Court File and Parties
Court File No.: Toronto
Date: 2018-03-23
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Peter Kirkeby
Before: Justice Fergus O'Donnell
Reasons for sentence released on: 23 March, 2018
Counsel:
Ms. C. Valarezo for the Crown
Ms. N. Rozier for the defendant, Peter Kirkeby
Judgment
Fergus O'Donnell, J.:
Overview
[1] Peter Kirkeby pleaded guilty to three separate sets of charges. After a long and drawn out plea and sentence process, the Crown and defence were far apart on the issue of the appropriate sentence. I imposed sentence on Mr. Kirkeby on 26 February, 2018. Given the very long history of the case, I did not consider it appropriate to adjourn the matter for sentence beyond that date. At that time I addressed Mr. Kirkeby at some length about the reasoning underlying the sentence I was imposing, but said there would be additional reasons to follow. These are those reasons.
[2] As I said, Mr. Kirkeby's matters have been before the court for a long time. The earliest of his charges date back to the late summer of 2014 and the latest to January, 2015. There have been various reasons for the delay including the fact that there are federal and provincial charges, the fact that there are charges from Toronto and from Barrie, the fact that one group of charges involves child pornography, which can be time-intensive for the police, a very intensive pre-trial process, the fact that there was a trial of an important issue on the child pornography investigation and defence counsel's prolonged unavailability due to a long murder trial in Brampton, which was itself delayed as a result of illness on the part of another lawyer on that file. The case was further delayed after defence counsel filed two affidavits in relation to pre-sentence custody, after the Crown had begun sentence submissions, which necessitated an adjournment and the calling of additional evidence. I shall try to distill these reasons down as much as possible without doing a disservice to the significant efforts put into the matter by both Crown and defence counsel.
Facts
[3] Chronologically, the first charges arose in Barrie in August and September, 2014. As a result of that investigation, Mr. Kirkeby pleaded guilty to procuring a woman to engage in prostitution and in directing her actions in that behalf, both making out offences under s. 212 of the Criminal Code. Mr. Kirkeby also pleaded guilty to failing to keep the peace and be of good behaviour as required by a probation order he was bound by at the time of the prostitution offences. Mr. Kirkeby connected with the woman on social media and then in person. He asked if she wanted to make money by selling sexual services. She agreed and eventually sold sexual services on four days over about a five week period in the late summer of 2014, with Mr. Kirkeby arranging the engagements and keeping forty percent of the fee and the woman keeping the other sixty percent. Mr. Kirkeby picked the woman up and drove her to and from the hotel used for the engagements. The agreement on particular sexual services was made between the woman and the client and payment was made between the client and the woman, with Mr. Kirkeby taking his cut from that. After about five weeks, the woman chose to stop providing sexual services and she did.
[4] Mr. Kirkeby admitted that he had used his Facebook profile to contact "young women", holding himself out as a photographer for models and that he had used Craigslist to solicit "young women" to enter the sex trade. There was no evidence that these "young women" who were solicited for the sex trade were under the age of consent.
[5] The next set of charges arose at the end of 2014. A film-maker was making a documentary about human-trafficking and escorts. One of his subjects was a woman named KC, who was a previous acquaintance of Mr. Kirkeby's. KC gave the film-maker Mr. Kirkeby's contact information and allowed the film-maker to pretend he was KC for the purpose of texting with Mr. Kirkeby and thereby gaining insight into the world the filmmaker was inquiring about. The film-maker engaged in a series of messages back and forth with Mr. Kirkeby in which Mr. Kirkeby expressed his supposed interest in a threesome involving a young girl. He offered two thousand dollars if KC would participate in the threesome. In the course of that exchange, Mr. Kirkeby sent pictures of young girls, one purportedly eleven years old, the other thirteen, but he refused when KC asked him to send pictures of him actually engaged in sexual acts with the girls. In that message exchange Mr. Kirkeby repeatedly pressed KC (who is actually the film-maker unbeknownst to Mr. Kirkeby) to send him illicit videos. Mr. Kirkeby admitted sending eight separate images plus a slideshow of separate images to KC during the messaging session and that those materials constituted child pornography.
[6] The film-maker took his information to the local police, who put him in touch with the Toronto Police Service. A TPS officer then started communicating with Mr. Kirkeby, portraying herself as someone who knew KC and who shared similar interests to Mr. Kirkeby. The undercover officer said she was a mother with "taboo interests", particularly sexually abusing her own fictional child, who was presented as being nine years old. There then followed a chat room exchange between the undercover officer and Mr. Kirkeby, which went back and forth but ultimately went nowhere.
