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(1) 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(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) 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: 2019-06-28

Court File No.: Brampton 17-854

Between:

Her Majesty the Queen

— AND —

James O'Brien

Before: Justice S. Martins

Heard on: January 11, 2019 and May 17, 2019

Reasons for Judgment released on: June 28, 2019

Counsel:

Ms. Maria Stevens — counsel for the Crown

Mr. Anthony Marchetti — for the defendant James O'Brien

Judgment

Martins J.:

Introduction

[1] On June 18, 2018, after a trial, Mr. O'Brien was found guilty of possession of child pornography. Mr. O'Brien is now before me for sentencing.

[2] Mr. O'Brien brings an application for an order that the mandatory minimum sentence of six months imprisonment in section 163.1(4) of the Criminal Code violates section 12 of the Charter. In order for the mandatory sentence to infringe section 12 of the Charter it must be grossly disproportionate to the appropriate punishment, having regard to the circumstances of the offence and the offender.

[3] The court must first decide the appropriate sentence for Mr. O'Brien.

Position of the Parties

[4] The Crown's position is that Mr. O'Brien should be sentenced to 10 months custody followed by a 3 year probation order. In addition, the Crown seeks a DNA order, a SOIRA order for 10 years, a section 161.1(a) – (d) order for 10 years and a forfeiture order of the laptop and the external hard drive pursuant to section 164.2.

[5] Counsel for Mr. O'Brien submits that the appropriate disposition in this case is 90 days custody to be served intermittently followed by a probationary period of 3 years. He does not dispute the DNA order, the SOIRA order for 10 years or the forfeiture order requested by the Crown. He does however, dispute the section 161.1 (a)–(c) order requested but takes no issue with an order under subsection (d) for a period of 10 years subject to certain exceptions. Mr. O'Brien's position is that 90 days intermittent is grossly disproportionate to the mandatory minimum sentence of 6 months and is therefore a breach of section 12 of the Charter which cannot be saved by section 1.

The Circumstances of the Offence

[6] On January 19, 2017, officers from the Peel Regional Police Internet and Child Exploitation unit executed a search warrant at Mr. O'Brien's home. The police seized Mr. O'Brien's laptop and external hard drive.

[7] Mr. O'Brien was found to be in possession of 400 unique images and 4 videos of child pornography.

[8] Mr. O'Brien's collection included images of children as young as toddlers and up to and including pre-pubescent children. Most of the images were of pre-pubescent girls in various sexual poses or engaged in explicit sexual activity with adults. There were no explicit acts of violence nor was there any animals involved.

The Circumstances of the Offender

[9] Mr. O'Brien is 59 years old and has no prior criminal record.

[10] Mr. O'Brien is not married nor does he have any children. His parents are deceased but he does have a large extended family. He had a good relationship with his family up until his arrest on these charges. Now he only maintains contact with two of his siblings.

[11] Mr. O'Brien completed high school and then went on to complete a Securities course at the Canadian Securities Institute.

[12] Mr. O'Brien has had a number of jobs over the years. His longest job was at E-Trade Securities. He held that job for 10 years before he was laid off. For the past two years, Mr. O'Brien has worked as an auto service representative at Canadian Tire. Prior to being charged with these offences, he also worked part-time as an actor.

[13] In the past four to five years, Mr. O'Brien has volunteered to file tax returns at a local food bank. In addition, he is a blood donor and has volunteered at a theatre company for two seasons.

[14] Mr. O'Brien was assessed by Dr. Yedishtra Naidoo a forensic psychiatrist at St. Joseph's Healthcare for the purpose of receiving an opinion regarding his violence risk and sexual offence recidivism risk. During that evaluation, Mr. O'Brien disclosed that he consumes alcohol on a daily basis and that he has consumed approximately 6 beers for the majority of his adult life. He does not take any illicit or over the counter drugs.

[15] Dr. Naidoo described Mr. O'Brien as having partial insight into his offences. Dr. Naidoo found that Mr. O'Brien minimized his arousal by images from the offence.

[16] Dr. Naidoo also found that Mr. O'Brien suffers from several psychiatric disorders that increase his risk for future child pornography-related offences and contact sexual offences. Despite those factors, Dr. Naidoo's opinion is that Mr. O'Brien is a low risk to reoffend. He recommends treatment with three specific types of counselling.

The Principles of Sentencing

[17] 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. How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the accused.

[18] The sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[19] The sanction that the court imposes should have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons 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 to the community;

(f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[20] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the accused.

