Court Information

Information No.: 3111-998-14-11845-00

Date: 2016-08-25

Ontario Court of Justice

Her Majesty the Queen

v.

Edward Garcia

Reasons for Sentence

Before the Honourable Justice J. Stribopoulos

on August 25, 2016, at Brampton, Ontario

Appearances

• L. Rasmussen – Counsel for the Crown
• J. Donich – Counsel for Edward Garcia
• S. O'Connell – Counsel for Edward Garcia

Introduction

Mr. Garcia pled guilty before me to a charge of possessing child pornography, contrary to s. 163.1(4) of the Criminal Code of Canada. These are my reasons for sentence in this matter.

Circumstances of the Offence

In the summer of 2014, an investigation by the Peel Regional Police Service led to the execution of a search warrant at Mr. Garcia's residence in the City of Brampton, where he lived with his parents.

The warrant was executed on August 25, 2014. On that date, the police located and seized a hard drive in Mr. Garcia's bedroom.

Subsequent examination of that hard drive revealed that it contained child pornography, consisting of 41,888 still images and 630 video files. Mr. Garcia obtained these materials online, over a four-month period, commencing March 1, 2014 and ending July 10, 2014. He did so by using a bulletin-board style program through which he subscribed to particular subjects, which were titled as follows:

• Girls 10-13
• 14-18 girls
• 12-15 girls
• Hussy
• 1studio

According to the Agreed Statement of Fact, which was filed as an exhibit on the sentencing hearing, the child pornography in Mr. Garcia's collection consisted mainly of children who were pubescent or in early adolescence posing naked or partially clothed in a sexually provocative manner. The Agreed Statement of Fact also indicates that the files found on Mr. Garcia's hard drive included, "very few depictions of explicit sexual activity".

The actual number of children whose images were contained in Mr. Garcia's collection is far from certain. The Agreed Statement of Fact explains that, "[a] large portion of the child pornography … was taken from one or two websites and downloaded in batch files. Many of the videos were created during a photo – or video-shoot with a model, with the result that the same children are represented many times within the collection of the seized pornographic images and corresponding videos." The document also explains that, "[i]n some instances a single sequence of video footage has been edited into a number of much shorter video clips" and as a consequence "[t]his has had the effect of increasing the number of unlawful videos in the possession of Edward Garcia".

It would appear that Mr. Garcia cooperated with the police investigation, which included surrendering his laptop computer to them when it was requested and also informing the police as to the existence and location of the hard drive that contained the child pornography.

Circumstances of the Offender

Mr. Garcia is 29 years of age. He has no prior criminal record. He is a Canadian citizen, who was born and raised in the Toronto area. He is the youngest of three children; he has two older sisters. As previously noted, he resides with his parents, who have been in attendance with him during past court appearances (and, I note, are also in attendance today).

Mr. Garcia is employed as a chef at the Lionhead Golf and Country Club. He has aspirations of obtaining further culinary training in future and hopes to one day open his own restaurant.

The materials filed on sentencing confirm that Mr. Garcia had an ordinary childhood, free from physical, sexual or psychological abuse. He has no history of mental illness or other developmental problems. Nor is there any suggestion of alcohol or drug abuse in his past.

Since being arrested, Mr. Garcia has seen a psychiatrist, Dr. Roger S. McIntyre, who authored a brief report that formed a part of the record before me on sentencing. According to that report, for quite some time Mr. Garcia has had an interest in post-pubescent adolescent pornography. According to Dr. McIntyre, he found no basis to suggest that Mr. Garcia has any other operative paraphilias, for example sadism, masochism or other types of deviant behaviours. There is also no suggestion that Mr. Garcia ever sought out or had any inappropriate contact with minors. To the contrary, his past relationships have been exclusively with adult women. In Dr. McIntyre's opinion, Mr. Garcia does not suffer from a major mood disorder or other psychiatric disorder. In terms of his interest in child pornography, Dr. McIntyre was of the view that Mr. Garcia would be capable of controlling his impulses in future, especially with the benefit of counseling, which he recommended. Importantly, Dr. McIntyre concluded that Mr. Garcia "does not pose an ongoing danger or threat to children or adolescents".