[7] As a result of those facts, Mr. Kirkeby pleaded guilty to possession of child pornography and to transmission of child pornography. He pleaded not guilty to the charge of making an arrangement for the sexual abuse of a child. The trial of that charge consisted of agreed facts as well as Mr. Kirkeby's testimony.
The "Making Arrangement" Charge
[8] The internet transmissions involving Mr. Kirkeby do appear solidly to suggest that he is seeking to arrange for the sexual abuse of a child. Mr. Kirkeby, however, testified that it was all a ruse. I do not propose to get into all of the nooks and crannies of his testimony but in effect it was along the following lines. One of Mr. Kirkeby's business interests was the provision of sexual services to clients; in the vernacular, he was a pimp. In the course of that line of work, he realized that there was a certain clientele whose particular interest was sexual abuse of children. These clients were willing to pay dramatically more if Mr. Kirkeby could satisfy their requirements than a typical client would pay for the services of an adult sex trade worker, in the range of two thousand dollars or more compared to the range of two hundred dollars for adult sexual services. Out of all this, Mr. Kirkeby said that he hatched a business plan.
[9] The recipe involved the following premises:
a. people interested in the sexual abuse of children will pay a lot for the opportunity.
b. it is a cash business
c. the business will take place behind closed doors
d. the sexual predator will be vulnerable to robbery in such circumstances; if actual violence had to be used, so be it.
e. the "victim" of the robbery is extremely unlikely to report the robbery to the police as doing so would run the risk of his own ultimate criminal purpose coming to light.
[10] The challenge, apparently, lay in finding enough suitable marks for Mr. Kirkeby to rob. It was Mr. Kirkeby's evidence that his online communications that appeared superficially to show his personal interest in arranging for the sexual abuse of a child were part of a scheme to try to get his correspondents to incriminate themselves, which would allow him, for example, to pressure them for the names of clients who were interested in sex with children, whom Mr. Kirkeby could then contact, set up a date and then rob. He used some images of child pornography he had found on the internet in the course of those internet communications as proof of his own bona fides as a person interested in sex with children. In his testimony, Mr. Kirkeby said it never occurred to him at the time that his re-use of those images constituted a re-victimization of the girls in the images. He said that realization only came to him from a comment made by one of the officers who interviewed him upon his arrest.
[11] Mr. Kirkeby testified that he had in fact robbed three "clients" who had arranged with him to have sex with a minor. He said that those robberies each netted him between two-thousand dollars and three-thousand-five-hundred dollars. However, while some such clients approached him in the normal course of his business, there was not a very high volume of such targets from the escort business he ran himself. As a result, he resorted to the internet as a sort of business development plan.
[12] If one had to distill Mr. Kirkeby's evidence into less than a dozen words, it might be stated as follows: "I'm an opportunist and a thug, but I'm not a pervert."
[13] Mr. Kirkeby was cross-examined vigorously on his version of events. It is self-evident that if I accepted Mr. Kirkeby's explanation, I would be obligated to find him not guilty on the make arrangement charge. Even if I did not accept his explanation as clearly true, if that explanation created a reasonable doubt in my mind (for example, might it reasonably be true even if I was not fully convinced it was true), any such reasonable doubt would again necessarily result in an acquittal on that count. Even if I did not believe Mr. Kirkeby and if his evidence did not create a reasonable doubt on my part, the obligation would be on the Crown to prove the particular count beyond a reasonable doubt. In the circumstances of this case, where the Crown's evidence was the cold, hard language used in the internet communications, the Crown's case would be quite compelling. Realistically, without a plausible alternative explanation (or at least a reasonable doubt about such an explanation), Mr. Kirkeby would be damned by his own typed words on the make arrangement charge.
