Court Information
Information No.: W18-0051
Date: August 26, 2020
Ontario Court of Justice (at St. Catharines, Ontario)
Parties
Between:
Her Majesty the Queen
- and -
Jason Kimberley
Counsel
For the Crown: Mr. H. Limheng
For Jason Kimberley: Mr. M. Evans
Publication Ban
An order has been made under s. 486.4 directing that any information that could identify the victim, J.A. or any of her children, shall not be published in any document or broadcast or transmitted in any way.
Reasons for Sentence
NADEL, J.:
Introduction
[1] On December 19, 2019, Jason Kimberley pleaded guilty, by indictment, to two counts of possession of child pornography in the form of text messages, contrary to s. 163.1(4) of the Criminal Code of Canada. The two offences were committed on December 25, 2017.
[2] The complainant, J.A., who has three pre-pubescent children, met Kimberley digitally in January of 2017 on a dating site called Plenty of Fish. They communicated by text messages for much of that year, initially on Plenty of Fish and then via Facebook Messenger.
[3] On December 25, 2017 Kimberley sent J.A. a sequence of texts that constitute child pornography. Following an innocuous exchange about Christmas, Kimberley wrote the following comments to J.A.:
Kimberley: Lol, you don't want to talk to me anyways I'll be bad for you and your kiddies.
J.A.: Why do you say that?
Kimberley: Cuz I'll institute everyone naked day lol
J.A.: Lol oh really
Kimberley: Yes why not nakedness is beautiful
J.A.: Lol not when your kids are around they think it's gross
Kimberley: That's why there naked too… Lol
Told you had for you and kiddies
J.A.: They would think it was gross.
Kimberley: Bad not had
Not the little ones they would just think another play toy
J.A.: Lol .. no I'm just good with being friends with you anyway …
Kimberley: We could have been more but didn't want to push anything
J.A.: I know your a nice guy and I was interested in more but now I would just like to be your friend.
Kimberley: Ok
I'm not a nice guy, would of had nakedness days and play toy fun if we would of got together
J.A.: Lol but we didn't you kept falling off the face of the earth.
Kimberley: For your little ones I would of gone to hell and back but thought being off earth would be better
Kimberley: Well figure it out if your happy with him, you could have me but
I'll push nakedness and play toys
Ok kids naked your (sic) not, I am and your (sic) in panties and shirt
J.A: Lol why do the kids need to be naked
Kimberley: Play toys
J.A.: Your all about the kids
Kimberley: And I'm about the mommy too. But kids are so important, again quit talking to me if you don't like what you hear cuz I could say more
J.A.: I know you could say more I have heard some of the things you have had to say about the kid.… so I guess maybe I will stop talking to you I just wanted to be friends with you but I guess that's not really possible with you always wanting to talk about the kids.
Kimberley: Yes and you, so that's why I backed off…..
If you change your mind keep in touch
Yeah and your kids are about the way I talk to you………
If you and I were together and you went out to get coffee what do you think I would do baby sitting….
And NEVER anything hurtful
J.A.: I don't know.
What would you do
Kimberley: Lick kiss sick and make smile
Suck not sick
J.A.: Oh really
Kimberley: Make them happy, by touching the unexposed parts, but always make sure they like what is being done to them
And we will protect each other
J.A.: I'm sorry but that's almost a little creepy that you would like to do that to my children.
Kimberley: Almost though, so it's not completely off limits
Depending on your Answer I'll call you or not
J.A.: Well ya it would be I would be a horrible mother to let any guy touch my children like that….what would make you think that that was ok in any way at all….do you do things like that with your daughter?
J.A.: … I'm not sure I can talk to you… you have me freaked out a little.
Kimberley: It is what it is, you want it or you don't, but everything is about love
J.A.: Ya but it's wrong is what it is
Kimberley: Told you to block me
J.A, : Do you do things like this to your daughter
Kimberley: No, cuz it's not approved by mother
J.A. : Told you I'll be bad for you and kiddies
J.A.: don't know any mother in there right mind that would approve of it.
Kimberley: Goodbye have a good life
Hope what was said was between us
And a living mother would approve if it makes the kids happy and smile
J.A.: No I don't think so.. I love my children and would never subject them to something like that….
Kimberley: Is not subject is enjoyablry
J.A.: Are you worried I'm going to tell someone….is that why you said you hoped it was between us
Kimberley: No if you do you do
Are you, is that who you are
J.A. No that's not who I am but you need help I fear for any woman you get with that has children because that's wrong.
