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), 486.4(3) and 571 of the Criminal Code. These subsections and subsections 486.6(1) and 517(2) of the Criminal Code, which are concerned with the consequence of failure to comply with an order made under subsection 486.4 and 571 respectively 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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.

486.4(3) CHILD PORNOGRAPHY

(1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

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: July 13, 2017

Court File No.: 15-75011597

Between:

Her Majesty the Queen

— AND —

M.S.

Before: Justice Beverly A. Brown

Heard on: October 14, December 8, 2016, and January 5 and 25, June 8 and July 13, 2017

Reasons for Sentence released on: July 13, 2017

Counsel:

Ms. Jennifer Gibson — counsel for the Crown

Mr. Avi Baratz — counsel for the accused

Decision

BROWN, J.:

[1] Guilty Pleas and Charges

[1] Mr. M.S. entered pleas of guilt to a series of charges he was facing in relation to an offence period from Jan. 23, 2011 to Nov. 25, 2015. The Crown proceeded by indictment to hybrid offences. The charges included committing a sexual assault (s. 271) and incest (s. 155(1)) in relation to his daughter, M.C., who was born […], 2011. He also entered pleas of guilt to charges of making child pornography (s. 163.1(2)), possess child pornography (s. 163.1(4)), and possess for the purpose of making available child pornography (s. 163.1(3)). The case was put over for material to be put before the court for the purpose of consideration of sentence, and the court now releases its reasons for sentence.

THE FACTS

A. Circumstances of the Offence

[2] An agreed statement of facts was filed as an exhibit. Mr. M.S. had sole custody of his daughter M.C., on the relevant dates of the offences, when she was approximately four years of age.

[3] This investigation was started in November of 2015, when Homeland Security investigations in the United States sent an investigative package to the Child Exploitation section of the Toronto Police Service. This report had been forwarded on behalf of the New Zealand police Online Child exploitation unit, relating to a KIK user known as "smeggie69". The New Zealand police had discovered evidence that a user known as lukebake4 had received several images and one video of child pornography from the KIK user known as "smeggie69", which depicted a 4 year old Caucasian female being sexually assaulted by an adult Caucasian male. The police formed the belief that the user "smeggie69" was sexually abusing a child. This user indicated in his chat log that he had a 4 year old daughter.

[4] The Toronto Police Service Child exploitation section picked up the investigation, and located a Facebook username of "M.F.". Through their investigation, it was determined that the defendant, Mr. M.S., was the person associated with the Facebook page "M.F." and was "smeggie69". He had a date of birth of […], 1990. Further investigation led police to believe that the young girl depicted in the images was his natural daughter, M.C., date of birth of […], 2011. She was at the time of the Toronto Police investigation a student in a Toronto Junior Kindergarten class.

[5] On Nov. 25, 2015, when this information was discovered, the police attended at the complainant's school and located M.C. At 3:25 pm, when Mr. M.S. arrived at the school to pick up his daughter, the police arrested him and gave him his rights to counsel. He was taken to the police station for further investigation. He had in his possession at the time a White Motorola smartphone that was seized by the police.

[6] The young complainant was taken to the Hospital for Sick Children in Toronto. She disclosed that she had been sexually abused by her father over a period of time. She stated that during bath time she and her father would play a game that involved her sucking his pee pee. She also told the interviewing officer that her father would put his "pee pee" in her bum, and that "white goo" would come out of it. This would take place on his bed, on the carpet, and on the couch. She stated that at other times she would pretend to be the boy and her dad would pretend to be the girl, and her dad would suck on her bum. She also disclosed that her dad had used his phone to take pictures of her sucking his pee pee and of him sucking her pretend pee pee, while showing her vaginal area. Over the time period of the offence, Mr. M.S. engaged in fellatio, and vaginal and anal penetration of his 4 year old daughter.

[7] After being given rights to counsel, and speaking with counsel, Mr. M.S. provided a statement to the police. In that statement, he admitted that he had sole custody of his daughter. No other males had access to her. He was shown the images in the investigative package provided to the Toronto police, and he admitted that the girl in the photos was his daughter M.C. He admitted that the photos were taken on his cell phone, in his apt in Toronto, in late July and Aug of 2015. He admitted he was the male sexually assaulting his daughter and that he had been doing so for the previous 6 months. He stated that he had abused her on multiple occasions by forcing anal intercourse, oral sex, and digital penetration on her, as well as making her perform oral sex on him. When abusing her, he used his cell phone to take pictures and videos of those sexual assaults.

[8] The phone seized from Mr. M.S. at the time of his arrest was the subject of a search warrant. This phone contained 24 images of child pornography, of which 16 were of Mr. M.S.'s daughter. Some depicted her nude on a bed with her legs spread apart. Some were of her nude in a bathtub while he touched her vagina with his fingers and tried to vaginally penetrate her with his penis. The remaining images were of prepubescent Caucasian girls, focusing on the nude vaginal area of the girls. The execution of a search warrant of Mr. M.S.'s apartment revealed a bathroom and bedroom area as depicted in the images Mr. M.S. had sent to "lukebake4", which had started the initial investigation. In total, Mr. M.S. had sent 20 images to "lukebake4" over the Kik application, including 11 original images and 9 duplicates. All of the images were of his daughter. The images he sent depicted his daughter nude on a bed with her legs spread apart, nude in a bathtub while he touched her vagina with his fingers and of him appearing to attempt to vaginally penetrate her with his penis. A representative selection of the images have been filed in evidence, reviewed by this court and are before the court in a sealed exhibit.

