Court Information
Information No.: 0411-998-17-R1840
Date: May 2, 2018
Ontario Court of Justice
Her Majesty the Queen
v.
Lance C. Golding
Reasons for Sentence
Delivered by the Honourable Justice J. Bourgeois
on May 2, 2018, at Ottawa, Ontario
Appearances
For the Crown:
- K. McVey, Counsel
- V. Stewart, Agent
For Lance C. Golding:
- A.M. McElroy, Counsel
Reasons for Sentence
BOURGEOIS J. (Orally):
Guilty Pleas
Mr. Lance Golding entered the following guilty pleas:
1. Between the 8th of July, 2015 and August 2015
Making available child pornography videos, contrary to s. 163.1(3), a straight indictable offence punishable by a minimum term of one year jail and no more than 14 years.
2. July 8th, 2015
Possessing child pornography videos, contrary to s. 163.1(4) of the Criminal Code. The Crown proceeded by indictment, therefore also punishable by a minimum term of one year jail but not more than 10 years.
3. September 9th, 2015
While bound by a probation order made by the Ontario Court of Justice, Justice Nadelle, in November 2014, fail to comply with a condition to keep the peace and be of good behaviour, contrary to s. 733.1 of the Criminal Code. The Crown proceeded by indictment on that count, and the offence is punishable by a maximum term of four years jail.
Ancillary Orders
The applicable ancillary orders here are:
Section 161 of the Criminal Code – may be for life or any shorter duration. The Crown is seeking 10 years, while defence counsel is seeking five years, with conditions pursuant to that section.
A DNA order – is a primary compulsory designated offence in relation to the child pornography counts.
A SOIRA order – for life as there are two counts.
A forfeiture order – of the seized hardware and drug paraphernalia is also sought.
Factual Background
On July 8, 2015, Detective Spence of the OPP Child Exploitation Unit initiated a peer-to-peer investigation using the Internet Crimes against Children Database. He identified a computer IP address associated with suspected child pornography sharing on the Gnutella Network. He was able to make a direct connection to that IP address and obtained a list of files reported as being shared to the Network. He was able to access and obtain files shared or made available by that computer. He was able to download three files from it in the shared files directly from the computer in question.
The files were identified as follows:
"PTHC" (meaning preteen hard core), titled "obeying Daddy 2010". This movie depicted a young female under the age of 13, she had no breasts and was performing fellatio on a penis.
A second file, "PTHC center opva 2014 naked 10yo". This movie depicted a prepubescent young female under the age of 12, no breast development, naked on the floor with her legs apart masturbating with her hand.
Finally "PTHC 2013" titled "PTXX OPVA 2012 cute brunette girl 11yo spreading legs". This movie depicted a young female under the age of 12 exposing her vagina and anus, using both hands to spread apart her vagina.
A production order was granted and the results received from Bell Canada revealed the identity and address of the subscriber of the IP address. A search warrant was obtained and executed on September 9th, 2015. As the officers entered the residence, Mr. Golding was observed by an officer in the backyard dropping a red bag from the window. It contained several sandwich bags containing 75.45 grams of marijuana, two digital scales and dime bags. The search revealed a laptop in the recycling bin and discarded hardware in the kitchen garbage. Mr. Golding admits being the owner of those seized items.
Detective Lorenz, the assigned Computer Forensic Technician, was able to perform a preliminary analysis of the hard drive and ascertained the presence of child pornography. Detective Carr of the OPS Internet Child Exploitation Unit viewed three videos in the C-drive of the computer meeting the definition of child pornography. One of those videos was titled "PTHC 2013 ptxx opva 6yo April 2013 1st facial". It had been last modified on August 31st, 2015 at 6:33 p.m. Written text on the video indicates, "April loves my cock" and "April's first facial". The video depicts a young female, prepubescent, age approximately six or seven years old, licking an adult erected penis, the male then ejaculating in her face. The child tries to cover her face with her hands when a male's voice is heard telling her to move her hand. The child appears to be whimpering and the male tells her to calm down. The video ends with a written caption, "Bye Love April xoxoxo".