Kimberley: Ok block me and say goodbye
J.A.: I'll just stay away from you and keep my children frkm you…
Kimberley: Always goodbye
[4] Later on that Christmas Day J.A. received a text message from an account under the name of "Jack Meoffnow". Investigation by the Niagara Regional Police Service determined that the transmitter of the following messages was Kimberley using this account under that pseudonym.
Kimberley: Be us and everything!
I love you and all your kids and will be what needs to be
Lick from head to toe, but with mommy's permission
J.A.: Thought you wanted me to block you now your sending me messages please leave me and my kids alone.
[5] The parties agree that there is no Kienapple issue because the second transmission came from a separate account.
[6] Among other submissions in mitigation, Mr. Evans contended that Kimberley was substantially under the influence of alcohol during these exchanges and that he had little recollection of them. I do not accept the former submission, (of a lack of inhibition due to alcohol inebriation), given that Kimberley exhibited fine motor control. There were few typographical errors in his texts, other than "had" for "bad" and "sick" for "suck", which he noted and quickly corrected.
[7] Three exhibits filed: [1] the text messages; [2] a victim impact statement and [3] Kimberley's pre-sentence report.
The Crown's Submissions
[7] The Crown noted that the mandatory minimum sentence for this offence of one year of incarceration where the Crown proceeds by indictment has been struck down by our Court of Appeal in R. v. John, 2018 ONCA 702. So, the Crown's position was six month's custody plus two years on probation and ancillary orders including a lifetime S.O.I.R. order, a s. 161 order controlling Kimberley's access to children in public areas, in employment and volunteer forums, as well as some controls on his use of digital media and digital platforms and finally a primary DNA order.
[8] The Crown did not seek a s. 109 order, at least initially. In my view one is mandatory. The written child pornography created by Kimberley advocates, that is to say threatens, sexual assault against J.A.'s children.
[9] Mr. Limheng submitted that his position of six month's jail is informed by the following:
the fact that the pornography was written does not, per se, make these crimes less serious than the possession of child pornography in a visual medium;
that each offence must be assessed by its unique features and context, either aggravating or mitigating, as the case may be;
that the discussion of what Kimberley sought to do with J.A.'s children was, in the Crown's submission, no less overt than the facts in R. v. A.R., 2017 ONCJ 849, at paragraphs [5] to [14];
that the application of what Mr. Limheng called "the relativity fallacy" ought to be avoided.
[10] The Crown concedes that these crimes are mitigated by the following facts:
these conversations were committed over a matter of hours at most;
they were directed to one recipient; and,
they were transmitted in a private forum.
[11] Most significantly there were pleas of guilt entered. Further, the pre-sentence report identifies "some degree" of remorse in the Crown's characterization.
[12] That said, Mr. Limheng contends there are aggravating features of these crimes. First, the individuals that are the subject of this child pornography are real children. Kimberley was advocating his desire to commit sexual assaults upon real children. Second, as noted by J.A. in her victim impact statement, these texts had a profound, destructive and continuing impact on her. This is a statutorily aggravating factor under s. 718.2(a)(iii.1).
[13] Third, I note that advocating sexual assaults against children is an aggravating feature of these crimes under s. 718.2(a)(ii.1). Fourth, Kimberley was advocating committing acts that would have been a breach of trust by J.A., had they been allowed to occur, and these acts would have been a breach of trust by Kimberley as a baby-sitter. Both scenarios are aggravating features of these crimes under s. 718.2(a)(iii).
[14] Fifth, these depraved desires were directed towards J.A., who was an unwilling participant who received unsolicited messages from Kimberley that targeted her own children. Sixth, J.A. was being directly importuned by Kimberley to allow him to sexually abuse her children. In the Crown's submission it is not surprising that she was traumatized by these texts. Moreover, this case can be distinguished from those in which, in a public forum, an offender offers an oblique warning to the reader to the effect that if you don't understand what is being sought then this invitation is not for you.
[15] Seventh, Mr. Limheng correctly observes that Kimberley was advocating that J.A. cooperate with Kimberley in grooming her children to accept his depravity as normal, by the institution of "nakedness days."
[16] Eighth, Mr. Limheng submits that the last, albeit brief, exchange between them was gratuitously harassing.
[17] In the result, the Crown submitted that the level of seriousness in this case was on par with that in A.R. where a seven-month sentence was imposed. The Crown contends that neither the language used, nor the acts described are substantially distinguishable between that case and this and further, given that these are real children and that J.A. was an unwilling recipient of Kimberley's texts, his crimes more aggravating.