[9] In addition, Mr. M.S. admitted that he has had a sexual interest in children for the past 7 years, starting when he was 17 or 18 years of age. (He was 25 years of age at the time of his statement to the police.) He explained that the images and videos he took were for the purpose of trading and sharing with other people on the internet. He had been actively engaged in doing so in the time frame leading up to his arrest.

[10] He has not been released since his arrest, Nov. 25, 2015, a period of 1 year, 7 months, and 18 days. The court calculates this as a total period of 896 days pre sentence custody, credited at 1.5 days credit per day in custody, giving rise to a pre sentence custody credit period of 896 days, or 30 months, which is 2-1/2 year's credit. The court gives that credit, and notes that on the information.

B. Circumstances of the Offender

[11] Mr. M.S. has no prior criminal record.

[12] A pre sentence report was prepared in relation to Mr. M.S.. This revealed that Mr. M.S. had a happy family life, being raised in a close-knit family. Some additional information was gleaned from the report of Dr. Pearce, referred to herein. His parents have been married for over 30 years and remain together. Currently, Mr. M.S. has enjoyed the support of his father who has visited him in the detention centre regularly. However his mother has indicated she is having difficulty coping with the reality of what her son has done. She has not visited her son in the detention centre. She stated that he has lost the right to say he has a daughter. She is disappointed she did not see any indicators of the behavior that culminated in these offences. She feels shame and disappointment in him.

[13] Mr. M.S. told the author of the Pre Sentence Report that he had at the age of 12 yrs. been sexually abused, as had a friend of his, by a teacher who fondled them. He had been forced to perform sexual acts on the teacher, and while he and his friend talked about pursuing charges to the police, that was not done. The incidents were reported at the school but he felt that the allegations were dismissed. It is interesting to note that this prior experience is something Mr. M.S. has mentioned at various points of having potentially contributed to his behavior which relates to the subject offences. Yet, there is a serious inconsistency, as in his disclosure of this prior abuse to Dr. Pearce, he told the doctor he did not disclose this incident to anyone. This is quite contrary to his comment to the pre sentence report author that he disclosed the events to the school but the allegations were dismissed. Mr. M.S. first disclosed these events to the police upon his arrest for the subject charges.

[14] He stated that at the age of 19 years he was attracted to 11 to 17 yr. old females. At 20 years of age he started viewing child sexual abuse images. He accessed the images through the internet.

[15] Mr. M.S. had been in a relationship with the mother of the victim in this case, which was violent, including an allegation that the mother had tried to stab him. He was granted custody of the victim arising from the mother's prior violent behavior, after she had been in foster care for a lengthy period of time and been living with a relative. He was given custody of her shortly before the offences commenced.

[16] Mr. M.S. has completed high school. He was the subject of some bullying in lower grades. He has had various short term employment positions. He had a series of disagreements with various employers. He was supported by the Ontario Works program in the 2 years immediately preceding his arrest, from October 2015 to November 2015. He plans to return to school to learn a trade.

[17] Following the end of his relationship with the mother of the victim, he had a relationship with a woman who died in a motor vehicle collision. Following this loss, Mr. M.S. abused alcohol. He stated that he continued to drink after he gained custody of his daughter, but only when she was not around. There is a contradiction in the Pre Sentence Report, as he stated that he was intoxicated with alcohol during the commission of some of the offences, and that he has pretty good control when he is sober, but that when he is drinking the self-control goes out the window. He smoked marihuana on a daily basis, according to the mother of the victim. When they were in a relationship, the two of them consumed marihuana, coke and ecstasy pills together. She could not recall any indicators that he would be capable of committing the acts he had done to their daughter.

[18] He stated to the police officer that investigated this matter that he had committed, the offence "once", then admitted it was "just a few times". He was proud of his well-behaved daughter, and the role he had played in being both parents to his daughter. While he seemed to recognize that his actions will likely impact the victim for the rest of her life, he stated that because she is young she may not recall the details of his actions against her.

[19] As a child, Mr. M.S. was diagnosed as having attention deficit hyperactivity disorder, and had previously taken medication. He did have some behavioral problems and difficulties in school. The author of the Pre Sentence Report expressed a view that Mr. M.S. has a poor understanding of how his sexual deviancies, viewing child pornography on a regular basis, entering a chat room and exchanging child sexual abuse images, could have led to the sexually inappropriate acts he committed on his young daughter. He questioned whether he would have offended if he had not been a victim himself of prior child sexual abuse.

[20] The court has reviewed very carefully the contents of the Pre Sentence Report, and does not repeat all of the contents in the reasons.

[21] An assessment of Mr. M.S. was conducted, and a report prepared and put before the court by Dr. Mark Pearce, a forensic psychiatrist at the Centre for Addiction and Mental Health. It was filed as an exhibit in this case.

[22] The report was lengthy and in great detail. It indicated that while Mr. M.S. advised that he had seen Dr. McMaster, the psychiatrist at the Toronto South Detention Centre, that he was "useless".

[23] Dr. Pearce has given the opinion that Mr. M.S. does not suffer from a major mental illness. Further, although he has historically misused alcohol and illicit drugs, it does not appear that his use of substances was tied to his sexual offending. However, the ingestion of substances can make future offending more likely.