Since being assessed by Dr. McIntyre in June of 2015, Mr. Garcia has been regularly attending therapy sessions with a registered psychotherapist. Two letters from the psychotherapist formed a part of the record on sentencing. They suggest that Mr. Garcia has responded well to the therapy, the focus of which has been on helping him to obtain greater insight into the root causes of his behaviours and to develop in him skills to better manage these. According to the psychotherapist, Mr. Garcia "has made significant therapeutic improvement over his issues around pornography".

The Positions of the Parties

The Crown elected to prosecute this case by indictment. As a result, Mr. Garcia is subject to a mandatory minimum sentence of six months imprisonment. (I note, parenthetically, that since Mr. Garcia's arrest Parliament increased the mandatory minimum sentence to one-year imprisonment where the Crown proceeds by indictment. See Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 7(2)).

On behalf of the Crown, Mr. Kingdon submits that a one-year sentence of imprisonment is warranted in this matter. Although Mr. Kingdon acknowledges that there are a number of mitigating factors present, and also concedes the absence of many of the potentially aggravating features that are sometimes operative in these cases, he points to one consideration as especially aggravating in justifying his position; that being, the sheer size of Mr. Garcia's collection of child pornography.

Mr. Kingdon submits that this requires a significant increase above the six-month minimum period of imprisonment mandated by Parliament. In submitting that a sentence of one-year imprisonment is warranted, he relies on decided cases where large collections of child pornography, which were arguably less substantial than that possessed by Mr. Garcia, resulted in sentences of one-year or greater.

The Crown also submits that Mr. Garcia should be placed on probation for two-years.

In addition, the Crown seeks a DNA order and a SOIRA order for 10 years, both of which are mandatory in the circumstances.

Finally, the Crown seeks a forfeiture order for three hard drives that the police seized from Mr. Garcia.

Defence counsel, Mr. Donich and Mr. O'Connell, agree that it would be appropriate to place Mr. Garcia on probation for two-years. They similarly do not contest any of the ancillary orders sought by the Crown. Finally, they accept the size of the collection of child pornography possessed by Mr. Garcia is an aggravating factor.

That said, defence counsel essentially argues that it would place form over substance to simply add up the number of image and video files and use that number alone in calibrating the extent to which the size of the collection should be considered an aggravating factor that serves to lengthen the appropriate sentence. Defence counsel emphasize the fact that the files were downloaded in batches and note that images and video clips of a single child were downloaded together and often stored as a number of separate files. Because of this, the defence contends that the number of files simply does not correlate with the number of children who were victimized in the making of the child pornography that Mr. Garcia possessed. As a result, the defence argues that the size of the collection in this case is not as significant an aggravating feature as the Crown contends. Although it warrants some increase over the 6-month mandatory minimum sentence, the defence submits that this factor does not justify a doubling of that sentence.

After emphasizing the absence of any other aggravating features, and the presence of a number of mitigating factors, the defence submits that the carceral component of the sentence imposed should be eight months imprisonment.

The Governing Principles and the Appropriate Sentence

The Criminal Code provides that the "fundamental purpose of sentencing is to protect society" and to contribute "to respect for the law and the maintenance of a just, peaceful and safe society". See s. 718.

Those purposes are to be realized through the imposition of "just sanctions" that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. See subsections 718(a) through (f).

These objectives undoubtedly operate in every case. Nevertheless, citing the enormous gravity of the crime of possessing child pornography, both for the victims and the whole of society, the Court of Appeal has instructed the most important sentencing objectives for this offence are denunciation and general deterrence. See R. v. O.(E.), 169 O.A.C. 110 at para. 7; R. v. Nisbit, 2011 ONCA 26 at para. 1.

