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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
( b ) on application made by the victim, 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 File and Parties
DATE: March 12, 2021 COURT FILE No: 18-1574
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
-AND-
JOSEPH BUTERA
Before: Justice Michael G. March
Submissions on Sentence heard: January 29, 2021 Reasons for Sentence released on: March 12, 2021
Counsel: Caitlin Downing, for the Crown Joseph Neuberger, for Joseph Butera
March, M.G., J.:
Introduction
[1] On December 4, 2020, I found Joseph Butera (“Butera”) guilty of possession of child pornography and arranging through telecommunication to sexually assault a child under the age of 16 contrary to sections 163.1(4)(a) and 172.2(1)(b) respectively of the Criminal Code (“the “Code”).
[2] Butera had much earlier entered pleas of guilt before Selkirk J. on October 30, 2019. Due to illness and his subsequent retirement, Selkirk J. could not proceed with the sentencing.
[3] Crown and defence counsel agreed that Butera’s pleas entered before Selkirk J. should be struck and re-entered before me to allow for the sentencing to occur.
Circumstances of the Offences
[4] Crown and defence counsel filed an Agreed Statement of Facts which satisfied all of the elements of the child pornography and the making an arrangement offences for which Butera acknowledged his criminal responsibility.
[5] Briefly, on November 28, 2018, the complainant, L.B., was perusing an online dating application, Plenty of Fish.
[6] L.B. had a conversation with “HDBOY”, a person later identified by the authorities to be Butera.
[7] Butera’s conversation with L.B. included details about her and her choice in men. She disclosed that she had given $1400 to a male. She felt that she had been played by him and was now on the hook for the money.
[8] L.B. then told Butera that she had a son age 10 and a daughter age 4 turning 5 soon.
[9] Butera’s attention was drawn to L.B.’s daughter and his desire to touch her.
[10] Butera’s conversation continued with offers of paying L.B.’s bills in exchange for some fun time with her daughter. When asked by L.B. about the nature of the touching, Butera replied in a nice way like a stepfather, “It’s Christmas for God sake”.
[11] He went on to talk about L.B.’s daughter and her being wet.
[12] Butera and L.B. shared with each other their cell phone numbers. He then texted her from his cell phone.
[13] Following this exchange, L.B. contacted police.
[14] On December 3, 2018 the child exploitation unit of the Ontario provincial police searched the database of Plenty of Fish and located the user, “HDBOY”. His profile was captured.
[15] L.B.’s account was taken over by police and an undercover officer commenced communications in her place with Butera via his cell phone. The undercover officer’s message to Butera suggested that L.B. had a change of heart. She needed the money. She was wondering whether he was still interested in helping with paying her bills, as he had indicated over Plenty of Fish.
[16] Butera indicated he was and asked for pictures. The undercover officer refused. Butera proceeded to ask what he could do to her including intercourse. He specified that he was interested in having sex with both L.B. and her daughter. His communications included the offer of money in exchange for a visit with them.
[17] L.B. informed him that she needed about $1200 by Monday. Butera indicated that he could provide $900 for the first visit and asked if her four-year-old daughter was a virgin. Thereafter, he inquired about weekly visits and how much that would be.
[18] Butera offered to search for a motel room in his area. He also inquired about whether L.B. knew of hotels in the Pembroke area.
[19] Communications between Butera and L.B. continued. He requested pictures and demonstrated greater interest in sexual contact with the daughter than L.B., her 38-year-old mother.
[20] The undercover officer sent a controlled image to Butera that concluded the arrangement and Butera advised that he was coming.
[21] A further exchange between Butera and L.B. involved his instruction to her about rubbing her child’s vagina and inserting her fingers into it. He remarked that he was horny and wanted her “so bad”.
[22] Butera advise that he was hoping to attend the Pembroke area over the weekend to see about rooms for Sunday or Monday. He agreed to book and pay for a room, as well as the cost of L.B.’s travel to the Toronto area to engage in sexual contact with the child.
[23] Butera’s conversations with L.B. continued with a focus on his eagerness to have sex with the child. He told her mother to insert objects into her vagina and to send him pictures thereof.
[24] Butera did not activate his plans to be with L.B. and her daughter insofar as booking a hotel in either Toronto or Pembroke. Nor did he troll Plenty of Fish looking to make contact with children.
[25] On December 12, 2018, Butera was arrested in the area of his home in Toronto. The cell phone used to communicate with L.B. was found in his possession. Police also seized and searched an HP Probook laptop computer belonging to Butera. He was transported to Pembroke to be formally charged.
[26] On December 17, 2018, Butera was released on bail.
[27] Subsequently, an examination of the seized laptop belonging to Butera uncovered 839 unique images of child pornography with a total of 934 images of child pornography stored within it.
[28] Butera’s collection appeared to span the time period of 2016 to 2018. It depicted victims ranging in ages from infants to teen years.
Circumstances of the Offender
[29] Butera was born on February 15, 1966. At the present time, he is 55 years of age.
[30] He separated from his wife in April 2017. His 15-year-old daughter continues to reside with his wife.
[31] Butera is the sole support for his wife and daughter.
[32] On January 28, 2021, Butera settled his matrimonial dispute with his wife.
[33] For a period of almost 9 years prior to his arrest, Butera was employed as a superintendent/serviceman with Saddlebrook Management Consultants Inc. (“Saddlebrook”) in Concord, Ontario.
[34] Following the termination of his employment with Saddlebrook, Butera worked as a contractor in construction.
