ONTARIO COURT OF JUSTICE DATE: 2021 05 06 COURT FILE No.: Kenora 183732
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ARTHUR R.C. RULE
Before: Justice Evelyn J. Baxter
Heard on: February 26, and March 3, 2021 Reasons for Sentence released on: May 6, 2021
Counsel: Mr. Josh McKay, counsel for the Crown Mr. Reid Thompson and Ms. Phaedra Olinyk, counsel for the accused
PUBLICATION BAN
This matter is subject to a publication ban pursuant to section 486.4 (1) and (3).
Baxter J. (orally):
Introduction
[1] Mr. Rule entered a guilty plea to accessing and 3 counts of possessing child pornography contrary to ss. 163.1(4) and 163.1 (4.1) of the Criminal Code. He entered guilty pleas on November 8, 2019, and a pre-sentence report was ordered. Other reports and information were also compiled in the intervening period. His sentencing hearing was held February 26, 2021 and continued March 3, 2021. The Crown proceeded by indictment, and Mr. Rule elected to be sentenced by this court.
[2] Mr. Rule comes before the court with no criminal record. He is a lifelong resident of Kenora. He was married until he was about 60 years of age. He has 3 adult children and grandchildren. He is a retired teacher and is now 70 years of age. Mr. Rule also has health issues that will be examined below.
[3] The Crown is seeking a custodial sentence for Mr. Rule in the range of 18 to 24 months followed by a three year probation order with conditions.
[4] The defense is seeking a conditional sentence order and probation and brought a Constitutional challenge to the sentencing provisions related to s. 163.1 on the ground that Mr. Rule’s personal and medical circumstances are extraordinary. In the alternative, the defense seeks a reduced custodial sentence on compassionate or extraordinary grounds.
[5] Both parties agree there will be a lifetime SOIRA order, a s. 161 order, a forfeiture order, a sealing order, and a DNA order.
Background of the Offenses
[6] On April 10, 2018 an unknown person, later to be identified as Mr. Rule, came to the attention of the OPP for possibly accessing or possessing child pornography.
[7] An investigation was commenced, and police obtained a warrant to search Mr. Rule’s home and computer once they identified Mr. Rule as the person in question. During the execution of the search warrant, Mr. Rule admitted to police he had such images on his computer.
[8] Mr. Rule was arrested and charged on November 21, 2018. He was released from custody on conditions, one of which was to not be within a certain distance from places known to be frequented by children under age 16.
[9] The items seized from Mr. Rule’s computer revealed a vast collection of images and videos of children being sexually abused and exploited. Over 100,000 images and videos were examined by the OPP child sexual exploitation unit. The police categorized 22,429 images, 204 movies or videos and determined these images fit the definition of child pornography. 92,984 images were not categorized, but the Crown noted these items would have met the criteria for child pornography.
[10] Approximately two thirds of the material focus on the genitals of the children depicted. One third of the images depict persons under the age of 18 engaged in graphic sexual activity. There appeared to be a preponderance of images involving prepubescent girls and less so of boys under age 18. The additional 92,000 + images were not categorized because of the time and resources needed to fully examine the contents of Mr. Rule’s extensive collection.
[11] In addition, the police noted that Mr. Rule’s screen saver on the computer was an image of a prepubescent girl, naked with her legs spread. He had the other images and videos saved under various folders on his computer.
Evidence at the Sentencing Hearing
[12] Detective Constable Heidi Gastmeier testified at the sentencing hearing and said that she did the categorization of the images seized from Mr. Rule. She outlined the work the OPP child sexual exploitation unit does and that she had been with the unit since September 2018.
[13] DC Gastmeier said in 2018, the cloud was not as widely used as it is now, which meant Mr. Rule had saved his collection on his computer, which made it accessible to the police in their investigation. Had the collection been in the cloud, it would have been harder for the police to access.
[14] DC Gastmeier testified that Mr. Rule’s was her first case, and he had the biggest collection she had seen to date. She estimated one third of the images she categorized involved explicit sexual acts involving children, including vaginal penetration by adult male penises, objects and digits. She believed there may have been one image involving anal penetration of a child. Images involving babies still in diapers were also found in the collection. Overall, the ages of the children, boys and girls, appeared to be between the ages of 1 to 15 years of age.
[15] The police took a sample of the images and videos and presented them to the court. Reluctantly, the court viewed the images and videos under the guidance of DC Gastmeier. The images viewed by the court were incredibly disturbing and utterly abhorrent. The sample consisted of 22 images and 10 videos.
