Court Information

Ontario Court of Justice

Date: February 2, 2015

Court File No.: Halton 12-2763

Parties

Between:

Her Majesty the Queen

— AND —

James Robertson

Before the Court

Justice: L.M. Baldwin

Counsel:

• M. Mackenzie, for the Crown
• K. Jalali, for the accused James Robertson

Procedural History

Guilty Plea Heard: October 17, 2014

Sentencing Submissions Heard: January 12, 2015

Reasons for Sentence Released: February 2, 2015

REASONS FOR SENTENCE

Introduction

[1] James Robertson entered guilty pleas to two counts of possessing child pornography contrary to s. 163.1(4) of the Criminal Code.

[2] The first count has an offence date of July 18, 2012 and occurred at the offender's work place in Milton.

[3] The second count has an offence date of September 11, 2012 and occurred at the offender's residence as a result of a search warrant being executed.

[4] The Crown proceeded by Indictment. The minimum sentence on each count is 6 months incarceration. The maximum sentence is five years.

[5] The offender has indicated his intention to plead guilty to the charges from the outset. The delay in entering his guilty pleas was to engage in counselling specific to these offences and to obtain a forensic psychiatric risk assessment from CAMH.

Facts on the Guilty Pleas to Possessing Child Pornography

[6] On July 19, 2012, HRPS were contacted by a company in Campbellville after an employee found suspected child pornography on the offender's work computer. The offender had been terminated from his employment just days before due to poor work performance.

[7] An examination of that computer resulted in the discovery of a total of 271 unique files of child pornography.

[8] The offender was arrested on September 11, 2012. He provided an inculpatory statement. A search warrant was executed at the offender's home which resulted in a massive amount of child pornography being located.

[9] He was held for bail and released 2 days later on strict conditions.

[10] Detective Constable Buchanan provided a summary of the child pornography that has been categorized to date as contained in Exhibit #2. He also testified at the time of the guilty pleas and a random sampling of the material was viewed by me in a courtroom closed to the public. Exhibit #3 is now sealed.

[11] The categorized images equal 18,556 at this time.

[12] The videos total 61 to date.

[13] There is estimated to be approximately a million other images/videos not yet categorized.

[14] The child pornography found in this case was very similar. The large majority was of naked girls between the ages of 5/6 – 16. There were no images of sexual contact activity involving an adult.

[15] With respect to the random images that I viewed in the courtroom, they showed naked female children between the ages of 5 – 8 years, one with a baby soother in her mouth, in various sexual positions and in 2 instances, the children were inserting a toothbrush into their anus.[1]

Forensic Psychiatric Assessment

Assessment dated March 25, 2014 Prepared by Dr. Scott M. Woodside, CAMH (Exhibit #1)

[16] Dr. Woodside prepared a detailed forensic assessment report for the court which contains the offender's personal background information, current situation, interview of the offender's ex-girlfriend and mother, results of phallometric testing, risk to re-offend and treatment recommendations.

[17] The offender is a 32-year-old single male with no dependents. He lives with a friend in Brantford and has been working as a welder-fitter for the past 1.5 years.

[18] He had a stable upbringing. He was a 'loner' from Grade 7 onwards and was subjected to physically bullying at school. He began to spend hours on his computer, including watching child pornography, at the age of 15.

[19] He skipped more than half of Grade 11 and was asked to withdraw from school. He worked at various jobs and returned to school. At the age of 27 he completed a one-year course for industrial maintenance at Conestoga College.

[20] Prior to his arrest, he had been working at a company called Sovereign Fusion. He was fired from that company in mid-July 2012 because he was not doing enough work. Within days, another employee of that company discovered child pornography on the offender's work computer and the police were contacted.

[21] The offender acknowledged that his use of pornography at work affected his work performance. He estimated spending up to three hours per day at work downloading pornography, in addition to the time that he spent at home watching it.

[22] The offender had a girlfriend at the time of his arrest. She was not aware that he was watching child pornography. His use of the internet did affect their relationship because he spent most of his free time using it.

