Court Information
Ontario Court of Justice
Date: 2018-03-08
Court File No.: Brampton 3111 998 16 3530
Parties
Between:
Her Majesty the Queen
— And —
Burton Boodram
Before the Court
Justice: G.P. Renwick
Heard on: 23, 24, 26, 27 October; 19 December 2017; 11 January; 23 February 2018
Reasons for Judgment released: 08 March 2018
Counsel
For the Crown: M. Stevens
For the Defendant Burton Boodram: E. Brown
Reasons for Sentence
RENWICK J.:
Introduction
[1] After a five day trial, I found the offender guilty of possessing, accessing, and attempting to distribute child pornography and obstructing the police who were investigating the matter, by making a false statement implicating someone else.
[2] The Crown submits that the circumstances of the accessing child pornography charge are inextricably linked to the possession of child pornography count on the evidence, since the offending material was possessed on the offender's two cellular telephones, which were also used to access the child pornography. I accept that the rule prohibiting multiple convictions for the same delict applies: R. v. Kienapple, [1975] 1 S.C.R. 729. As a result, I am staying the accessing child pornography count, which is count 2 on the Information and registering a conviction on counts 1, 3, and 4.
[3] Several cases were relied upon by the Crown to suggest that an appropriate global sentence is 3 years imprisonment, plus the imposition of several ancillary orders. Counsel for the offender submits that a penitentiary sentence of just over 2 years is appropriate for the child pornography offences and a short consecutive sentence is warranted for the obstruct police count. In essence, the parties' submissions only differ in the total amount of imprisonment by about 10 months. The offender takes no issue with the ancillary orders sought.
[4] I have considered the sentencing cases presented, the pre-sentence report prepared in respect of the offender, the aggravating and mitigating factors of these offences, the submissions made by the parties, and the principles of sentencing found in ss. 718, 718.1, 718.2, and 718.3(4) in arriving at a sentence in this matter. In these reasons I will explain the consideration I have given to these various factors and how I arrive at the sentence to be imposed in this case.
Sentencing Principles
[5] The cases presented by the prosecution were helpful in reminding the court of the general sentencing principles in cases of this nature: R. v. Kwok, [2007] O.J. No. 457 (S.C.J.), R. v. Smith, [2008] O.J. No. 4558 (S.C.J.), R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 (S.C.J.), and R. v. Miro, [2017] O.J. No. 1391 (S.C.J.). I find that general and specific deterrence and denunciation are the primary goals in structuring a fit sentence for the s. 163.1 offences.
[6] While I must consider the sentencing principles of restraint and rehabilitation, these are secondary to denunciation and deterrence in this case. I also note that sentence parity for similar offences by similarly placed offenders is somewhat difficult to achieve given that the majority of the cases presented were decided before the passage of the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 7, effective on 17 July 2015, which created a mandatory one year minimum sentence for both of the s. 163.1 offences, when prosecuted by indictment.
[7] It is trite to note that the demand for child pornography is a serious problem in our society. This demand fuels the abuse of children for the basest desires of the depraved users of this material. As many other judges have noted, the only way to eradicate the on-going sexual abuse of children whose innocence is stolen during the production and distribution of child pornography is to eliminate the consumer market for these predatory peddlers of exploitation and misery.
[8] The impact of child pornography offences upon our community was compellingly captured by McLaughlin J. (as she then was), writing for the majority in R. v. Sharpe, 2001 SCC 2, [2001] S.C.J. No. 3 at paras. 158-160:
The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on pre-existing inequalities.
The Report on Pornography by the Standing Committee on Justice and Legal Affairs (1978) (MacGuigan Report), spoke of the effects of pornography as follows at p. 18:
The clear and unquestionable danger of this type of material is that it reinforces some unhealthy tendencies in Canadian society. The effect of this type of material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism, non-violence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles.
In a similar manner, child pornography creates a type of attitudinal harm which is manifested in the reinforcement of deleterious tendencies within society. The attitudinal harm inherent in child pornography is not empirically measurable, nor susceptible to proof in the traditional manner but can be inferred from degrading or dehumanizing representations or treatment.
