WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:

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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4 (6) OFFENCE — Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2018-10-18

Between: Her Majesty the Queen — and — Gerald Seguin

Before: Justice A.T. McKay

Heard: October 15, 2018 in Kitchener

Reasons for Sentence Released: October 18, 2018

Counsel:

• Ms. C. Jennison, counsel for the Crown
• Mr. B. Ritter, counsel for the defendant Gerald Seguin

INTRODUCTION

[1] Mr. Seguin was charged with a number of offences related to child pornography. Ultimately, he pled guilty to one count of possession of child pornography contrary to section 163.1(4); one count of making child pornography available contrary to section 163.1(2); and one count of, by means of telecommunication, agreeing with a person to commit an offence under section 163.1 of the Criminal Code, thereby committing an offence under section 171.2 of the Criminal Code. As part of the resolution of the charges, the parties agreed that all other charges would be withdrawn, but the facts related to those offences would be considered as aggravating facts pursuant to section 725 of the Criminal Code.

EVIDENCE

[2] The parties agreed to the following factual basis for the plea.

[3] On September 8, 2016, Yahoo personnel noted the uploading of child pornography images through their browser and reported the violation to the US National Centre for Missing and Exploited Children. Ultimately, the information was forwarded to the Canadian National Child Exploitation Centre. An IP address related to the uploading was determined, and reported to Waterloo Regional Police Service. In January 2017, police reviewed the images and confirmed that they met the definition of child pornography. Further investigation led to a location of a residence in Kitchener, but information from the Internet service provider that the modem was cloned delayed the investigation further.

[4] On July 20, 2017, an anonymous cyber tipster reported an Internet chat relay in which a user with the user name "uphertinybum" had provided child pornography links to the anonymous tipster. The user posted various items in the chat room related to the abuse of young children, fantasizing about killing prostitutes and their children. The additional information provided by the tipster led to the execution of a search warrant at Mr. Seguin's residence on July 25, 2017. Mr. Seguin was home alone at the time the warrant was executed. Computer devices were searched and police located child pornography images. Mr. Seguin was arrested, charged and then subsequently released on a recognizance.

[5] Police then carried out an analysis of the digital devices seized. Additional information, primarily the chat logs related to child abuse, was discovered. On December 7, 2017, additional charges were laid against Mr. Seguin. He was arrested and subsequently held in custody after a bail hearing. He has remained in custody since that date.

[6] With respect to the Internet chat logs, there are numerous conversations in which Mr. Seguin conversed explicitly about his interest in sexually abusing children. He stated that he was a chat user for years, was a pervert, pedophile and sexual sadist. He spoke in numerous conversations of his interest in raping and killing children. He accessed numerous chat channels dedicated to the sexual abuse of children. In conversations, he boasted to others about drug addicted hiring prostitutes to sexually abuse their children. He counselled others about abusing children, and openly discussed having abused a child as young as five years old. In one conversation, he indicated "I like to encourage budding child molesters". In a conversation with a female understood to be residing in the U.S., they discussed their shared desire to sexually assault and torture her children. In other conversations, he stated to other users that he wished to rape his nieces. In those conversations, he shared true photos of his nieces, and spoke about having stolen their underwear in the past. During the subsequent investigation, police located his nieces in the U.S. and corroborated the information regarding their ages, names and the likenesses of the photos which were shared.

[7] In other chats, he spoke about avoiding the law. At one point, he indicated "there are literally thousands of people having conversations right now… John Q Law does not have the resources to track, trace and act on them".

[8] The defence admitted that Mr. Seguin was the author of those writings, but indicated that the claims made during the chats were bravado and lies and that Mr. Seguin never actually participated in any of the activities that he described. In terms of images recovered from the digital devices, 47 images and two videos met the definition of child pornography. On the Oliver scale for depravity, some of the images fell into category five, the classification highest on the scale of relative depravity and violence. It is agreed that the material contained in the chat logs includes written child pornography, some of which would also fall into category five. The written material was described by the investigating officer as the most egregious that he has ever seen in his seven years working in the Internet Child Exploitation Unit. He is the categorization officer of that unit. The defence did not dispute that characterization.

[9] Representative samples of both the images and the written material were filed. I do not intend to quote from the written material. It is particularly vile, and would shock any reasonable member of the public by the level of depravity expressed in the material.

POSITIONS OF THE PARTIES

The Crown

[10] The Crown takes the position that the aggravating features of this case include the fact that the collection of images and videos includes material which is on the highest scale of the Oliver scale for depravity. In addition, one of the most aggravating features is the written pornography composed by Mr. Seguin, which goes beyond sadism to grotesque writings regarding the sexualized murder of children. A global sentence in the range of three years imprisonment is required to adequately address the sentencing considerations.

The Defence

[11] The defence points out some of the challenges faced by Mr. Seguin during his childhood, including being the victim of abuse himself. The defence points out that Mr. Seguin has a strong support system in the community. He has been employed for most of his adult life and does not have any substance abuse issues. He has been involved in several age-appropriate relationships over his life and currently has a common-law spouse and nine-year-old son. The defence submits that Mr. Seguin is extremely remorseful. Mr. Seguin filed two letters with the court expressing and outlining his remorse, and a renewed commitment to his religion. Mr. Seguin began counselling after the original charges were laid and is both willing and anxious to continue that counselling. He has insight into the errors in his thinking pattern and notes that he never intended to carry out any of his written fantasies.