[35] He has volunteered his time and worked 51 hours of community service for Habitat for Humanity.
[36] Following his arrest, he immediately sought out therapy from Dr. Monik Kalia, a clinical and forensic psychologist, as well as Dr. Julian Gojer, a forensic psychiatrist.
[37] Butera underwent phallometric testing arranged by Dr. Gojer; however, his arousal level fell short of the required cut off for Dr. Gojer to offer a definitive opinion. Upon reviewing the arousal patterns nevertheless, Dr. Gojer opined that his highest arousal occurred when he listened to audiotaped stories of men engaging in consensual sexual activity with adult females.
[38] Between March 12 and May 14, 2019, Butera completed successfully the psychoeducational phase of his therapy in a group format. The topics covered included:
a) cognitive distortions in sexual offending, b) understanding the cycle of offence and triggers, c) recognizing inappropriate fantasy and its management, d) escalation in fantasy and offending behaviour, e) empathy and impact of sexual abuse on victims, f) interactive discussions to understand the victim impact, g) use of compulsive pornography and its impact, h) intimacy deficits, attachment styles in sexual behaviour, i) boundary violations and healthy sexuality, j) issues related to consent to sexual activity, and k) understanding risk and relapse prevention plan.
[39] Butera was able to identify the following thinking errors that led to his offending:
a) it was on the Internet and anyone can get it, b) I’m just watching pornography and not hurting anyone, c) nobody can catch me on the computer as I was anonymous, d) watching pornography was helping me when I was bored and not feeling good about myself, e) it was a fantasy but I would never do it in real life, and f) as I was not living at my home, my family would not be aware of my pornography use.
[40] In his thorough psychiatric report prepared September 30, 2019, Dr. Gojer reached a diagnosis that Butera does not suffer from any major mental illness. His sexual history predominantly related to adult females. However, his use of child pornography from 2015 onward and culminating in the communications he had with L.B. and the undercover officer suggested that he does have some underlying pedophilic interests.
[41] Using a tool called the Hare’s Psychopathy Checklist Revised, Dr. Gojer rated Butera as a 6 out of a score of 30. In ranking Butera as such, Dr. Gojer found him to fall within the median or average range for the general population. Additionally, Dr. Gojer found Butera to be at the lower end of the spectrum with respect to risk of re-offence.
[42] While on bail for a period of 25 months, Butera did not breach any of his conditions of release.
[43] He completed 30 hours of therapy in seven sessions with Dr. Kalia. Overall, Butera presented with a demonstrated willingness to engage in counselling and therapy. He accepted full responsibility for the criminality of his conduct.
[44] In Dr. Gojer’s opinion, Butera requires counselling to address his underlying pedophilic proclivity. He must improve his ability to handle loneliness and separation. He must learn ways to channel his sexual interest in the appropriate direction. Not to be overlooked, his alcohol use, which can lower inhibition, must be assessed and treated, if need be as well.
[45] Most importantly, Dr. Gojer concluded that Butera should not be in the presence of children unsupervised.
Crown’s Position on Sentence
[46] The Crown seeks a period of incarceration of 4 ½ to 5 years in total for Butera.
[47] By way of ancillary orders, the Crown requests that Butera provide a sample of his DNA to the authorities pursuant to section 487.051(2) of the Code.
[48] The Crown further asks for a weapons prohibition for a period of 10 years under section 109 of the Code.
[49] Pursuant to s. 161 of the Code, the Crown seeks an order for life prohibiting Butera from:
a) attending any places where children under the age of 16 are likely to frequent, b) holding employment where he would occupy a position of trust or authority over children under the age of 16, c) having contact with children under the age of 16 unless they are in the company of a family member who is greater than 21 years old, and d) using the Internet or any other digital network.
[50] Under section 164.2(1) of the Code, the Crown seeks a forfeiture and destruction order for the devices found in and about the person of Butera at the time of his arrest on December 12, 2018. Namely, the Crown seeks an order for the disposition of the telephone used by Butera to communicate with L.B. and the undercover officer, as well as the laptop computer containing the child pornography.
[51] Lastly, the Crown requests that Butera be subjected to the requirements of the Sex Offender Information Registration Act for life.
Defence Position on Sentence
[52] Defence counsel on behalf of Butera seeks a period of incarceration in the total range of 27 to 30 months.
[53] The defence argues that some restraint ought to be exercised given Butera’s lack of any criminal antecedents.
[54] Recognition must also be given to Butera’s active and significant steps toward rehabilitation in the presentence phase, as well as his excellent prospects for reintegration into society as a productive member once again upon release.
Analysis
[55] In arriving at a fit disposition for Butera, I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.
[56] Butera’s sentence must be an appropriate one upon consideration of the circumstances of the offences he committed as well as his personal circumstances.
[57] Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them.
Denunciation and Deterrence
[58] Crown and defence counsel are agreed that deterrence and denunciation are the paramount sentencing principles to be applied when dealing with an offender who attempts to make an arrangement to sexually assault a child victim, and who is later discovered to be in possession of child pornography.
[59] In R. v. Friesen, 2020 SCC 9, Wagner C.J. and Rowe J., writing for the unanimous panel of the Supreme Court of Canada, could not have been clearer in the message sent to sentencing judges dealing with sexual offences involving children at paragraphs 101 to 105:
Prioritization of Denunciation and Deterrence in Section 718.01 of the Criminal Code
[101] Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children. In 2005, Parliament added s. 718.01 to the Criminal Code by enacting Bill C-2. In cases that involve the abuse of a person under the age of 18, s. 718.01 requires the court to give “primary consideration to the objectives of denunciation and deterrence of such conduct” when imposing sentence.
