Court File and Parties
Ontario Court of Justice
Date: 2018-04-04
Court File No.: Kitchener Info # 16-2509, 17-1157
Between:
Her Majesty the Queen
— and —
Robert Chislette
Before: Justice Scott Latimer
Heard on: March 21, 2018
Reasons for Judgment released on: April 4, 2018
Counsel:
- Michael Dean, for the Crown
- Bruce Ritter, for Robert Chislette
LATIMER J.:
I. Introduction
[1] Robert Chislette has pleaded guilty to possessing child pornography, making it available to others, and breaching a condition of his bail by being in proximity to children under the age of eighteen years while on pre-trial release. We have conducted a sentence hearing where I have received considerable information about Mr. Chislette as a person and the circumstances of the possession and make available offences.
[2] The Crown has elected to proceed by indictment on the s. 163.1 Code counts, and summarily on the s. 145(3) offence. This means that the lowest sentence legally available is twelve months custody. Mr. Chislette recommends a total sentence between twelve and eighteen months, while the Crown submits that eighteen months is most appropriate. Both parties suggest that I impose concurrent sentences on the child pornography offences.
[3] For the reasons that follow, I am imposing a total sentence of eighteen months jail. There are also a variety of ancillary orders being sought by the Crown; the majority of which are not contested by the defence. I will address those orders at the close of these reasons.
II. Facts
A. The child pornography offences
[4] Paradoxically, the internet is both isolating and interconnected. Mr. Chislette spent considerable time alone on his computer at home, in the basement, accessing locations on the internet that provided access to child pornography and other sexualized images of children. This online activity required that Mr. Chislette's computer provide an internet protocol (IP) address to these websites. His IP address was also made visible to other computer users, including police officers investigating criminal activity online. Once an IP address is identified and associated to online criminality, it is a relatively simple step for the police to obtain production of the related subscriber's home address. So it was that the police identified Mr. Chislette and seized a variety of electronic devices from his home.
[5] Mr. Chislette came to police attention in August 2015, when he created a user profile on a Russian website that is commonly known by law enforcement to facilitate the sharing of child pornography. Mr. Chislette posted sexualized images and documented a willingness to distribute similar material. He subsequently emailed, on two discrete occasions, digital files to an undercover police officer posing as a child pornography consumer. The material transferred met the Canadian Criminal Code definition of child pornography.
[6] A search warrant was executed on April 26, 2016 at the defendant's home. Mr. Chislette confessed to the officers, during the warrant's execution, that he had been accessing child pornography on his computer. Various devices were seized and forensically analyzed. Mr. Chislette provided an additional statement, post-arrest, where he acknowledged his online conduct and indicated a sexual interest in young boys which had motivated him, at times, to attend local schools and swimming areas to watch children. I stress, however, that there was no suggestion or admission of any hands-on criminal offending in the facts I received on this plea.
[7] Forensic examination of Mr. Chislette's devices revealed the existence of a Dropbox account – a cloud-based computer file repository – that was also being made available to other computer users. This repository contained an unspecified amount of child abuse images. The s. 163.1(3) make available count relates to the Dropbox account and the material distributed by email to the undercover police officer.
[8] Additionally, the forensic examination revealed an enormous amount of files on Mr. Chislette's devices that meet the Code definition of child pornography – 3,555 images and 2,155 videos. I note that it must have taken, even by modern data transfer standards, a considerable amount of time to download this quantity of material.
[9] During the sentence hearing I was shown a representative sample of ten movies and ten images. I do not propose, in the circumstances, to exhaustively review these images. I have seen them. They are described in writing in Exhibit 2. Suffice to say, there is a decision called R. v. Oliver, [2002] EWCA Crim 2766, from the English Court of Appeal that developed a categorical scale for child abuse images. This is a scale that has been adopted by trial courts in this province and the Nova Scotia Court of Appeal: see R. v. Levin, 2015 ONCJ 290, at para. 53; R. v. Dienaar, 2007 CarswellOnt 4819, at para. 23; R. v. Missions, 2005 NSCA 82, at para. 14. In Oliver, the English Court categorized the relevant levels as:
(1) images depicting erotic posing with no sexual activity;
(2) sexual activity between children, or solo masturbation by a child;
(3) non-penetrative sexual activity between adults and children;
(4) penetrative sexual activity between children and adults;
(5) sadism or bestiality.
[10] Mr. Chislette's images rise to the fourth category. This is normally considered to be a significant aggravating feature. There is penetrative sexual activity between adults and children, including anal intercourse, that involve children as young as three years old. The children depicted in these images portray a variety of facial emotions including uncertainty, confusion and fear. I consider the character of the images possessed by the offender to be a significant aggravating feature on sentence.
