Court File and Parties

Ontario Court of Justice

Date: August 28, 2019

Court File No.: Kitchener 4411-998-17-1446-00

Between:

Her Majesty the Queen

— and —

Garrett Gauthier

Before: Justice W. G. Rabley

Reasons for Judgment: Released on September 20, 2018

Reasons for Sentence: Released on August 28, 2019

Counsel:

• C. Jennison, counsel for the Crown
• J. Manishen, for the defendant Garrett Gauthier

Reasons for Sentence

RABLEY J.:

Introduction

[1] Mr. Gauthier was charged with Accessing, Possession, Making and Making Available Child Pornography. He pleaded not guilty to these offences and a trial was held. I found him guilty of the charges and he is now before me to be sentenced.

[2] A Pre-Sentence Report (PSR) was prepared outlining Mr. Gauthier's antecedents. Letters of reference were filed on his behalf. Counsel have provided me with their submissions as well as a number of authorities for me to consider.

Circumstances of the Offences

[3] The Waterloo Regional Police received a referral from the National Center for Missing and Exploited Children (NCMEC) regarding the uploading of a file to a Skype account. The account holder of the IP address was Garrett Gauthier who resided with his boyfriend in Cambridge.

[4] The police executed a search warrant at Mr. Gauthier's residence and seized his laptop and cell phone. A forensic analysis was done of the two devices. 125 images and 3 videos of child pornography were found by the investigators.

[5] The child pornography was uploaded and downloaded through a Skype account in the name of David.J.Dunham. Dunham is the maiden name of Mr. Gauthier's mother. A number of Skype conversations were also recovered. These messages were exchanged between Mr. Gauthier and two others using the pseudo names jmandsm23 and Daniel Bolloc. The conversations are sadistic, horrific and depraved. In them, the parties talk about raping and committing violent acts upon young boys. The detail of these conversations forms the basis for the charge of Making Child Pornography.

[6] The chat logs also disclose that child pornography was being downloaded from a Dropbox account that Mr. Gauthier had control of. The police were unable to access this account which is a cloud based storage vault.

[7] The use of the Dropbox account allows the account holder to access and store child pornography for use and distribution to others. In that way, the perpetrators can maintain a collection of images and videos independent of their hard drive. This allows them to delete the files on their computer when they no longer wish to view them so that if the computers are seized, the child pornography will not be found on the hard drives.

[8] In my view, times continue to change and it is no longer the case that collections found on the hard drives of computers represent the true investment of child pornography in the offender's possession.

Background of the Offender

[9] Mr. Gauthier is 32 years of age. He resides in a stable common law relationship and hopes to be married. He and his partner own a house and work full-time. Mr. Gauthier is university educated. He has a Bachelor of Science degree from the University of Guelph and a Master's degree in Mechanical Engineering from the University of Waterloo.

[10] Mr. Gauthier has no criminal record. He works as a Project Manager and has significant responsibilities within his company. A jail sentence will no doubt result in him losing his job.

[11] Mr. Gauthier is also involved in pro-social activities. He volunteers his time by sitting on a couple of advisory committees. His letters of reference describe him as a "kind and thoughtful" young man who works hard and is willing to give to others.

[12] Mr. Gauthier maintains his innocence in the face of an overwhelming case against him. He has not been psychologically assessed. It is therefore difficult to determine the future risk that he poses to others.

The Position of the Parties

[13] The Crown seeks a term of incarceration of 4 years. Counsel on behalf of Mr. Gauthier submits that a sentence in the range of 2 to 2 1/2 years is appropriate.

Sentencing Principles

[14] The Court of Appeal has given strong guidance that denunciation and deterrence are the paramount goals when determining appropriate sentences for those who commit these types of offences. As stated by Justice Feldman in R. v. F. (D.G.):

"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."