[102] The text of s. 718.01 indicates that Parliament intended to focus the attention of sentencing judges on the relative importance of sentencing objectives for cases involving the abuse of children. The words “primary consideration” in s. 718.01 prescribe a relative ordering of sentencing objectives that is absent from the general list of six objectives in s. 718(a) through (f) of the Criminal Code (Renaud, at § 8.8-8.9). As Kasirer J.A. reasoned in Rayo, the word “primary” in the English text of s. 718.01 [translation] “evokes an ordering of the objectives . . . that is . . . relevant in the [judge’s exercise of discretion]” (para. 103). This ordering of the sentencing objectives reflects Parliament’s intention for sentences to “better reflect the seriousness of the offence” (House of Commons Debates, vol. 140, No. 7, 1st Sess., 38th Parl., October 13, 2004, at p. 322 (Hon. Paul Harold Macklin)). As Saunders J.A. recognized in D.R.W., Parliament thus attempted to “re-set the approach of the criminal justice system to offences against children” by enacting s. 718.01 (para. 32).
[103] Section 718.01 should not be interpreted as limiting sentencing objectives, notably separation from society, which reinforce deterrence or denunciation. The objective of separation from society is closely related to deterrence and denunciation for sexual offences against children (Woodward, at para. 76). When appropriate, as discussed below, separation from society can be the means to reinforce and give practical effect to deterrence and denunciation.
[104] Section 718.01 thus qualifies this Court’s previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority (Rayo, at paras. 103 and 107-8). However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality (see R. v. Bergeron, 2013 QCCA 7, at para. 37).
[105] Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicative and educative role of law (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 102). It reflects the fact that Canadian criminal law is a “system of values”. A sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code of values”; it “instills the basic set of communal values shared by all Canadians” (M. (C.A.), at para. 81). The protection of children is one of the most basic values of Canadian society (L. (J.-J.), at p. 250; Rayo, at para. 104). As L’Heureux-Dubé J. reasoned in L.F.W., “sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms” (para. 31, quoting L.F.W. (C.A.), at para. 117, per Cameron J.A.).
Separation from Society
[60] Offenders must be separated from society where necessary. In my view, Butera must be deprived of his liberty. To do less would show insufficient respect to the fundamental purpose and principles of sentencing which must be applied in this case, most importantly, of course, denunciation and deterrence.
Rehabilitation
[61] In spite of his underlying pedophilic interest, I am of the view that Butera can be rehabilitated. He does not suffer from any major mental illness. He does not display psychopathic tendencies. Within a few months of being charged criminally, he set himself upon a path of counselling and therapy.
[62] Butera has a long history of supporting himself and his dependents through gainful employment. He has no criminal record. He has the full support of his new common-law partner and his sisters.
[63] However, rehabilitation, of course, is a secondary principle of sentencing where Butera pursued vigorously an opportunity to sexually interfere with the bodily integrity of a four-year-old child, and further counselled her mother to do the same.
Reparations for Harm Done to the Victim and the Community
[64] There is little Butera can do to make amends for the psychological harm he likely caused to L.B. Fortunately, L.B. had the good sense to contact the police before any physical harm was done to her daughter. Had Butera been successful in arranging a meeting between L.B., her daughter and himself, one can only wonder how emotionally, psychologically and physically scarred the child would have been by the encounter and the further ones he had hoped for.
Promotion of a Sense of Responsibility and Acknowledgement of Harm
[65] Butera will, of course, benefit from education and counselling that can be offered to him in a correctional facility, or in his community, or both.
[66] Butera must learn that he cannot take liberties with any child to satisfy his perverse sexual desires.
Aggravating Circumstances
[67] Upon review of the offences committed by Butera, I find the following factors to be aggravating:
a) the repeated attempts by the offender to have L.B. breach the trust she owed to her vulnerable child, and to have her offer up her daughter to him, b) the instruction provided by the offender on specific ways in which L.B. ought to sexually interfere with her four-year-old daughter to groom her and prepare her for their encounter, c) the request made by the offender to have unique images of child pornography created by having L.B. photograph and send to him the depiction of her sexual interference with her child, d) the substantial library of child pornography maintained by the offender, namely 934 images of which 839 were unique, and e) the reprehensible, lewd nature of the images themselves depicting, in perhaps the most egregious of the photos, a child aged 1 to 3 years with an erect penis in her mouth, an infant in the range of 1 to 6 months with a penis being pushed into her vagina and a 7 to 9-year-old child with an erect, adult penis touching her lower lip and a creamy, white substance dripping from it.
Mitigating Circumstances
[68] I consider as mitigating that:
a) Butera has no criminal record, b) he entered a relatively early guilty plea and saved on precious court resources in doing so, c) he acknowledged his serious criminal wrongdoing and expressed his remorse for his conduct, d) he has the support of his sisters and his new partner, which bodes well for his ability to rehabilitate himself, and e) he has a history of employment demonstrating a willingness to provide for and better himself and his dependents.
Parity
[69] Section 718.2 (b) of the Code provides:
“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
Crown’s Authorities
[70] In light of the parity principle as codified above, the Crown has provided me with a number of authorities for my consideration. I do not intend to exhaustively review each case, only those upon which the Crown placed emphasis in oral submissions and which have application to this case.