Further forensic analysis of the computer revealed a total of 612 images of child pornography (527 unique images) and a total of 168 movies of child pornography (164 unique videos).
Lance Golding was still bound by a probation order imposed by Justice Nadelle on November 18th, 2014 following two convictions for theft under $5,000 where a six-month conditional sentence order was imposed along with one-year probation. He was bound by a condition to keep the peace and be of good behaviour.
He was arrested on October 13th, 2015 and charged with the child pornography offences. He spent 12 days in custody before being released.
Detective Carr testified at the sentencing hearing and explained that investigations come in three ways:
From computer repair shops.
From the National Child Exploitation Canadian Centre, the NCECC, ran by the RCMP. When receiving activity on their platform, they associate the address to the IP address and assign the investigation to the police force in that geographical area.
And, finally, from proactive investigation, monitoring through peer-to-peer networks such as in this case.
She testified that the number of files to investigate reactively have doubled in numbers since her joining the ICE Unit three years ago. On average there are between 80 to 100 IP addresses daily in possession of known child pornography in the Ottawa area alone. The limits on resources and the advancement of technology have proven to render those investigations more and more challenging. She also explained the nature of the collections, images shared and possessed. She also indicated through Exhibit 6, that the statistics of child pornography are increasing, rising by 121% from 2011 to 2013, but a 488% increase was noted from 2011 to 2017.
Detective Carr had prepared a representative sample of 10 images and 10 videos for the court in this case. The parties agreed five of each would suffice to convey the nature of the child pornography found on the accused's computer. The age of the children, male and female, ranged between 6 to 14 years of age, the activities depicted in the videos or images ranged from cunnilingus to fellatio, to penetration of fingers, penis or sex toys; bestiality or group assaults.
The detective also testified that one in particular depicted a four-year-old boy anally penetrated by an adult penis; another video depicted a young boy assaulted by more than one male penetrating him.
All this material was made available to anyone in the world downloading the free application for that Gnutella Network. She explained that even though the person has to initiate the download by double-clicking on the file name to download it, the person does not have to be sitting at the computer while downloading. In this particular case, she explained there was no evidence of chatting and no evidence of organized or structured saved folders, but rather qualified this collection as an unsophisticated file structure.
A trial date had been scheduled for this matter where eight days had been set aside. Approximately one week prior to the start of the trial, Mr. Golding advised the Crown through his counsel of his intention to resolve the case by entering guilty pleas. A full forensic analysis report had been completed then by Detective Lorenz, consuming approximately three weeks' worth of work dedicated to this report.
Pre-Sentence Reports and Assessments
I have had the benefit of reviewing reports prepared for the purpose of sentencing. All have been filed as exhibits to this sentencing hearing:
A s. 21 Mental Health Act sexual behavioural assessment completed by Dr. Gray from the Royal Ottawa Health Care Group, dated September 26, 2017.
A Gladue letter, one dated November 3rd, 2017 explaining why a full report would not be completed, and a further letter dated November 10th, 2017 with information relating to Mr. Golding.
A pre-sentence report dated March 1st, 2018.
A John Howard Society letter dated March 2nd, 2018 from his Bail Supervisor.
Accused's Background
Mr. Golding just turned 46 years old earlier this year. He has an important adult criminal record dating back to 1991, mainly related to property-related crimes and breaches of court orders and two convictions related to possession and possession for the purpose of trafficking in drugs in 2005 and 2007. He also has a conviction as a young person related to a sexual assault against a member of his family at the time.
His parents separated when he was approximately six months old, shortly after the death of his twin brother. The information gathered through the Gladue letter informs that his mother suffered sexual abuse as a child and the trauma impacted her mental health. Following his parents' separation, his father had his custody and Mr. Golding did not remain in close contact with his mother throughout the rest of his life.
His father remarried when he was a toddler. Neither of his biological parents have Aboriginal ancestry but his stepmother is Aboriginal and a band member of the Algonquins of Pikwakanagan First Nation in Renfrew County. Even though they lived in Ottawa during his childhood, they often went to Pikwakanagan on weekends and holidays. He was never close to his stepmother either but described a closer relationship with his father.
