WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Information No.: 14 1952

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

James Piche

Before: Justice Lloyd Dean

Dates Heard: July 9th & September 2nd, 2015

Counsel:

• E. Costaris for the Crown
• E. Craig for the Offender

Ruling on Sentence

DEAN J.:

Introduction

[1] This matter is before the court today to receive my ruling with respect to sentencing.

[2] On July 9, 2015, as a result of plea negotiations the offender pleaded guilty to twelve counts of making child pornography, two counts of possessing child pornography, one count of making available child pornography, three counts of sexual interference and one count of sexual assault.

Facts

[3] At the time of the guilty pleas an agreed statement of facts was read in and filed. Following is a summary of it.

[4] In August of 2014 an officer of the Windsor Police Child Exploitation Unit was conducting a proactive investigation into the distribution and possession of child pornography. That investigation ultimately resulted in the police obtaining a search warrant for the offender's home address. On September 23, 2014 the search warrant was executed. A laptop computer, desktop computer and hard drives were found in the offender's bedroom. A cursory search of those items revealed several videos and images of child pornography. The offender was arrested. The computers and hard drives were seized.

[5] An officer subsequently interviewed the offender and he informed the officer that when the police examine his computer hard drive they will locate videos of the offender sexually assaulting a child whom had spent an evening at his residence.

[6] During the forensic examination of the electronic devices police did locate a folder that contained photographs and videos depicting the offender performing oral sex on a male child between the age of 13 and 15. There are four photographs depicting the offender fondling the child's genitals and three more photographs of the child's clothed buttocks. There were a total of seven videos depicting the offender fondling the genitals and performing oral sex on the child. The child does not appear to be conscious during the course of the assault as there is no sign of him moving at all during the incidents. The investigation determined the sexual assaults took place between March of 2010 and September 2012.

[7] Further videos were found which depict the offender fondling the genitals and performing oral sex on a second child. That child also appears unconscious during the assaults. The child seen in those three videos is the brother of the first victim. The investigation determined that the videos were recorded on June 14, 2014. The victim was 16 at the time.

[8] The brothers had met the offender through a family friend and would often attend at the offender's residence to play video games. When interviewed by the police both brothers advised police that they were unaware of the sexual assaults until informed by the police.

[9] Shortly after the offender's arrest the police advised through a media release that the offender had been charged with offences related to child pornography. As a result of that release a male person contacted the police and advised that he had been sexually assaulted numerous times by the offender. That male person was subsequently interviewed by the police. He was 19 at the time of the interview. He advised police that between the ages of 11 and 13 he was sexually assaulted over 300 times by the offender. He advised police that the offender had worked at the same location as his mother and the mother and the offender became friends. His mother ended up renting a room of their house to the offender and almost immediately thereafter the sexual assaults began. The offender would sneak downstairs in the middle of the night and enter the victim's bedroom. The sexual assaults would include fondling of the genitals and buttocks. The victim indicated that he would often pretend to be asleep during the assaults. He also advised that he was terrified of the offender at the time.

[10] Over the course of the next three months the police continued their forensic examination of the electronic devices seized from the offender's bedroom. Police located a total of 10,298 images of child pornography, of which 4,511 were unique, the balance of them being copies of the unique images. These images were all accessible to the offender. The police also located 819 videos depicting images of child pornography, of which 682 were unique and accessible to the offender.

The Offender

[11] The offender is thirty years old. He is single and has no previous criminal record.

[12] Through the presentence report the offender describes his childhood as emotionally difficult. He is the youngest of three children born to his parents, who have been married more than forty-five years. At the age of five he was sexually assaulted by an elder brother. His mother reports that the incident involved inappropriate touching. To this day the offender has feelings of anger and frustration due to what he feels was his parent's lack of addressing the actions of his brother. He does not share a close relationship with any of his siblings but he reports his relationship with his parents is positive and supportive.

[13] The offender suffered serious burns to his face and hands when he was nine years old. He indicated he was teased by other children and remains self-conscious of the scars. He also describes being the victim of bullying while attending high school. He recalls feeling isolated and excluded by his peers. He describes himself as having had four close friends who were not aware of his offending behaviour until he was arrested. Since his arrest only one of those friends has remained supportive.