[18] The Crown submits that a discount of one month from the seven months imposed in A.R. takes Kimberley's guilty pleas and his expressed remorse into sufficient account to make the six month's sentence urged fit.
[19] In colloquy with Mr. Limheng I questioned whether a one month discount was a sufficient acknowledgment and accounting for Kimberley's pleas of guilt noting that there is no single, simple or arithmetic formula for weighing or weighting the mitigating effect of a guilty plea. In response Mr. Limheng replied with two submissions: first, that the guilty plea occurred on the eve of trial and second, that service of a subpoena on J.A. was a traumatic event for her that caused her sufficient anxiety to "knock her off the wagon", so to speak.
[20] As to this first submission, the Crown concedes that a plea of guilt crystalized about a week before the trial date. So, this was not a case of "witness poker" and the crucible of an impending trial date often focuses one's attention. I see no reason to substantially discount the mitigating effect of Kimberley's guilty pleas on that account.
[21] As it turned out, the subpoena to the complainant in this case was served upon J.A. several months before the trial date. In those circumstances, I do not accept that there ought to be a substantial reduction in the mitigating discount due to Kimberley because he did not decide to plead guilty from the outset. Clearly, the mitigating effect of a decision to plead guilty from the outset would be greater. Nonetheless, I remain of the view, despite the trauma caused to J.A. by the service of a subpoena upon her, that a one-month discount from a seven-month sentence is insufficient.
The Defence's Submissions
[22] While conceding that every case of child pornography is serious, Mr. Evans suggested that there has to be a hierarchy of cases and that within that hierarchy of serious cases this case of written child pornography is less aggravating than many.
[23] In consequence, while Kimberley does not exhibit the unique characteristics that might permit him access to a conditional sentence – [developmental delay or serious health issues, for example] – Mr. Evans submitted that the totality of the facts together with Kimberley's personal circumstances make a conditional sentence available as a fit disposition in this case.
[24] Failing that disposition, then a short, sharp sentence in the intermittent range is clearly available based upon prior precedents that are comparable to Kimberley's facts and circumstances.
[25] With that introduction, Mr. Evans reviewed the facts and the circumstances of the cases that he provided. Counsel highlighted those aspects of them that he contended supported his submission that a sentence in the intermittent range would be fit. Some of the points that Mr. Evans made include:
that Yarmchuk is a comparable but even more aggravated fact scenario because the child pornography was created and posted on an open internet site. In that case the trial judge found the statutory minimum of 90 days to be a fit sentence;
in Woolf, a sex addict (sic) possessed visual child pornography over a four to five-month period. A conditional sentence was inconsistent with dicta from the Ontario Court of Appeal and the controlling principles of sentencing. But Woolf had taken extensive counselling and a 90-day intermittent sentence was imposed.
Labre was a case of pictorial child pornography by indictment. He was a 49-year-old who had no prior record and pleaded guilty to possessing a large cache of child pornography. The Crown sought six to twelve months. Labre was remorseful and had insight. Treatment was possible and time had passed since he last accessed the pornography. The court felt that he was at low risk to reoffend and imposed 90 days intermittent.
T.W., 57, pleaded guilty to written child pornography being the sharing of perverted fantasies with like-minded men in chat-logs. T.W. had a unique biography and family situation. The court imposed 40-day intermittent sentence and three years on probation together with other ancillary orders.
Morrison pleaded guilty to one count of possession of child pornography – 11 unique images. Morrison was 59 with no record. A conditional sentence was rejected, apparently because Morrison distributed a portion of the imagery, but rather than the eight months sought by the Crown, the court imposed a sentence of 100 days.
[26] Mr. Evans conceded that having child pornography foisted upon a victim is an aggravating factor. However, he contended that the sharing of this kind of illicit material in secret is also aggravating since it perpetuates and potentially increases the risks and harms identified by Justice Molloy in R. v. Kwok at paragraph [49]. Hence, the defence submits that, given those risks, the kind of sentences imposed in pictorial and digital child pornography cases, as set out in paragraph [25], are available to Kimberley.
[27] Mr. Evans then turned to a series of facts that he urged in mitigation of Kimberley's crimes, in support of an intermittent range sentence if a conditional sentence is not imposed. Mr. Evans made the following points:
Kimberley is 43 years old.
He has no prior criminal record so that pursuant to R. v. Priest and R. v. Stein custody ought to be avoided, if possible and if that is not possible then the shortest and least restrictive sentence ought to be crafted; a sentence that stresses individual deterrence over general deterrence, and one that stresses rehabilitation over denunciation.
