Court Information

Ontario Court of Justice

Date: April 25, 2017

Court File No.: Ottawa 16-Y7996

Before: Justice Ann M. Alder

Parties

Between:

Her Majesty the Queen

— And —

G.D.-D.

Decision

ALDER J.:

Facts and Guilty Plea

[1] G.D.-D., a young person pursuant to the Youth Criminal Justice Act, pled guilty to one count of making available child pornography contrary to s. 163.1 of the Criminal Code.

[2] An agreed statement of facts was filed and can be summarized as follows.

[3] On January 3, 2015 (when he was aged 17), G.D.-D. uploaded 10 images of child pornography to "Twitter", such that the images were publicly viewable.

• One image was of a boy, approximately 10-12 years of age, with an erect penis lying on his back with his legs in the air appearing (in the image) as if he is about to be penetrated anally by an adult male.

[4] On April 6, 2015, G.D.-D. uploaded a child pornography image to Twitter of a boy with an erect penis. In the image, it appears that he is about to be anally penetrated by an adult male. The text written by G.D.-D., accompanying the picture, is, "my kinda boy".

[5] On April 7, 2015, G.D.-D. uploaded another image of child pornography to Twitter. The image was of a boy approximately 10 years of age with an erect penis.

[6] On April 15, 2016, Ottawa Police executed a search warrant at the accused's house and seized electronic devices. Police found nine videos of child pornography, described by Det. Casselman as follows:

• The videos are all short clips, 20-30 seconds long;
• Only two of the videos are of girls, and the rest are of boys;
• One video is of a girl who appears to be 13-14 years old masturbating;
• One video is a close-up of the vagina of a girl urinating. The girl appears to be 4-5 years old;
• One video is of a boy who appears to be 8-years-old performing fellatio on another boy who appears to be 8-years-old;
• One video is of a boy masturbating. The boy appears to be 14 years old;
• One video is of an adult masturbating a boy who appears to be 10 years old;
• The remaining videos are of anal penetration by adult males of boys who appear between 8 and 10 years old.

[7] G.D.-D. was arrested on April 15, 2016. On April 16, 2016, he was released from custody to reside with his mother as surety. His 13-year-old brother resides at the home as well. When they got home, G.D.-D. told his mother that he had sexually touched his younger brother. The mother revoked her surety, and he returned to custody. The younger brother had no recollection of a sexual assault. Police did not lay sexual assault charges. G.D.-D. was re-released from custody to reside with an aunt.

Crown's Position

[8] The Crown submits that custody is an available disposition and is appropriate in this case, suggesting a sentence of three to four months open custody. Defence counsel argues that custody is not available and if it is, it is not appropriate in this case.

[9] The Crown argued that custody is available either pursuant to s. 39(1)(a) of the Youth Criminal Justice Act as a violent offence or pursuant to s. 39(1)(d) as an "exceptional case". The Crown did not provide authorities for this position. Defence counsel did provide some cases, in support of their position which I will refer to.

Legal Framework: Gateways to Custody

[10] The Youth Criminal Justice Act provides four gateways to custody for a young offender. The Crown relies on two in this case, section s. 39(1)(a) which states:

(a) the young person has committed a violent offence;

and section 39(1)(d) which states:

(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in s. 38.

Analysis: Violent Offence Under Section 39(1)(a)

[11] I will begin with committing a "violent offence" and jurisprudence on s. 39(1)(a). Section 2 of the Youth Criminal Justice Act defines a "violent offence" as:

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

[12] The Youth Criminal Justice Act does not define bodily harm. The Criminal Code, in section 2, defines bodily harm as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature". Courts have consistently held that psychological harm may constitute bodily harm.

[13] Courts have found that possession and distribution of child pornography constitutes a "violent offence" for the purpose of the Youth Criminal Act where there was evidence of sufficient psychological harm to the victim.

Case Law Analysis

[14] In R v Y, 2015 NSPC 66, a 16 year old offender, Y, extorted nude selfies from the victim and distributed them on Facebook. Y was convicted of three offences such as extortion, possession of child pornography and possession of child pornography for the purpose of distribution contrary to s. 346(1.1), s. 163.1(4) and s. 163.1(3) of the Criminal Code.

[15] The Court considered whether the combined offences amounted to a "violent offence" as per the definition of the term in section 2 of the Youth Criminal Justice Act for the sole purpose of determining moral blameworthiness and the viability of a probation order. It was not considering section 39(1)(a) of the Act. In reviewing the case law, Justice Derrick stated "as a matter of law, psychological harm is encompassed within the term "bodily harm", including in the context of the Youth Criminal Justice Act". He then held that in that case, the evidence had established that Y's offences caused psychological harm to the victim, relying on the victim's testimony which disclosed the extent of the psychological harm she had suffered and noted that the ongoing harm was apparent from her demeanor in the witness box.

[16] As a result, Justice Derrick found that the offence of possessing child pornographic "selfies" endangered the life or safety of the victim by creating a substantial likelihood of causing psychological harm, and therefore constituted a "violent offence".