[24] Dr. Pearce has provided a diagnosis for Mr. M.S. of pedophilia. This is a primary sexual preference for children. He also concluded that Mr. M.S. suffers from pedohebephilia (an erotic preference for sexual activity with pubescent-aged children). Phallometric testing also indicated pedohebephilia. While he did not conclude that Mr. M.S. meets the full criteria for a personality disorder, he presents as self-involved, callous and as lacking in insight. His sense of self is inadequately developed and he has self-harmed or attempted to end his life on occasion. Cluster B personality traits (which can include antisocial, borderline, narcissistic and histrionic personality disorders) are evident. He scored on a low to moderate risk for future sexual offences. The main risk enhancing features are his young age and the presence of a paraphilia. It is unlikely that he would meet criteria for psychopathy. He recommended sexual offender treatment programming, which would include the development of victim empathy. He opined that libido-reducing medication is not required at this time, although Mr. M.S. should not have unsupervised contact with children for the foreseeable future. Any return to the use of illicit substance use would increase his risk of recidivism.

[25] In terms of his sexual interest, Mr. M.S. maintained to Dr. Pearce that his interest was in teenage girls of the age 15 to 17 years. He denied any interest in younger children. He stated what when he sexually abused his daughter he was thinking of girls around the age of 15 years. He stated that he did not seek custody of his daughter with the intention of sexually abusing her. He stated that he took pictures and videos of his daughter, but initially had no plans to distribute the photos. When asked why he had done so he indicated "because he was trading back and forth", with individuals he was chatting with who were providing him with child pornography of girls in their mid-adolescence. He was asked if he only sexually assaulted his daughter and documented it to obtain child pornography from others online, he indicated that was the case, then added "kind of". He further stated "I felt he was pressuring me" to make more videos of M.C., but claimed he was worried he would be blackmailed into producing more content. He admitted that did not happen. Yet he continued to document subsequent acts of sexual abuse of his daughter. He did agree that part of him enjoyed their sexual activity. He was asked if it bothered him that pedophiles around the world can obtain sexual gratification from his daughter, he replied in the affirmative. Yet he continued to produce content. He indicated he was receiving messages from strangers he did not know, encouraging him to make more videos. He admitted he had been abusing his daughter for approximately six months, but had sexual fantasies relating children for the prior 7 to 8 years.

C. Impact on Victim and/or Community

[26] Evidence as to victim impact in this case was received from various sources.

[27] Firstly, there was a victim impact statement from the victim, printed by her grandmother who is her guardian. She has nightmares and she cries to her grandma. This statement indicates that she acts out at school and day care and often gets physically aggressive with friends and family. She is impulsive and confused and she has low self esteem, she feels sometimes like no one wants her. She often misses school as she needs to attend appointments with doctors for behavior and physical issues. She can't concentrate at school or cope with stress, and has a hard time at school. She is angry and gets scared that M.S. will come through the window of her home. She can't visit her grandparents [presumably paternal grandparents] as it triggers her. She did not want to take baths for a long time because she was sexually abused in the bath. She does not like to have her photograph taken. She has been diagnosed with ADHD. Physically, she suffered from having accidents (bowel movements) in her panties for approximately one year after the incident, which she attributed to being caused by the offender putting his "pee pee" in her "bum".

[28] In the victim impact report related to M.C., filed by the Crown, prepared by the certified play therapist, certified trauma assessor and registered social worker with Native Child and Family Services of Ontario, various aspects of her victim impact were put before the court. The author is of the opinion that the victim will be emotionally impacted by this abuse throughout her lifetime at various points in her development, such as entering adolescence, her first consensual sexual experience, having her first baby, when her child reaches the age that she was sexually abused etc. The author expressed the view that the sexual abuse has caused significant emotional damage to M.C. She has had difficulty regulating her emotions, expressing anger in the form of physical aggression, which over time has diminished as it related to the therapist who meets her regularly. She has been oppositional and defiant, which the author attributes to the rage she feels over the loss of control over her life and body caused by the sexual abuse. Initially she expressed her prior experience of the sexual abuse with many other people, but has learned to share this information only with appropriate people. She has cognitive distortions in terms of understanding how fathers can show their love to their daughters in non-sexual ways. She currently understands the sexual abuse as an expression of love. She has expressed some insight into what happened, and what should happen to her father as a result. In a picture she drew which is in evidence, she indicated that he should be given a "time out", to a chair, to be there for "four minutes". She also said he should go to jail. She has stated that she misses her Dad. She loves him and is confused as she is beginning to understand what he did was wrong. The author expressed it will take time for her to understand what is normal behaviour from a father. The author expressed the opinion that her healing journey will likely be lifelong. The author of this report is also a mental health worker, and member of the Healing Team, Mooka'am Clinic, of the Native Child and Family Services in Toronto.

[29] The Crown also filed a victim impact statement from the maternal grandmother of the victim, Ms. S.H.. She is currently the guardian for the victim. She has not been able to work since she took over the care of her granddaughter. She is required to take her to school, doctors' appointments, therapy, and sometimes also attend school during the day to calm her down or pick her up early. There have been sleepless nights and crying, she has been up with her, changing her clothes due to bodily function accidents, and calming her down after outbursts. All of this has had an impact, straining her relationship with her partner. They all love her so much, and feel that what has happened to the victim will affect her for the rest of her life. She expressed fears for security as the offender knows where they live, she is afraid for the victim and other young children. She also stated she never knows what people are thinking. In terms of economic impact, she has not been able to work since starting to care for the victim, and she is now dependent on government. She is required to pay for medications for the victim that are not covered expenses, and needs to buy new underwear and clothes for the victim frequently due to her bodily function accidents. She also is required to drive the victim to various appointments. Ms. S.H. and her partner had fought for years to get custody of the victim, and now they are spending every day coping with the effects Mr. M.S. had on the victim. Ms. S.H. also attended in court and read her victim impact statement.