Of course, the objectives of denunciation and general deterrence are not limitless. Ultimately, the fundamental principle of sentencing must always be remembered, that being: the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. See Criminal Code, s. 718.1.

To satisfy this requirement a sentence must "fit" both the seriousness of the crime and the offender's level of moral blameworthiness in its commission. See R. v. Ipeelee, 2012 SCC 13 at paras. 36-39.

In assessing the gravity of the offence and gauging the offender's level of culpability in its commission, I am required to take into account "any relevant aggravating or mitigating circumstances relating to the offence or the offender". See Criminal Code, ss. 718.2(a).

Here, the parties are agreed that the decision in R. v. Kwok provides a useful catalogue of the potential aggravating and mitigating considerations in cases involving the possession of child pornography. In that decision, Justice Molloy summed these up as follows, at para. 7 of her judgment:

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).

As noted, the parties are agreed that there is only a single aggravating feature here, the size of Mr. Garcia's collection. They also agree that there are a number of mitigating features present in this case, for example: Mr. Garcia is a first offender of previously good character; he pled guilty; he has expressed genuine remorse for his actions; he has shown insight into his problem; and he has voluntarily submitted to counseling and responded well to that, and appears willing to continue to take such counseling into the future.

What divides the parties, then, is the weight to be given to the size of Mr. Garcia's child pornography collection in arriving at the appropriate sentence in this case.

As noted, the Crown emphasizes sentencing decisions in other cases involving large collections of child pornography in arguing that a sentence of 1-year imprisonment should be imposed on Mr. Garcia.

Sentencing decisions in analogous cases are clearly of considerable importance. Section 718.2(b) of the Criminal Code instructs that: "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". As a result, a brief review of at least some of the cases relied upon by the parties, those involving larger collections of child pornography, is sensible.

Review of Comparable Cases

In Kwok, supra, the accused possessed 2,000 still images and 60 video clips. Although he pled guilty, he did so only after his trial had commenced. There were a number of mitigating considerations, similar to those that are operative in this case. In terms of aggravating features, Justice Molloy placed considerable emphasis on both the size and the nature of the collection involved. The material possessed by Mr. Kwok involved explicit sexual activity between children. Much of it depicted adult males raping children under the age of five, including babies. There were also acts of bondage and degradation. Justice Molloy concluded, "[t]he size of the collection, the age of the victims, the depravity of the acts depicted and the bondage associated with some of the images are all extremely aggravating factors". After noting that the nature of the collection may have warranted a sentence at the upper end of the range, she also took into account the mitigating features, before deciding to impose a sentence of one-year imprisonment, followed by three years' probation. She characterized the sentence imposed as being "in the middle of the range". See para. 61.

In R. v. Strohmeier, 2007 ONCJ 141, the accused pled guilty to possession of a considerable quantity of child pornography, 30,000 still images (of which 10,000 were duplicates) and 378 videos (of which 22 were duplicates). Justice DeFilippis summed up a representative sampling of the collection as follows: "All images involve the degradation and humiliation of young children, many of whom appear to be between five and seven years old. Most images record vaginal, anal, and oral penetration by adult men with prepubescent girls. One portrays the sexual abuse of a boy." Despite the offender having no criminal record and pleading guilty, Justice DeFilippis concluded that both the size and the nature of the offender's collection warranted a sentence of 18 months imprisonment followed by 3 years probation.

In R. v. Neilly, [2005] O.J. No. 5973 (S.C.) the accused pled guilty to possession and distribution of child pornography. The collection of materials in that case was described as including the following: 164 images of children engaged in explicit sex acts; 739 images of children in various states of undress; 1188 images of young clothed females with a focus on their chest and buttock areas; 55 text stories depicting children in sex acts; 25 movie files depicting children engaged in sex acts; 44 child nudity movies; and 584 photographs, actually taken by the accused, of young females ages seven to fourteen. The sentencing judge rejected the offender's submission for a conditional sentence and instead imposed a one-year custodial sentence, followed by two years probation.

