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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2016-05-30

Court File No.: Dryden, ON 140281 & 140793

Between:

Her Majesty the Queen

— AND —

Daniel Robinson

Before: Justice Peter T. Bishop

Heard on: May 9, 2016

Reasons for Judgment released on: May 30, 2016

Counsel:

• Kristen Wiersema, counsel for the Crown
• Aaron Seib, counsel for the accused Daniel Robinson

BISHOP J.:

Charges

[1] Daniel Robinson stands charged:

(i) that between the 1st day of June, 2013 and the 8th day of April, 2014 did for a sexual purpose touch T.M. a person under the age of 16 years directly with a part of his body, to wit: his hand

(ii) and further that between the 1st day of November, 2012 and the 13th day of March 2014 in the Township of Wainwright in the said region did have in his possession child pornography to wit: photographs, contrary to Section 163.1(4) of the Criminal Code

(iii) and further that Daniel Robinson on or about the 12th day of October, 2013 in the City of Thunder Bay in the said region did make child pornography to wit: photographs contrary to Section 163.1(2) of the Criminal Code.

[2] On May 9, 2016 Mr. Robinson plead guilty to the above noted charges.

Facts

[3] Mr. Robinson is 63 years of age.

[4] On April 9, 2014 he touched T.M in a sexual manner; an 8 year old child at his home and professed his love to her. The child told him that she loved him and he watched the child disrobe and he asked the child not to tell his wife. The child was naked and he asked to be kissed on his lips and he gave her treats.

[5] On June 11, 2014 the child disclosed that she was taken naked to the accused's garage where he touched her vagina and took photos of her urinating.

[6] There was also some spray painting and the accused stated it was the child's idea and he took pictures of her vaginal area and called her "pumpkin".

[7] The photos were taken on his cell phone and he gave the child junk food as an enticement.

[8] In November of 2014 still images and video images were found of this child on his cell phone. In total there were 192 pornographic images of which 124 related to this young child.

[9] The photos disclosed this nine year old child was naked in the vaginal area and the accused was naked from the waste up. Some of these photos were taken at the Valhalla Inn, in Thunder Bay.

[10] The images were taken primarily of the vaginal and anal area and there were approximately 45 other images which were not considered graphic pornography.

Crown and Defence Positions

[11] The Crown seeks a penalty of 2 years less a day, less the time in pretrial detention, followed by a 3 year probationary order.

[12] The Defence is requesting an 18 month sentence, minus the pretrial detention and a credit for some of the time spent in house arrest.

[13] The accused has spent 44 actual (enhanced credit 66) days of pretrial detention followed by 19 months house arrest with very strict conditions.

[14] There is a recommendation by both the Crown and the Defence that Mr. Robinson receive counselling for sexual offenders and serve part of his sentence at the Ontario Correctional Institute in Brantford, Ontario.

Background of the Accused

[15] The accused is of Metis ancestry and the Court has considered the Gladue and Ipellee principles as well as proportionality in Section 718 of the Criminal Code.

Psychological Report

[16] Dr. Kent Somers', a registered psychologist, has provided an assessment dated September 30, 2015 wherein he concludes that the accused is of generally low risk to reoffend.

[17] Dr. Somers notes inter alia: "that although Mr. Robinson can clearly articulate that his actions toward the complainant were wrong, he appears to have maintained underlying beliefs, and acted on emotional needs (for intimacy, affirmation and affection) that allowed this inappropriate relationship to begin, to persist and to develop into an increasing intrusive and damaging situation for this child. He can articulate that he has been lacking intimacy, emotional support and a sense of being cared for within his marital relationship, but he had not, and has not yet, sought appropriate means of addressing this (for example through marital therapy). That feelings of romantic love for this child arose for him should alone had been a reasonable indication to him that his judgment regarding his conduct around the child was becoming distorted, and he was in need of mental health support and of making changes to his own patterns of behaviour. Instead, he continued to romanticize the relationship with this child and to deepen the illusion of this relationship being reciprocal between the two of them. His awareness of the need for secrecy in conducting this relationship, couched then in the terms of "play" between the two of them (still an unusual circumstance for a small child and unrelated, elderly man to engage in), suggests that he maintains some awareness of the impropriety of his actions but that he chose, despite this, to foster a sexualized and self-serving relationship with a child whom he understood to be in a vulnerable circumstances. Mr. Robinson does not fully recognize these patterns of behaviour as reflecting distortions in his own reasoning process, despite his engagement in counselling. He presents credibly as being remorseful for his actions at present but he also appears to persist in the belief that he experienced a valid, equitable and loving relationship, the loss of which he now also grieves."