LEGAL PARAMETERS

[30] The Crown proceeded by indictment on all hybrid offences.

[31] For the offence of sexual assault, contrary to s. 271 of the Criminal Code, the offender is liable where the complainant is under the age of 16 years, to a minimum punishment of imprisonment for one year, and to a maximum punishment of 14 years.

[32] For the offence of incest, contrary to s. 155 of the Criminal Code, the offender is liable where the complainant is under the age 16 years, to a minimum punishment of imprisonment for a term of five years, and to a maximum punishment of 14 years.

[33] As set out below, pursuant to s. 718.3(7) of the Criminal Code, the sentence of imprisonment for the s. 163.1 offence must be served consecutively to a sentence of imprisonment for a sexual offence committed against a child.

[34] For the offence of possession of child pornography, pursuant to s. 163.1(4) of the Criminal Code, the offender is liable to a minimum period of imprisonment for one year and a maximum period of imprisonment of ten years.

[35] For the offence of make child pornography, pursuant to s. 163.1(2) of the Criminal Code, the offender is liable to a minimum punishment of one year and a maximum punishment of 14 years.

[36] For the offence of making available child pornography, pursuant to s. 163.1(3) of the Criminal Code, the offender is liable to a minimum punishment of one year and a maximum punishment of 14 years.

[37] By virtue of these sentencing provisions, the minimum punishment that can be imposed by this court for these offences is 5 years plus one year consecutive, for a total minimum sentence of 6 years imprisonment.

[38] The court must determine however what the appropriate penalty should be for these offences and for this offender, with those sentencing provisions and the case law which has considered these types of offences.

POSITIONS OF CROWN AND DEFENCE ON SENTENCE

[39] The Crown has submitted that the appropriate sentence for this offender and these offences is a sentence of:

• 8 years imprisonment for the offence of incest,
• and 8 years imprisonment for the offence of sexual assault (concurrent to the sentence of 8 years),
• 2 years imprisonment consecutive (to the 8 year sentence) for the offence of make available child pornography,
• 2 years consecutive to the sentences for incest and sexual assault, but concurrent to the offence of make available child pornography, and
• 1 year imprisonment consecutive to the sentences for incest and sexual assault, but concurrent for the offence of possession of child pornography.

This would mean a global sentence of 10 years, pursuant to the Crown's submission.

[40] The Crown takes the position that this global sentence of 10 years can be reduced by pre sentence credit. As noted herein, Mr. M.S. has been in custody since his arrest on Nov. 25, 2015. Until the day of sentence today, the court calculates that there has been a period of pre sentence custody of 597 days (since 2016 was a leap year with an additional day). Giving pre sentence custody credit at 1.5 days per day of custody, this gives rise to a credit of 896 days pre sentence credit, approximating what the court would note as credit of 30 months.

[41] The defence has submitted that the appropriate sentence in this case is the minimum sentence of 5 years pursuant to the incest penalty provisions, and that the other sentences should be concurrent to that sentence. That is contrary to the clear provisions of the Criminal Code that require that the sentence for the child pornography offences be a minimum of one year and run consecutive to the incest sentence. This would mean that by operation of law, the minimum sentence of imprisonment for Mr. M.S. must be 6 years. The defence has submitted in the alternative, that the total sentence should not exceed 8 years.

[42] The positions of the parties and analysis re ancillary orders is dealt with below in the reasons.

SENTENCING PRINCIPLES

[43] In considering the appropriate sentence in this case, the court is guided by the provisions in the relevant sections of the Criminal Code. This includes sections 718, including denunciation, general deterrence, specific deterrence, separation of offenders from society, rehabilitation, reparations for harm, and promotion of a sense of responsibility and acknowledgement of harm done to victims. The sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender, pursuant to s. 718.1. In addition, the court is very mindful of the sentencing principles set out in s. 718.2(b) through (e), including disparity, totality, imposing the least restrictive sanctions and deprivation of liberty appropriate in the circumstances, and any considerations appropriate for aboriginal offenders. It is clear in this case that while the victim is of aboriginal heritage, from her maternal grandmother, that Mr. M.S. has no aboriginal heritage.

AGGRAVATING AND MITIGATING FACTORS

Aggravating

[44] There are many aggravating factors in this case, which are set out below:

1. Offence Against a Very Young Child

This was an offence committed upon a 4 year-old child. Section 718.01 of the Criminal Code provides that in this instance (where the victim is under 18 years of age), the court shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

The victim in this case was very young, and very vulnerable. The evidence of victim impact in this case highlights her confusion and feelings over the offence, as articulated to her grandmother, and her play therapist. She is having great difficulty in processing what has happened, and in her way as expressed through these two adults on her behalf, she is of the view that what her father did was wrong, that he should be given a "time out" on a chair, or go to jail.

2. Abuse of a Person Under 18 Years

Pursuant to s. 718.2(ii.1) of the Criminal Code, in committing the offence, the offender abused a person under the age of 18 years.

3. Abuse of Position of Trust or Authority

Pursuant to s. 718.2(iii) of the Criminal Code, in committing the offence, the offender abused a position of trust or authority in relation to the victim.

There are a number of ironies in this case. Firstly, the victim was initially in foster care, and then placed in the care of a relative. It was not until shortly before the offence commenced that Mr. M.S. was given sole custody of his daughter, who he subsequently victimized. She was not permitted to live with her mother, due to concerns of violence with respect to her mother. Rather, a decision was made that she be placed with her father.