[16] The sample shown to the court of Mr. Rule’s collection was repugnant and disturbing. Child abuse is socially reviled and denounced. Child sexual abuse is even more so, but the child sexual abuse images and videos captured in the sample this court saw are disgusting and heartbreaking in what they represent. The utter defilement and destruction of these innocent lives cannot be overstated.
[17] DC Gastmeier testified the police could not determine if Mr. Rule paid for any of these images. It was estimated he had been collecting these child sexual abuse materials between 2013 and 2018 when he was caught. It appears that Mr. Rule did a search of such material via the Bing search engine. It was his undoing. Bing is mandated to report any searches of child sexual abuse material to the authorities. Bing then triggered an alarm to the RCMP, and the RCMP alerted the OPP to Mr. Rule’s activity via his IP address.
[18] The police are under resourced and unable to effectively keep up to the ever-changing technology and techniques used by the consumers of child sexual abuse material. Websites shut down and re-emerge regularly. The consumers often find one another and begin exchanging images and videos in the manner of trading cards. Mr. Rule’s participation in this horrible industry was deliberate and went on for some time. I must point out the police did not find evidence Mr. Rule distributed any parts of his collection. It appears he preferred to save the images he obtained so that he could go back and view them at his leisure and without having to search the internet for them.
[19] The defence called psychiatrist, Dr. Philip Klassen, to testify regarding Mr. Rule’s psychiatric assessment. He noted Mr. Rule is diagnosed with heterosexual paraphilic disorder. His main interest is girls between the ages of 9 to 13. Mr. Rule indicated to Dr. Klassen that he prefers girls who are “budding”, making his diagnosis more specific – heterosexual hebephilia or pedohebephile. He also admitted that he would sometimes view and masturbate to prepubescent and adult female images. He used or accessed “regular” pornography throughout his adult life, and during periods he was not in a relationship. It was not until he was 60 years of age, he began to view images of child sexual abuse.
[20] Dr. Klassen explained a person’s sexual preferences operate in one’s personality and cannot be changed. People with Mr. Rule’s disorder cannot satisfy or express their sexual preferences in a legal or socially acceptable way. A person must rely on their conscience to avoid the behaviour, which can be difficult. These disorders have not been studied extensively. Treatment resources are limited and generally reserved for the more serious or high-risk sexual offenders.
[21] Even though Mr. Rule was a long-time teacher in Kenora, he denied he ever was a “hands on” sexual abuser of children. He did not choose teaching as a career in order to be around young girls, nor did he have dating relationships with younger women who had young children as a means of accessing their children.
[22] Dr. Klassen noted Mr. Rule was distressed at his behaviour and had experienced a great deal of stress and negative community reaction to his being charged for engaging in the perpetuation of child sexual abuse by consuming/viewing child sexual abuse material. Mr. Rule was cooperative and forthcoming sharing that he had developed a routine of searching for images on the internet so that he could get his sexual gratification from viewing the images.
[23] Dr. Klassen also pointed out that offenders who are consumers of child sexual abuse material generally do not turn into “hands-on” offenders and have low recidivism rates in the range of 10% over a 5 year follow up. He did not recommend any sexual offender therapy for Mr. Rule, but did agree any sentence should appropriately contain restrictions on Mr. Rule’s ability to access children under age 16 and the internet.
[24] In Mr. Rule’s case, Dr. Klassen noted Mr. Rule was able to compartmentalize his prosocial life from his consumption of child sexual abuse material so he could reduce or eliminate any distress he may feel about his behaviour. He also tended to minimize or justify his actions by processing it as a victimless crime in that he was not directly hurting any children. Mr. Rule lacked some empathy about the harms being done to the children in the images he downloaded and used for his sexual gratification.
[25] It is important to note Dr. Klassen did not perform a risk assessment with Mr. Rule, nor did he do any phallometric testing as Mr. Rule was very open about his sexual preferences and about how he accessed and used the child sexual abuse material he had on his computer. Dr. Klassen concluded that people like Mr. Rule with such “errors in thinking” can benefit from cognitive behavioural therapy but teaching or training a person to develop empathy is generally not successful in this context.
[26] A presentence report was also prepared in anticipation of this sentencing hearing. Overall, the report was positive, outlining Mr. Rule’s prosocial life in the community, his employment history, his community work and his relationships. However, the author of the report noted Mr. Rule did minimize his actions and appeared to lack the requisite empathy for the child victims of his actions.
[27] Mr. Rule also expressed that a jail sentence was unwarranted in his case and was “overkill”, because he did not create or distribute the material he acquired. The author of the report did express concern that Mr. Rule, despite having a prosocial life and relatively healthy relationships, hid the other side of his life for several years before he was discovered and charged.