[12] The defence acknowledges that denunciation and deterrence are primary sentencing considerations for these types of offences. However, the defence points to Mr. Seguin's early acknowledgement of guilt and the difficulty which he has had while in custody, including an assault which resulted in a broken nose. In addition, the size of the collection was not large. The defence position is that a total sentence of 18 months is appropriate.

APPLICABLE LEGAL PRINCIPLES

[13] The Ontario Court of Appeal has repeatedly stated that deterrence and denunciation are the paramount sentencing principles in the context of child pornography. Courts have more and more come to understand both the extent and the effects of the creation and dissemination of child pornography. Modern communication tools have facilitated the widespread distribution of pornographic material related to children. As pointed out by the Court of Appeal, the victims are innocent children who become props in a perverted show for an ever-increasing audience. Child pornography consumers contribute to the global victimization of children as the images are created, viewed and disseminated in perpetuity. Rehabilitation remains an important principle of sentencing on these charges, but any sentence imposed for these types of offences must reflect society's abhorrence for acts which victimize some of the most vulnerable members of our society. Sentencing courts must clearly and unequivocally communicate society's condemnation of such offences.

[14] The size and nature of the collection, including the age of children involved in the relative depravity and violence depicted, are some of the considerations featured in decisions. The English Court of Appeal decision of R. v. Oliver, [2002] E.W.J. No. 5441, created the scale referring to five levels of child pornography as follows:

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; and
5. sadism or bestiality.

[15] Counsel have referred the court to a number of decisions in this area of the law (for example, R. v. Inksetter, 2018 ONCA 474; R. v. Carlos, 2016 ONCA 920; R. v. Levin, 2015 ONCJ 290; R. v. Tweedle, 2016 ONCA 983; R. v. Chislette, [2018] O.J. No. 1749, and others).

[16] Sentencing is always an individualized exercise, guided by the principles set out in section 718 of the Criminal Code. Section 718.01 specifically provides that in sentencing for an offence that involved the abuse of a child, the court shall give primary consideration to the objectives of denunciation and deterrence. Sentences must be proportionate to the gravity of the offence. Arriving at an appropriate sentence involves an examination of the gravity of the offence and the character and responsibility of the offender.

ANALYSIS

[17] In terms of the circumstances of Mr. Seguin, he is a 53-year-old man with no criminal record. He was victimized as a child. He suffers from depression. Notwithstanding that, he has been employed for most of his adult life, does not have any substance abuse issues, and has had several age-appropriate relationships during the course of his life. He has a support system within the community. He claims to now have insight into his offending behaviour. He represents to the court that he has a commitment to his religion, and through that, as being able to forgive himself for his actions. He indicated almost from the outset that he would admit his culpability and enter guilty pleas as a sign of remorse. He began counselling to address his issues after being released on the original charges, and maintains a desire to continue with counselling.

[18] The aggravating features related to the offence are numerous. While the size of the collection of images was not large, the images on the seized electronic devices constitute a range on the Oliver scale, including level 5 images. The written material on the chat logs include entries which reach level 5 on the Oliver scale. Mr. Seguin encouraged pedophiles to engage in that offending behaviour. He suggested to others that the police did not have the resources to effectively prevent them from doing so. He talked of sexually abusing his nieces, and shared their real photographs with other like-minded people. He chatted with the mother of two children in the U.S. regarding the sexual abuse and torture of those children. He wrote of sadistic sexual activity with young children. His criminal behaviour took place over a significant period of time.

[19] Mr. Seguin speaks of having insight into his problem. The court hopes that is the case, but is far from certain of it. His actions were deeply disturbing, and morally reprehensible.

[20] In my view, one could effectively argue that a global sentence of more than three years in custody is justified. However, experienced counsel have reviewed the case and arrived at their positions as part of a resolution of the case. Given that the range outlined by counsel was part of the discussion which led to the resolution, I am of the view that the court cannot justify imposing a sentence outside of the range argued by counsel. However, given the aggravating features, the court is of the opinion that a global sentence of three years in custody is justified.

CONCLUSIONS

[21] Mr. Seguin has spent 315 days in pretrial custody. Enhanced at a ratio of 1.5 to 1, that is the equivalent of 423 days in custody. With respect to the charge of making child pornography available, the sentence will be time served plus an additional 22 months and seven days in custody. With respect to the charge of possession of child pornography, the sentence will be 22 months and seven days concurrent. With respect to the final count, the sentence will be 18 months concurrent.

[22] The public will be further protected by ancillary orders each of which will issue requiring the taking of DNA samples, a firearms prohibition under section 109, a requirement to register under the Sex Offender Information Registry Act, and the prohibition order under section 161 of the Criminal Code.

Released: October 18, 2018

Signed: Justice A.T. McKay