Mr. M.S. seemed to indicate that she was never placed with any other male, presumably to provide a more protective environment. Yet what he did in this case was to capitalize on the sole, exclusive custody he had of his little girl, after they lived in a shelter for some time, when they were moved to subsidized housing as he was not able to work given his care for his daughter. In that apartment, he victimized his daughter, over and over again, during bath time, on his bed, on the carpet and on the couch in the apartment that was provided to him as housing so he could care for his daughter.

4. Significant Impact on Victim

Pursuant to s. 718.2(iii.1) of the Criminal Code, evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

The evidence of victim impact in this case is quite significant and unsettling. She has already suffered a great deal, and is expected to suffer in many different ways in the future. As stated by her mental health worker, it will be a lifelong healing journey for her. Her maternal grandmother feels she has suffered significant emotional damage and believes that the impact of these offences will be with M.C. for the rest of her life. This victim impact is set out above in a separate heading.

5. Consecutive Sentencing Requirement

Pursuant to s. 718.3(7) of the Criminal Code, the sentence of imprisonment for the s. 163.1 offence must be served consecutively to a sentence of imprisonment for a sexual offence committed against a child.

[45] Mr. M.S. has no prior criminal record. This is a neutral factor, in that if he had a prior criminal factor it would potentially bear upon the analysis of sentence, including specific deterrence and amenability to rehabilitation.

Mitigating

[46] One of the most significant mitigating circumstances in this case is the early guilty plea. This followed an inculpatory statement that Mr. M.S. gave to the police, early in the investigation and after he had consulted with counsel. There was never an issue in this case as to whether there would be a guilty plea, that was always the intention of Mr. M.S.. Any delay in entering the guilty plea arose solely from issues of retention of counsel, disclosure, and obtaining evidence and materials for sentencing. There is no doubt that the entry of the guilty plea in this case has saved the victim the significant potential distress of having to come to court to testify against her father, should that have been a procedure engaged in by the Crown. In any event, the guilty plea has saved the Crown from having to prove the elements of the offences without the need to call evidence.

[47] Mr. M.S. is relatively young, being currently 26 years of age.

[48] In this case, in addition to the entry of the guilty pleas as an indication of remorse, Mr. M.S. has also written a 3 page letter to the court which the defence has characterized as a statement of remorse. The letter acknowledges that he has committed a crime deserving of punishment, and expressing his apology to his family, to M.C., for the pain, fear, stress, anxiety and disrespect he has caused her. He acknowledges that as a father he should have protected her and kept her safe, but instead chose to do what he did. He indicates that he will be seeking help. He thanks his family for their support and their forgiveness for what he has done. The Crown takes issue with the comments he has made in this letter, noting his statement that "I chose to do what I've done, which were wrong and should not [sic] occurred had I been in the correct state of mine", as not a true and genuine admission of remorse, but rather blaming some mental or psychiatric condition for his actions. He also asks the court for mercy, and forgiveness.

[49] When given the opportunity by the court, he also made an additional oral statement at the close of counsel submissions, wherein he indicated he was very sorry for what he has done, he wished he could turn back time to not cause damage, and he realizes how terrible what he has done to his daughter, for the rest of her life, will affect her, Mr. M.S. and his family.

REVIEW OF CASE LAW

[50] Cases which relate to the commission of offences of sexual assault of children often in positions of trust, and child pornography visually recording such acts, have become more prevalent in the consideration of courts over the years. As the cases have become more prevalent, the sentencing approach by courts has evolved as well.

[51] Clearly, in cases dealing only with offences where children have been sexually abused by persons in positions of trust or authority over them, appellate courts have imposed more serious penalties well within the penitentiary range. The evolution of the case law in this regard is such that this court considers less relevant older cases dealing with this type of offence. The Court of Appeal for Ontario has made pronouncements in the recent past which have reflected a higher sentencing range. This has made the consideration of appellate decisions of sentences in the period preceding these pronouncements, and increases to the range of penalties set out in the Criminal Code of far less relevance.

[52] It is also important to note the context of appellate considerations of sentences imposed by trial judges, bearing in mind the degree of deference given by appellate courts to sentencing judges. If a sentence appeal comes to the Court of Appeal by way of an appeal by a defendant, the context is such that the court is generally reviewing the sentence from the standpoint of whether that sentence was too high. Where the case comes to the Court of Appeal by way of an appeal by the Crown, the court often has the context of considering if the lower sentence that has already been imposed and served is so low that it would merit re-incarceration for a Respondent who has already served the sentence. It is clear that the Court of Appeal is disinclined to do so, except in the more egregious cases where the sentence imposed by the trial judge was too low. While any comments by the Court of Appeal are binding on trial courts, such as this court, they are not generally fresh considerations of what a sentence should have been, but rather considerations of what a sentence has been and if it should be changed. This court looks at the Court of Appeal cases bearing in mind those parameters and contextual factors.

[53] As the combination and mix of the charges has evolved, to create a newer scenario of crime, in mixing both sexual abuse of a child by a parental figure, often mixed with doing that for purposes of making child pornography, and not only keeping those visual images in photographs and video, but also uploading it to the internet, courts have been somewhat slow to react and observe a trend worthy of note. In this regard, the Supreme Court of Canada in 2008, in R. v. L.M., 2008 SCC 31, noted in para 28 that once a photograph has been posted on the web, "it can be accessed indefinitely, from anywhere in the world". The Court noted that the victim "will never know whether a pornographic photograph or video in which she appears might not resurface someday".