The offences are out of character. His family was shocked by them and despite their shock his family offered glowing reviews of him as a parent.
Kimberley pleaded guilty and thereby demonstrated his contrition and remorse and accepted responsibility for his actions. This is also clear from the PSR.
Kimberley has suffered what Mr. Evans characterized as ancillary punishments from his crime, (presumably to distinguish these matters from collateral consequences of sentencing), namely: the loss of contact with his young daughter who is currently eight years old. Moreover, any future contact will likely be restricted, and these consequences have been devastating to Kimberley. Additionally, he has suffered public opprobrium given the small-town nature of the community from which he hails.
He continues to enjoy the support of his family despite these crimes.
The defence contends that Kimberley does not have any current drug or alcohol issues, though, (as noted earlier), he alleges alcohol played a significant role in his commission of these offences.
He is not a danger to the public. As previously noted, his family agrees that these offences are out of character for him and the accused adamantly denies any deviant interest.
He has demonstrated good behavior while on bail.
He has spent 23 actual days in pre-sentence custody before his son was prepared to act as surety for him. Counsel stresses that this is a meaningful amount of incarceration that amounts to a "short sharp sentence."
Finally, Mr. Evans noted that these offences are based upon writing so that many of the usual factors set out at paragraph [7] of Kwok do not apply.
[28] Mr. Evans submitted that while one might be defined by a bad chapter in life, no one ought to be defined by a single page in the book of their life and the fact that Kimberley's family, who know him best, remain supportive is a matter to which I ought to give weight.
[29] In the result, Mr. Evans submits that a conditional sentence would be fit and in the alternative sentence him to an intermittent sentence.
Discussion
[30] As I said "off the top" while hearing Mr. Evans' submissions, in my view a conditional sentence is insufficiently punitive and insufficiently denunciatory. Controlling courts have directed that a sentence of actual incarceration is almost invariably required for this kind of offence. But, given the time that Kimberley has already spent in custody, (23 actual days being the equivalent of 36 days), and given the Crown's position of six months, a maximum length intermittent sentence is fit in my view.
[31] If, as the Crown submits, this case is analogous to A.R. where a 7-month sentence was imposed after a trial, then I am of the view that a one month reduction for Kimberley's guilty pleas is an insufficient acknowledgement of the mitigating effect of those guilty pleas.
Aspects of Kimberley's Biography
[32] While he was a truant in high school, he became an attentive parent according to his biological son and his step-daughter from one of his three long-term unions. They confirm that he provided a safe home environment and met their basic needs.
[33] In addition, he has a young daughter from his third and final union whom he has not seen since January 31, 2018. That child was born in June of 2011 and he professes a commitment to her that has precluded him from embarking on any further domestic unions. His depression at being precluded from access to that child and his fears about the ancillary orders likely to be imposed upon him have exacerbated the depressive illness he currently suffers from.
He worked seasonally on lake freighters for 17 years, collecting E.I. in the winter months. Ultimately, he moved back in with mother and son and is financially dependent upon her. He suffers from diabetes, high blood pressure and anxiety and depression. He has considered an application for O.D.S.P but has not applied. Equally, the prospect of a sentence has also deterred any initiative in seeking new employment.
[34] Kimberley used cannabis during high school and abused cocaine for a short period of time and admitted to a current occasional abuse of alcohol. Despite those admissions he does not accept that he has any alcohol dependency. He does recognize that he uses alcohol to relieve feelings of anxiety or depression. He has not engaged in any substance use or abuse counselling and does not believe that he needs to do so.
[35] This demonstrates a lack of insight, particularly since he has struggled with episodes of panic attacks for decades. He says that he has sought medical help on occasion and also stated that he had been hospitalized for suicidal ideation most recently as a result of these proceedings.
[36] Under the "Character" heading in his pre-sentence report the reporter wrote:
The subject considers himself to be a good person, a good provider to his partners and a good father to his children. He denies any sexual deviant thinking or behaviours and expressed remorse for his actions which led to his criminal charges stating that he was heavily intoxicated, not thinking and instead reacting to feeling dejected by the woman with whom had been corresponding with. He stated that his actions came from a place of self loathing and were inexcusable. He does not recall the content of the conversation that took place, only the feeling of being antagonistic and vengeful and on a mission to upset the recipient of his correspondence. He is adamant that he would never bring any kind of harm to a child. He also thinks that he may have been influenced in his state of intoxication by a TV programing he was watching which had satire references to inappropriate conduct which he mirrored in his testing to the victim.