In a brief endorsement, affirming that sentence, the Court of Appeal noted:

The sentencing judge concluded, on the facts here, that the objectives of denunciation and deterrence were paramount and that they could not be adequately addressed by a conditional sentence. That holding was open to the sentencing judge on this record. In particular, the overwhelming volume of pornographic materials seized, the appellant's purchase and distribution of such materials, the young ages of the children involved, the horrific nature of the subject matter of the photos, and the lengths to which the appellant was prepared to go to obtain such materials (including the creation of photographs suggesting the involvement of young girls in sexual acts with him and the fact that he went into the community and surreptitiously made sexually-explicit photographs of young girls), all support the sentencing judge's conclusion that the governing sentencing principles could not be satisfied in this case by a conditional sentence.

Finally, the sentence in this case is within the range of sentences imposed for similar offences and similar offenders.

See R. v. Neilly (2006), 209 O.A.C. 155 at paras. 4-5.

In R. v. Ward, 2012 ONCA 660, the judgment of the Court of Appeal dealt with the constitutionality of accessing subscriber information without a warrant. However, there is some description of the circumstances and the sentence. Mr. Ward was found guilty of accessing and possessing child pornography, consisting of 30,000 still images and about 373 videos. He was sentenced to 11 months imprisonment and 2 years probation. Although he initially appealed his sentence, he abandoned that appeal. See Ward, supra, at paras. 4-5. Unfortunately, for our purposes, the Court of Appeal's decision does not include a description of the nature of the materials in Mr. Ward's very large collection; nor is the original sentencing decision available through any electronic databases.

In R. v. O'Shea, 2014 ONSC 840 the accused was sentenced for possession of child pornography following his guilty plea. The offending materials consisted of 9,301 still images and 80 video recordings. Like here, the mitigating factors included the guilty plea and the absence of a prior criminal record. In terms of aggravating factors, the court emphasized the size and the nature of the collection. As the court explained: "In this case, we were not dealing with teenagers masturbating in front of a webcam as in R. v. Brunton, [2011] O.J. No. 323, but rather very young children, infants, babies raped and subjected to the most degrading acts." See para. 9. The court imposed a sentence of one-year imprisonment followed by two years probation.

In R. v. Merrick, 2013 ONCJ 232, the accused pled guilty to two counts of possessing child pornography, and one count of breaching the terms of a recognizance. The second charge of possession came after the original charge and was tied to the bail breach. There were mitigating factors, similar to those in Mr. Garcia's case. In terms of aggravating factors, the nature and extent of the accused's collection figured prominently. It included over 100,000 still photographs and 1,900 movies, with some of these materials having been purchased by the accused. Justice Pugsley described the materials as, "going well beyond mere nudity". See para. 17. The sentence imposed was 15 months imprisonment, concurrent, in relation to each of charge of possession of child pornography, and 30 days concurrent for the breach, followed by 3 years probation.

Analysis

In my view, Mr. Garcia's case is not entirely analogous to any of these decisions. To be sure, relative to the size of many of the collections of child pornography detailed in the cases reviewed, Mr. Garcia's collection is on the larger end of the spectrum.

The size of an offender's collection of child pornography has figured prominently in sentencing decisions because it is a useful means by which to gauge an offender's level of culpability. In that regard, the size of the collection seems relevant for two reasons. First, the larger the collection of materials, the greater the number of children victimized in the creation of the images and videos that an offender exploited to satisfy his deviant interests. And, second, the size of the collection provides insight into the offender's behavior. It speaks to whether or not the offender's possession was a momentary surrender to a deviant curiosity or the result of a sustained and deliberate effort with plenty of time for reflection and reconsideration. Obviously, the offender who views this material and despite witnessing the suffering of the children victimized in its creation persists in collecting more and more of it, is far more culpable than the person who downloads a single image and almost immediately proceeds to delete it.