[17] However, in R v BMS, 2016 NSCA 35, BMS was stopped by police while rifling through unlocked cars. Upon inspecting BMS's cellphone, the police found nude images of young women. At sentencing, the trial judge found that possession of child pornography was a "violent offence" for two reasons. Firstly, victim impact statements by the two victims described the shame, regret and anxiety caused by BMS's actions. From this, the trial judge inferred the existence of serious psychological harm. Second, the sentencing judge used social science research on "sexting" to show that such conduct results in anxiety, depression and trauma.

[18] The Nova Scotia Court of Appeal examined the two methods used by the trial judge to find psychological harm. In regards to the victim impact statements, the court found:

"While they may speak of shame, regret and occasional anxiety, there is no indication of any turbulent emotion or continued distress. There is no suggestion of any impairment of function or serious consequence upon which an inference of psychological harm or serious psychological harm could be founded."

[19] On this basis, the Court held that the sentencing judge erred in inferring psychological harm. On the issue of social science research, the Court found that the trial judge erred by conducting and relying on his own independent social science research without advising counsel. The Court, however, did not foreclose the possibility of a finding of violent offence in all cases.

[20] In R v X, 2016 NLPC 81303 [cited by Defence counsel] a 16 year-old first time offender, X, requested several nude photos from a 15 year-old female friend. The photos were subsequently shared by electronic means to other students and circulated at school. X pled guilty to possession of child pornography, contrary to s. 163.1(4) of the Criminal Code.

[21] The Court considered whether this conduct constituted a "violent offence" in section 39(1)(a) of the Youth Criminal Justice Act. Relying on the NSCA's decision in R v BMS, the Court noted that a victim impact statement speaking of shame and anxiety is not sufficient to infer psychological harm. In that case, a victim impact statement was provided that spoke of the emotional and embarrassing impact on the victim. The court held that "the evidence presented was insufficient to establish that a 'violent offence' as defined in the Youth Criminal Justice Act was committed".

[22] These cases involved photos of victims who were identifiable and did not depict sexual assaults of children. Rather, they were what have been referred to in cases as nude selfies or modelling poses, unlike some images in this case which clearly depict unlawful sexual activities, sexual assaults of children. In my view this distinguishes this case from those referred to.

[23] In R v IR, 2014 ONSC 4086, the Court inferred psychological harm without evidence and found a violent offence where the young person committed a sexual assault.

[24] A 17 year-old defecated on the face of a five year-old. Approximately 12 years later, IR was charged and pled guilty to sexual assault. At sentencing, one of the main issues was whether the offence caused psychological harm and therefore constituted a "violent offence" with the possibility of custody.

[25] Before the Court, there was no victim impact statement, nor any direct evidence of actual trauma or harm. The Defence therefore argued that the Crown failed to prove physical or psychological harm beyond a reasonable doubt. Justice Pomerance rejected this argument and held:

"The absence of evidence of harm does not mean that there is evidence of no harm. To the contrary, the nature of the offence is such that an inference of harm should be drawn. This flows from the sexual nature of the offence, the fact that the victim was a very young child, and the degrading, disgusting nature of the act performed by the offender."

The Court found it was a violent act.

Harm to Victims of Child Pornography

[26] Courts now acknowledge that child pornography possession, making available and distribution offences are not victimless crimes. In very few cases are there victim impact statements filed but the harm done to the victims is now recognized.

[27] In R v Kwok, 2007 OJ 457, the Court referred to the words of a young girl whose image Mr. Kwok had in his child pornography collection.

"The absolute worse (sic) thing about everything that happened to me was that Matthew put my pictures on the internet. He traded them with other people like baseball cards. What kind of people want to see pictures of a little girl being abused in this way? … I know that these pictures will never end and that my "virtual abuse" will go on forever. …

I want every single person who downloads my picture to go to jail and be really punished as much as possible. They are as evil as Matthew. They want to see me suffer. They want to see me starved and hurt and sad and abused. Child pornography is not a victimless crime. I am a victim and I still suffer every day and every time someone sees me being abused".

M.A., victim rescued in 2005 by Toronto Police

(see R. v. Kwok at para. 51)

[28] The court stated it had confidence that these feelings would be shared by any child or adult treated in that way.

[29] In R v DGF, 2010 ONCA 27, the Court of Appeal, at para. 21, spoke of courts being on a learning curve to understand both the extent and effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately.

Court's Finding on Violent Offence

[30] I am satisfied that in cases such as this one, where the images possessed and made available involve sexual activities which are sexual assaults, it is appropriate for me to infer sufficient psychological harm to be bodily harm, therefore, conclude that custody is available under s. 39(1)(a). I find the making available and I would come to the same conclusion with a possession offence of child pornography includes an element of bodily harm, and thus meets the definition of violent offence.

[31] The bodily harm does not end when the photo or video is made, it continues each time the image is viewed and distributed.