Circumstances of the Offender
[28] In addition to the pre-sentence report and the evidence of Dr. Klassen, the defense tendered 14 letters of support from Mr. Rule’s family and friends. As expected, the letters outline the overall prosocial aspects of his life and their shock and dismay at the turn Mr. Rule’s life took in November 2018.
[29] Mr. Rule also provided and read in a letter of apology to the court wherein he expressed his remorse and explained how and why he began to access child sexual abuse material. He said he now understands the children in the images are victims, and that his behaviour contributed to the continued abuse and victimization of these children. He notes his family and friends have been humiliated and embarrassed by his actions and have suffered negative reactions in the community because of his offenses.
[30] In addition to being a father and grandfather, Mr. Rule is the primary caregiver for his now 92 year old mother. He expressed, through counsel, his need to be able to continue to care for his mother, and if he were to receive an actual custodial sentence, it would impact his mother and her care.
[31] Another factor the court must consider is the state of Mr. Rule’s health. At the time of the sentencing hearing, the court was informed that Mr. Rule was under treatment for stage 3 rectal cancer. He also suffers from COPD. Mr. Rule also had a pulmonary embolism. Because of the cancer, Mr. Rule had surgery to remove a portion of his intestines that resulted in his having to wear an ostomy bag that requires a regular specific care regimen at the site of the stoma.
[32] Letters from Mr. Rule’s medical doctors indicate that in early 2020, his cancer was downgraded to stage 2 with a good prognosis. He had undergone radiation and 12 chemotherapy cycles. However, there was also some leakage noted at the site of the ostomy and stoma, which may impact the ability to reverse the stoma and remove the ostomy bag. He also has a hernia at the stoma site. He had further tests done in February 2021, but the results were not available at the sentencing hearing. The letters from the doctors also instruct Mr. Rule to carry on with his usual activities, including exercising.
[33] Mr. Rule’s counsel also raised the issue of COVID-19 and its impact on Mr. Rule and sentencing in general. This will be addressed below.
[34] Since November 2018 Mr. Rule has been subject to release conditions. His inability to attend the Kenora Recreation Centre to go to the gym and workout has been curtailed. Counsel placed a great deal of emphasis on Mr. Rule’s need to workout at the gym at the Recreation Centre. He has further been isolated during the pandemic given he has been prohibited from accessing the internet, which further prevented him from visiting family and friends virtually.
Victim Impact Statements
[35] Through an affidavit tendered by the Crown, the victim impact statements of three of the children found in the images and videos Mr. Rule had in his possession were brought to the court’s attention. The affiant, General Counsel at the Canadian Centre for Child Protection Inc., attached 3 victim impact statements from “Pia”, “Lily”, and “Sarah”.
[36] The statements were compelling and clearly set out how the images and videos of them have had a devastating impact on their lives. The impacts noted included constant paranoia, fear of going out, feeling like people recognize them, fear of being found by the abusers and consumers of the images, anxiety, depression, disassociation, nightmares, anger, flashbacks, sleep problems, PTSD, inability to work or go to school, poor general health, hypervigilance, insecurity, social withdrawal, fear of the internet, and a feeling of constant, ongoing revictimization.
[37] For the children in these types of images and videos, the abuse continues every time someone accesses and shares them. The damage being done to these children is immeasurable. These girls and boys have been given a life sentence from which relief and healing is uncertain and not promised – unless and until these images can be scrubbed from the internet, and this despicable depraved industry shut down.
The Law and Analysis
[38] The Criminal Code, at ss. 718, 718.01, and 718.2, instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society.
[39] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community.
[40] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. This means that, for the sentence I impose to be appropriate, it must be tailored to Mr. Rule’s circumstances, and the circumstances of the offences he committed.
[41] In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are presently at play. This would include features of Mr. Rule’s background, features of the crimes he has committed, the timing of his guilty plea, and any other evidence I have received during this sentence hearing. It would also include any legal direction, whether found in the Criminal Code, or provided by the higher courts, about particular aspects of this case that I must consider.
[42] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features of this case:
Aggravating Factors:
- The nature of the offenses contributed to the heinous industry centered around child sexual abuse materials.
- The victims are under the age of 18 and particularly vulnerable.
- The number of victims.
- Impacts on the victims will never end.
- The size of Mr. Rule’s collection.
- The nature of the material seized from Mr. Rule’s computer.
- The length of time Mr. Rule engaged in these crimes.
- His high degree of moral culpability.
- The seriousness of the offenses.
Mitigating Factors:
- Mr. Rule entered a guilty plea at a relatively early opportunity.
- Mr. Rule cooperated with police and admitted what he had done.
