Court Information
Ontario Court of Justice Scarborough - Toronto Date: April 26, 2019
Parties
Between: Her Majesty the Queen
And: Gordon Morrison
Counsel and Hearing
For the Crown: J. Battersby
For the Defendant: S. Feldman
Heard: March 14, 2019
Reasons for Sentence
Justice Russell Silverstein
A. Introduction
[1] On March 19, 2018, Mr. Morrison pleaded guilty before me to a single count of possession of child pornography. The Crown has proceeded summarily.
[2] The case was then adjourned for sentencing pending a decision from the Court of Appeal for Ontario as concerns minimum sentences. R. v. John, 2018 ONCA 702.
[3] Submissions on sentence were made on March 14, 2019. The parties agree that in light of John, there is no statutory minimum sentence applicable to Mr. Morrison.
B. The Circumstances of the Offence
[4] On three occasions on November 14 and 17, 2015 Mr. Morrison shared child pornography using Facebook. He uploaded the same pornographic image to other Facebook members from accounts under his control.
[5] The image in question depicted a prepubescent boy lying on his back with his legs raised. His face is visible in the photo and he is holding the tip of his penis. His anus is fully exposed and is the dominant characteristic of the photo.
[6] Facebook reported this activity to the police who succeeded in identifying the accused as the offender. Mr. Morrison was arrested and a search warrant was executed at Mr. Morrison's home on June 30, 2016. His laptop computer was seized and examined. Eleven unique child pornography images were found. They depicted naked prepubescent boys with their genitals exposed. The boys were either touching their own penises, masturbating, or depicted with their penises erect. Three of the images depicted the boys' anal regions.
C. The Circumstances of the Offender
[7] Mr. Morrison is now 59 years old. He has no criminal record.
[8] He worked full-time until 2007 when he suffered a car accident and he has been on a disability pension since. He lives alone in a basement apartment and has no living family or friends to speak of. He rarely ventures outside his apartment. He suffers from various physical ailments, some of them relatively serious.
[9] Mr. Morrison has been on bail since his arrest and has performed well according to the Toronto Bail Program, having reported 134 times as required.
[10] On or about May 31, 2017 he was seen at the Scarborough hospital, having ingested a handful of medication while intoxicated by alcohol.
[11] Since his arrest, Mr. Morrison has sought alcohol counselling and has attended for several comprehensive sessions with "Just For Today Services". He self-reported to counsellors there that he drinks as much as 17 bottles of beer a day and is depressed.
D. The Position of the Parties
[12] Ms. Battersby, for the Crown, seeks a sentence of eight months less credit for pre-sentence custody and three years of probation. She also seeks various routine ancillary orders.
[13] Mr. Feldman seeks a conditional sentence in the range of 8–12 months with probation to follow. Should a term of imprisonment be required he asks that an intermittent sentence be imposed.
E. The Principles of Sentencing and Their Application
[14] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[15] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
[16] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:
A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
(a) Aggravating Factors
[17] The sole, yet significant aggravating factor in Mr. Morrison's case is his dissemination of some of the images to other Facebook users.
(b) Mitigating Factors
[18] There are several mitigating circumstances in Mr. Morrison's case.
[19] His child pornography collection is relatively small and the images fall at the less serious end of the spectrum of child pornography. He is a first offender and pleaded guilty. His guilty plea and his participation in counselling speak to his remorse and his commitment to avoiding re-offending.
[20] There is precious little evidence as concerns Mr. Morrison's future risk to children, or the risk that he will re-acquire child pornography. Mr. Morrison's counsellors at Just For Today Services have offered an opinion in their supporting letter, but without a demonstration of expertise on their part, and the testing of that opinion through cross-examination, I can give it no weight.
(c) The Caselaw
[21] Possession of child pornography is a serious crime. It is harmful to children and society. As McLachlin J. said in R. v. Sharpe, 2001 SCC 2 at para. 158:
The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on preexisting inequalities.
[22] Denunciation and general deterrence are the primary considerations in the sentencing of offences involving child pornography. The incidence of such offences is increasing, and sentences imposed in 2019 are generally more severe than they once were. R. v. Inksetter, 2018 ONCA 474; R. v. J.S., 2018 ONCA 675.
[23] As Hoy A.C.J.O. points out in Inksetter, supra, at para. 17, referring to R. v. Lacasse, 2015 SCC 64 at para. 6: "The courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence."
[24] In R. v. St. Martin, 2014 ONSC 4401, the accused was found guilty after trial of possessing and accessing child pornography. When police searched his computer they discovered 164 images and five videos that were classified as child pornography. While most of the images fell at the less serious end of the spectrum, approximately 20–25 depicted penile penetration and oral sex performed on and by female children.
[25] He had a somewhat dated, but not insignificant criminal record. O'Marra J. found that he appeared to harbour a view that would condone exploitive interaction with children. Mr. St. Martin was sentenced to eight months' incarceration and 24 months of probation, as well as severe restrictions pursuant to s. 161 of the Criminal Code.
[26] Mr. Feldman referred me to R. v. Somogyi, [2011] O.J. No. 253 (Ont. S.C.) in which the accused had a prior conviction for sexual touching dating back to 1989. He was convicted after trial before J.M. Wilson J. of three counts of child luring, two counts of invitation to sexual touching and possession of and accessing child pornography. The offending images were small in number and there was no evidence of distribution.
[27] Mr. Somogyi suffered from complex medical problems and was found to pose a negligible risk of recidivism. He received a conditional sentence on the child luring offences and 45 days incarceration on the child pornography charge, that being the statutory minimum sentence at the time.
F. Conclusion
[28] The seriousness of Mr. Morrison's offence is exacerbated by his having distributed a portion of his child pornography collection. For that reason I find that a conditional sentence cannot sufficiently address the goals of denunciation and general deterrence.
[29] That having been said, this is a first offence for Mr. Morrison. He pleaded guilty and has taken meaningful steps to address his aberrant predilections. The images he possessed are at the very low end of the broad spectrum of seriousness we see in our courts too often.
[30] In all the circumstances, I believe a sentence of 100 days is appropriate, less credit for time served in pre-sentence custody.
[31] I will also impose three years of probation that includes ongoing counselling, and some restrictions as concerns contact with children. I will hear further submissions from counsel as to the fine details of the probation order, as well as the terms of the order under s. 161.
Released on April 26, 2019
Justice Russell Silverstein