of a “typical” template. For a variety of reasons D.L. strikes me as being very much different from the typical child pornography defendant, including the process whereby he began with child pornography while still a child and continued with that as within his comfort zone even after maturing, at least physically, into young adulthood. I do not propose to repeat the other characteristics that are set out above and in the doctors’ reports. I think that the sentence sought by the Crown or, for this particular defendant, a sentence anywhere close to the Crown’s position would be crushing and the needs of denunciation and general deterrence do not call for that outcome, even assuming that a sentence that would crush an individual defendant could be justified as a “just sanction”, to borrow the language of s. 718 of the Criminal Code. I also note that the concept of a sentence fulfilling the needs of general deterrence and denunciation is premised on the message a sentence sends to an informed and reasonable audience. I am satisfied that an informed and reasonable member of the public, considering all of the relevant circumstances of D.L.’s case, would accept that it was a just outcome and would not feel that it undermined any of the goals of sentencing.
In the course of sentencing submissions, Mr. Goldkind suggested to me that D.L. presented consistently with the affect of a “deer caught in the headlights”. That characterization resonated with me, not only because it seemed a perfect encapsulation, but also because it echoed the exact words that had flashed through my own mind as I entered court half an hour earlier to hear sentencing submissions. D.L.’s affect, on the numerous occasions when he has appeared in court, has always been much the same. He strikes me as a gentle soul from a very troubled background who has done something reprehensible, that he came at some point to know was wrong, but which he lacked the social skills and resources to disengage from before fate caught up with him. I consider his likelihood of re-offending, whether for similar or other offences, to be extremely low, and his potential to mature and develop if given access to appropriate resources to be very high.[^5] Accordingly, the sentence I impose on him is as follows:
- In light of the very substantial mitigating factors, this is a case in which no jail sentence beyond the mandatory minimum is called for. If arithmetic credit were given for the restrictive bail conditions alone, that credit would amount to several times more than the mandatory minimum, resulting in an effective sentence of around the seven to nine month mark. I also note that D.L. has two days of pre-sentence custody. Knowing what I know about his social isolation and background, and what is widely accepted in relation to the negative elements of pre-sentence custody, I am satisfied that D.L. is entitled to credit for the equivalent of three days for that pre-sentence custody. Accordingly, the sentence I impose on him is a sentence of 42 days. I will hear from counsel as to whether or not that sentence should be served intermittently.
- While I am satisfied that the mandatory minimum jail sentence, together with the impact of the long period of house arrest, is sufficient to achieve most of the punitive aspects of sentencing for D.L., I am of the view that the rehabilitative process will require a prolonged period of probation and community supervision. D.L. has a number of issues that he needs to address, including the sexual abuse as a child, in order to put him on the steadiest possible course to ensure that he does not re-offend. The guiding hand of a probation officer will ensure that the systemic shortcomings in relation to D.L.’s development that are noted by Dr. Truong are in some way mitigated. Appropriate terms of probation will also ensure that any risk of D.L. re-offending is further minimized from what I already consider to be a low risk by equipping D.L. with the life skills and emotional coping strategies that have been underdeveloped to this point. Accordingly, D.L. will be on probation for a period of three years starting today, with the following terms:
i. You must appear at the jail to serve your intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not under the influence of or possession of any controlled substance unless you are taking that controlled substance pursuant to a lawfully obtained prescription.[^6]
ii. Report in person to a probation officer immediately and after that at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision.
iii. Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request.
iv. Live at a place approved of by the probation officer and do not change that address without obtaining the consent of the probation officer in advance.
v. Attend and actively participate in all assessment, counselling or rehabilitative programmes as directed by the probation officer and complete them to the satisfaction of the probation officer for:
Anger management;
Substance abuse;
Psychiatric or psychological issues;
Literacy;
Life skills.
vi. I consider the imposition of community service to be an important element of the sentence. First, it contributes to the overall fitness of the total sentence. It also contributes towards D.L.’s rehabilitation by serving as an ongoing reminder to him that his offence is an offence against society generally, which is particularly true of this type of offence. Finally, in a similar vein, it serves as a form of reparation to society and I am confident in light of the material before me that D.L. is well suited towards community service and likely to benefit from the process. It also has the capacity to encourage him to come out of his shell, which is an important part of his rehabilitation. Accordingly, D.L. shall perform 150 hours of community service work at a rate of not less than 10 hours per month, starting not later than sixty days from today.
vii. Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation officer, and/or:
viii. Attend school or an education or training programme approved of by your probation officer and provide proof as required by your probation officer.
For the purposes of the DNA provisions of the Criminal Code, this is a primary designated offence. Within the structure of s. 487.051 of the Criminal Code, this is understandably an offence in relation to which there is no discretion about the making of a DNA sample order. Accordingly, D.L. shall provide a sample of his DNA for inclusion in the DNA data bank.