B. The breach of bail offence
[11] With regard to the breach of recognizance, while Mr. Chislette was on judicial interim release he attended a retirement party where children were present. He misunderstood the terms of his bail and thought he was permitted such association. He was not. He was arrested and charged with violating the terms of his bail.
C. The circumstances of the offender
[12] Robert Chislette is sixty-nine years old. He has led, by all other accounts, a positive, meaningful life. He has no prior criminal record. I have received letters of character and support that describe him as a kind friend and husband. These letters are favourable evidence for the defendant.
[13] I have also received material from his family doctor and a report from a therapist, Mr. James Loh, wherein he documents the steps that Mr. Chislette has taken following his arrest to begin addressing the paraphilia – my word, not the therapist's – that he has wrestled with for some time. Mr. Chislette is described as a textbook patient who has been open and honest during his counselling sessions.
[14] I have also received a pre-sentence report that repeats much of the information I have documented above. It also describes the negative impact these charges have had on the offender's family and social contacts. He and his wife have been ostracized, to a degree. I note as well Mr. Chislette's comments to a life-long friend, "I'm a sick man who needs help and I am glad I got caught". These comments, along with the significant treatment-based steps Mr. Chislette has already taken, suggest that he is a strong candidate for rehabilitation, and that specific deterrence is of lesser concern here than in other cases.
[15] Mr. Chislette has also written a letter for my review. Within this letter, he makes an important observation that I have reproduced below:
First off I would like to apologize for the things I have done. Over the years I have looked at these things as a victimless crime just looking at pictures and videos. With the help of Jim Loh's therapy and counselling I have come to realize that this belief is furthest from the truth. Somewhere along the line these young people have been forced either with physical force, alcohol/drugs or some other form of abuse. I know that these unspeakable things are a crime against humanity and I am in part responsible. These things would not be possible except for people like me who were members of an audience.
III. Child pornography sentencing principles
[16] The Ontario Court of Appeal has repeatedly stated that deterrence and denunciation are the paramount sentencing principles in the child pornography context. The specific sentencing ranges for possession and make available are helpfully and thoroughly reviewed by Justices Woollcombe and Henderson, both of the Superior Court of Justice, in R. v. John, 2017 ONSC 810, and R. v. Bock, 2012 ONSC 3117, respectively.
[17] In R. v. D.G.F., 2010 ONCA 27, Justice Feldman, writing for the Court of Appeal, made the following important observations about child pornography in paragraphs 21 and 22 of the judgment:
Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately: see, for example, R. v. Sharpe, 2001 SCC 2; Kwok. A number of relatively lenient sentences had been imposed in cases where child pornography was downloaded or distributed, there was no sexual abuse or making of child pornography involved, and there were many mitigating circumstances: see for example, R. v. Schan; R. v. Weber; R. v. Kim. However, in cases that involved making child pornography and child sexual abuse, significant custodial sentences were imposed: see, for example, R. v. Jewell; R. v. W. (R.), [2001] O.J. No. 2810.
Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.
[18] The next year a panel of the Court, in R. v. Nisbet, 2011 ONCA 26, stated the following in the first paragraph of their endorsement:
Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.
[19] The past fifteen years have seen a significant escalation in the sentences commonly imposed for possession of child pornography and making such material available to others. The mandatory minimum sentences that currently exist in s. 163.1 of the Code are a statutory acknowledgment of the important considerations articulated by the Court of Appeal in D.G.F. and Nisbet.
[20] This is not to say that rehabilitation is irrelevant in child pornography cases - far from it. Only that it has secondary importance. In this case, both parties have placed significant weight on Mr. Chislette's remorse and his significant insight into his offending and its consequences on the ultimate victims - the young children who are raped and otherwise forced to engage in coercive sexual activity. As Mr. Chislette properly acknowledges, to his credit, his conduct fuels the sexual abuse of children worldwide. In a digital world, we are all interconnected. This creates significant societal advantages and misfortunes. It means, sadly, that we live in a time when child abuse can be recorded and disseminated to all corners of the world, including Mr. Chislette's basement, with incredible ease. This is conduct that the criminal courts are obligated to denounce, and hopefully deter, whenever possible.