[14] The offender describes himself in the presentence report as having symptoms of depression throughout his life. He never sought treatment until being placed in custody as a result of the matters before the court. He has met several times with a representative of the Canadian Mental Health Association while in custody. He also believes he would benefit from anger management counselling. He has no history of substance abuse.

[15] In 2006 the offender completed a college computer programming degree. Although it doesn't appear he was able to obtain a job in that field he has been consistently employed since his youth, mainly in the fast food industry.

[16] The offender reports through his pre-sentence report that he has never been involved in a sexual relationship with age-appropriate partners. His interest in pornography started at the age of seven. His sexual interest was in female peers until age twelve. He began to include males after suffering rejection from female peers. He describes his present sexual interests as bi-sexual and further states he has never grown-up in his sexual attractions, indicating that his interest lies in pubescent males and females.

[17] The author of the pre-sentence report describes the offender as co-operative during the preparation of the report. She indicates the offender accepts responsibility for the offences and feels ashamed and embarrassed by his actions. He reports a desire to engage in rehabilitation to avoid repeating his offending behaviour. Further, he expressed empathy for the victims and their families. Of note, he does not view his own victimization at the age of five as an excuse for his victimization of others.

Impact on Victims

[18] As one would expect, the offender's actions has resulted in immeasurable grief and misery for the children and their families. The lives of the families have been shattered. The young males have been robbed of their youth and innocence. They and their families have been permanently scarred and damaged psychologically, possibly for life. This is evident in the victim impact statements filed at the sentence hearing.

[19] Only one of the young males completed a victim impact statement. The young man who was fondled over a two year period, between the ages of 11 and 13 read his statement in open court. As stated earlier, he is now 19 years of age. The victim impact statement speaks to the harm he has suffered. He stated the impact of the sexual abuse has been devastating, profound and far-reaching. The losses for him began immediately and continue to this day as he continues to be held back and limited in his life because of it. He suffers constant flashbacks and severe insomnia. He indicated somewhere in the hate and anger he has forgotten how to be happy or to enjoy the company of friends. He is afraid of trusting anyone. He states he has become socially awkward and afraid of his surroundings. The house where the abuse happened and where he still lives is now full of triggers and nightmares for him. He is afraid of his own bedroom.

[20] The amount of fear and anxiety he experiences at times cannot be defeated. He went on to further state he began to hate himself and, because of stress, he self-medicated. When that wasn't enough, he started to self-harm which has caused permanent damage. He struggles on a daily basis not to express his anger physically and explode on other people or himself. Depression has been an ongoing struggle and has led to him attempting suicide. He was 14 and didn't want to live anymore.

[21] He also indicated he has lost his family, stating that his entire family stood against him and defended the abuser. He was depicted as a liar. He still has not been able to forgive his family. The worst part of it all, he says, is that he will never be able to forget what happened.

[22] The mother and grandmother (both maternal and paternal) of the other two victims filed victim impact statements.

[23] The mother indicates the offender was a trusted friend who was involved with their family for eight years. She indicates the entire family feels betrayed, disgusted, frustrated and angry. She is concerned how the abuse will affect her sons psychologically later in life. She indicates her sons feel ashamed, embarrassed and exploited. They are developing insecurities about themselves as they wonder who knows about the assaults, since many people know the offender and they were best friends. They are questioning the effect the events will have on their own sexuality and how they will ever be able to trust anybody. The mother is questioning her parenting skills. She thought she was doing an excellent job raising her boys. All along she thought she was protecting them. These events have left her feeling guilty, responsible, empty and sick for letting them down. She has trouble sleeping at night realizing that it was while she was sleeping at night that her boys were exploited. All of those emotions are affecting her health, physically and emotionally. At times, she is finding it difficult to keep it together. It is affecting her employment performance which in turn is affecting the entire family financially. Putting her feelings aside, she hopes the offender gets the help he needs so that no other child is hurt by him.