Pursuant to sections 490.012 and 490.013 of the Criminal Code, D.L. shall comply with the requirements of the Sex Offender Information Registration Act for ten years.
The Crown has sought an order pursuant to section 161 of the Criminal Code. I have re-read Dr. Gojer’s report with a specific eye to the desirability of making such an order on the facts of this case. There is some ambivalence in Dr. Gojer’s report (D.L. is not a predator and is not antisocial; at another point, however, Dr. Gojer would not allow him unsupervised access to children). There is also the complete absence of any evidence of D.L. acting out sexually, despite the fact that he has had close access to his own younger sisters and to other children when he served as a volunteer. The record shows that D.L.’s mother was often absent from the home and that D.L. largely raised himself. The absence of any evidence of him acting inappropriately in those circumstances is significant. Specific inquiries have been made by the police and Children’s Aid Society in relation to any abuse of his siblings. The record before me suggests that D.L. is motivated to address the issues underlying his possession of child pornography and that his prospects for success are good. There is also no evidence of luring here. In all the circumstances, I do not consider that an order under s. 161 of the Criminal Code would be appropriate here. For the same reasons, I do not consider the Crown’s request for a probation term prohibiting D.L. from having access to the internet to be sustainable. I also note that the ramifications of such a prohibition in the year 2014 are so broad that, although it may be appropriate in some cases, one ought to be circumspect before imposing it routinely.
PURSUANT TO SECTION 111 OF THE YOUTH CRIMINAL JUSTICE ACT NO PERSON SHALL PUBLISH THE NAME OF THE DEFENDANT OR ANY INFORMATION THAT WOULD IDENTIFY THE DEFENDANT INSOFAR AS THESE REASONS DISCLOSE THAT AS A CHILD THE DEFENDANT WAS THE VICTIM OF OFFENCES ALLEGEDLY COMMITTED BY A YOUNG PERSON.
Delivered: 27 March, 2014
[^1]: The second title appeared to be a compilation of just about every word a person might enter into a search engine in the hope of discovering child pornography. Given the number of terms listed, their variety and the fact that the image was a JPEG file, meaning it was a picture, rather than a video file, it is virtually inconceivable that the image covered even a fraction of what was mentioned. Accordingly, I cannot rely at all on that title as reflective of the actual content of the image.
[^2]: It was suggested to me by the Crown that the amount of credit or mitigation for restrictive bail conditions should be tempered by the long delay in bringing this case to conclusion. It is fair to say that there was a long period of delay between the entry of the plea and the sentencing submissions, but that time was productively used. It is also fair to say that there was a very long time between D.L.’s arrest and the Crown providing him with a sentencing position (other than the 90 days originally offered by the Crown and then deemed unsuitable). None of this is meant to be critical of the conduct of either the Crown or defence in this case. This was not a case in which any of the delay struck me as strategic or intentional. In some cases, final resolution just takes time. This was such a case.
[^3]: Dr. Gojer notes D.L.’s “social isolation, limited social skills and lack of age appropriate sexual outlets” as risk factors, but these are matters that are capable of being addressed and, in the overall context of the information available to me about D.L. do not rise to the level of significant risk factors, either alone or in unison.
[^4]: In R. v. D.G.F., supra, 2010 ONCA 27 (Ont. C.A.), a case very much different on its facts from the present case, the Court of Appeal commented on the increasing incidence of child pornography cases. I have reviewed a broad range of sentencing decisions made post-D.G.F. in order to determine a general range of sentence for these offences. Obviously every case will vary depending on the offences and the offenders and the sentencing authorities range from simple possession cases, through distribution cases and even include cases where the defendant has been found guilty of sexual assault on his own children for the purpose of creating the pornography. I do not propose to review all of those decisions here. However, helpful summaries can be found in the Superior Court decisions in R. v. V.L., 2011 ONSC 218 (Ratushny, J) and R. v. Bock, 2010 ONSC 3117 (Henderson, J.). As a general proposition, I think it would be fair to say that convictions for simple possession under the relevant sentencing scheme typically result in sentences in the range of six months imprisonment to mid-reformatory, with distribution sentences typically ranging from mid-upper reformatory into low penitentiary sentences and the most egregious cases involving actual sexual assaults running as high as the seven year range. Within the range, e.g., for simple possession, the scenarios vary greatly including number of images/videos, degree of remorse, personal background, age, previous record, etc. However, a broad survey of the decisions satisfies me that D.L.’s sentence, at the low end of the possession sentences once the mitigating factor of house arrest is considered, is appropriate for his circumstances.
[^5]: See, for example, the analysis at p. 9 of Dr. Gojer’s letter of Christmas Day, 2013.
[^6]: In keeping with paragraph 29(a) I heard submissions with respect to intermittency and ordered that D.L. serve his sentence on weekends.