[54] The case before this court has the combination of the offences of child sexual abuse by a parent, in a position of trust, including intercourse and therefore incest, together with the creation, possession and distribution of visual images of that sexual abuse uploaded to strangers on the internet, including one visual image where the face of the child, a mere four years of age. The court is tasked with the delicate balancing of imposing an appropriate sentence for this offence on this offender, in all of the circumstances. The court is guided by what has evolved as a clear consideration of aggravating and mitigating circumstances. The court has reviewed and considered all of the cases put before the court by defence counsel and Crown counsel.

[55] Some of the cases put before the court considered only the issue of sentence with respect to child sexual abuse, and are relevant to that aspect of sentencing in this case. Those cases include R. v. D.D.; R. v. A.L., [2015] O.J. No. 414 (C.A.); R. v. L.M., 2014 ONCA 640; R. v. J.N., 2013 ONCA 251; R. v. D.M., 2012 ONCA 520; R. v. G.P., 2014 ONCA 39; R. v. T.G.H., 2014 ONCA 460; and R. v. J.L., 2009 ONCA 788.

[56] Generally speaking as it relates to child sexual abuse by a person in a position of trust, the court would note the following general principles more recently. In terms of the nature of the offence, as it relates to the sexual abuse of children, the court is mindful of the seminal judgment of the Court of Appeal for Ontario in R. v. D.D., supra., where Justice Moldaver stated the issue was the appropriate range of sentence for adult offenders who prey upon innocent children to satisfy their deviant sexual cravings. That judgment has often been referred to as a turning point in the sentencing regime for those types of offences. In R. v. D.M., supra, the Court of Appeal for Ontario, in 2012, quoted from D.D. at para. 38 stating:

"(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

(5) Three such consequences are now recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult, (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing."

[57] However, there are additional cases that are even more helpful to this court in this case. The cases which are critical to the consideration are the cases that deal with both child sexual abuse where there is a breach of trust, and the making and distribution of images from that abuse which are disseminated on the internet.

[58] In the seminal Supreme Court of Canada case of R. v. L.M., 2008 SCC 31, the court dealt with the case of a father, who sexually abused his 4 year old daughter repeatedly, and created pornographic images of her which he distributed on the internet. A distinguishing feature in this case was that he had a prior and related criminal record, whereas Mr. M.S. has no prior criminal record. In that case, there had been a guilty plea on the counts related to possessing and distributing child pornography, but a trial on the charges of making child pornography and committing sexual assault. (There was also an issue with respect to a long term supervision order which is not relevant to the case at bar.) At trial, the judge imposed a sentence of 15 years, being 10 years on the sexual assault charges, and 5 years consecutive on the child pornography charges. This sentence was ultimately upheld by the Supreme Court. In its consideration of the case, the court made it clear that the maximum sentence is not reserved for the worst crime committed in the worst circumstances, rather it must be imposed if warranted in light of the normative principles of the Code, in an individual context in light of the circumstances. The trial judge had imposed a sentence which was proportionate to the gravity of the acts, the mitigating and aggravating circumstances and objectives of the Criminal Code. The maximum sentence was warranted in that case.

[59] In this judgment, in addition to observing the significance of putting child obscenity images on the internet which essentially are out there forever, the court also recognized that there can be serious consequences for a victim. As noted in para 28, "once a photograph has been posted on the Web, it can be accessed indefinitely, from anywhere in the world. R.M. will never know whether a pornographic photograph or video in which she appears might not resurface someday."

[60] In R. v. D.G.F., 2010 ONCA 27, the court considered another Crown appeal as to sentence. In that case, the respondent had entered pleas of guilt to 2 counts of sexual assault on his four year-old daughter, which related to acts of touching and including acts of him performing oral sex on his daughter. There were also 3 counts of making child pornography pertaining to him touching sexual parts of his daughter's body for the camera, one count of possession of child pornography and one count of distributing child pornography. The photos included the respondent's hand exposing the child's private parts or rectum to the camera while her legs were spread, or she was bent over, on another occasion exposing her vagina and rectum, and of touching her vagina. Part of the offence related to the respondent offering to use the web camera and immediately sending to another person on the internet (who was an undercover police officer) images of his daughter naked and bent over on a chair beside his desk while he spread open her labia and anus. There were many more images possessed by the respondent in this case, but this court would distinguish this case as the images of his daughter were less egregious than in the case at bar. There was also a lot of victim impact evidence in the case. The sentence of four years that had been imposed by the trial judge was set aside, on the basis that it was so inadequate that the interests of justice required the court's intervention. On appeal, the court imposed the sentence that the Crown had requested at the time of the guilty plea, being seven years. This required the respondent to be re-incarcerated. The court refrained from commenting upon as to whether another sentence would have been appropriate at the trial court level.