[71] The Crown drew my attention to paragraph 50 of Friesen. There, Wagner C.J. and Rowe J. commented:
To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important. As Pepall J.A. recognized in R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752 (“Stuckless (2019)”), failure to recognize or appreciate the interests that the legislative scheme of offences protects can result in unreasonable underestimations of the gravity of the offence (paras. 120, 122, 130 and 137; see also Marshall, at pp. 219-20). Similarly, it can result in stereotypical reasoning filtering into the sentencing process and the consequent misidentification and misapplication of aggravating and mitigating factors (J. Benedet, “Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences” (2019), 44 Queen’s L.J. 284, at pp. 288 and 309; M. M. Wright, Judicial Decision Making in Child Sexual Abuse Cases (2007), at pp. xii-xiii and 39). Properly understanding the harmfulness will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process (Stone, at para. 239; R. v. Barton, 2019 SCC 33, at para. 200).
[72] Earlier at paragraph 5 of Friesen, the Supreme Court of Canada signaled in the clearest of terms the need for an increase in the severity of sentences for offenders who exploit children’s vulnerability and target them for sexual abuse.
[73] At paragraph 44 as well, the Court directed lower court judges to utilize the principles outlined in the Friesen decision when considering fit sentences to be imposed where no actual touching took place between the offender and the child victim. Luring is specifically mentioned. Making an arrangement to have sexual contact with the child would apply equally in my view. The Friesen sentencing factors must be given due consideration and weight in such a case.
[74] At paragraph 97, the Court went on to state:
Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament “wanted such offences to be punished more harshly” (Lacasse, at para. 7). An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for an offence.
[75] Prior to the enactment of Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, where the Crown elected to proceed by indictment, the maximum penalty for possession of child pornography was 5 years imprisonment. It increased to 10 years with the 2015 amendments to the Code. Similarly, the offence of making an arrangement to commit a sexual offence against the child increased from 10 years imprisonment to 14 upon a Crown election by indictment.
[76] Further, at paragraph 110, the Court spoke clearly about the need in certain circumstances for an “upward departure from precedents” in order to “… recognize the gravity of sexual violence against children.”
[77] In R. v. Lynch-Staunton, 2012 O.J. No. 313, Ratushny J. observed at paragraph 54:
It is the “business” of the possession of child pornography that perpetuates the cycle of the physical and mental abuse of children, even though the possessor is rarely, and certainly not in the present case in terms of the images, the original abuser…it is the “new” children being portrayed in child pornography images that attract the most demand in terms of the “trading card mentality” surrounding collections of child pornography. This “value” only means that new and real children are being abused to satisfy the demand.
[78] In one of her earlier decisions, R. v. Dumais, 2011 ONSC 276 at paragraph 14, Her Honour pointed out:
“children around the world are extremely vulnerable to violence and particularly to sexual violence. The Internet enables an easy market for child pornography. All children are to be protected from being trafficked, exploited and abused by this kind of predatory and violent marketplace.
[79] Some four years earlier, Molloy J. in R. v. Kwok, wrote eloquently about the societal danger posed by the increasing prevalence of child pornography in the electronic age and the pressing need for its prevention. At paragraph 49, she held:
As child pornography has become an increasingly pervasive evil in our modern society, our courts have become increasingly aware of the need to recognize the gravity of the offence and the enormous harm it causes. The impact of child pornography on the helpless children that are its subjects is obvious. In addition, it is now well recognized that pedophiles frequently used child pornography to desensitize the children they are preying upon; to “groom” them and persuade them that the reprehensible acts that are about to be perpetrated on them are “normal” or acceptable. Collectors of child pornography seek to distance themselves from the direct physical and emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace that represents and bear responsibility for its malignant growth right along with its creators.
[80] The creation of and accessibility to child pornography lends itself to the revictimization of children time and again. At paragraph 48 of Friesen, the Supreme Court of Canada explained:
Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time.
[81] Setting general principles aside for the moment and looking specifically at the sentences attracted in the past for possession of child pornography, the Crown drew to my attention the decision of Chapman J. in R. v. Schacter, 2019 ONCJ 154. Her Honour specifically found that of the 148 images which constituted child pornography, but did not depict outright nudity, 95 were accessible. 47 were unique. Notwithstanding the many mitigating factors prevailing amongst Mr. Schacter’s personal circumstances, she went on to sentence him to a period of six months in custody to be followed by three years of probation.
[82] In R. v. John, 2018 ONCA 702, the Court of Appeal for Ontario upheld a 10 month jail sentence less 60 days credited for house arrest where the offender possessed 89 unique videos and 50 unique images child pornography. The Court went on to say the sentence imposed by the trial judge could have been much higher but for the offender’s considerable efforts at rehabilitation.
[83] In the Dumais case referred to above, Ratushny J. handed down a sentence of nine months in jail and one year probation where the offender was found to be in possession of 170 images in 44 movies of child pornography.
[84] In R. v. Partsch, 2018 ONCJ 962, Brown J. imposed a period of incarceration of 19 months to be followed by three years of probation where the offender was found to be in possession of 2053 images, 863 of which were unique and six videos, five of which were unique, of child pornography.
[85] More recently, in R. v. Kim, (2019) O.J. No. 5267 (OCJ), Vaillancourt J. meted out a sentence of 2 ½ years’ imprisonment where the offender was found in possession of 741 unique videos and 920 unique images meeting the definition of child pornography.
[86] Turning to making an arrangement for the commission of a sexual offence upon a child, the Crown under section 172.2(2)(a) rightfully points out that Mr. Butera is subject to a minimum punishment of imprisonment for a term of one year.