As a result, the size of Mr. Garcia's collection is indeed an aggravating factor. That said, I am mindful that on the record before me, given how recordings involving individual child victims were ultimately spliced into a number of different image and video files that Mr. Garcia came to possess, it is difficult to discern how many children were actually exploited in creating the material in his collection. Based on the Agreed Statement of Fact, it could have been hundreds of children or, potentially, even thousands. I simply do not know.

The defence argues that I should also take into account the fact that many of the files were downloaded in large batches; so that it took little effort on Mr. Garcia's part to amass the collection that he did. I appreciate why this could be a relevant consideration. Its significance here is lessened, in my view, by the fact that the materials in Mr. Garcia's collection were not downloaded over a very short period of time. The Agreed Statement of Fact indicates that Mr. Garcia amassed his substantial collection of child pornography over a period that spanned four-months. As a result, there was plenty of time for reflection and reconsideration. Despite this, Mr. Garcia persisted even after the ghastly nature of what he was participating in would have been abundantly clear to him.

Consequently, I am of the view that the size of Mr. Garcia's collection, combined with the sustained period over which it was amassed, are clearly aggravating features in this case. In that regard, the circumstances of this case are somewhat analogous to the cases I reviewed earlier in my reasons.

That said, a significant difference between those decisions and Mr. Garcia's case, is the nature of the materials involved. To be sure, all child pornography is evil, relying, as it does, on the sexual exploitation of children; the most innocent and most vulnerable members of our society. But the case law also makes clear that the level of depravity involved can vary considerably.

On a spectrum from most horrendous to least horrendous, it is fair to say that the materials in this collection were closer to the less horrendous end of the spectrum, given that the children were older and there were very few depictions of explicit sexual activity. In that regard, the circumstances of the offence in this case are distinguishable from the cases reviewed earlier. In those cases, the children were younger, sometimes even infants, sexually explicit activity was the dominant focus, and acts of bondage and gratuitous degradation were also sometimes involved. This is not meant to lessen the significance of Mr. Garcia's wrongdoing. Rather, it is merely intended to place his crime in its appropriate context relative to the decided cases.

The question squarely before me then, bearing in mind the principles and objectives of sentencing, remembering the mitigating and aggravating factors, in light of the decided cases, is how much of an increase over the mandatory minimum six-month sentence of imprisonment is necessary in this case? The Crown argues that an increase of six months is warranted. The defence submits that two months is sufficient to the task.

I agree with the parties that a sentence longer than the mandatory minimum is indeed necessary. In that regard, I am mindful of the principle that the mandatory minimum sentence should be reserved for the best offender and the least serious version of the crime. See R. v. Garcia, [2004] O.J. No. 1714 at para. 148 (S.C.); R. v. B.C.M., 2008 BCCA 365 at para. 32; and R. v. Newman, 2009 NLCA 32 at paras. 55-57. Given the size of Mr. Garcia's collection and the four-month period during which it was amassed, I am not sentencing him for the least serious version of this crime.

In deciding on the length of the required increase beyond the minimum, I am mindful of the Court of Appeal's repeated direction that an offender's first sentence of imprisonment should be as short as possible and tailored to that individual's particular circumstances. See R. v. Priest (1996), 110 C.C.C. (3d) 289 at 297-298 (Ont. C.A.); R. v. Vandale and Maciejewski (1974), 21 C.C.C. (2d) 250 at pgs. 251-252 (Ont. C.A.); R. v. Hayman (1999), 135 C.C.C. (3d) 338 at paras. 22-23 (Ont. C.A.); R. v. Borde (2003), 172 C.C.C. (3d) 225 at para. 36 (Ont. C.A.).

As a result, in fashioning the appropriate sentence, I must take into account a number of considerations: the mandatory minimum sentence; the mitigating and aggravating features of this particular case; the various sentencing objectives (with special emphasis on denunciation and general deterrence), while also remaining mindful of the principles of parity and restraint.