[14] I had a reasonable doubt about Mr. Kirkeby's guilt on the "make arrangement" charge and found him not guilty. Ms. Valarezo for the Crown left no stone unturned in a thorough and vigorous cross-examination, but when I look at Mr. Kirkeby's evidence, the contents of the internet exchanges, the time-line involved and the very low number of child pornography images involved, at a minimum I have a reasonable doubt on the issue of whether or not it was Mr. Kirkeby's actual intention to make an arrangement for the sexual abuse of a child. The question at this point is not whether or not Mr. Kirkeby's scheme to cultivate business for his robbery scheme succeeded, or even if it was a very well thought-out plan to increase his volume of targets, but only whether or not I am satisfied beyond a reasonable doubt that he was actually trying to make the arrangement for sexual abuse of a child. Ultimately, while Mr. Kirkeby's evidence was not entirely convincing at all times, I have to keep in mind when it comes to specific details that he was testifying about events from a year and a half earlier and that the scheme to rob child predators actually had a certain ugly logic to it. Even his explanation that his original statement to the arresting officers was largely untruthful because he did not know how much the police knew about his pimping activities and did not want to disclose more than was necessary at that time had a certain logic to it. While there is always the possibility that this is an elaborate alternative explanation that Mr. Kirkeby managed to hatch between arrest and trial, even that possibility does not account for either (a) the very low number of child pornography images in his possession; (b) the relatively easy access to such images on the internet.
[15] In short, applying the test for this offence as set out by the Supreme Court of Canada in R. v. Legare, 2009 SCC 56, the Crown has not proved Mr. Kirkeby's guilt beyond a reasonable doubt.
[16] As part of the agreed facts, Mr. Kirkeby also admitted having six child pornography images on his mobile phone, as well as possession of one video of child pornography.
[17] The Toronto police investigation ultimately led them to Barrie, where Mr. Kirkeby was living, which led to the other offences being uncovered. At the end of December, 2014, the police identified Mr. Kirkeby via his IP address and on 5 January, 2015 the TPS executed a search warrant at his home. They seized various electronic devices. Two other text-based discussions about sexual abuse of children, which involved Mr. Kirkeby and in which he sent out a few child pornography images were found as a result of the search.
[18] In the course of the execution of the TPS search warrants the police found ninety-five grams of marihuana and $4,340 in cash.
[19] It was the publicity from Mr. Kirkeby's child pornography charges that led the mother of the young woman who had sold sexual services in conjunction with Mr. Kirkeby to contact the police about those offences, which brings us full circle on the facts.
[20] To summarize, Mr. Kirkeby faces sentencing for:
a. procuring
b. exercising control
c. failure to comply with probation
d. possession of child pornography
e. transmission of child pornography
f. possession of marihuana for the purpose of trafficking
g. possession of the proceeds of crime, $4,340
Background
[21] Mr. Kirkeby is now almost thirty years old. At the time of these events he was twenty-six years old.
[22] He has a criminal record, which is intermittent in nature. After one series of entries for serious matters under the Youth Criminal Justice Act, Mr. Kirkeby's first adult conviction was for obstruction in 2006, followed by failure to comply with probation in 2007. There was then a gap of almost six years leading to a conviction for assault causing bodily harm in May, 2013 and a conviction for theft under in November, 2013. He received a sentence of ninety days to be served intermittently on each of the 2013 convictions.
Victim Impact
[23] The victim of the procuring and avails offences provided a victim impact statement. It adds up to three words in total, namely, "just stressful" in response to the title "emotional impact" and "hospitalization" in response to the title "physical impact". There is no elaboration on the source, extent or duration of the stress, including whether it arose from the victim being involved in the sex trade, from her business relationship with Mr. Kirkeby or from her involvement with the process after her mother went to the police after Mr. Kirkeby's image was published by the local police after his arrest on the child pornography charges. I note that the victim in the procuring/avails offences never went to the police herself, even though she was twenty years old. The meaning of "hospitalization" is also unclear.
Sentencing Submissions
[24] The defence took the following position on sentence:
a. Mr. Kirkeby should be granted credit for the equivalent of eighteen months' imprisonment "in the bank" as a result of pre-sentence custody. That is comprised of various components. To begin with, Mr. Kirkeby has spent 222 days in real custody, which would be bulked up to the equivalent of a jail sentence of 333 days by applying the "usual" 1.5 to 1 ratio for pre-sentence custody, which recognizes the particular impact on a defendant of spending his time in a remand facility without access to the programmes that would be available in a non-remand facility. (The 222 days is made up of eighteen days on Mr. Kirkeby's arrest, after which he was given bail, plus 204 days when he voluntarily surrendered back into custody because his residential surety was no longer able to accommodate Mr. Kirkeby and an ailing relative). Ms. Rozier asks that I allow a further credit of 32 days to that sentence (thus making up 365 days available, which, not coincidentally, equals the mandatory minimum sentence on the charge of making child pornography). Ms. Rozier also suggests that Mr. Kirkeby should receive credit for the equivalent of six months of pre-sentence custody as a result of being on house arrest for a total of approximately two years. (Pursuant to the decision of the Court of Appeal for Ontario in R. v. Panday, 2007 ONCA 598, credit for time spent on house arrest is not available to satisfy the requirements of any mandatory minimum sentence).
b. I should impose the mandatory minimum sentences of six months' imprisonment and twelve months' imprisonment on the two child pornography charges. Those sentences should run concurrently.