[15] Recently these principles have been affirmed in the case of R. v. Inksetter, 2018 ONCA 474 where the Court of Appeal said:

"Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2, the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis, 2012 ABCA 148, at para. 29, "possession of child pornography is itself child sexual abuse." The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing, and making available his vast and terrible collection to others, the respondent participated in the abuse of thousands of children."

[16] Parliament has also recognized these principles in section 718.01 of the Criminal Code:

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Aggravating and Mitigating Factors

[17] There are both aggravating and mitigating factors in this sentencing.

[18] The facts in this case are the most aggravating feature of this case. One hundred and twenty-five images and three videos were found on Mr. Gauthier's devices. It is unknown exactly how much child pornography Mr. Gauthier accessed and distributed because of the use of his Dropbox account. This is not a situation where the suggestion can be made that Mr. Gauthier was an occasional user of child pornography and only a few images were found on his computer.

[19] The police evidence established that Mr. Gauthier was involved from at least November of 2015 until January 2017 with child pornography. I note that the dave.j.dunham@gmail.com account that was used to open the Skype account which accessed the child pornography was created on May 25th, 2012. The chat logs depict sadistic and depraved minds communicating with one another for a common purpose.

[20] In this case, the victims were young prepubescent and pubescent boys. In one video a prepubescent male child is being anally penetrated by an adult male penis. In another video, an adult male is seen inserting his penis into a child's mouth and masturbating until ejaculation.

[21] The chat logs are cause for serious concern. They show the side of a man who his family and friends do not know. In one discussion, Mr. Gauthier speaks about wanting jmandsm23 and himself to participate in luring young boys, locking them in, slamming them to the ground and having forced sex upon them while they are struggling and screaming. As Mr. Gauthier described "I don't wanna kill him, but if we're having a great time, I don't wanna stop." Other discussions speak about locking boys in the basement and tying them up so that one can watch to know what is going to happen to him, while the other is used as a toy. The chat logs bring into question who Mr. Gauthier really is and what he might possibly do.

[22] It is clear from the chat logs that from his Dropbox, Mr. Gauthier was sharing child pornography with individuals calling themselves jmandsm23 and Daniel Bolloc. In my view, these are aggravating factors in this case.

[23] There are a number of mitigating factors. Mr. Gauthier has no criminal record. He is university educated and enjoys gainful employment. Other than these offences, Mr. Gauthier leads a pro-social life, contributes to his community and has a stable and loving relationship.

Sentencing Authorities

[24] Both the Crown and Defence provided me with authorities to support their respective positions. I shall briefly review them.

[25] In R. v. Pelich, 2012 ONSC 4100, the accused amassed a significant collection of images and videos containing child pornography. The evidence established that he had been collecting and sharing this material with others for a seven year period of time. Mr. Pelich had no criminal record and continued to maintain his innocence on the day of sentencing.

[26] At paragraphs 29 and 30 of his Reasons for Sentence, Justice Dunnet concluded:

[29] "There is no evidence before the court that demonstrates remorse or any insight into the offences. There is no evidence that Mr. Pelich is willing to take counselling or treatment.

[30] In all the circumstances, I have concluded that a penitentiary term of four years is appropriate to reflect society's repugnance and abhorrence of these crimes and to deter Mr. Pelich and others from perpetuating the electronic dissemination of images of vulnerable young girls being vaginally, anally and digitally penetrated by adult male predators."

[27] In R. v. Levin, [2015] O.J. No. 2768, the accused pleaded guilty of possessing and making child pornography and to counselling a sexual assault. When he was arrested, Mr. Levin had fifteen images and two pornographic videos on his computer. He also had a number of stories he had written about having sex with children which were shared with other users.

[28] The accused was 63 years of age and was a married man with three grown children. His career was in education and he was well respected in his field. He had no criminal record. Mr. Levin expressed remorse for his offences and voluntarily submitted to treatment and testing.

[29] Justice MacArthur accepted expert evidence that "child abuse stories can be fuel for those inclined to sexually abuse children." Ultimately, Her Honour sentenced Mr. Levin to three years in the penitentiary.