To the Gladue letter author, his father could not be sure of his son's participation in cultural events such as the annual pow wow in Pikwakanagan. Mr. Golding, however, expressed frustration about this as he stated to the PSR author having childhood memories about such community events.
He has a stepsister and a half-sister from the union of his father to his stepmother. He was exposed to the alcoholism of his father and was aware his father was convicted of sexual interference against his stepsister when Mr. Golding was in his early teen. As a result, he and his father moved out into their own apartment for several years after that.
He disclosed being a victim of sexual assault to the hands of a friend of the family, either between the ages of 10 and 12 or 12 to 17 depending on whether one reads the Gladue letter or the PSR. While in grade 9, he sexually assaulted his half-sister, leading to further estrangement from his stepmother. He was ultimately banned from the Pikwakanagan reserve and left the home around age 18.
He started experiencing with drugs and alcohol in his early 20's. He became involved with motorcycle gangs during his 20's and 30's and also became involved in a criminal lifestyle, accumulating the convictions on his criminal record mainly related to crimes of property between 1991 and 2014, including a number of breaches of court orders and a conviction for drug trafficking in 2007 resulting in a penitentiary sentence. It is during this period of incarceration that he became involved with the Native Brotherhood self-help group offered to offenders for both Aboriginal and non-Aboriginal inmates. As indicated at p. 10 of his PSR, he did not seek out or engage in such related programs after his release from custody, but he gradually returned to criminal activity.
Through the Gladue letter, it appears he had an appointment scheduled for November 21, 2017, with an Elder for a one-on-one meeting at the Iskotew Lodge available through Health Canada. However, no information is available in relation to his attendance.
The accused has eight children with four different women. His oldest is 24 years of age and his youngest, twins, are two years old. He was in jail for the birth of four of his children.
Mr. Golding also had some success in securing employment throughout his adult life, mainly in the food industry or as a labourer or a bouncer or a security doorman.
Even though offered and available through probation services, after being charged with these offences and while still bound by his probation order, he started counselling sessions with Dr. Keith McFarlane, a Psychologist. Through the John Howard Society Bail Supervision Program, following his release from custody on these charges, he participated in the Time for Change - Gang Exit Strategy Program. He also explained to the PSR author that these charges caused his former criminal associates to fully distance themselves from him and allow him to effectively completely cut all ties with such lifestyle.
Indeed, in relation to the index offences, we can read at p. 11 of the PSR:
"He also accepts responsibility for the index offences, however firmly opposes any suggestion that he accessed the material for sexual gratification. He firmly resists the notion that he is now branded as a 'pervert' or a 'paedophile' (…)".
We can also read in the PSR, at that page:
"The subject expresses a great deal of sadness and pain at the thought of what the children in the images he viewed suffered and connects this to his own victimization. He expresses he accessed the material in an effort to better understand what might have been the motivation of his perpetrator. As well, he expressed that he was very confused by the repeated history of sexual victimization and perpetration in his family and attempted to find answers in the materials he accessed."
A sexual behavioural assessment report was also prepared pursuant to s. 21 of the Mental Health Act, by Dr. Gray of the ROH. At p. 7 of the report, we learn that on January 15th, 2001 Mr. Golding attended the Sexual Behaviours Clinic at the Royal Ottawa Mental Health Care Group for an assessment as he wanted to reunite with his family following the apprehension of his children by the CAS. Dr. Ellis concluded at the time that "while the risk of recidivism of an incestuous nature is low, I feel that Mr. Golding would nevertheless, benefit from help in the area of his sexuality, and I would recommend a sexual education group such as that offered at our Clinic." Dr. Gray noted that Mr. Golding had no further involvement at the clinic until this present assessment.