[23] The offender has used marijuana in the past. He does not abuse drugs or alcohol at this time.

[24] The offender recently declared bankruptcy owing more than $40,000.00.

[25] The offender denied ever having hands-on sexual contact with any underage females.

[26] The offender acknowledged searching for underage 'nude models' of girls and offered that he did so because he was bored with looking at adult pornography. He also downloaded depictions of girls urinating.

[27] The offender organized the material he downloaded into folders. He kept the child pornography separate from the adult pornography. He paid for some of the child pornography sites.

[28] He reported masturbating to child pornography 2-3 times per week. He would also masturbate to stories involving sex with children.

Results of Phallometric Testing

[29] The offender is substantially more aroused to pubescent and prepubescent females than to adult females.

[30] Test results were indicative of pedohebephilia (sexual arousal to prepubescent and pubescent children). Such individuals can engage in other forms of sexual activity, but this proclivity for sexual contact with children is a condition that is not expected to remit.

Counselling Undertaken

[31] Since his arrest, the offender has completed 12 weeks of group therapy at the Manasa Clinic with Dr. Kalia. The offender found this helpful and he is aware of the cognitive distortions he has used to engage in this criminal behaviour.

Risk Assessment

[32] Suggestive of increased risk to re-offend are his male sex, his positive phallometric test and his diagnosis of pedohebephilia.

[33] The factors that make his risk to re-offend lower are his average intelligence, his geographic and family support, no prior history of violent offences, no diagnosis of antisocial personality disorder or psychopathy, the support of his family and his ex-girlfriend, and his willingness to engage in intensive sex offender treatment.

[34] Dr. Woodside concludes that the offender is likely a low risk for future hands-on sexual offending and a low-moderate risk for further child pornography offending. This risk can be further reduced by ongoing involvement in both psychological treatment for his sexual disorder and also potentially through use of sex-drive reducing medication should psychological treatment prove inadequate to assist him in controlling his urges.

[35] Dr. Woodside recommends that the offender have no unsupervised contact with children under the age of 18 "in perpetuity".

[36] Dr. Woodside recommends that the offender serve his sentence at the Ontario Correctional Institute to receive sex offender treatment. Upon his release from custody, Dr. Woodside recommends further treatment at CAMH's 'Child Pornography Offender Treatment Group'.

Statements of Remorse and Community Support

[37] Exhibit #4 contains a letter to the Court from James Robertson; and letters to the Court from the offender's friends, Bridget Clarke and Matt Shantz.

[38] The offender has expressed in both his letter and his verbal statement to the Court pending this sentence, his profound remorse. He has found therapy undertaken to date to be extremely helpful. He acknowledges his prior cognitive distortions and the harm he has done to all these children. He hopes to serve his jail term at OCI and is willing to participate in all recommend sex offender counselling.

Minimum Sentence for OCI Admission Consideration

[39] Exhibit #5 contains an E-mail exchange dated January 12, 2015 between Assistant Crown Attorney Monica MacKenzie and Mariann Taylor-Baptiste, Deputy Superintendent Programs, Ontario Correctional Institute, MCSCS, regarding the minimum sentence offenders must receive before being considered as eligible for serving their sentence at the OCI.

[40] Ms. Taylor-Baptiste states that OCI will review offenders who apply to the OCI who have a minimum of six months remaining in their sentence, which is approximately a nine-month sentence.

Crown's Position on Sentence

[41] The Crown is asking for a 21-month jail sentence in this case, concurrent on both counts, with probation and Ancilliary orders.

Cases Referred to by the Crown

(1) R. v. Dansereau, 2014 ONCJ 250 (OCJ); decision of Justice P. T. Bishop released May 20, 2014:

Guilty plea to possession (minimum sentence was 45 days); no prior record; 535 images and 31 movies of child pornography; sexual violence to children as young as 3; offender was 56 years of age, married and employed; reluctant to participate in an assessment and had not completed any treatment; at risk to re-offend; sentenced to 15 months jail.