Having done all of that, Mr. Garcia, could you please stand, sir, I have concluded that the appropriate sentence in this case, which is proportionate to the gravity of this offence and Mr. Garcia's degree of responsibility in its commission, is eight months imprisonment.

Probation and Conditions

In addition, I am placing you on probation, sir, for a period of two years. You will be subject to the statutory conditions, which include, first:

• That you keep the peace and be of good behavior. It means exactly what it sounds like. You must be good. If you were to breach the law, commit another offence while on probation, not only would you be guilty of that offence you'd be guilty of breaching your probation order.

• Further, you are to attend court, if and when directed to do so;

• In addition, you are to advise the court or your probation officer, in advance, of any change of name, address or occupation.

• You are to report to a probation officer within three working days of your release from custody, and thereafter if and when directed to do so by your probation officer;

• You are to take any counseling as recommended by your probation officer;

• You are to sign any necessary releases to allow your probation officer to monitor your attendance for any counseling that is recommended, your progress with respect to any such counseling, and your completion of same.

Do you understand the various terms of the probation order, sir, as I've explained them to you?

EDWARD GARCIA: Yes, Your Honour.

THE COURT: Will you abide by them? Will you follow them?

EDWARD GARCIA: Indeed, yes, I will.

THE COURT: Okay, and I have to warn you, sir, that failure to abide by any of these conditions is a separate serious crime for which you could go to jail, do you understand?

EDWARD GARCIA: I understand, yes.

DNA Order and SOIRA

This is a primary designated offence. Therefore, pursuant to s. 487.051 of the Criminal Code, I am required to order that a sample of your blood be taken for purposes of including your DNA profile in the National DNA Databank, and I'll order that that take place today.

Further, because possession of child pornography is a designated offence, pursuant to s. 490.012 and s. 490.013(2)(a) of the Criminal Code, I am required to order that you comply with the Sex Offender Information Registration Act for a period of 10 years, the SOIRA Act. Do you understand the obligation that that imposes upon you, sir?

EDWARD GARCIA: Yes, Your Honour.

Victim Fine Surcharge and Forfeiture

The last matter that I need to deal with is the victim fine surcharge. This is an indictable offence. The amount payable is $200.00. I'm going to give you 12 months to pay that bearing in mind that you'll be in custody over the next 8 months or a somewhat lesser period depending on what kind of remission you earn for good behaviour. All right, so you'll have 12 months to pay the victim fine surcharge. I wish you well and trust we won't see you again. If you could just take a seat in the prisoners' box somebody will come up from security to take you into custody.

EDWARD GARCIA: Thank you, sir.

MS. RASMUSSEN: Your Honour, I do have four copies of the draft order — sorry, Your Honour.

THE COURT: Oh, that helps saves Madam Clerk some time. She's very conscientious. I've signed the four copies of the forfeiture order. Madam Clerk, I'm returning to you the exhibits. Thanks, counsel, I appreciated your assistance with this matter, both of you, and Mr. Kingdon as well.

MR. DONICH: Thank you. Thanks very much.

THE COURT: Count two?

MS. RASMUSSEN: That'd be just marked as withdrawn.

THE COURT: The other count against you, Mr. Garcia, is being marked withdrawn at the request of the Crown.

EDWARD GARCIA: Thank you.

...WHEREUPON THIS MATTER WAS CONCLUDED

Certificate of Transcript

I, Kim Fess, certify that this document is a true and accurate transcript of the recording of R. v. Garcia in the Ontario Court of Justice held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3111_302_20160825_093559__30_STRIBOJ.dcr, which has been certified in Form 1.

Date: _______________

Signature of Authorized Person: _______________________________________

Kim Fess

ACT ID: 4454479014

Phone: 1-855-443-2748

Email: kim@vptranscription.com