Analysis: Exceptional Case Under Section 39(1)(d)

[32] The Crown had also argued that custody would be available as "an exceptional case" under s. 39(1)(d). Again, no authorities were provided to support their position. The Crown argued that because he was in possession as an adult (time of search warrant) and the admitted touching of his younger brother, these render this an exceptional case.

[33] Given that I have found that custody is an available disposition under s. 39(1)(a), as this is a violent offence, I will not go into much detail in regards to whether it is an exceptional case. However I will make a few comments.

[34] The Ontario Court of Appeal in R v REW, 2006 OJ 265 considered s. 39(1)(d) and stated:

• The object and scheme of the YCJA and Parliament's intention indicate that the Act was designed to reduce the over-reliance on custodial sentences that was the experience under the YOA.
• An expansive definition of "exceptional cases" would frustrate Parliament's intention to reduce the over-reliance on custodial sentences.
• Section 39(1)(d) can be invoked only because of the circumstances of the offence, not the circumstances of the offender, or the offender's history.
• Exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified.
• One example of an exceptional case is a case where the circumstances are so shocking as to threaten widely-shared community values.

[35] Based on this interpretation, courts have narrowly applied s. 39(1)(d) for the "clearest of cases."

[36] With these comments, it is apparent that the facts relied on the Crown are irrelevant. The Crown did not charge G.D.-D. as an adult nor did they charge him with a sexual assault. They cannot now rely on these circumstances to argue exceptional circumstances. That is not to say these factors are irrelevant to the determination of the sentence itself.

Sentencing Considerations

[37] Turning now to that determination. An assessment under s. 21 of The Mental Health Act of Ontario was ordered, and a report was prepared.

Personal Information:

• G.D.-D. is now 19 years old, his date of birth is […], 1997.
• G.D.-D is now living with his aunt. As noted he had been living with his mother.
• He has been an outpatient at the ROH since July 2016 – seeing Dr. Booth who prepared the report.
• He has finished school and works.
• He has no issues with alcohol or drugs.
• He admitted having sexual interest in younger individuals – started when he was a young teenager – he says less now that he is in treatment.
• He admitted the offences and expressed remorse.
• He has been seeing Dr. Booth since July 2016 and was to start groups with Dr. Federoff – Sexual Behaviour clinics.
• Dr. Booth says he has been showing positive progress – is increasingly insightful around his issues.

Diagnoses:

• Pedophilic disorder
• Adjustment disorder with mixed mood and anxiety symptoms in remission
• Residual ADHD
• Possible social phobia

Positive Factors (per Dr. Booth):

• Good family support
• Intelligent
• Easy to have in treatment
• Motivated to not reoffend
• Risk to reoffend is low to moderate

[38] Also filed with the court was a letter of apology from G.D-D, a letter from his employer – excellent employee and school transcript - Diploma.

Purpose and Principles of Sentencing Under the YCJA

[39] The YCJA sets out the purpose of sentencing and the principles to be applied in sentencing a young person:

The Purpose is set out in section 38(1):

The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

The Sentencing principles are set out in subsection 2 and include that:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

Section 39(3) sets out factors to be considered by the court, including:

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

Aggravating and Mitigating Factors

[40] In this case, the aggravating factors are:

• It occurred on more than one occasion;
• The nature of the images and the comment made by G.D.-D.;
• The videos depicted sexual activities, sexual assaults;
• The harm to the victims which was previously discussed.

[41] The mitigating factors are:

• No prior criminal history;
• Plead guilty – taking responsibility (admitting incident with brother);
• Sought help – continuing treatment;
• Supportive family;
• Positive report;
• No further/new charges – no breaches;
• Finished high school – working.

Sentencing Decision

[42] It is important to remember that the YCJA expressly provides that young persons be treated differently from adults. If G.D.-D. was to be sentenced as an adult he would be facing a minimum jail sentence – but he is not. Under the YCJA, accountability and proportionality include a recognition of diminished moral blameworthiness. The promotion of rehabilitation and reintegration are principles to be applied. That is not to say that the seriousness of the offence, the harm to the victims or the protection of the public are to be ignored, but unlike an adult, general deterrence and denunciation are not to take precedence for these offences. G.D.-D.'s personal circumstances are very relevant in determining the appropriate, fair and proportionate sentence.

[43] While I found that custody is an available disposition in this case, I do not believe it is the least restrictive sentence capable of achieving the purpose of sentencing under the YCJA, nor the one most likely to rehabilitate and reintegrate G.D.-D. in society. A short period of custody as requested by the Crown would, in my view, given the circumstances in this case, including G.D.-D.'s progress, insight, family support and commitment to treatment, do little to achieve the purpose of the YCJA and is not necessary to reflect the principles of sentencing of the YCJA. These can be achieved with a lengthy period of probation.

[44] The sentence is a two year term of probation. There will also be an order that the YP is to provide forthwith a sample of his DNA.

Released: April 25, 2017

Signed: Justice Ann M. Alder