Mitigating Factors

[18] I take into account that his guilty plea is mitigating and that he has spared this young child and other witnesses the trauma of having to give evidence. He is also amendable to treatment.

[19] The Court also recognizes that there was no distribution of these pornographic images and his collection of child pornography is relatively small.

[20] The accused is of Metis ancestry and experienced sexual trauma at age six or seven as well as drinking and fighting in the home coupled with alcohol abuse and domestic violence perpetrated by his father on his mother. The physical violence was never inflicted on himself or siblings.

Aggravating Factors

The Crown submits that this 63 year old man has demonstrated egregious behaviour and that one aggravating factor is the huge difference in age between the complainant/victim and himself. Further, he was using his granddaughter to gain access to this very vulnerable child.

[21] He continues to have inappropriate beliefs that there is some magic in this love by the child for him.

[22] He instructed the child to keep his relationship a secret as if it was self-serving to satisfy his own sexual gratification.

[23] The Presentence Report discloses that the accused admitted that he experienced sexual arousal when he was in the company of this child, and the relationship with this child was a unique and a special one. The actions of the child caused him to experience "warm feelings" and at times he was forced to hold himself back from engaging in inappropriate sexual behaviour. He stated that he did not engage in sexual intercourse with the child, although it crossed his mind.

[24] He tended to blame the child that he stated that she would become angry and smash her phone if he did not spend time with her.

[25] He does not feel that this child suffered in any way as it was she that initiated many of the interactions between them. But in the same breath concedes that he "stepped over the line".

[26] A further consideration is Section 718.01 of the Criminal Code which states:

when a Court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, they shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[27] I have reviewed the case of R v E.O. a decision of the Ontario Court of Appeal delivered February 24, 2003 wherein the Court states at paragraph 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 morality, reprehensible nature of the crime, deters others from the commission of the offence and reflects the gravity of the offence."

[28] I have also reviewed the Victim Impact Statement of the victim's father who was quite distraught and concerned about the effect these charges will have on his daughter and his family and is fearful of when the accused may be released back into the community as their family may find it's necessary to move from the jurisdiction to protect their daughter.

Sentencing Decision

[29] Having regard to the circumstances of this case, the report of Dr. Somers, the Presentence Report, the victim impact statement, the case law filed, the Gladue considerations, and character reference letters; I am of the view that a sentence of 2 years less a day is appropriate, less 44 days in actual pretrial detention with enhanced credit fixed at 66 days (2.2 months) and 4.8 months attributed to the 19 months of house arrest. The sentence, going forward, is therefore 17 months incarceration on the charge of producing sexual pornography and 17 months concurrent on each of the other charges.

Ancillary Orders

[30] The following ancillary orders will issue:

[31] The accused will provide a sample of his blood for DNA analysis.

[32] Any cell phone, computers or other electronic or digital devices that were seized by the Police shall be forfeited to the Crown and destroyed.

[33] A Sexual Offender Information Registry order will issue for life.

[34] A Section 161 order of the Criminal Code will issue for 10 years.

[35] After the custodial sentence is served, Mr. Robinson will be placed on probation for a period of 3 years to report, keep the peace, be of good behaviour. He will be prohibited from seeking, obtaining or continuing any employment, whether or not employment is remunerated or becoming a volunteer in the capacity that involves a position of trust or authority towards persons under the age of 16 years. He will be prohibited from using a computer system for the purpose of communication with a person under the age of 16 years which will also include a cell phone.

[36] The Probation Order also shall prohibit the offender from attending a public park or a public swimming area where persons under the age of 16 years are present or can reasonably be expected present, or daycare centre, school ground, play ground or community centre. The exception to this clause is only if he is in the presence of his grandchildren and only if he is in the presence of responsible adult approved in advance by his probation officer. He shall also attend participate and complete any counselling as directed by his probation officer. He shall have no direct or indirect contact with the complainant or her immediate family.

[37] I also recommend that the accused spend a portion of his sentence at the Ontario Correctional Institute and engage in the Sexual Offender Deviant Offender Program.

Released: May 30, 2016

Signed: "Justice Peter T. Bishop"