[87] In my view, the ranges of sentence which would customarily apply to a luring offence are analogous to those where the offender communicates through a third-party to gain access to a child, and not directly with the child him or herself.
[88] In R. v. Woodward, 2011 ONCA 610, Moldaver J.A. explained at paragraphs 58 and 59:
Even if [R. v. Jarvis, 2006 ONCA 3241, O.J. No. 3241 (C.A.)] did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from five years to ten years. Moreover, if it is shown through the introduction of properly tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of 3 to 5 years, might well be warranted to deter, denounce and separate from society at all predators who would commit this insidious crime.
…[t]he offence of luring carries very real dangers-innocent children being seduced and sexually assaulted or even worse, kidnapped, sexually abused and possibly killed.
[89] In this case, the Crown did not tender evidence that luring or making an arrangement to have sexual contact with a child has become a pervasive social problem, but nor was the Crown really required to. Clearly, by their very nature, the aforementioned offences must carry stiff penalties to reflect society’s condemnation for such horrific conduct on the part of the offender, and to deter any like-minded individuals.
Defence Authorities
[90] The defence has commended to me for my review a number of cases, the vast majority of which predate Friesen. I offer this as no criticism of defence counsel. However, Friesen is the new benchmark for how Canadian courts ought to approach sentencing where the sexual abuse of children has either been attempted or in fact occasioned by offenders.
[91] As with the Crown’s authorities, I will only mention in these reasons the authorities specifically mentioned by defence counsel during submissions. They thoroughly encapsulate the relevant sentencing principles at play in this case.
[92] In R. v. Duplessis, 2018 ONCJ 912, Javed J. found the offender guilty following a trial for making an arrangement with the person by means of telecommunication to commit the offence of sexual interference with a person the offender believed to be under the age of 16. An undercover officer posed as the mother of a three-year-old girl in responding to an advertisement posted under the Casual Encounters section of Craigslist.
[93] The offender and the undercover officer communicated over email and text. The offender sexualized their conversations and detailed the ways in which he wished to sexually abuse the child as set out below:
a) having the child perform fellatio on him, b) ejaculating on the child and having her taste the ejaculate, c) having the child watch the offender perform cunnilingus on the mother, and d) inviting the child to engage in sexual touching or oral sex.
[94] The offender was a 60-year-old man with no criminal record. He had been a victim of sexual abuse himself as a child. He had been gainfully employed most of his life.
[95] Dr. Gojer assessed the offender and found him to be unlikely to have a sexual deviation. Additionally, he presented as a low risk to reoffend.
[96] At paragraphs 27 and 28 of Duplessis, Javed J. focused on what section 172.2 of the Criminal Code proscribes. His Honour’s comments are particularly apposite to this case. He wrote:
“Accordingly, section 172.2. criminalizes the sexual predator’s intentions not necessarily actions. If the predator acts on his intentions, that is obviously aggravating and may trigger different offences but what’s clear is that the offence is designed to catch sexual predators before they act, not after. The focus is on the predator’s intention at the time, not afterwards . . . In my view, it is not a mitigating factor that the defendant did not act on his intention or claims he wouldn’t have done so.
That said, I do feel it is important to consider the question of whether an offender has some insight into their offending conduct when dealing with the preparatory offence. I have no basis to reject the opinion that the defendant now understands the severity of his actions and will likely not re-offend in the future, even though the phallometric testing offered no meaningful interpretation.”
[97] Javed J. went on to impose a sentence of 12 months imprisonment upon the offender.
[98] In R. v. Parks, 2019 ONCJ 478, West J. convicted the offender after trial for the offence of making an arrangement to commit a sexual assault upon a person under the age of 16 contrary to section 172.2(1)(b). At the time of sentencing, Mr. Parks was 57 years of age. He had no criminal record. He was employed full-time. He had also performed community service hours.
[99] At paragraph 54 of Parks, His Honour held:
“ . . . I adopt the analysis of Justice Pomerance in R. v. Harris (2017) O.J. No. 788 (SCJ) concerning this issue.
- No child was actually put at risk by the offender’s conduct. Katie was not really the young girl. She was a persona created by the undercover officer in an effort to “lure” the “lurer”. However I do not see this as a mitigating factor. It was fortuitous that the person responding to the ad was a police officer rather than a child. At trial, I found that the accused believed Katie to be a young girl. In these circumstances, the moral blameworthiness of the offender is not much different than if Katie really had been the young girl. Certainly Mr. Harris cannot take credit for the fact that no child was placed in harm’s way.”
[100] In Butera’s case, L.B.’s daughter was an actual, innocent child. But for L.B.’s decision to involve the authorities, lifelong harm may have been caused to the four year old, had Butera’s evil plan come to fruition. In my view, there is no mitigation in the fact that Butera had not gone so far as to make a motel or hotel reservation to meet with mother and child behind closed doors. The inchoate element of the making an arrangement offence provided for in section 172.2(1) (b) of the Criminal Code crystallized upon Butera’s offer to book a room.
[101] West J. rejected Mr. Park’s defence that the entreaties he made to have sexual access to a young girl was role playing. He sentenced the offender to a period of 18 months imprisonment.
[102] In R. v. Marratt, 2019 ONCJ 618, Band J. sentenced an offender for possessing and making available child pornography, as well as making an arrangement to commit sexual interference upon a child. His Honour spoke courageously about the potentially devastating effect that even passive exposure to the horrors of child sexual abuse can have on justice system participants. At paragraphs 2 to 22, Band J. warned:
II. Words of Caution
Mr. Marratt, it is a principle in Canadian criminal law that it is wrong to place too much emphasis on attempting to make an example of one offender in order to deter other like-minded people.