[30] In R. v. Carlos, 2016 ONCA 920, the accused was convicted after a trial of possession and making child pornography available. Mr. Carlos did not have a significant collection of videos but they did include intercourse between adults and children. He undertook phallometric testing and after he had completed an assessment, a forensic psychiatrist concluded that Mr. Carlos was a very low risk to offend.

[31] After reviewing the case law, Justice Donohue imposed a sentence of 3 years. The sentence was appealed to the Court of Appeal 2016 ONCA 920 on the basis that Mr. Carlos was a first offender and a low risk to offend. However, the Court of Appeal dismissed the appeal and rejected the argument that the penitentiary sentence "represented an overemphasis on denunciation and general deterrence."

[32] In R. v. Rodwell, [2016] O.J. No. 6843, the accused was convicted after a trial of possession and manufacture of child pornography as well as arranging a sexual offence against a child. When he was arrested, he had 43 still images and 5 videos depicting the abuse and sexual exploitation of young children.

[33] Justice Deluzio found that Mr. Rodwell:

"exchanged and viewed these images and videos in chat logs seized from his computer. He discusses in violent, salacious detail the content of the images and videos with other users in the incest chat rooms."

[34] Her Honour further noted that:

"Almost all of the communications involve graphic explicit discussions about Mr. Rodwell's wish to rape and sexually abuse young children while their mother watches."

[35] Justice Deluzio found that these facts were particularly aggravating and notwithstanding that Mr. Rodwell had no record, a long career with the military and pro-social supports in the community, that he should serve a four years for the possession and making of child pornography. He was given another two years consecutive for the offence of making arrangements to sexually assault a child.

[36] In R. v. Bell, [2018] B.C.J. No. 2860, the accused pleaded guilty to luring and child pornography offences. He actively encouraged others online in written form to engage in conversations with him about sexually abusing children. Mr. Bell was 36 years of age, employed and had no criminal record.

[37] Justice Brecknell found that written pornography is inherently harmful. He relied upon the Levin decision where the Court stated:

"For the making child pornography count, the section aims to prevent offenders from sending the message that "sex with children can and should be pursued". The section seeks to prevent the normalization of child sexual abuse and the dissemination of the offensive idea that children are sexual objects who are there to be abused by depraved predators. (R. v. Beattie) Children as a group are thus protected by the prohibition on making written child pornography …"

[38] The Court imposed a two year sentence for the offences of making and making available child pornography and a further one year consecutive for the luring charge.

[39] In R. v. Seguin, the accused pleaded guilty to charges of possession and making available child pornography. He also pleaded guilty to the offence of agreeing to commit an offence with a person by means of a telecommunication device. Forty-seven images and two videos of child pornography were found in Mr. Seguin's computer. Internet chat logs were also discovered. In them, Mr. Seguin conversed explicitly about his interest in sexually abusing children and "spoke in numerous conversations of his interest in raping and killing children."

[40] Mr. Seguin had no criminal record, had been employed for most of his life, had engaged in age appropriate relationships in his life and had a support system within the community. He was remorseful and had taken steps to commence counselling to address his issues.

[41] Justice McKay was of the view that a global sentence in excess of three years might be justified in the circumstances, but given that counsel were submitting a position based on a plea of guilty, that he would adopt the recommendation of three years as sought by counsel.

[42] Counsel for Mr. Gauthier submitted three cases for consideration. They are R. v. A.R., 2018 ONCJ 613, R. v. Schacter, 2019 ONCJ 154, and R. v. Branco, 2010 ONSC 3591. I have reviewed these decisions. They are helpful and were submitted more for the principles involved rather than their similarity to the situation before me.