The Offence and the Offender
[9] Burton Boodram was found guilty of possessing 5,602 different images and six videos of child pornography.[1] Sergeant Andrew Ullock testified on the sentencing hearing. The offender did not challenge or seek to rebut this evidence and I accept it without reservation. The officer testified that this offender's collection was one of the largest, most varied (in terms of the content), and most vile he had seen or heard of while working for over 7 years in the Internet and Child Exploitation Unit of Peel Regional Police.
[10] In lieu of the court viewing any of the images, it was agreed by the parties that the investigating officer could describe a representative sampling of the images and three of the six videos found in the offender's possession.
[11] Exhibit 1 on sentence is a written description of 15 images and three videos that were described by Sergeant Ullock. I find that the officer was detailed and careful to avoid misrepresenting either the apparent age of the children depicted or the activity captured in the photographs and videos. His summary is factual and I accept it. Also, during the trial, I was shown the single photograph that was sent in an e-mail by the offender, which formed the basis for the attempted distribution count.
[12] I need not describe the material that warranted these convictions in any detail. Suffice it to say, the images and videos possessed by Burton Boodram are extreme. Many of the images in the offender's possession are distressing, disturbing, and despicable. They involve the humiliation and degradation of children, overt violence or simulated violence during sexual activity involving children, and every manner of sexual behaviour with children, ranging in age from infants to teenagers, acting alone, with other children, and with adult men. There is even one image of bestiality involving a child. In terms of the content and quantity of this material, there can be few offenders who are similarly situated to or worse than Burton Boodram.
[13] This offender is a 42 year old, first-offender. The evidence revealed that he possessed and accessed child pornography, on a frequent basis, over many months on two cellular telephones. Burton Boodram is handicapped. He suffers from leprosy and the muscles in his hands and forearms are crippled and constricted, and cause him pain and great inconvenience in performing the most basic of personal grooming or daily functions. According to the pre-sentence report, which is not contested, this offender is socially isolated, largely resulting from his medical condition. There was no pre-trial custody served by this offender.
[14] I find that the following are mitigating circumstances in this case:
i. The offender has no prior criminal record and he is otherwise of good character;
ii. During his trial, the offender admitted that the material in question meets the Criminal Code definition of child pornography;
iii. The offender agreed that the court did not have to view any of the images or videos comprising child pornography to determine guilt or innocence, or for the purpose of sentencing;
iv. The offender agreed that Sergeant Ullock could testify about his representative sampling of the child pornography and the officer could provide a summary upon which the court could act, and this evidence was not rebutted or challenged in any way;
v. The offender did not challenge the officer's evidence respecting the degree to which the sample represented the entire collection of child pornography, or the officer's descriptions of the content of the sample of child pornography; and
vi. Given the offender's physical limitations and medical needs and his status in Canada, any significant period of imprisonment will be a hardship for him to serve and will likely result in his deportation to Trinidad.
[15] On the basis of the evidence I accepted at trial and during the sentencing hearing, the following are the aggravating features which have been proven beyond a reasonable doubt:
i. The volume of child pornography possessed by the offender is inordinate;
ii. The possession of child pornography occurred over many months;
iii. The content of the child pornography is extreme in terms of the age of children involved, the range of sexual activities depicted, and the level of brutality which involves actual, simulated, and psychological abuse;
iv. The manner of possession of child pornography on multiple, mobile devices, only one of which was password protected, put the community at a greater risk of exposure to this material than if it were possessed on a stand-alone table-top computer or in hard copy;
v. The offender's activity exposed the other occupants of his dwelling to police suspicion and investigation;
vi. The offender is a sexual predator who not only sent images of naked, pre-pubescent females to Leanne Jussila, but sought similar images from her of her own child(ren), and he exposed her through text messages to the sexual activities he imagined performing with children; and
vii. The offender attempted to divert police suspicions away from himself onto someone else, he asked Willhelmena Aldridge[2] and Leanne Jussila to lie to the police, and he conscripted his neurologist, Dr. Gyl Midroni, and Mireille Francis into his false narrative before the court.
Analysis
[16] The Crown relies primarily on the cases of Bock and Miro to justify the request for three years imprisonment. The offender did not dispute the analysis or sentences in those cases, but sought a sentence slightly above two years imprisonment because this is his first offence and he is not likely to re-offend.