[61] In R. v. P.M., 2012 ONCA 162, the court dealt with a Crown appeal as against sentence, where the trial judge had imposed a total sentence of six years for forced anal and vaginal intercourse with his 13 to 14 year-old daughter, where there was a guilty plea to sexual assault, incest, sexual interference, making child pornography, possession of child pornography and careless storage of a firearm (not related to the other offences). The trial judge imposed a 5 year sentence for the sexual offences, and a further one year consecutive sentence for the child pornography offences. The child pornography in that case was on the respondent's computer and not distributed on the internet. In addition, there were other very unique circumstances in that case. The Respondent had been in the Canadian military, and deployed to Bosnia and Afghanistan on multiple tours of duty. There was a question as to whether he was suffering from post-traumatic stress disorder arising from those experiences. There was also the issue of him having taking Mefloquine, a malaria drug that has been raised as potentially causing adverse effects on the Respondent. Moreover, both the victim, and her mother (who was the wife of the Respondent), did not want him to go to jail. It was a highly unique, more sympathetic to the Respondent than in many other cases. The court considered the issue of whether the trial judge had properly refused to review the images of pornography. On the matter of sentence, the court noted the degree of moral culpability and the recent direction of Parliament, to address the harm caused by sexual predators of young children, placing importance on denunciation and deterrence. Even in this somewhat more sympathetic scenario, the court allowed the sentence appeal and increased the sentence from the 6 years imposed at trial, to one of 9 years, less credit for pre sentence credit. The consideration by the Court of Appeal in this case is very persuasive to this court, in what are far less sympathetic circumstances relative to the offender, and far less serious child pornography offences (as they were not uploaded to the internet).

[62] In terms of the principle of totality, the Court of Appeal for Ontario indicated clearly in the D.G.F. judgment, at para. 27, that while the totality principle must always be considered when sentencing for multiple offences, the sentence cannot thereby become inadequate to properly recognize the overall gravity of this conduct that victimizes children in the most horrendous way.

[63] In this case, in addition to the aggravating factors noted in the reasons, there are aspects of the offences which the court finds disturbing. Firstly, Mr. M.S. was given custody of his daughter after a period of time of years when she had been placed in foster care and with other relatives. She had not been allowed to live with either parent until Mr. M.S. was given custody of her. She was not placed in the care of her mother as her mother had a history of some violence and drug use. And yet, while she was with her father, it is evident that his consumption of alcohol and drug use (which he had actually engaged in with the victim's mother previously), continued, although he stated it was decreased. Her placement with her natural father should have been the start of a healthy caring and protective relationship. Instead, it became a situation of providing Mr. M.S. with the exclusive opportunity, with no other adult present, to satisfy his sexual desire with the little girl who looked up to him as her only parent. In addition, he seems to blame the consumption of alcohol or illicit substances for his committing the offences, and yet the record does not support that. Mr. M.S. seems to in his apology refer to the fact that he committed the offences as he was not in the right "state of mind". It is unclear what he is referring to as the reason why he committed the offences on his daughter. There is no major mental illness identified by Dr. Pearce that could have caused this behavior by Mr. M.S.. Although Mr. M.S. alludes to having been previously sexually assaulted as a 12 year old student in school, the inconsistencies in his report to that effect, as compared between the Pre Sentence Report and the report of Dr. Pearce cause this court to question if that took place or did not take place.

[64] A very troubling aspect of this case is the very significant victim impact to the victim. She was vulnerable. She was already compromised as a child, having been taken from both her parents at birth, placed in foster care, and then later placed with other relatives. She never was able to live with her mother. Her mother's mother was seeking custody of this vulnerable little girl. Instead, Mr. M.S. was awarded sole custody as the natural father of this little, fragile and vulnerable girl, who only wanted a parent to love and protect her. The victim impact on this little girl is, this court would find, not able to be properly estimated at this time. The potential for lifelong impact upon her is significant. She has already suffered greatly, in the year and a half since the abuse ended, and will no doubt continue to suffer well into the future, as alluded to in the victim impact evidence.

[65] Mr. M.S.'s explanation as to why he photographed his daughter, and placed visual images of her on the internet, including one where her face was shown and thereby she could be identified for the world to see at some point following that upload, is particularly troubling. The court does not understand why even if he wanted to share her images, he chose to upload an image with her face shown. Further, his explanation for continuing to upload the pornographic images of his daughter, and in effect to continue to sexually abuse her over time, to create new obscene material to upload, is not rational. He seemed to suggest he feared blackmail if he did not continue to provide new material on the internet, and yet, he admitted that no one ever threatened to expose him for having done that previously, nor threaten to blackmail him. There is no reason for him to have continued to do this to his daughter. And it is almost as though he never thought of the scenario put to him by Dr. Pearce in his assessment, as if he wanted additional material, why did he not just get it himself on the internet, rather than by creating new material with his daughter to trade for that new material (he could have obtained on his own.) The court is perplexed as to why he continued to abuse his daughter and put those images of obscenity of her on the internet, for all the world to potentially see in the future.

[66] In all of the circumstances, the court bears in mind the important principle of totality. There must be a consecutive sentence of at least one year for the child pornography. Given the number of images, and the types of images of the victim that were uploaded on the internet, including one with her face, the court is of the view that a sentence in excess of the minimum consecutive sentence is required. The court is of the view, in considering the aggravating circumstances in this case, that this case is more egregious than the D.G.F. case, and on par but more egregious than the P.M. case. As stated above, the case at bar does not have the mitigating circumstances in P.M. of being affected in various adverse ways by his prior military service, and in not putting the images of obscenity of his daughter on the internet. In that case, a total 9 year sentence was imposed on appeal. Overall, after examining all of the aggravating and mitigating circumstances in this case, together with the principles of sentencing and case law, the court approaches this case from the perspective of imposing a sentence which is a global sentence for all of the offences. The appropriate global sentence for Mr. M.S. is one of 10 years jail.