(2) R. v. Kroeker, 2014 SKQB 137 (Sask. Q.B.); decision of Justice T. J. Keene released May 13, 2014:

Guilty plea to one count of possession (minimum sentence was 45 days jail) and one count of make available (minimum sentence is one year jail); no related record; large 'collection' of 152,814 images and 6,219 videos amassed over 6 to 8 years with a vast amount in addition to that which had not been categorized by the police; aggravating factors included that his own young children were present when he watched the material; the material included sexual violence on babies and young children of both sexes; limited insight; had attended some sex addiction counselling post-arrest; no forensic risk assessment prepared for the court; 44 years old and employed; physically abused by his father as a child; sentenced to 2 years in the penitentiary.

(3) R. v. Saliba, 2013 ONCA 660 (Ont. C.A.); released November 1, 2013:

It appears that the offender was convicted following a trial; trial judge viewed the material and described it as particularly vile and involving the victimization of several children; 2½ years upheld on appeal.

(4) R. v. Dean, [2010] O.J. No. 5305 (S.C.J.); decision of Justice J. Ratushny, released October 18, 2010:

Guilty plea to one count of possession; no record; offender was 64-year-old American citizen who arrived in Canada with 288,472 images and 1,061 videos of child pornography on his computer; vile 'collection' showing very young children in bondage, being tortured and bestiality; offender attempted to justify his actions by maintaining he was doing 'research' only; offender had no appreciation of why possession of child pornography was a serious crime; assessment indicating he was a low-risk offender; sentenced to 3 years jail.

(5) R. v. Nisbet, 2011 ONCA 26 (Ont. C.A.):

Paragraph 1 – "Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence."

(6) R. v. Sharpe, 2001 SCC 2 (S.C.C.):

Paragraph 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 eroticizes the inferior social, economic, and sexual status of children. It preys on pre-existing inequalities."

Position of Defence on Sentence

[42] The defence submits that a jail term between 6 to 9 months is appropriate, concurrent on both counts. The Ancilliary orders are on consent.

Cases Referred to by the Defence

(1) R. v. A.D.M., 2014 ONCJ 29; decision of Justice P. Reinhardt released January 14, 2014:

Guilty plea to 5 counts of possessing, accessing and making available child pornography; minimum sentence for making child pornography available is 1 year; offender had received a prior conditional sentence for possessing child pornography; offender had been sexually abused as a child; offender possessed a small but violent 'collection'; forensically assessed as a pedohebephilic (same diagnosis and risk factors that apply to Mr. Robertson); offender sentenced to 2 years less a day in jail for intensive treatment needs to hopefully be met at the O.C.I.

(2) R. v. Foley, 2013 ONCJ 26; decision of Justice G. Renaud released January 24, 2013:

Guilty plea; no prior record; minimum sentence was 45 days; 616 files some with young babies and children as young as 4 years being sexually tortured; psychiatrically assessed as being at low risk to re-offend; sentenced to 9 months of jail and 2 years of probation with Ancilliary orders.

(3) R. v. O'Shea, 2014 ONSC 840; decision of Justice LaFrance-Cardinal released February 6, 2014:

Guilty plea to one count of possession (minimum sentence was 45 days); 9,301 images and 80 videos; offender physically abused by his father as a child; offender had a severe traumatic brain injury as a result of a car accident; offender not receptive to sex offender counselling; sentenced to 12 months jail.

(4) R. v. Labre, 2013 ONCJ 116; decision of Justice R. W. LaLande released March 7, 2013:

Guilty plea to one count of possession (minimum sentence was 45 days jail); 1,439 images and 52 videos 'collected' over 2 year period; children being sexually degraded by adults; no criminal record; offender was 49 years of age, married, father of teenage boy; offender voluntarily stopped collecting and viewing child pornography 3 years before the material on his stolen computer was located by the police; forensic assessment concluded he was at low risk to re-offend; 90 days intermittent jail sentence imposed.