Range of Sentences for Possession of Child Pornography

[21] It is important for every sentencing judge to remember that every sentencing case is unique. A sentencing court must balance all the factors present in each individual case to arrive at a just sentence. Nonetheless, it is important for a sentencing judge to be mindful of the general range of sentences for similar offences and ranges identified by appellate courts.

[22] The Ontario Court of Appeal in R. v. Inksetter, 2018 ONCA 474, [2018] O.J. No. 2702 at paragraph 16 declared that in cases of child pornography, denunciation and general deterrence are the primary principles of sentencing.

[23] In R. v. John, 2017 ONSC 810, [2017] O.J. No. 651, Justice Woolcombe reviewed and summarized recent decisions regarding sentences imposed for those convicted of possession of child pornography. Justice Woolcombe concluded at paragraph 33:

…in order to give effect to the appropriate sentencing principles for possession of child pornography, the appropriate sentence spans a considerable range, from around six or eight months at the bottom end of the range upwards to about three years. Determining where within that range is appropriate depends on the particular aggravating and mitigating circumstances in the case.

[24] Justice Woolcombe sentenced Mr. John to 10 months custody for possession of 89 unique videos and 50 unique images of child pornography. The Ontario Court of Appeal upheld Justice Woolcombe's sentencing decision and commented that the size and nature of Mr. John's collection was "a seriously aggravating factor." R. v. John, 2018 ONCA 702, [2018] O.J. No. 4495 at paragraph 45 and 47. The Court of Appeal also commented that but for Mr. John's very considerable rehabilitative efforts, the sentence imposed could have been much higher. See paragraph 46.

[25] As noted by Justice Woolcombe in R. v. John, supra, the sentencing ranges have been steadily increasing as the prevalence of the production and distribution of child pornography has been growing. Advances in technology require the courts to identify the pressing need to recognize that possession of child pornography continues to victimize children. See paragraph 29.

[26] This position is supported by Ontario Court of Appeal's comments in R. v. D.G.F., 2010 ONCA 27 at paragraphs 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 to address the problem appropriately: see, for example, R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; 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 (2002), 155 O.A.C. 273; R. v. Weber (2003), 175 O.A.C. 138; R. v. Kim (2004), 181 O.A.C. 88. 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. Gramlick (1995), 100 C.C.C. (3d) 270 (O.C.A.); R. v. R.W., [2001] O.J. No. 2810.

[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.

Aggravating and Mitigating Factors

[27] In determining the appropriate sentence both aggravating factors and mitigating factors must be considered.

[28] The aggravating factors in this case are:

a) The size and nature of the collection; 400 images and 4 movies depicting some toddlers but mostly pre-pubescent females in various sexual poses or engaged in explicit sexual activity;

b) The offence of child pornography indirectly involves the abuse of children; this is statutorily aggravating factor as set out in section 718.2(a.ii).

[29] The following are the mitigating factors to be considered:

a) Mr. O'Brien has no criminal record;

b) Mr. O'Brien has some insight into his behaviour as expressed by him in his statement to the court that he now understands the link of viewing child pornography and the effect is has on the abuse of children and the continued abuse of that child every time it is viewed. In addition, he is amenable to the treatment recommended by Dr. Naidoo.

c) Mr. O'Brien has suffered personal losses as a result of his crimes; he no longer has a relationship with much of his extended family, his relationship with his girlfriend is strained and he has been unable to continue his acting career due to his bail conditions.

[30] In my view, Mr. O'Brien's comments to Dr. Naidoo that the images he possessed were the result of an accidental download from a social media website and that he only viewed them a total of 3 times and could not recall the images, are not mitigating. Mr. O'Brien did not testify at his trial or at his sentencing hearing. These comments are untested by cross examination and they contradict the circumstantial evidence that the images were bulk transferred from a computer to an external hard drive for future use. In addition, Dr. Naidoo found Mr. O'Brien's denial that the images were arousing as minimizing. Therefore, I am not satisfied on a balance of probabilities that this is a mitigating factor in this case.