Dr. Gray communicated with Dr. McFarlane and noted that out of the 32 scheduled sessions, he attended 21; Mr. Golding did not attend three of them and cancelled eight. Both doctors also noted that Mr. Golding alluded to being the victim of sexual abuse as a child but did not want to speak about it or give details about it. Dr. McFarlane's impression about the accused's biggest trauma was noted to be his abandonment by his family after his sexual misconduct against his half-sister.
Following the assessment, which included phallometric testing, Dr. Gray concluded to the following possible diagnoses:
Symptoms consistent with a diagnosis of PTSD.
Appears to continue to manifest symptoms of childhood ADHD as an adult.
May have suffered from substance abuse disorder at some point, but it does not appear to be a current issue.
And, finally, pedophilic disorder is possible, but very unlikely.
Dr. Gray assessed his risk of recidivism at pp. 24 and 25 and opined that his "risk of a future sexual offence would be low".
Position of the Parties
The Crown seeks a global sentence of 39 months penitentiary term allocated as follows:
3 years on count 1, making the child pornography videos available.
18 months concurrent on count 2, possession of the child pornography videos.
3 months consecutive on count 3, breaching his probation order by failing to keep the peace and be of good behaviour.
Defence counsel, on the other hand, is seeking a global sentence of two years jail, leaving the option of imposing a probation order available.
Sentencing Principles
There is no doubt denunciation and deterrence are paramount principles when sentencing an offender for possession and making available child pornography. Consideration for the rehabilitation of the offender takes a secondary role in the sentencing process.
Through the last 10 and 20 years, courts have considered the sentencing principles and objectives in sentencing offenders for crimes related to sexual abuse against children.
Parliament has also reviewed the statutory sentencing regime for offences against children. During this same period of time, technology has proven to increase the challenge in investigating such offences and protecting children against those who perpetuate the victimization of our most vulnerable members of society, our children.
Counsel for Mr. Golding takes the position that this court ought to consider s. 718.2(e), the Gladue principle, in sentencing Mr. Golding because even though he is non-Aboriginal by heritage, he does have a connection to the culture as he was raised by an Aboriginal stepmother and self-identifies and relates to the Aboriginal culture.
Our court of Appeal recently said in R. v. F.H.L., 2018 ONCA 83, at para. 31:
The law is clear that courts must "pay particular attention to the circumstances of Aboriginal offenders" in all cases, even those involving the "gravest of offences": R. v. Van Every, 2016 ONCA 87, at para. 88; Gladue, at para. 82; Ipeelee, at paras. 84-87; R. v. Jensen (2005), at para. 27; R. v. (N.) J., 2013 ONCA 251, at para. 41. When sentencing an Aboriginal offender, courts must consider:
(1) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts;
(2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66).
The Court of Appeal reaffirmed in that decision that the offender does not have to demonstrate a causal connection between the "systemic or background factors" or his Aboriginal background and the commission of the offence. (paras. 32-35 and 38).
However, contrary to the accused in that case or in Kreko (2016 ONCA 367), Mr. Golding does not have an Aboriginal heritage but rather claims and indeed undoubtedly feels a "connection" to it.
The Gladue assessment is probably no different in this particular case than if Mr. Golding was of Aboriginal heritage. In R. v. F.H.L., the accused was of Aboriginal heritage and had been adopted by a non-Aboriginal family as a child. He was sentenced for having sexually assaulted his stepdaughter. At para. 38, the Court of Appeal stated:
Clearly, the mere assertion of one's Aboriginal heritage is insufficient – s. 718.2(e) does not create a "race-based discount on sentencing": Ipeelee, at para. 75. Although Aboriginal offenders are not required to "draw a straight line" between their Aboriginal roots and the offences for which they are being sentenced, more is required "than the bare assertion of an offender's Aboriginal status": R. v. Monckton, 2017 ONCA 450, at para. 115.
The Court of Appeal also reviewed the basis for such an assessment at paras. 39 to 41, as provided by our Supreme Court of Canada in Gladue and Ipeelee:
[39] It is also insufficient for an Aboriginal offender to point to the systemic and background factors affecting Aboriginal people in Canadian society. While courts are obliged to take judicial notice of those factors, they do not "necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel": Ipeelee, at para. 60 (emphasis in original); R. v. Radcliffe, 2017 ONCA 176, at para. 54.