Sentencing Factors

[43] Mitigating Factors on Sentencing:

• the guilty pleas
• no prior record
• inculpatory statement to the police upon arrest
• sex offender therapy undertaken since arrest
• participation in a thorough forensic risk assessment
• insight into his criminal behaviour and willingness to participate in intensive treatment to prevent relapse
• stable employment
• support of parents and friends
• genuine remorse
• adherence to strict bail conditions for over 2 years

[44] Aggravating Factors on Sentence:

• enormous extent of the organized 'collection' which speaks to the number of children victimized by this offender
• that the criminal offending took place for 12 years on a regular and at times intense basis
• the nature of the 'collection' included female children as young as 5 years per random sample viewed in court
• the fact that on occasion he purchased child pornography thereby contributing to the sexual victimization of children for profit
• his diagnosis of pedohebephilia and his low-moderate risk to re-offend in like manner
• Dr. Woodside's recommendation that he have no unsupervised contact with children under the age of 18 years in perpetuity

[45] As in all the cases dealing with sentencing for possessing child pornography, the principles of general (or collective) deterrents and denunciation are paramount. Specific deterrents, rehabilitation and totality must also be considered.

Sentence Orders

Jail Term

[46] After balancing all the factors and considering that the minimum sentence is now 6 months jail for these offences, I have determined that a sentence of 18 months in jail is the appropriate sentence. This jail term shall be concurrent on both counts.

Probation Order

[47] Upon his release from custody, the offender will be bound for a period of probation of three (3) years with the following conditions, in addition to the statutorily required conditions:

(1) that he reports to a probation officer within 48 hours of his release from custody and thereafter as required;

(2) that he reside at an address approved of by his probation officer;

(3) that he attends for any assessments, treatment and counselling as directed, including sex offender treatment, and completes such counselling/treatment to the satisfaction of the probation officer;

(4) that he sign consents to enable his probation officer to monitor his attendance and compliance with recommended treatment and/or counselling;

(5) that he not possess any pornographic imagery or pornographic material in any form or medium whatsoever;

(6) that he seek and maintain gainful employment and/or be enrolled in an educational program and be attending all classes as required;

(7) that he not own or possess a computer, cell phone or other communication device capable of accessing the internet, except for purposes of employment/education and then only in his workplace/education, provided such workplace/education is outside of his home and he is supervised by a competent adult in circumstances that have been specifically approved of beforehand in writing by the probation officer;

(8) that he not use any computer related equipment, CD-Roms, floppy discs or any form of media that can be used to store information, except for purposes of employment/education and then only in his workplace/education, provided such workplace/education is outside of his home and he is supervised by a competent adult in circumstances as have been specifically approved of beforehand in writing by the probation officer;

(9) that he have no direct contact with any child under the age of eighteen years, except in the presence of a competent adult approved of by the probation officer;

(10) that he have no indirect contact with any child under the age of eighteen years, unless in the presence of an adult (incidental contact is not included);

Section 161 Prohibition Order

[48] This Order shall be for life with conditions (a) and (c) applying to persons under the age of 18 years (as opposed to under 16 years) and conditions (a), (c) and (d) shall include an exception that allows for contact with children and use of computers, only under the direct supervision of an adult over the age of 25 years, or as approved of by his probation officer when subject to the probation order.

Section 109 Weapons Prohibition Order

[49] This Order is for life.

SOIRA Order

[50] This Order is for life.

DNA Order - Primary

[51] DNA Order - Primary

Victim Fine Surcharges

[52] I will waive Victim Fine Surcharges given the total sentence orders being imposed.

Warrant of Committal

[53] I will endorse the warrant of committal recommending that the offender serve this sentence at the Ontario Correctional Institute to receive sex offender treatment. I will have Dr. Woodside's report forwarded to the custodial institution to facilitate this recommendation.

I thank both counsel for their assistance in this matter.

Released: February 2, 2015

Signed: Justice Lesley M. Baldwin

Footnote

[1] (Note: I respectfully disagree with the officer that that these images show a child 'masturbating'; this is a child being forced to inflict pain upon themselves as directed by an adult sexual abuser. It is important that we all get the terminology right when we are dealing with these sexually violent cases, so that we do not unintentionally minimize the horror to which we are a witness – see R. v. Johansen, 2009 ONCJ 305, p.11)