[17] In many respects the circumstances of the offence in the Bock decision are significantly different than this offender's. The case reveals that Bock received two years and nine months imprisonment for making over 300 child pornography files available to others and he received one year imprisonment concurrent to that sentence for possession of 1000 videos and almost 400 images. I also note that that offender was a 67 year old, first offender with family support and he had pleaded guilty at the start of his trial.
[18] The Miro decision is somewhat more helpful to this analysis because it was decided after Parliament created mandatory minimum sentences for the possession and distribution offences. Following a brief trial, Fitzpatrick J. imposed concurrent custody at the ceiling of a reformatory sentence for possession and making almost 500 photographs and six videos of child pornography, followed by three years of probation. Although the production and distribution features of that offence are absent here, Miro possessed far less disturbing material, both in quantity and content, than this offender.
[19] In R. v. Carlos, the Ontario Court of Appeal upheld a three year penitentiary sentence for a first-offender found in possession of less than 200 images and videos of child pornography which he made available to others over a four-week period through an on-line file sharing portal.[3] In terms of mitigation, that offender was also examined using phallometric testing and found to be at a low risk of reoffending.
[20] When I balance all of the features in this case, including the offender's unfortunate personal circumstances and the sentencing principles found within the Criminal Code, I find that Miro, Bock, and Carlos situate Burton Boodram in the upper range of what is an appropriate sentence for these offences. Were it not for his medical concerns and the offender's likely deportation following his imprisonment, I would have imposed a longer total period of imprisonment to reflect society's increasing intolerance for these offences and the strongest condemnation of these crimes.
Conclusion
[21] I find that the appropriate sentence for this offender in the circumstances of these offences is three years imprisonment in a penitentiary, as follows:
i. For the possession offence, the offender is sentenced to a term of imprisonment of two years and six months;
ii. For the attempted distribution offence, the offender is sentenced to a term of imprisonment of 18 months, to be served concurrent to the sentence for the possession offence; and
iii. For the obstruct police offence, the offender is sentenced to a term of imprisonment of six months, to be served consecutive to the sentences of the other offences.
[22] Burton Boodram you are hereby sentenced to spend a total prison sentence of three years in a federal penitentiary for your crimes and I am imposing the following ancillary orders, on consent:
i. Pursuant to section 490.1 of the Criminal Code, your Samsung and LG cellular telephones, seized by the Peel Regional Police, are forfeited to Her Majesty in Right of Ontario to be disposed of by the Attorney General of Ontario in accordance with the law;
ii. Pursuant to the provisions of ss. 490.012 and 490.013 of the Criminal Code, you are required to comply with the Sex Offender Registration Act for 20 years;
iii. Pursuant to the provisions of ss. 487.04 and 487.051 of the Criminal Code you are required to submit to the taking of the number of samples of your bodily substances that is reasonably required for the purpose of forensic DNA analysis. These DNA samples will be taken under hygienic conditions, while reasonably respecting your privacy and bodily integrity, while you are in custody; and
iv. Pursuant to the provisions of s. 161 you are prohibited for 20 years from:
a. Attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present; or a daycare centre, school ground, playground, or community centre;
b. Seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years;
c. Having any contact – including communicating by any means – with a person who is under the age of 16 years, unless you do so under the supervision of the child's parent(s) or guardian(s); and
d. Using the internet or other digital network, unless for and while actually engaged in lawful employment or at a public library for the purpose of seeking employment.
Released: 08 March 2018
Justice G. Paul Renwick
Footnotes
[1] The total number of images and videos found on the offender's Samsung phone were 6568 and 4, respectively, and 840 and 3, respectively, on his LG phone, but many of the images and one video were found in more than one place within each phone.
[2] Ms. Aldridge was convicted of obstructing Sergeant Ullock by lying about the offender's inability to use a cell phone and her knowledge of the existence of the defendant's scapegoat for these offences, "Chris."
[3] [2015] O.J. No. 7757 (S.C.J.), aff'd. 2016 ONCA 920, [2016] O.J. No. 6288 (C.A.).