- He has expressed remorse and shown some insight into his actions.
- His prosocial life and employment history.
- A guilty plea reduces the costs and time required for a trial.
- His age and health.
- Mr. Rule has no criminal record and is otherwise a person with good character.
- The community reaction to Mr. Rule since he was charged has negatively impacted his standing in the community.
[43] Counsel directed the court to several cases for consideration. (R. v. Large, 2020 BCPC 216, R. v. Hearns, 2020 ONSC 2365, R. v. Hannaford, 2020 ONSC 3665, R. v. McCrystal, R. v. Partsch, 2018 ONCJ 962, R. v. Doucette, 2021 ONSC 371, and R. v. Walker, 2021 ONSC 837) Several of the cases proffered were decided prior to the most recent Criminal Code amendments and to R. v. Friesen, 2020 SCC 9, the now leading case addressing the offenses related to child sexual abuse. While this case specifically addresses a “hands on” sexual abuse situation, the justices do comment on the offenses related to child sexual abuse material and the trend to increase the sentences to be given in cases involving the sexual abuse of children.
[44] Taking into consideration all the factors I need to consider, including the direction provided by the higher courts in this country, I must determine a just and fit sentence for Mr. Rule while keeping in mind the principles of sentencing.
[45] The defense urges me to consider Mr. Rule’s health issues, COVID-19 and his responsibilities to his aged mother as extraordinary circumstances that would justify a conditional sentence for Mr. Rule.
[46] The Crown has argued this matter cries out for an actual jail sentence in response to the legislation and jurisprudence. The facts of COVID-19 and Mr. Rule’s health are collateral. The Crown argues, Mr. Rule’s medical situation can be managed in custody and the fact COVID-19 vaccinations are being rolled out puts Mr. Rule in the group of citizens who qualify for getting the initial vaccination, first, if he has not already.
[47] Section 163.1(4)(a) of the Criminal Code sets out a range of punishment for offenders on indictment to be a minimum of 12 months to a maximum of 10 years imprisonment for accessing child pornography. The Criminal Code also sets out that conditional sentences are not available for offenses under this section. I have reviewed the jurisprudence provided by counsel, all the relevant post- Friesen jurisprudence, and the amendments to the Criminal Code, in the result, I cannot entertain a conditional sentence here.
[48] Since Friesen, the courts have departed from earlier sentencing exercises, acknowledging the gravity of sexual offenses against children, which includes the possession and acquisition of child pornography. The fact that some offenders are not “hands on” is irrelevant in the analysis. The clear trend developing is that these offenses will attract harsher penalties in response to societal outcry and Parliament’s acknowledgment thereof.
[49] Of course, one must bear in mind sentencing is an individualized exercise, and an offender’s circumstances are always relevant. In this case, Mr. Rule’s personal circumstances are mitigating. However, in the balancing exercise to be undertaken when sentencing offenders, proportionality, parity, aggravating and mitigating factors, jurisprudence, denunciation, deterrence – both specific and general, rehabilitation, and restraint, must all be considered or weighed.
[50] Mr. Rule’s medical condition was updated by counsel via a Cancer Care Manitoba treatment plan dated March 18, 2021, that indicates Mr. Rule’s rectal cancer is now at pathological stage 1, and clinically stage 3. Dr. Drake, in her report, notes Mr. Rule has completed treatment for his cancer and has no evidence of recurrence.
[51] The plan for Mr. Rule going forward to the 5 year mark of the cancer diagnosis is regular check ups and blood work. He has no cancer left in the lymph nodes. The care of his stoma and ostomy bag will continue until it is removed. This regimen can be addressed in a correctional facility as it is the state’s responsibility to protect and provide proper medical care for those in its care or custody.
[52] As for Mr. Rule’s need to exercise at the Kenora Recreational Centre, this argument is without merit, and the emphasis on Mr. Rule’s expressed need to be at the Recreation Centre raises concerns. There is a large window in the gym area upstairs that looks down upon the community swimming pool – a pool that is often occupied by children in bathing suits. Anyone upstairs in the gym can look down upon the pool at any time. Mr. Rule, like all of us in the pandemic, has not been able to attend at the gym in any event. Mr. Rule will have to find another way and place to exercise in future.
[53] As for Mr. Rule’s elderly mother, there are other family members who should be able to assist while he is incarcerated.
[54] In relation to the COVID-19 pandemic with which we all are contending, the Crown provided information from the Ministry of the Solicitor General regarding the conditions in provincial facilities. Protocols are in place to screen, isolate and treat offenders. Protective measures and PPE are provided in the institutions. There have been very few serious outbreaks of late in these facilities. Further, Northwestern Ontario has been rather fortunate in that the pandemic has not impacted this region in terms of numbers of people infected or killed by the virus, compared to other jurisdictions.