[25] The Crown took the following position on sentence:
a. Initially, the Crown took the position that Mr. Kirkeby should receive no additional credit for his time in custody beyond the 1.5 : 1 credit that is normally granted. I had the impression that the Crown ultimately yielded that some additional credit should be granted. Ultimately, whether I mis-read that or not is neither here nor there insofar as I am satisfied that Ms. Rozier's request for the additional thirty-two days credit was not unreasonable.
b. As for credit for restrictive bail terms, the Crown said that Mr. Kirkeby should not get additional credit.
c. Mr. Kirkeby should be sentenced, before credit for pre-sentence custody to one year for the charge of distributing child pornography and six months for the charge of possession of child pornography.
d. Mr. Kirkeby should be sentenced to eighteen months for the procuring and avails charges.
e. Mr. Kirkeby should receive 3-6 months for the Barrie drug and proceeds of crime and breach charges.
f. All of these sentences should be consecutive, except that the drug and proceeds sentences should be concurrent to each other and, perhaps, those sentences might have to be concurrent to the three year sentence imposed for the child pornography, procuring and avails sentences in the interests of totality.
g. If Mr. Kirkeby's remaining sentence after credit for pre-sentence custody was two years or less, he should be placed on probation for three years.
h. In effect, the Crown asks for a total sentence of three years imprisonment before the application of credit for pre-sentence custody.
Analysis
[26] There are a number of matters that I do not propose to belabour. For example, I do not propose to linger on Justice Molloy's observations about the factors to consider in child-pornography cases as set out in R. v. Kwok. They are as well-known as they are compelling, although their applicability will vary from case to case. In particular, this case strikes me, on its facts, as being, to a significant extent, an outlier from "normal" child pornography cases. Mr. Kirkeby's profit motive was odious, but the number of images was very, very low and the Crown has not demonstrated that he creates the same risk as a typical child pornography offender.
[27] I do not propose to linger long on the evidence I heard with respect to Mr. Kirkeby's time in custody or his attempts to have his house-arrest condition varied. At the end of the day, a long recitation of his evidence or of the evidence of the sergeant from the Maplehurst detention centre would simply not be worth the candle. Suffice to say that there were points in the evidence where I felt that Mr. Kirkeby was exaggerating his circumstances somewhat and there were points where I felt that the sergeant's evidence about how things work at Maplehurst either soft-sold some of the realities of life and practices in prison or, to give him the benefit of the doubt, reflected more his own personal approach to prison administration than might be true of some of his colleagues.
[28] At the end of the day, I am satisfied that, whether it was "policy" or not for admissions officers at Maplehurst to warn incoming inmates that life in general population might be unpleasant for an inmate facing child pornography charges, Mr. Kirkeby's evidence that he was advised to ask for protective custody when he was admitted, was entirely plausible. I do not consider it appropriate to dilute the significance of the increased frequency of lockdowns in protective custody (as compared to general population) or limits on access to programmes because Mr. Kirkeby "chose" to be housed in protective custody. Even judges understand some of the obvious realities of jail life. For similar reasons, I accept Mr. Kirkeby's evidence that he was assaulted by fellow inmates on at least some occasions and I accept his explanations for why he did not report all of those events immediately for fear of being labeled a "fink". I cannot say that his description of the realities of institutional administrative justice were untrue, insofar as they explained some of the choices he made in relation to allegations of institutional misconduct on his own part.
[29] The decision of D.K. Grey, J. in Ogiamien v. Ontario (Ministry of Community Safety and Correctional Services), 2016 ONSC 3080, serves to illustrate in detail some of the realities of life at Maplehurst, realities that are not at all surprising to anyone with any substantial experience in the criminal courts.
[30] It is also clear from the evidence before me that Mr. Kirkeby's time in custody was marked by a high number of lockdowns. During the 204 day period of his second pre-trial incarceration, there were thirty-eight full lockdowns and twenty partial lockdowns. Using only the full lock-downs that accounts for one-sixth of his time in custody. The evidence also shows that he spent eighty-five days triple-bunked, well over one-third of his time in custody.