[24] One of the grandmothers wrote in her victim impact statement that it will not be easy to move forward and forget the harm caused by the offender. She indicates the family is devastated by his actions. She describes the family as feeling angry, sad and disappointed. The other grandmother indicates that since finding out about the events she has lost twenty pounds and has been having frequent heart palpitations due to the stress. She has cried many times since learning of the events, as she thinks about the red flags she missed. She lived with the family during the time frame of the offences.

Position of the Parties

[25] Defence counsel points to the mitigating factors and the absence of certain aggravating factors and suggest that a seven year sentence is appropriate. Defence counsel has referred to several cases to support their position. She has attempted to distinguish or set apart the cases relied upon by the Crown.

[26] The Crown, while acknowledging the mitigating factors, points to the aggravating factors and submits the appropriate sentence is ten years. As indicated, the Crown has provided case law to support its position.

[27] The cases I have been asked to consider by one or both counsel are: R. v. D.D., 58 O.R. (3d) 788 (C.A.); R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81 (C.A.); R. v. C.C., 2015 ONCA 59; R. v. F (D.G.), 2010 ONCA 27, 98 O.R. (3d) 241 (C.A.); and R. v. Horniblow, 2010 O.J. 4296 (O.C.J.).

Analysis

[28] The imposition of a fit sentence can be as difficult a task as any faced by a judge. In every case the sentencing of an offender is a very individualized process, involving the specific offender before the court and the specific circumstances of the case before the court.

[29] It is my duty to impose an appropriate sentence having regard to the purpose and principles of sentencing found in sections 718 through 718.2 of the Criminal Code ("Code"). There is no specific formula for balancing the sentencing principles. No one sentencing objective trumps the others. How much emphasis a Court places on each of the principles or objectives will vary according to the nature of the crime and the circumstances of the offender. In a case such as this the principles or objectives of sentencing that are of primary concern are denunciation, deterrence, both specific and general, and the need to separate offenders from society: see s. 718.1 of the Code and D.D., supra, at paragraph 34.

[30] The sentence imposed should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality is central to the sentencing process set out in the Code and requires that a sentence must speak out against the offence but may not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence.

[31] The ultimate question is what should this offender receive for these offences, committed in the circumstances in which they were committed?

[32] The cases that have been relied on by both parties involve individuals with a variety of circumstances as far as their background and the details surrounding the offence. No two offenders are identical. And it is rare to find the circumstances surrounding the offence to be the same. Usually at most, there are similarities. The sentences imposed in the cases provided were driven by the facts of each case combined with the circumstances of the particular offender before the court. The cases are helpful in that they express principles that are to be applied in determining the appropriate sentence in cases such as the one before the court.

[33] As required by statute, the presence of any aggravating or mitigating factors must be taken into account.

[34] The aggravating and mitigating circumstances in this case are as follows:

Mitigating Factors

[35] First the mitigating factors:

• He has demonstrated remorse not only by his guilty plea but also through the words he expressed in court to the victims, the victims' families, relatives and friends.

• He cooperated with the police during their investigation, which made locating and accessing the images easier and identifying the victims easier.

• The offender's prospect for rehabilitation is still worthy of some consideration given his age and the steps he has taken while in custody awaiting disposition of these matters. He has availed himself of programming and other services offered at the remand facility while awaiting sentencing. He has also been an otherwise productive member of society as far as his employment history.

Aggravating Factors

[36] The aggravating factors are as follows:

• The offender abused three persons under the age of 18

• He abused a position of trust

• The offences had a significant impact on the victims

• The number of images the offender had in his possession and the ease in which many of the images could be accessed

• The nature of the collection, both in terms of the ages of the children seen in the images as well as the nature of the acts depicted

• The offender was involved in the actual making of child pornography with respect to the two brothers that were sexually assaulted

• The offences and contents of the pre-sentence report suggest the offender is a danger to children unless he receives extensive treatment

[37] Absent as an aggravating factor are any acts of sexual intercourse towards the victims.