[55] However, one cannot ignore the serious issues and concerns caused by this third wave of the pandemic that has seen devasting impacts in other jurisdictions, and the rapid spread of the variants of concern. The province and the country are still grappling with these variants, and we are led to understand vaccination and practising safety protocols remain paramount until the strain on the medical system is relieved.
[56] As for Mr. Rule’s medical care in jail, the information provided indicates standard health care is provided. Nursing and other medical professionals are available, some 24/7. Medically vulnerable inmates are assessed, and a collaborative approach to care in the institution is undertaken with the medical providers of the inmate. Special housing in certain facilities is also available. Accommodation for certain medical equipment, including colostomies and ileostomies, are also specifically addressed in the document provided to the court.
[57] Here, the offenses are very serious. The aggravating factors are significant. The fundamental principle of proportionality is paramount. In this case, I find a conditional sentence for Mr. Rule would offend the proportionality principle given the current, binding jurisprudence and the requirements set out in the Criminal Code. While I certainly empathize with Mr. Rule’s personal circumstances, I am not satisfied they amount to extraordinary circumstances when one examines the jurisprudence that addressed granting conditional sentences for these offenses since Friesen. Nor would a conditional sentence in this case be a fit and proper sentence considering the nature of the offenses committed here, the recent jurisprudence, and the aggravating factors I have identified. Therefore, the Constitutional question and Charter application of Mr. Rule are dismissed. I refer to and distinguish R. v. Hawes, 2021 ONCJ 40; R v. Jongsma, 2021 ONSC 796; R. v. Neasloss, 2020 BCPC 161; R. v. Nepon, 2020 MBPC 48.
[58] Therefore, the sentence is a term of imprisonment for a period of 22 months, concurrent on all counts.
[59] Following the period of incarceration, Mr. Rule will be placed on probation for a period of 3 years. In addition to the statutory conditions, Mr. Rule shall:
- report to probation within 3 days of his release and report thereafter as required by probation;
- not be in the company of, or communicate directly or indirectly, by any physical, electronic or other means, with females under the age of 16, unless in the presence of another person approved of in writing and in advance by the probation officer;
- not be within 10 metres of any place where you know any of the above persons to live, work, go to school, frequent or any place you know the persons to be except for required court appearances;
- attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer;
- focus on cognitive behavioural therapy, or other appropriate therapy as probation deems necessary to address your sexual offending;
- sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;
- in the first 18 months of this probation order, you may own and possess one internet capable device such as a smart phone/tablet or one computer or laptop, and use it in accordance with the conditions below:
- Provided your device is equipped with a website contact blocker managed by a third party computer support company that authorizes web sites from an approved list provided by your probation officer and restricts access to all other sites.
- Any internet capable device must be owned by you as the sole owner and user. Further, the internet service must be in your own name.
- The costs of the third party monitoring service will be borne by you.
- submit your device that has internet access, to random regular inspections of such device by probation or police;
- not access the internet using public wi-fi services, internet cafes, or via shared public computers;
- not use any encryption software or security program designed to prevent access to the contents of your internet capable device or take independent action to encrypt any digital storage devices you own or that are in your possession;
- not install, or permit to be installed, any software or service designed to defeat forensic analysis of the internet capable device;
- not use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet, such as a TOR browser;
- not directly or indirectly install on your device any scrubbing software or software that saves files in an encrypted manner;
- not directly or indirectly access any file sharing networks such as Motherless, LimeWire, Gnutella, Bearshare, Shreaza etc., and
- not use any telecommunication device to access the internet or other network in order to access or possess content that is not permitted under the law.
- In the final 18 months of the probation order the same restrictions noted above will apply, but you will be allowed to own and possess 2 internet capable devices.
- Upon probation being satisfied you are complying with the conditions, and no other concerns are held by probation, your conditions may be relaxed over time during the final 18 months of the probation order as probation deems appropriate.
[60] The imposition of the sentence is hereby adjourned until June 18, 2021 at 3:30 pm, at which time Mr. Rule will reattend court to step into custody. In the intervening period between today and June 18, Mr. Rule will be given the opportunity to sort his affairs out and begin the coordination of his medical care with any possible institution that may be recommended to the court. If possible, and if he has not already done so, Mr. Rule should take steps to obtain his COVID-19 vaccination.
[61] The ancillary orders requested by the Crown will be addressed on the day sentence is imposed.
Released: May 6, 2021 Signed: Justice Evelyn J. Baxter