The Appropriate Sentence in This Case

[31] Counsel for Mr. O'Brien provided the court with four cases to persuade the court that a custodial sentence of 90 days to be followed by probation is the appropriate sentence for Mr. O'Brien. The cases provided by the defence were all cases that involved pleas of guilt, a significant mitigating factor that is not present in this case. In addition, of the cases provided by the defence, none of those jurists had the benefit of the recent Ontario Court Appeal decision in John, supra that detailed a collection of 89 unique videos and 50 unique images as a "seriously aggravating factor". I find Mr. O'Brien's collection to be a seriously aggravating factor. Therefore, I do not find the cases relied on by the defence as persuasive to support an intermittent sentence of imprisonment. See R. v. Young, 2012 ONCJ 716; R. v. Heffernan, 2012 ONCJ 796; R. v. Aylesworth, 2008 ONCJ 68; R. v. Labre, 2013 ONCJ 116.

[32] In determining the appropriate sentence, I am mindful of the principles and objectives of sentencing. Against that backdrop, I have also considered the aggravating and mitigating factors detailed above. In light of all of this, I have concluded that the sentence urged by defence counsel of 90 days custody to be served on an intermittent basis, would fall short of achieving the sentencing objectives that predominate for offences of this nature. Given all the circumstances, the objectives of denunciation and deterrence require a higher custodial sentence.

[33] After carefully considering all of the circumstances, in light of the relevant sentencing principles and objectives, I have concluded that a sentence of 7 months imprisonment followed by a 3 year probation term is the appropriate sentence for Mr. O'Brien.

[34] Having concluded that 7 months custody is the appropriate sentence in this case, it follows that the mandatory sentence of 6 months is not grossly disproportionate for Mr. O'Brien and therefore I find no section 12 Charter breach.

[35] Since judges of the Ontario Court of Justice do not have the ability to make formal declarations that a law is of no force and effect pursuant to section 52(1) of the Constitution Act, 1982, I do not have to go on to consider the hypothetical case of possession of child pornography and whether the mandatory minimum sentence violates section 12 of the Charter in that case. See R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130.

Section 161.1(a) – (c) of the Criminal Code

[36] I agree with counsel for Mr. O'Brien that there is no basis on the facts of this case to issue a section 161.1 (a)-(c) order.

[37] In fact the opinion of Dr. Naidoo, which I accept, identifies Mr. O'Brien as a low risk to re-offend. In addition, he has no prior criminal record for any sexual offences.

[38] As detailed by the Ontario Court of Appeal in R. v. Schulz, 2018 ONCA 598 at paragraph 41:

The overreaching protective function of s. 161 of the Criminal Code is to shield children from sexual violence; R. v. J. (K.R.), 2016 SCC 31, [2016] 1 S.C.R. 906 (S.C.C.), at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender's specific circumstances: J. (K.R.), at paras. 48-49.

[39] Having found no evidentiary basis in this case, I decline to make an order under section 161.1 (a) – (c).

Conclusion

[40] Mr. O'Brien has spent 21 days in pre-sentence detention. I will enhance the credit at 1.5:1 and note it as 31 days. Deducting the 31 days from the 7 month sentence the remaining time in custody will be 5 months and 29 days. The pre-sentence detention will be noted on his record.

[41] Following his incarceration he will be bound by a probation term for 3 years. The terms of probation are as follows:

a) Mr. O'Brien will report to a probation officer within 72 hours of his release from custody and thereafter as his probation officer directs;

b) Notify your probation officer of any change of name, address or employment;

c) He will attend for any assessment, counselling and/or treatment for sexual offending or any other counselling deemed necessary and as directed by his probation officer;

d) Sign any releases necessary for your probation officer to monitor your compliance with treatment or counselling;

e) Not to possess a computer or cell phone or other device that has Internet access with any of the following installed:

i. Peer to peer software;

ii. Virtual Private Network (VPN);

iii. Unlicensed software or anonymizing software.

f) Permit access to your residence by your probation officer and/or police officer between the hours of 9 am and 9 pm, 7 days a week to allow random inspections of all electronic devices;

g) Provide any encryption codes or passwords necessary to permit the random inspection of any electronic devices for the purpose of monitoring compliance with the provisions of this order.

[42] In addition, I will make the following ancillary orders:

a) A SOIRA order for 10 years as conceded by the defence;

b) A DNA order, this order will be executed in custody on today's date. This order was also conceded by defence;

c) A forfeiture order as requested by the Crown and conceded by defence;

d) An order under section 161 (d) of the Criminal Code for 10 years with the following exceptions, not to use the Internet or other digital network unless:

i. for purposes of employment;

ii. at a public library;

iii. for any other purpose as long as there is no anonymising software, peer to peer software, Virtual Private Network (VPN) or unlicensed software installed on the computer or device.

Released: June 28, 2019

Signed: Justice Sandra Martins