[40] The correct approach may be articulated as follows. For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender's case. This approach finds support both in Ipeelee and decisions of this court.
[41] The Supreme Court made clear in Ipeelee, at para. 83, that systemic and background factors need to be "tied in some way to the particular offender and offence". LeBel J. went on to note that "[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence." LeBel J. elaborated on the concept of "culpability" at para. 73, explaining that "systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness."
The Court of Appeal then set out the proper approach in such assessment at para. 43:
[43] From a sentencing judge's perspective, adhering to this approach requires attention to two factors.
[44] First, a sentencing judge must take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canadian society. These factors include "such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples": Ipeelee, at para. 60. This list is not exhaustive.
[45] Second, a sentencing judge must consider whether those systemic and background factors "bear on the [offender's] culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing": Kreko, at para. 23. This inquiry, by necessity, requires the sentencing judge to consider whether those factors have impacted the offender's own life experiences – in other words, whether the offender has "lift[ed] his life circumstances and Aboriginal status from the general to the specific": Monckton, at para. 117; R. v. Bauer, 2013 ONCA 691, at para. 13. If systemic and background factors have impacted an Aboriginal offender's own life experiences, the sentencing judge must then consider whether they "illuminate the offender's level of moral blameworthiness" or disclose the sentencing objectives that should be prioritized: Radcliffe, at para. 53; Kreko, at para. 23.
It is to be noted that these cases all refer to accused of Aboriginal heritage. Mr. Golding is not of Aboriginal descent but has a connection to it. We can draw from the teachings of the Supreme Court of Canada and of our Court of Appeal that the same test or approach is applicable to both situations. When applying such assessment, I come to the same conclusion as the Ontario Court of Appeal in R. v. F.H.L., at paras. 49 and 50:
[49] Firstly, the evidence does not demonstrate that the systemic and background factors affecting Aboriginal peoples in Canada have impacted the appellant in a way that bears on his moral blameworthiness. In this case, the pre-sentence report and the Gladue report do not show that the appellant's reported childhood difficulties or alcoholism were linked to systemic, background or intergenerational factors related to his Aboriginal heritage. Unlike in Kreko, there is no evidence that (1) such factors contributed to the appellant's experiencing dislocation or an identity crisis coinciding with his involvement in the criminal justice system, or that (2) such factors otherwise impacted the appellant's moral blameworthiness: see Bauer, at para. 14.
[50] Second, even assuming the Gladue factors carried greater weight in this case, the nature of the appellant's offence cries out for deterrence and denunciation.
In fact, the evidence is of very similar nature in this case and, as such, I come to the same conclusion for Mr. Golding. He lived mainly in Ottawa but visited the Pikwakanagan reserve on weekends and holidays. He briefly lived on the reserve until he sexually assaulted his half-sister; he was never close to his stepmother; he reconnected with the Aboriginal culture while serving a penitentiary sentence in 2007. There is no evidence available on this record to draw an inference, a link, a connection or any other terminology referenced by Justice Brown in his reasons at para. 64 of the F.H.L. decision, between the offender and his background or the systemic factors.
This does not change the fact that this court will nevertheless take into consideration Mr. Golding's personal background, which can certainly be qualified as a difficult upbringing, and all other relevant factors to be considered in the sentencing process without specifically applying the Ipeelee and Gladue factors. The British Columbia Provincial Court recently considered a similar situation as Mr. Golding in R. v. Antoine, 2017 BCPC 333, and based on the circumstances of Mrs. Antoine, came to a similar conclusion.
Aggravating and Mitigating Factors
Aggravating Factors
From the case law and the circumstances in this case, the aggravating factors are the following:
The nature of the offence of child pornography is a crime against children, the exploitation of one of our most vulnerable members of society.
Making available child pornography not only contributes to further crimes but perpetuates the victimization of those children and other potential children victims.