[31] When it comes to the issue of house arrest conditions on a bail order, the Crown lives with the choices it has made (I speak in general terms here; this case has involved multiple provincial Crowns in one jurisdiction, provincial Crowns from two jurisdictions and a federal Crown from one jurisdiction). The use of house arrest as a component of Mr. Kirkeby's bail in the circumstances of his case is entirely incomprehensible to me. I can imagine no reasonable basis for the Crown to have asked for it. Conditions such as house arrest should never be sought unless there is a compelling reason for them. On the other side, I can understand why Mr. Kirkeby may have consented to it: an arrestee will consent to almost anything to guarantee his release. It may be true that Mr. Kirkeby did not bring a bail review application until the second last court appearance, at which time, post-Antic, 2017 SCC 27, it was consented to, although it is possible on the evidence before me that, as a recipient of legal aid, he was not entirely in control of the strategic choices made during his trial. What is most relevant is that he was on house arrest for a long period and that acquiescing to that house arrest appears to have been a condition of his release. He was unable to work for two years, but when he was finally released from that condition, he found work in less than a week. The impact of the house arrest condition on Mr. Kirkeby was palpable and that condition was absurd.
[32] Routine mis-application of the bail provisions of the Criminal Code has been a topic of great interest (and long-overdue action) since the decision of the Supreme Court of Canada in R. v. Antic, nine months ago, but it has been an inexcusable reality for much longer than that: see, for example, R. v. Van, 2014 ONCJ 232. In this case, all of Mr. Kirkeby's offences came to light at the same time. It is not a situation such as him being charged with procuring, being released, then being charged with seeking to make an arrangement and being released and then being charged with the drugs. In effect, from a prosecution perspective, everything arose out of the Toronto Police Service making arrangement investigation, the search warrant at Mr. Kirkeby's house within weeks and the publicity arising out of that search warrant. Even with Mr. Kirkeby's record, which has long gaps in it, it is hard to conceive how a house-arrest bail was ever considered appropriate here.
[33] The law is clear that the granting of a pre-sentence custody equivalence for time spent on strict bail conditions is within my discretion, although it is not mandatory: R. v. Downes. There is no rational basis for me to refuse credit on the facts of this case.
[34] I have said that a detailed recitation of certain parts of the evidence in this long-drawn-out case is not worth the candle. There are, however, two elements of the proceedings that do merit attention. First, the decision by the defence, in the middle of the Crown's sentencing submissions, to advance evidence on Mr. Kirkeby's circumstances while on bail and while in jail necessarily added time and complexity to the case for no good reason. Quite simply, that evidence should have been placed before the court before the Crown's sentencing submissions were made. Second, the defence suggestion that the Crown's sentencing position was an attempt to recoup what the Crown had 'lost' as a result of the acquittal on the "making arrangement" charge was unfounded, unworthy and unprofessional and ought never to have been uttered.
Sentence
[35] Mr. Kirkeby appears before the court as a mature repeat offender. His previous record is neither flattering to him, nor is it the most serious criminal record one might see. Looking backwards, his conduct does not reflect well upon him. "Odious" would be a good descriptor. In short, he was a drug-dealing pimp and thug, who was willing to use child pornography as part of his scheme to extort client lists from other pimps or sex-trade workers in order to rob them. I must keep in mind, of course, that he does not appear before me for sentencing on any robbery.
[36] Mr. Kirkeby has pleaded guilty. There was a trial on one count, but he succeeded on that count. Accordingly, all of the matters upon which he is to be sentenced are the fruits of guilty pleas. Mr. Kirkeby is entitled to credit for those pleas.
[37] The child pornography offences were at the very bottom end of the range for such offences, subject only to Mr. Kirkeby's profit motive. I cannot be satisfied beyond a reasonable doubt that his use and intended use of the very few images he possessed and transmitted was anything other than what he said it was: as a marker of good faith in order to ensnare people who might be able to share their client lists of pedophiles with him so that he could rob them. The likelihood of future offences of this nature on Mr. Kirkeby's part strikes me as very, very low. This case is largely an outlier when one considers the concerns raised by child pornography as set out by the Supreme Court of Canada in R. v. Sharpe, 2001 SCC 2.