[67] The court imposes this sentence by imposing a sentence of 8 years for the offence of incest, which is above the five year minimum sentence of imprisonment, but bears in mind the serious aggravating features of forced anal intercourse, (where the victim continued to experience bowel difficulties for a long time afterwards and many accidents), oral sex on her, digital penetration of her, and getting her to perform oral sex on him. She saw him ejaculate on her many times, over an extended period of time in this little girl's life. These offences took place over an extended period of six months, which would be approximately 1/8 of the life of a 4 year old girl. The sentence for sexual assault will be a concurrent sentence of 8 years' incarceration. The offences took place when he took advantage of finally obtaining sole custody of his daughter, when she had no other parent figure in the home to turn to for help. While Mr. M.S. has no prior record and entered a plea of guilt, the facts of these offences are so egregious that the court finds that this sentence is appropriate.

[68] The aspects of the child obscenity offences are also troubling and egregious. They took place over a period of six months' time, and the sexual abuse seemed causally related to wanting to create new visual child pornography to give to strangers, who would trade images of other girls, albeit teenage girls. He carried the child obscenity images of his very young daughter on his cell phone, so he could have them with him readily. The two year consecutive sentence which this court is imposing for the offence of make child pornography, is in addition to concurrent sentences of two years for distribute child pornography and possess child pornography (but consecutive to the incest and sexual assault offence sentence of 8 years). The total sentence is 10 years.

[69] The court will reduce this sentence by pre sentence credit of 2.5 years, which will result in a sentence of 5.5 years on the charges of incest, 5.5 years concurrent on the sexual assault, 2 years consecutive (to the incest and sexual assault sentence) on make child pornography, 2 years (consecutive to the sexual assault and incest sentence) concurrent on distribute child pornography, and 2 years (consecutive to the sexual assault and incest sentence) concurrent on the possess child pornography. The total sentence after pre sentence custody credit of 2.5 years will be 7.5 years imprisonment.

Ancillary Orders

[70] In terms of ancillary orders, the Crown requests an order of forfeiture of the cell phone of Mr. M.S., on which the child pornography images were recorded and kept. The defence made no submission in that regard. The court makes the order of forfeiture for Mr. M.S.'s cell phone.

[71] In a related vein, the defence has requested that Mr. M.S. obtain and keep a photograph of his daughter to remind him of what she looked like, including potentially a photograph of the two of them that was on Facebook. The Crown is vehemently opposed to providing Mr. M.S. with any photographic image of his daughter, be it pornographic or otherwise. The court does not make any order of providing him with a legal photograph of his daughter, as the court does not see any jurisdiction for making this order sought by the defence.

[72] The Crown also requests an order under SOIRA, for life, pursuant to s. 490.012 of the Criminal Code, and s. 490.012(2.1). The defence does not challenge this lifetime order. The court makes this lifetime SOIRA order.

[73] The Crown requests that a DNA sample be taken, given the nature of the primary designated offences (s. 155 incest, s. 163.1 child pornography, s. 271 sexual assault) for this sentence, pursuant to s. 487.051. The defence does not challenge this order. The court finds that the defence has not established that the impact of such an order on his privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders. The court makes the order that a DNA sample be taken in this case.

[74] The Crown also requests an order under s. 161 of the Criminal Code. Given that Mr. M.S. has been convicted of offences pursuant to sections 155, 163.1 and 271, pursuant to s. 161(1.1), the court shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender, from being located or engaging in activity set out in subsections (a) through (d) of s. 161. In this case, the Crown has requested an order of prohibition for life, with the exception of the s. 161(d) term which the Crown requests be for a period of 20 years, as set out below, pursuant to:

s. 161(1)(a) — (as stated in provision)

s. 161(1)(a.1) — preventing him from being within 2 kms. of any dwelling house where the victim resides, within 2 kms. of any school where the victim attends school

s. 161(1)(b) — (as stated in provision)

s. 161(1)(c) — (as stated in provision)

s. 161(1)(d) — modified to provide:

"from using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. Those conditions are:

"not to use or access the internet or other digital network unless done:

(i) on your own personal telecommunications device which is equipped with software or hardware that blocks access to:

a. social networking sites (including but not limited to/for example Facebook, Twitter, Tumblr and Kik). This provision would not prohibit access to employment search sites such as Workopolis and Linked In.

b. peer to peer file sharing networks (including but not limited to/for example motherless, limewire, gnutella, bearshare)

(ii) where you are not self-employed, at your place of business, for business purposes and in accordance with IT and other policies at your place of business.

(iii) Not to use any telecommunication device to access the Internet or other digital network in order to:

a. Access child pornography

b. Participate in chat rooms or bulletin boards that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material."

The defence participated in active submissions back and forth with the court as to suggested modifications of the s. 161 order sought by the Crown, to permit Mr. M.S. to engage in bona fide employment search through the internet and not violate the terms of such an order. The s. 161(d) term set out above incorporates those modifications and amendments after hearing the concerns expressed by the defence.

[75] In this case, given that Mr. M.S. will be serving a sentence in the penitentiary in excess of two years, the Crown seeks an order pursuant to s. 743.21, prohibiting Mr. M.S. from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order by the sentencing judge. In this case, the Crown seeks such an order with respect to the victim M.C., her brother C.C., S.H. (the maternal grandmother of M.C. with custody of M.C.), and I.H., the partner of the maternal grandmother. The defence makes no submission with respect to this order. In all of the circumstances, including not only the facts of the offence, but the victim impact evidence, it is reasonable to make such an order and the court makes this order.

Released: July 13, 2017

Signed: Justice Beverly A. Brown