The prevalence of this crime, as indicated by the data gathered in Exhibit 6, is probably one of the best indicators as to why it is aggravating to make such material available on such an easily accessible worldwide network.
The nature of the collection: from infants to young teenagers; boys and girls; victims of disturbing, violent and explicit sexual acts to the hands of adults, men, women, animals and objects; depicted in still images but also in video and audio recordings as movies, where the victimized child is not only seen but can also be heard crying or whimpering.
The size of the collection: 527 unique images (612 in total) and 164 unique movies (168 total) causing a high volume of different children being victimized.
His criminal record, unrelated to this nature of criminal conduct but depicting serious and repetitious criminality and lifestyle.
Mitigating Factors
There are mitigating factors also:
The accused had a difficult upbringing, being exposed to alcoholism and sexual assault.
He benefits from the support of his family and partner.
He took steps towards his rehabilitation through counselling with Dr. McFarlane and the John Howard Society Time for Change Program.
Even though late in the process, after resources had been used to prepare a full report and seven or eight days of trial were set aside for him, he did plead guilty, demonstrated some insight, albeit limited but expressed his remorse for his crimes.
He candidly and fully participated in the preparation of the various reports filed in this case: the Gladue letter; the PSR and the s. 21 Mental Health Act assessment.
Analysis of the Accused's Explanation
As many other persons accused of such serious crimes, Mr. Golding had an explanation, not a justification but a reason or, as expressed by Justice Ratushny in Lynch-Staunton in 2012, at para. 55, an excuse for his criminality. He tells the author of the PSR that he was trying to better understand the motivation of his own perpetrator for his victimization and that he was very confused by the repeated history of sexual victimization perpetrated by his own family. This is also coming from an individual who refers to his own deviant sexual conduct with his half-sister as "consensual" at the top of p. 14 of the s. 21 assessment when indeed, from the information gathered from the Gladue letter and the date of birth and conviction date, she would have been between the age of 9 and 11 if he was between the age of 15 and 17 at the time of that offence.
I do not accept this excuse, reason or explanation. This is a circular argument as it obviously misses the central point of the tragic harm the offence of child pornography causes to the children. It shows a lack of insight on his part. These crimes first make the children victims of the sexual assaults, committed during the recording on film or camera, and again by the distribution of the captured crimes on such media. In other words, children were victimized to create this horrific material, to allow him and others to view it - 527 times in photos and 164 times in movies - to help him understand victimization?
His criminal behaviour is so morally reprehensible that even his gang-related criminal associates have dissociated themselves from him, by cutting him off from the group.
As stated by our Court of Appeal in R. v. D.G.F., 2010 ONCA 27, at paras. 21 and 22:
[21] 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, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3; Kwok. (…)
[22] 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.
The data presented in Exhibit 6 also show a constant increase in the reports of online child sexual exploitation since 2011, in fact more than doubling its instances between 2011 and 2015.
Mr. Golding is not diagnosed with pedophilic traits from the s. 21 assessment and does not want to be portrayed as a "pervert" as stated in his PSR. Of course, he was not arguing this was a mitigating factor. Nevertheless, the evidence remains that he downloaded an important and varied collection of child pornography and made that collection essentially available to a worldwide public.
Our Court of Appeal in R. v. D.D., [2002] O.J. No. 1061 at paras. 40 to 42, have made its position clear on this point. The primary sentencing principles identified at para. 34 are equally applicable here: denunciation, general and specific deterrence and the need to separate offenders from society. Our Court of Appeal clearly stated at para. 35:
We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. (…)
Our Court of Appeal also explained in R. v. Woodward, 2011 ONCA 610 at para. 58, that previously established ranges need to be revised according to Parliament amendments of maximum punishment and from properly-tendered evidence of the offence being or becoming a pervasive social problem. The Court of Appeal opined that stiffer sentences "might well be warranted to deter, denounce and separate from society adult predators who commit this insidious crime" of luring children in that case.