[38] While there is nothing honourable in Mr. Kirkeby living off the earnings of the young woman he pimped for, if one were to run a checklist of his behaviours against a list of aggravating factors such as that set out by Hill, J. in R. v. Miller, [1997] O.J. No. 3911, Mr. Kirkeby's conduct would leave a lot of empty boxes. Indeed, of fifteen considerations enumerated by Justice Hill, there is nothing before me to suggest that Mr. Kirkeby's conduct engaged most of those considerations. Indeed, I would go so far as to say that only one of those factors is engaged by the facts here: Mr. Kirkeby took a share of the woman's earning in exchange for setting up the appointments. There is no evidence of coercion, inappropriate age of the woman or clients, particular vulnerability, oppressive working conditions, sophistication, volume, duration, violence, drugs, compelled sexual favours, and so on. I stress, however, that the absence of those considerations does not change the fact that Mr. Kirkeby's offences are socially and legally unacceptable.
[39] The authorities provided by the Crown with respect to the prostitution and avails offences, when applied to the facts of this case and to Mr. Kirkeby's background, do not support the Crown's position on sentence. When I consider the objectives and principles of sentencing set out in the Criminal Code, I can only conclude that the Crown's request for a sentence of eighteen months' imprisonment after a guilty plea is excessive, and not by a small margin.
[40] The sentence on the drug and proceeds offences from Barrie was presented to me as a "joint submission", in the sense that I should impose concurrent sentences of three to six months for each of those offences. It was, however, a curious "joint" submission insofar as the Crown said it should be consecutive to the other charges and the defence said it should be concurrent. There are obviously very strict requirements for judges hearing "joint" submissions, which require me to pay extremely close attention to the joint submission, to notify the parties if I am troubled by it, to afford them an opportunity to address my concerns and so on. These principles are well-established, but have been most recently re-stated in R. v. Anthony-Cook, 2016 SCC 43.
[41] The condition-precedent to all of those procedural requirements, however, is the existence of a "joint" submission. As I told the parties on the day I sentenced Mr. Kirkeby, this was not a joint submission. A submission does not become a "joint" submission simply by adding the word "joint" to it. What was put before me by the two parties had a couple of similarities and one massive difference. The Crown's "joint" submission would see Mr. Kirkeby spend another three to six months in jail; the defence's "joint" submission would see him spend no additional time in jail. I am reasonably confident that if I put that scenario to the average passer-by, they would have a hard time understanding how there was an agreement between the parties that should bind the sentencing judge in any respect.
[42] The proposed sentence for the drug and proceeds offences is excessive (I appreciate it was not a position taken by the provincial Crown in Toronto but rather one inherited by them). The drug is marihuana, the amount is small. It obviously remains a controlled substance, it is obviously much more potent than the marihuana your grandparents smoked and there are obviously legitimate reasons for the state to control its distribution, especially in relation to young people, but when imposing sentence for cannabis offences one must recognize two important factors. First, social views in relation to cannabis have matured enormously, as has its treatment in the courts. Second, in terms of its actual and potential impact on society, marihuana is much more benign than alcohol or overprescribed opioids. Mr. Kirkeby was selling marihuana to make money and on the facts of this case his penalty should be comprised of a financial aspect, along with community service hours.
[43] I have reached the following conclusions with respect to the sentence to be imposed on Mr. Kirkeby.
[44] Ms. Rozier argues, generally, that all of the sentences imposed on Mr. Kirkeby should be concurrent. This is not a sustainable proposition. If common sense fails to persuade, one need go no further than s. 718.3(4) of the Criminal Code to establish that proposition. While the prostitution, child pornography and drug charges all came to light out of the same investigation, they are entirely separate offences. While the principle of totality may come to Mr. Kirkeby's aid in relation to the cumulative impact of those sentences (see Criminal Code, s. 718.2(c)), each grouping calls for a separate sentence and consecutive sentences are called for.
[45] The Crown argues that the possession and transmission of child pornography charges call for consecutive sentences. This is not a sustainable proposition. While it can fairly be said that the images transmitted and the other images found in Mr. Kirkeby's possession were not identical, that is a rather superficial and fragile argument, particularly when the very small number of images involved here is taken into account. The Crown's position may gain (limited) additional force if one were to accept that Mr. Kirkeby was in possession of and transmitting the images for any reason other than his purported reason of trying to identify and lure targets for his robbery scheme, but I cannot come close to concluding beyond a reasonable doubt on the evidence before me that Mr. Kirkeby actually had any interest in child pornography for his own gratification or for any purpose other than the purpose he stated.