It might seem to you that I am doing just that, because I have decided to present your case as a learning experience. But I want to reassure you that my main purpose in that regard is not to make you, personally or unduly, an example to other would-be offenders. Rather, it is the criminal justice system and its participants who can learn from how this case unfolded and the subject-matter that it involves. It is with that goal in mind that I begin with a caution, as Chief Justice Strathy recently did on behalf of the Ontario Court of Appeal in R. v. J.S. 2018 ONCA 675:
It is unfortunately necessary to describe the offences and the circumstances surrounding them to some degree in order to have proper appreciation of the nature and gravity of the offences to which Mr. Marratt has pleaded guilty.
III. Brief Summary of the Facts
The offences took place during a three-week period in March 2018. Mr. Marratt participated in an on-line chatroom focused on the sexual abuse of children. He engaged in chats with an "adult female" who claimed to be the mother of two girls, aged 12 and nine years. During these chats, the two discussed engaging in sexual activity with each other and the nine-year-old girl. They also made arrangements to meet for that purpose. Mr. Marratt also suggested that the adult female sexually abuse her daughters at home as they bathed or slept. The discussions were graphic.
Mr. Marratt also sent five videos containing child pornography to the "adult female" using a social media app.
In fact, the "adult female" was a police officer. Police later seized Mr. Marratt's smart phone, where they found 60 videos and 11 images containing child pornography. 56 of the videos and 10 of the images were unique. The videos involve children ranging in apparent age from approximately 2 to 11 years. They are being sexually abused by adults, including vaginal and anal penetration, watching adults engage in sexual activity, or both. In at least one of the videos, the small child is clearly in distress.
IV. The Mechanics of the Proceedings
Because of the way events unfolded during the sentencing hearing, I believe it is important to repeat here what I have previously stated in another case: R. v. Shaw, [2018] O.J. No. 537. My intention is not to be self-indulgent; rather it is to attempt to spur on and continue an increasingly important conversation about the trauma that justice system participants can suffer by being exposed to disturbing material such as child pornography.
Science shows, and it stands to reason, that frequent and repeated trauma can lead to more serious and lasting impacts on our mental health. This can include decreased productivity, work-avoidant behaviour, work absence, interpersonal problems, relationship difficulties, depression and substance abuse, among others.
Recently, there has been considerable focus on the mental health of jurors after particularly difficult trials. This has led to free support and counseling services being offered through the Ministry of the Attorney General - and rightly so. However, every such case also requires the participation of some or all of the following people: court staff, court officers, victim witness workers, counsel and judges. Moreover, it is well-known that the vast majority of these and other criminal matters are dealt with in the provincial courts. In light of recent changes to the Criminal Code, it is reasonable to expect a significant increase in our over-all case-load, including cases of sexual offences involving children.
For these reasons, I believe that it is my responsibility and that of my colleagues to take an active and leading role in this discussion rather than to sit by and passively leave the door open for harmful evidence that is either unnecessary or presentable in an attenuated form.
In Shaw, I wrote the following:
In my experience in the criminal courts, child pornography involves the kind of traumatizing imagery that can affect even those of us who believe we are "thick skinned" or that we have seen it all. The effects can be serious and lasting. They can, in combination with others, have serious impacts on our mental and physical health and our relationships. In our profession, and others, direct and vicarious trauma are topics that are rightly becoming the topic of study and discussion. This discussion must continue. I also want to commend the Crown for not taking the tack that some of her colleagues have. That is, to present and file representative imagery in the context of sentencing proceedings in which the nature and quality of that imagery is not at issue. In my view, the costs of doing so over the long term outweigh the perceived benefits.
Mr. Marratt's matter is not only a case-in-point, but an experience we can all learn from. During a judicial pre-trial, Crown counsel indicated that she would select a representative sample of the child pornography to show at the sentencing hearing. I urged both counsel to do their best to agree to a mutually satisfactory verbal description of the contents of the material so as to protect courtroom participants (including themselves and me) from unnecessary exposure to potentially trauma-inducing raw material. This approach is permissible in certain circumstances. Among the relevant considerations are the existence of an agreement between the parties as to the facts and whether, owing to his or her professional experience, the sentencing judge is able to "fully appreciate the sickening horror of such pornography": see R. v. M.P., 2012 ONCA 162, [2012] O.J. No. 1148 at para. 34 (C.A.). For my part, I continue to be able to call to mind very disturbing imagery from a seconds-long video I viewed as defence counsel over 12 years ago. Of course, I have been exposed in other cases as well.
Counsel reached such an agreement, and I am grateful for their professionalism and compassion. As a result, the facts were presented in a combination of ways. First, by way of an agreed statement of facts concerning the child pornography, which the Crown proposed to read into the record. Second, by way of a representative summary of the "chats" Mr. Marratt engaged in with the "adult female." Third, by way of a CD-ROM containing the material in its entirety. These were entered as sealed exhibits on consent. During the hearing, I sought and received an acknowledgment from both parties that the verbal summaries were sufficient to allow me to perform my duties in this case.
Nonetheless, as the Crown was reading the description of the material, a member of the court staff began to quietly weep. To my discredit, I did not notice immediately, and I am grateful to Ms. Moskovitz for bringing it to my attention. Naturally, we took a break.