[21] In R. v. Covert, [2015] O.J. 3488, Justice James Stribopoulos received evidence from a child abuse survivor who had images of her abuse widely disseminated across the internet. Justice Stribopoulos referred to that impact statement in paragraph 8 of his judgment:
There is information before the court detailing the impact of Mr. Covert's actions on at least one of the victim's in this case. Mr. Covert's video collection included videos of a girl known by the pseudonym "Vicky". The videos show Vicky's sexual abuse by her father, who has since been prosecuted and imprisoned for his crimes. The Crown filed a statement prepared by Vicky. In it, Vicky effectively captures the harm occasioned to victims like her by offenders like Mr. Covert, who download videos of the sexual abuse she endured as a child. In her statement she writes,
"The distribution of these pictures grows bigger and bigger by the day and there is nothing I can do about it. The enormity of this has added to my grief and pain and given me a paranoia. I wonder if the men I pass in the grocery store have seen them. I feel totally out of control. They are trading around my trauma like treats at a party and it feels like I am being raped all over again by every one of them. It sickens me to the core, terrifies me, and makes me want to cry."
[22] The recent upward trend in sentencing in this area is, in part, an acknowledgment of the fact that child pornography consumers contribute to the global victimization of children who are forced, as Justice Feldman noted in D.G.F., to be props in a perverted show. This victimization continues as the images are viewed and disseminated in perpetuity to an ever-widening audience online.
[23] In the present case, children are not the only ones victimized by Mr. Chislette's conduct. His wife, aged 71, has been devastated by his conduct. She suffers certain infirmaries and requires his assistance with daily tasks, including driving. Fortunately, it appears there is a social circle of friends who can assist her during her husband's inevitable period of incarceration. I consider the clear negative impact a lengthy sentence will have on her as a significant feature of this case, one that the Crown has clearly placed great weight on.
IV. Analysis
[24] A proportionate sentence looks to the gravity of an offence and the character and responsibility of the offender. Some of the most difficult sentence decisions involve good people who do terrible things. This is such a case, admittedly made easier by the position taken by the Crown on sentence – eighteen months.
[25] In my view, the jurisprudence places the offender's conduct higher up in the applicable range of sentence. There are offence-specific aspects of this case that warrant a penitentiary sentence. I would catalogue those aspects as:
The specific acts of distribution, via email, to the undercover officer;
The fact that illegal material was additionally made available through the Dropbox program, and;
Most significantly, the enormous amount of illegal videos and images possessed by the offender, material that is considered particularly aggravating on the Oliver scale.
[26] I observe the sentences imposed by the Superior Court in Bock and R. v. Pelich, 2012 ONSC 4100. In Bock, a sixty-seven year old first offender pleaded guilty to possession and make available. He possessed 381 images and 1,007 videos, described as some of the vilest material that an experienced officer had ever seen: see Bock, at para. 13. A thirty-three month jail sentence was imposed. In Pelich, a forty-five year old first offender was found guilty of possession and make available. The facts involved possession of over 5,000 images and 92 videos. A four-year sentence was imposed. In my mind, there is not a great deal of difference between the circumstances of these two cases – particularly Bock – and the present one.
[27] To be clear, there are also authorities more in line with the Crown's proposal before me: see, for example, R. v. Davies, 2012 ONSC 6021 (where fourteen months jail was imposed), and R. v. Barmashi, 2016 ONSC 149 (eighteen months). In making the above comments I do not mean to suggest that the Crown's sentence position in this case is without jurisprudential support.
[28] What drives the ultimate sentence in Mr. Chislette's case, and what no doubt informs the current sentence recommendation, are some of the offender-specific aspects applicable here, such as:
The guilty plea, in a case that could have involved challenges to a search warrant obtained many months after online activity;
The impact of the length of sentence on Mr. Chislette's wife, an innocent third party;
The level of insight and remorse shown by the defendant;
The rehabilitative steps taken by Mr. Chislette so far; and
The availability of public protection through some of the related ancillary orders.
[29] In conclusion, the statutory minimum sentence of twelve months is presently insufficient; the aggravating features of this case require a longer sentence, notwithstanding the guilty plea and Mr. Chislette's positive prospects for rehabilitation. In the circumstances of a negotiated guilty plea, there are valid public interest reasons to accord the parties' positions significant deference: see, generally, R. v. Anthony-Cook, 2016 SCC 43, at paras. 32-37. The defendant has pleaded guilty on the understanding that the Crown will seek a particular sentence. I will therefore accede to the Crown's recommendation on sentence.
V. Disposition
[30] The information will reflect the following custodial sentences:
Making child pornography available – eighteen months jail
Possession of child pornography – eighteen months jail, concurrent
Breach of bail – thirty days jail, concurrent
Released: April 4, 2018
Signed: Justice Scott Latimer