[46] The decision of the Court of Appeal for Ontario in R. v. Duncan, 2016 ONCA 754, makes it clear that in an appropriate case credit for pre-sentence custody beyond the 1.5: 1 ratio can be granted, for example for particularly harsh conditions. That does not mean that additional credit will be routine and it does require that there be evidence to support the application for additional credit. In light of all of the circumstances and the evidence before me, Ms. Rozier's request for thirty-two days additional credit beyond the 333 days Mr. Kirkeby has earned by the application of the usual 1.5 to 1 rule is not unreasonable. Accordingly, I am of the view that Mr. Kirkeby approaches this sentencing with one year's credit for pre-sentence custody.
[47] I am satisfied that the time Mr. Kirkeby spent on house arrest reasonably entitles him to credit for the equivalent of six months' imprisonment.
[48] It appears that at the time of these offences and for some time before the offences, Mr. Kirkeby was living the life of a libertine, "earning" money in a variety of ways whose common thread was their illegality: drugs, earnings from prostitution and thuggery. He has pleaded guilty to those offences. I mentioned earlier that Mr. Kirkeby's trial has taken a very long time. If there is an up-side to the length of this trial it is that the delay has given Mr. Kirkeby an opportunity to free himself from his house-arrest and to demonstrate if he has learned anything from the process. It appears he has. Once the house arrest was lifted, Mr. Kirkeby obtained employment within days. He has kept that job up to the time of sentencing. He has paid off many of his debts and has a payment plan in place for the others. It is still early days, but there are reasons to be optimistic that Mr. Kirkeby's world view may have re-aligned itself with society's norms.
[49] "The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society". So says s. 718 of the Criminal Code. Those objectives must be accomplished by denouncing unlawful behaviour, by deterring offenders and others from engaging in such crimes and by aiming to rehabilitate offenders and allow them to make reparations to their victims. In many offences there is an individual victim and society itself is a victim of all crimes.
[50] Jail is to be used only when necessary and only to the extent necessary. Parliament has expressed its view that the child pornography offences are so serious that jail is always required.
[51] I have reached the following conclusions about the appropriate sentences for Mr. Kirkeby, taking into account the nature and facts of each set of offences, Mr. Kirkeby's previous criminal record, his guilty plea and his accomplishments since his release.
[52] As I have said, the child pornography offences are at the lower end of the range and Mr. Kirkeby's possession and use of child pornography was very much atypical. I doubt that there is any further need for specific deterrence in relation to Mr. Kirkeby on this offence and the relevance of general deterrence on such a peculiar fact scenario is debatable. In any event, the year that Mr. Kirkeby has effectively spent in pre-sentence custody clearly satisfies the needs of denunciation and deterrence and the mandatory minimum. He shall be given credit for a year of pre-sentence custody and shall be placed on probation for three years.
[53] The prostitution and avails offences are serious insofar as the sex trade carries with it an extremely high risk of exploitation, manipulation, degradation and control, often of vulnerable young people. As I have said, however, the facts of this case bring Mr. Kirkeby's conduct down to the lower range of offences. The equivalent of six months that Mr. Kirkeby has served in the form of pre-sentence house-arrest adequately addresses the need for denunciation and deterrence. The information shall show credit for six months of pre-sentence custody and he shall be placed on probation for three years.
[54] The marihuana and proceeds offences merit a fine of $1,000 on each count. The failure to comply charge would normally merit a sentence in the range of thirty to sixty days given Mr. Kirkeby's record, including the gaps in that record. However, that period is subsumed under the principle of totality and accordingly, he shall be granted a suspended sentence on that charge, plus probation.
[55] The probation term shall run concurrently on each count to which it applies. It shall include a condition that Mr. Kirkeby perform two hundred hours of community service as a means for him to make reparations to society for his offences. He is not to have any contact with the complainant on the procuring offence. He will attend for counselling as directed by probation and shall make reasonable efforts to maintain suitable employment and/or pursue education. There will be a DNA order for the primary child pornography offences as well as the secondary CDSA offence, the secondary possession of proceeds and the secondary offence under s. 212. There will be a SOIRA order for life. This is not a case for making any order under s. 161 of the Criminal Code insofar as I am not satisfied that Mr. Kirkeby poses the risk that s. 161 aims to protect against.
Released: 23 March, 2018