I wish to be clear that there is no shame in that staff member's reaction. It was one of a number of natural responses to disturbing material, and the break that followed did not affect these proceedings or any other. To the contrary, the break allowed Crown counsel time to make the considered decision to cease reading the descriptions and simply to rely on the written record, which I took with me to review. Ms. Moskovitz's decision was the right one in this case, and once again I am grateful for it.
V. Lessons Learned
The lessons I would draw from this case are these, and I take responsibility for failing to advert to them sooner. In the appropriate case, once the parties have agreed to present the evidence in a summarized verbal form, they should be canvassed as to whether it can simply be filed as a written exhibit to be reviewed by the judge alone. In such a case, there is no need for court staff to be exposed to it or the source material. In the age of electronic evidence of all kinds, some of which, while relevant and admissible, is so voluminous that it is neither displayed in court nor ever directly accessed by the parties or the trier of fact, this should not present as a difficult concept.
In instances where that is not appropriate, thought should be given to whether some court staff can be excused during the presentation of the evidence. With some forethought, a hearing and evidence can be organized in such a way that the court clerk can accept and mark the exhibits at one time, either before or after they are presented.
At the very least, counsel wishing to present the evidence, or the presiding judge, should provide a warning concerning its nature. That way, court staff and victims can raise any concerns with the presiding judge. This will also allow members of the public to decide whether or not to remain in the courtroom.
Those staff or witnesses who remain in the courtroom should be made to understand that it is acceptable to request a break or, as happened in the Shaw matter, seek to be replaced by a colleague.
From a broader institutional perspective, thought should be given to establishing procedures to flag such matters at the pre-trial or scheduling stage in order to allow time for staffing decisions to be made in a trauma-informed and sensitive way. Likewise, consideration should be given to allocating resources and space where staff can debrief in a timely fashion. The best I could do as a lay person was to have a private conversation with my staff in which I attempted to reinforce some of what I have written here and encourage them to take care of themselves.
Forewarned is forearmed.
I believe that, as members of the judiciary, we should also encourage and participate in continued research in this field should such opportunities arise. By taking the lead in this area, we can hope to develop a trauma-informed approach not only to procedure but also quite possibly to the rules of evidence. For instance, it is conceivable that some of the impacts I have discussed above could be raised within an inquiry into the prejudicial effect of a proposed piece of evidence.
[103] Justice Band at paragraphs 32-35 and 37 set out the legal principles in to be followed in sentencing offenders for possessing child pornography and for making an arrangement to sexually interfere with a child as follows:
VIII. Applicable Legal Principles
The parties rightly agree that the principles of deterrence and denunciation occupy a central role in sentencing proceedings where sexual offences have been committed against children. While central, they are not the only principles to consider. Mr. Marratt's prospects for rehabilitation, parity and the need for restraint - particularly in the case of a relatively young first offender - are also in play.
In R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, the Supreme Court of Canada affirmed that, ultimately, a fit sentence is one that is proportional. That is, it must reflect the gravity of the offences and the moral blameworthiness of the offender. To the extent that there exist pre-established sentencing ranges, they are guidelines, not straight-jackets.
Like other sexual offences involving children, child pornography offences are abhorrent offences of the utmost gravity. The reasons for this are described eloquently in a number of well-known authorities, including Justice Molloy's decision in R. v. Kwok (ON SC), [2007] O.J. No. 457 (SCJ).
The appropriate range of sentence for possession of child pornography offences is six months to three years imprisonment. Sentences vary within this wide and flexible range depending on a number of factors, including the following:
- whether the accused has a record for similar offences;
- whether there was also production or distribution of the material;
- the size of the collection;
- its nature, including the age of the children and the relative depravity or violence depicted;
- the extent to which the offender is seen as a danger to children - including whether he is diagnosed as a pedophile who has harmed children in the past;
- whether the downloads were purchased or downloaded for free; the former having the effect of fueling the profit derived from the victimization of children;
- the age of the offender;
- The otherwise good character of the offender;
- Whether the offender is willing to undergo treatment or has begun to do so;
- The extent, if any, of the offender's insight into his problem; and
- The extent to which the offender has already suffered for his crime - for example, in his family, career or community.
- Sentencing authorities regarding s. 172.2 offences are not numerous. In those that I have reviewed, sentences ranging between one and two years are common where the Crown proceeds by indictment. The Defence provided me with one such case: R. v. Duplessis, 2018 ONCJ 912 in which, by analogy to cases involving luring, Justice Javed found that the applicable range was wide and flexible. He sentenced Mr. Duplessis to 12 months in jail on facts that were much more serious than those before me. Mr. Duplessis made a number of arrangements to engage in sexual activity, including intercourse, with a (fictional) three-year-old girl. He was arrested before an arranged meeting and found in possession of alcohol, sexual paraphernalia and a doll for the girl.
[104] His Honour went on to hold that a global sentence of 15 months was appropriate for the 33 year old offender with a solid work history. He had taken rehabilitative steps of his own volition. He had the support of his spouse and his collaterals. He was assessed by a forensic psychiatrist to be a low to moderate risk to re-offend. He did not suffer from any major mental disorder.
A Fit Sentence for Butera in the Circumstances of the Offence He Committed and His Personal Circumstances
[105] While I find the authorities referred to me by defence counsel to be helpful in tailoring a fit sentence for Butera, I cannot ignore the clear message sent by the Supreme Court of Canada in Friesen. Sentences for offenders whose conduct imperils or actually harms vulnerable children must trend upwards. At paragraph 107, Wagner C.J. and Rowe J. offered this clear direction:
[107] We are determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:
(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence; (2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and (3) Sexual interference with a child should not be treated as less serious than sexual assault of a child.