[43] In particular, even though I am of the view that written child pornography between various online partners presents a real risk of harm to children, I agree with Justice Latimer in A.R. where he states:

"In my mind there is a distinction between the creation and possession of visual or written material involving imaginary children, written material involving real children, and actual images of children captured while the child is either being sexualized or sexually abused. While each of these categories satisfy the s. 63.1(1) Code definition for child pornography, the latter category contains the greatest aggravating features and concerns. For example, the re-victimization described in Inksetter does not occur when the subject matter at issue relates to imaginary individuals. Written material – even that which contains references to actual children – does not require exploitation or abuse as a condition precedent to its creation. Its existence, nevertheless, presents a risk of harm to children."

[44] In 2018, the Court of Appeal rendered its decision in R. v. Inksetter, 2018 ONCA 474. Mr. Inksetter pleaded guilty to possession and making child pornography available to others. He was 51 years of age, had no criminal record and was remorseful for his actions. On his computer, the police located a substantial collection of images and videos that could be made available to others provided that they were kept in his 'shared folder'.

[45] The trial judge imposed a sentence of two years less one day. Speaking for the Court, Hoy A.C.J.O. allowed the Crown appeal and raised the sentence to three and a half years. The Court recognized that child pornography is a "pervasive social problem" and that Parliament had legislated changes to increase the minimum sentences to reflect society's abhorrence of these crimes.

[46] At paragraph 45 of the judgment, Hoy A.C.J.O. sets out the Court of Appeal's reasoning for imposing a higher sentence on the charge of make available.

"A longer sentence on the count of "make available" child pornography than for the count of "possession" is warranted because by making images and videos he downloaded available to others via the internet, the respondent contributed to the further victimization of the children depicted in the pornographic images. In my view, a sentence of three years imprisonment on the count of "possession" of child pornography and three and one half years imprisonment on the count of "make available" child pornography, to be served concurrently is fit in these circumstances, which include the early guilty plea and other mitigating factors identified by the trial judge."

Analysis

[47] In Seguin, Justice McKay succinctly summarized the guiding principles applicable to a case like this. I adopt his comments where he stated:

"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 offense 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 offense. Arriving at an appropriate sentence involves an examination of the gravity of the offense and the character and responsibility of the offender."

[48] I have weighed the aggravating and mitigating factors and am of the view that Mr. Gauthier should receive a significant sentence of incarceration for the following reasons:

• the chat logs were violent and sadistic encouraging others to partake in the violent sexual abuse of children;

• the images and videos were shared with others who could then continue the victimization by continuing to download them to third parties;

• the Court is unable to assess the risk that Mr. Gauthier poses in the future;

• the community and more particularly, young boys continue to remain at risk because Mr. Gauthier does not accept responsibility for his actions and has not done any psychiatric assessment or counselling;

• Mr. Gauthier continues to have possession of the child pornography stored in his Dropbox account because the police cannot access it to destroy it.

[49] Parliament and the Court of Appeal have emphasized that deterrence and denunciation are the primary principles to be considered in these types of cases. Mr. Gauthier did not plead guilty or take any steps to assess the risks to the community that he poses before sentencing. Therefore, his situation is unlike that in Seguin where the Crown joined the defence in recommending a three year sentence to give credit to the steps taken by the accused.

[50] In my view, a global sentence of four years is appropriate given the gravity of the offences and the degree of responsibility of Mr. Gauthier. I would sentence him to four years concurrent on the Possession and Making Available charges, two years concurrent on the Accessing charge and one year concurrent on the Make Pornography charge.

Ancillary Orders

[51] Section 490.012(1) of the Code mandates an order requiring a person convicted of a designated offence to comply with the Sex Offender Information Registration Act. These child pornography offences are designated offence and therefore, I will make such an order and Mr. Gauthier will be required to comply with this order for life.

[52] These charges are also primary designated offences. I will make an order that Mr. Gauthier provide samples of his blood as required by section 487.051(1).

[53] With respect to section 161 of the Code, I propose to make an order for 18 years to give Mr. Gauthier credit for the two years that he has been on bail. Otherwise the order would have been for 20 years because of the risk concerns involved. I would invite counsel to make further submissions to me regarding the particulars of the order that they seek.

Released: August 28, 2019

Justice W. G. Rabley