Judicial Reflection on the Evidence

[38] As I viewed the images and watched the videos of the sexual assaults, as well the sample of child pornography images so much outrage, anger, disgust and sorrow filled my heart. Sorrow for the children depicted in the videos. The worst part of me was at war with the best part of me. It was so difficult to not let the worst part of me win that war. One video was of a baby, who appeared less than a year old, probably a couple of months less, being degraded by an adult male who continually pressed his erect penis against the mouth of the baby. The baby continually tries to push it away and the adult male continually presses it to the mouth and face of the baby. Eventually the baby starts crying and it appears to me that the adult male has ejaculated onto the baby's face.

[39] Every time I have a case such as this and I view these types of images my heart is broken for the children. They are still out there. Where are they? What is still happening to them? Who can save them from the hell they are living in? What is going to become of them and their lives? How can they possibly grow up without being altered in a horribly negative way by the abuse? How depraved must an adult be to inflict such harm on these innocent souls? How depraved must someone be to get enjoyment from viewing these images? Why isn't their heart broken like mine? Why aren't they outraged like me?

[40] In my experience, in these types of cases, it is the norm to hear that the perpetrator was abused as a child. Perhaps therein lays the answer. But I always wonder, if they hated and are angered by what happened to them, why do they cause the same harm to others?

[41] When performing judicial duties a judge must apply their judicial conscience and not their personal conscience. That is not to say that the reasoning process must be isolated and set to work in an emotional vacuum. A judge does not shed the attributes of common humanity when they are appointed. But a way must be found to suppress personal emotion. That is necessary to perform properly the duties of a judge. For a judge to detach himself from his whole personality is a difficult, almost impossible task. But a judge with his trained mind must find a way to do it.

[42] I have spent the time revealing my reaction and thoughts to give some insight into how these types of cases affect a judge. We are human and have emotions. We are no different than the rest of mankind. We have hearts that can be filled with joy and filled with pain. Yet my duty as a judge is to apply myself differently than the rest of mankind when it comes to fulfilling my role as a judge. I remind myself that emotion is the enemy of objectivity. A judge must make rulings in a particular case without emotion. To be just is the essence of being a judge. As I once read, it is necessary for a judge to be able to ignore him or herself in the name of justice and make a balanced, wise and fair decision. I've been told that those who appear before a judge do not care for what he or she thinks or feels; what they care for is what justice will decide.

[43] The offender's conduct must be denounced but it must be denounced through the application of established legal principles such as the purpose and principles of sentence found in s. 718 through 718.2 of the Code.

[44] Sentences related to the sexual abuse of children are rising as courts become more familiar with the horrific consequences for the victims.

Sentencing Principles from Case Law

[45] In D.D., supra, at paragraph 34, in part, Moldaver J.A. stated:

34 The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. …

[46] And then at paragraph 35:

35 We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey.

[47] And further, at paragraph 44:

44 To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

[48] In Woodward, supra, the Court of Appeal re-emphasized its views expressed nine years earlier in D.D.

[49] At paragraphs 75, in part, and at paragraph 76:

[75] Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. … While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single-digit penitentiary sentences.

[76] In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

Conclusion

[50] The offender's conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the offender is cause for grave concern. Children have been robbed of their youth and innocence, families have been torn apart, and lives have been irretrievably damaged and maybe permanently destroyed. Because of this, as the Court of Appeal stated, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price.

[51] After serious consideration of all of the aforementioned, and applying the appropriate principles and having suppressed my emotions, I am satisfied that a just and fit sentence in this case would be a global sentence of 9 years. The offender will be given credit for 18 months of presentence custody (12 months x 1.5). Therefore the remaining sentence left to be served is 7 ½ years.

[52] There will be the following ancillary orders:

• S.O.I.R.A. order for life
• S. 161 order for life
• DNA order
• S. 109 order for life
• S. 164.2 forfeiture order
• S. 743.21 order

[53] There is mandatory victim surcharge for each of the 19 counts the offender has been sentenced. The Crown has proceeded by indictment on all counts. Therefore there is a $200 surcharge on each, for a total of $3,800.00.

Released this 22nd day of September, 2015

Justice Lloyd Dean