Indeed, such amendments to the child pornography sections of the Criminal Code have been adopted over the recent years, increasing the maximum but also the minimum sentence over the recent years, and the gathered data tendered in evidence clearly demonstrate the serious and pervasive social problem related to these crimes and their investigations.
After reviewing the case law up to 2012, Justice Ratushny in R. v. Lynch-Staunton, supra, at para. 79, concluded the general sentencing range at the time for similar offences was between 9 months and 4 years.
Counsel also provided me with recent cases from 2016 and 2017 similar to this case, ranging from 12 months for possessing and accessing child pornography to 4 years for possession and making available the materials:
- R. v. Tweedle, 2016 ONCA 983
- R. v. Inksetter, 2017 ONCJ 574 - presently at the Ontario Court of Appeal
- R. v. Miro, 2017 ONSC 1330
- R. v. Beierle, 2017 ONSC 5377
- R. v. Schock (unreported, March 23rd, 2017, per Justice Alder from the Ontario Court of Justice)
- R. v. Andreyechen (unreported, November 2nd, 2016, also by Justice Alder)
- R. v. Johnson (unreported, November 18th, 2015, by Justice Webber from the Ontario Court of Justice)
- R. v. Longbone (unreported, January 30, 2018, by Justice Wadden also from the Ontario Court of Justice)
As a society, faced with the alarmingly increasing numbers of reports of online child sexual exploitation and the potentially increasing complexity of such investigation, we probably need to refocus our priority when allocating the limited public resources to protect our children. But from a criminal justice system perspective, courts have to impose sentences that speak to Parliament's intention and to sentencing principles. We cannot afford to pay lip service to such important duties and objectives. How else can the criminal justice system protect our children if not by the imposition of important sentences in crimes making them, "our most valuable and vulnerable assets", victims over and over again?
Conclusion
After considering the factual basis in this case, Mr. Golding's background, the sentencing principles and the case law presented by both counsel, I conclude a fit sentence in this case is as follows:
On the first count, making available videos of child pornography, contrary to s. 163.1(3): 3 years jail.
On the second count, possessing videos of child pornography, contrary s. 163.1(4): 18 months jail concurrently to the first count.
On the third count, breach of probation, the condition to keep the peace and be of good behaviour: 12 days pre-trial custody at 1.5 days is the equivalent of 18 days jail. I impose that plus one day concurrent, to consider the totality principles and reflect the gap in your criminal record for such related convictions in 2004 and 2000.
The global sentence is 3 years.
Ancillary Orders
The following ancillary orders for counts 1 and 2 are as follows:
DNA order
Section 109 firearm prohibition: A firearm prohibition for 10 years. This is a second order. In fact, it should be for life. So you are prohibited from possessing any firearms as described by the Criminal Code for the rest of your life.
SOIRA order: There are two counts, so that applies also for life.
Section 161 order: For a period of 5 years. The following conditions apply:
(a) You are prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, except with your own children or grandchildren in the presence of their mother or their parent or guardian or Cheryl Smith, your current partner.
(b) You are prohibited from 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.
(c) From 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 a person whom the court considers appropriate. There will also be an exception: unless in the context of lawful employment, dealing with and in public (i.e.: the food industry) or if a parent of the child is present.
(d) You are prohibited from using the internet, and this is as per R. v. Brar, 2016 ONCA 724 at para. 29 (2)(a). You will not use the internet or any similar communication service to (a) access any content that violates the law, and (b) directly or indirectly access any social media sites, social network, peer-to-peer network, internet discussion forum or chat room, or maintain a personal profile on any such service (e.g. Facebook, Twitter, Tinder, Instagram or any equivalent or similar service).
Forfeiture order: I will also order the forfeiture of all items seized by police following the execution of the search warrant at his residence on September 9th, 2015.
Victim fine surcharge: $600 payable over 5 years.
Closing Remarks
I want to thank both Ms. McVey and Ms. McElroy for the quality of their presentation and their assistance in this case. It was done very eloquently, very professionally, and as always they have shown their dedication to their profession. Thank you both for that.
Released: May 2, 2018
BOURGEOIS J.