[106] Of the three enumerated points above, the first two apply in this case.
[107] The sentence I settle upon for Butera must reflect an upward departure from past sentencing ranges and most importantly, it must be proportionate to the sheer gravity of the offences he committed in relation to his sole responsibility for them.
[108] Butera’s conduct was nothing short of shocking and reprehensible. I must denounce him for his vile attempt at wishing to satisfy his lewd desire for L.B.’s child. To state the obvious, his persistent pleas for sexual encounters with a four year old girl must be sternly condemned.
[109] I repeat, but for L.B.’s wise decision to report Butera’s depravity to the authorities, the harm which could have befallen her four year old would have been immeasurable.
[110] The length of time for which I will incarcerate Butera must pay adequate respect for the principles of denunciation and deterrence.
[111] At the same time, I cannot lose sight of the fact that Butera has no criminal history. He has been a productive, upstanding member of society to the vast majority of his life. In R. v. Priest, 1996 ONCA 1381, 30 O.R. (3d) 538, the Court of Appeal for Ontario reminded sentencing judges that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the offender rather than solely for the purpose of general deterrence.
Conclusion
[112] Upon consideration of all relevant principles of sentencing and their purpose, I shall impose for the making the arrangement to sexually assault L.B.’s daughter contrary to s. 172.2(1)(c) of the Code a sentence of 30 months imprisonment.
[113] For the possession of child pornography offence contrary to s. 163.1(4)(a), I shall impose a sentence of 15 months consecutively.
[114] Globally, the sentence I intend to impose would be 45 months,; however, to recognize the harder time Butera will be forced to serve in the era of the Covid-19 pandemic (see R. v. L.A.A., paras. 97-111), I shall apply a multiplier of 0.1 to the 45 months and reduce his period of imprisonment going forward from today’s date to 40.5 months (i.e. 45 mos. x 0.1 = 4.5 mos., 45 mos. – 4.5 mos. = 40.5 months).
[115] The 0.2 multiplier I utilized in L.A.A. is reduced in Butera’s case to 0.1 to reflect the fact that Corrections Canada is now prioritizing the vaccination of prison inmates [1]. Soon I expect the harsher conditions of confinement in federal institutions will be lessened. Lockdowns to prevent the spread of Covid-19 will be less common. A return to regular programming is on the horizon. The 10 percent reduction (i.e. the use of the 0.1 multiplier) on the total sentence I would otherwise have imposed also recognizes, to some degree, the principle of totality.
[116] Butera also opted to go into custody on January 29, 2021 to await the preparation of these Reasons. He is entitled to credit for that time spent in custody. For those 43 actual days, the first 14 of which he likely spent in isolation, I will utilize a multiplier of 1.75, somewhat enhanced above the typical Summers [2] credit of 1.5, more in keeping with Duncan [3] credit, to further reduce his sentence by 2.5 months (43 days x 1.75 =75.25 days or roughly 2.5 mos.).
[117] Going forward from today’s date, Butera shall serve a period of imprisonment of 38 months (i.e. 40.5 mos. – 2.5 mos. = 38 mos.).
[118] Under authority of s. 743.21 of the Code, I shall order Butera to refrain from any form of contact directly or indirectly with L.B. and her children while incarcerated.
[119] By way of ancillary orders, I shall impose the following:
a) Butera is to provide to the authorities as soon as reasonably practicable a sample of his DNA pursuant to section 487.051(2) of the Code, b) he is to comply with the requirements of the Sex Offender Information Registration Act for life, c) he is to forfeit to the Crown the seized cellphone used to communicate with L.B. and the undercover officer as well as the laptop containing the child pornography pursuant to s. 164.2(1) of the Code, d) under section 109 of the Code, he is to refrain from possessing a weapon as that term is defined in the Code for a period of 10 years, and e) under s. 161 of the Code, for life: (i) he is not to attend at a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day care centre, school ground, playground or community centre, (ii) he is not to seek, obtain or continue any employment, whether or not the employment is remunerated, or to become or to be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years, (iii) he is not to have contact-including communicating by any means-with a person who is under the age of 16 years, unless that person or those persons are accompanied by a family member greater than the age of 21 years, (iv) he is not to access the Internet or to use any device capable of accessing the Internet or any similar communication device while in the presence of a person under the age of 16 years, (v) he is not to access or participate in online chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material, and (vi) he is not to use or permit to be installed on any device in his possession any program or service designed to allow anonymous use of the Internet.
[120] Again, I wish to thank Crown and defence counsel for their helpful and thorough submissions.
DATED: March 12, 2021
March, M.G., J.
Endnotes
[1] In a memo published by Correctional Service Canada (CSC) on Feb. 15, 2021, and of which I take judicial notice, it appears that CSC began vaccinating “some older, medically vulnerable” federal inmates in accordance with recommendations made by the National Advisory Committee on Immunization (NACI). Eventually, CSC intends to offer the Moderna vaccine to all federal inmates according to the NACI prioritization guidance. No timeline for general vaccination was provided. Vaguely, the Memo states “…as further supply of the vaccine becomes available.” Until then, I can only conclude that the conditions of confinement for federal inmates will be harsher with lockdowns sporadically imposed, visits cancelled, and rehabilitative programs put on pause so as to prevent the spread of Covid 19.