[37] I do not accept Kimberley's self-assessment for several reasons. The content of his writings belies his denial of any deviant thinking. The lack of typographical errors and the immediate correction of errors belies his professed intoxication. The fact that J.A. refers in this conversation to his prior interest in her children belies his contention that his crimes were the "one-off" reaction he professed as an explanation for these crimes. His claim of self-loathing however may be an indication of an awareness of his penchant for perversion. Given his lack of counselling or treatment and the absence of any report from a counsellor or psychologist or psychiatrist that, of course, is simply a speculation on my part. His claim that he does not recall the content of the conversation that took place is incredible given Stinchcombe. His attempts to distance himself from his thoughts and words and his failure to candidly accept his decision to say these things indicates a worrisome lack of insight.
[38] By way of mitigation, Mr. Evans correctly points to Kimberley's lack of any prior record and to his pleas of guilt. In addition, the Crown accepts that there are these further mitigating facts:
these conversations were committed over a short period, over a matter of hours at most; albeit on Christmas Day;
they were directed to one recipient; and,
they transmitted in a private forum.
[39] That said, I do not accept that Kimberley has insight into his sexual problem, despite his averment that he does. Moreover, there is no evidence that he is willing to comply with future treatment and there is no psychiatric evidence tending to establish that he is not a pedophile nor any similar testing to establish that he does not otherwise pose a threat to the community, (the views of his immediate family notwithstanding). Further, Kimberley is not a youthful offender. This is not an aggravating factor but merely the identification of the absence of a potentially mitigating factor.
[40] There are several aggravating features of these crimes as noted earlier. These are real children that Kimberley advocated sexually assaulting. His texts had profound, destructive and continuing impact on J.A., which is a statutorily aggravating factor under s. 718.2(a)(iii.1). Additionally, advocating sexual assaults against these real children is a further aggravating feature of these crimes under s. 718.2(a)(ii.1). And, the crimes if carried out would have been a breach of trust by J.A., had they been allowed to occur, and likewise these acts would have been a breach of trust by Kimberley as a baby-sitter. These too are aggravating features of these crimes under s. 718.2(a)(iii).
[41] As previously noted at paragraph [14], there are further aggravating features of these crimes; namely, that: (i) these depraved desires were directed towards J.A., who was an unwilling participant in receiving these unsolicited messages from Kimberley, which targeted her own children; (ii) that J.A. was being directly importuned by Kimberley to allow him to sexually abuse her children, and (iii) Kimberley was advocating that J.A. cooperate with him in grooming her children to accept his depravity as normal, by the institution of "nakedness days."
[42] In that regard the comments quoted in R. v. Stroempl at paragraph [7] are apposite:
The evil of child pornography lies not only in the fact that actual children are often used in its production, but also in the use to which it is put. Although behavioral scientists disagree about the reliability of scientific studies, there is general agreement among clinicians that some paedophiles use child pornography in ways that put children at risk. It is used to "reinforce cognitive distortions" (by rationalizing paedophilia as a normal sexual preference); to fuel their sexual fantasies (for example, through masturbation); and to "groom" children, by showing it to them in order to promote discussion of sexual matters and thereby persuade them that such activity is normal.
[43] Several aspects of this analysis are present in this case including the fact that actual children were being targeted together with Kimberley's attempts to reinforce cognitive distortions in addition to his plan to groom these children in order to persuade them that his desire to engage them in such activity is normal.
[44] While Mr. Evans emphasis on R. v. Priest and R. v. Stein is understandable and while reference can also be had to R. v. Vandale, possession of child pornography has been described by our Court of Appeal as a "crime of enormous gravity, both for the affected victims and for society as a whole." The court went on to write,
"[f]or that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further, the offence of possession of child pornography required the imposition of sentences which denounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of the offence: …" (R. v. E.O. at paragraph [7])
[45] In the result I sentence Mr. Kimberley on each count, concurrently, to a period of incarceration of a time served credit of 23 days, (credited at one and a half to one or the equivalent of 36 day), plus a period of 90 days jail. In addition, I place him on probation for 36 months, on terms to be pronounced when these reasons for sentence are released.
[46] I make a primary DNA order on each count.
[47] I make a S.O.I.R. order for life.
[48] I make a s. 161 order that will continue for the periods of time noted with respect to its various elements as pronounced in court.
[49] Finally, I make a s. 109 order. I am of the view that when the offender wrote, inter alia, that he would sexually assault J.A.'s children when she left the home and he was baby-sitting them he was, at a minimum, threatening violence against those children.
Dated at St. Catharines this 26th day of August 2020
J.S. Nadel, (OCJ)