Non-Publication and Non-Broadcast Order

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(3) 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(3), read as follows:

486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

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.

Ontario Court of Justice

Date: 2022 07 26 Court File No.: Niagara Region 998 SR21 1884

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

B. (C.)

Before: Justice J. De Filippis

Heard on: February 4 and April 21, 2022 Reasons for Sentence released on: July 26, 2022

Counsel: Mr. M. Sokolski................................................................................... counsel for the Crown Mr. P. MacLeod................................................................................ counsel for the accused

De Filippis, J.:

[1] The defendant pleaded guilty to the following Criminal Code offences; voyeurism (section 162(1)), making child pornography (section 163.1(2)), and distributing child pornography (section 163.1(3)). The Crown proceeded by Indictment. The offences were facilitated by acts of sexual interference.

[2] The defendant is a young woman, without a criminal record. In a separate and unrelated case, I received a guilty plea to similar charges by another, albeit, older, woman, also without a criminal record. I advised all counsel that I would hear submissions with respect to both cases before deciding sentence and delivering reasons. [1]

[3] The defendant met a man from Kentucky online. At his instruction, she photographed a baby while her diaper was being changed at a daycare centre. The defendant does not work at the centre but was helping other staff on the day in question. She also took several photographs and a video of a five-year-old boy. This is her cousin, and the images were captured at his home. In capturing the images of her cousin, the defendant removed his clothing and positioned him, as directed by the man from Kentucky. The defendant told the boy to keep this a secret, but he told his mother, and she called the police. A search of her cell phone revealed the images.

[4] On consent of the Crown and Defence, I viewed the images in my office. To give context to these reasons, it is necessary to describe what I saw. Before doing so, I will quote from the only audio record. The defendant, apparently on the telephone to the American says, “You are going to make me jack him? Fuck, fuck, fuck!”. It is common ground that the defendant had been directed to masturbate the boy.

[5] These are the images:

• A video of a naked boy jumping on the bed;
• Several photos of a naked boy holding his penis (obviously instructed to do so) and close-up shots of his penis and testicles;
• Several photos of a boy’s naked buttocks;
• One photo of the defendant spreading a boy’s buttocks;

I have the benefit of a presentence report.

[6] The defendant was born to married parents on February 9, 2003 and is now 19 years old. She is single and without children. She has been diagnosed with Tourette Syndrome. The defendant does not have a criminal record. There are no signs of substance abuse. She completed high school and worked part time at a grocery store.

[7] The defendant’s mother and sister report that when she was three years old, it was discovered that she was being touched inappropriately by her stepbrother. The latter was removed from the family home and sent to live with his biological father. The defendant’s mother did not take her daughter for counselling in hopes that because of her young age she would have forgotten about the matter. However, her sister reports that the defendant showed signs of anxiety and distress.

[8] The defendant’s parents are currently having marital problems because of her father’s infidelity. This has caused immense tension in the home while her parents are sorting through family equity and putting the house up for sale. As a result of this tension, and the present criminal proceedings, the defendant has resorted to cutting herself to deal with anxiety. She reports suicidal thoughts.

[9] These reasons are also informed by victim impact statements.

[10] The mother of the baby whose diaper change was video recorded by the defendant works full time and must rely on daycare for her children. She expected they would be safe there. This offence has caused great stress and a lack of trust in others around her children. She has many nights in which she has cried herself to sleep.

[11] The following is an excerpt from the written statement of the mother of the young boy:

Our family home life was enjoyable; not complicated yet comfortable with our children as our top priority. In the spring of 2021, our lives were disrupted forever. Our family has been ripped apart and both our children are suffering the severe pains of a crime.

My son was sexually abused and internationally exploited by a family member. An unforgivable and devasting crime.

This despicable act is an attack on our family. The pain my family suffers will take a lifetime to overcome.

Our son [XXX] was a very happy, energetic innocent 4-year old. He was a busy little boy who enjoyed all the fun little boy toys and games. [XXX] loved spending time with his friends and our whole family. Given we both work full time, our son was trusted to the care of immediate family members. A family member destroyed our family.

As a result of this crime against our son, [XXX] now suffers incredible physical and emotional trauma, not limited to: night terrors, upset tummy, vomiting, fidgeting, loss of appetite, and some baby talk has resumed. [XXX] clings to us, his Mom and Dad, 24/7. He is fearful to be without us. There are noticeable behaviour issues arising as [XXX] does not understand why his family hurt him. He initially asked if this is his fault? How can a child feel guilty for the deviance of an adult? A child's innocence has been stolen. Stealing a child's trust and innocence is the most evil act. The irrevocable interference with my son's emotional and physiological development is beyond my comprehension. How will I guide my son to trust? Will my son have healthy relationships?

Will our family battle through this darkness to a place of comfort and recovery?

We all do our best to work through each day as a family. We do not single [XXX] out. We do not discuss the crime, the investigation or police activity in the presence of our son. As a family we respect our individual suffering and work through each issue together. It is my hope we can all learn to comfort and support the different challenges we suffer together.

We have lost a good deal of time and money on work absences, over the counter medications, constantly running to appointments, unplanned treats, order in meals, and impulse gift giving. I cannot imagine the upcoming cost for mental health treatments for all of us.

I am a mother who lives in fear now. I fear my anger will consume me. I fear my son will suffer lasting challenges. I fear my daughter will not reach her potential. I fear my husband will be challenged with a broken heart forever.

[12] These offences call for certain ancillary orders. They are not in dispute, and I will set them out at the conclusion of these reasons. The parties also agree that the offences call for a sentence of imprisonment, but they differ as to the quantum. The Crown submits that an appropriate term is five years in the penitentiary. The Defence asserts that it should be a reformatory term of less than two years.

[13] The cardinal principle of sentencing is proportionality. This means that the severity of a sentence will depend on the seriousness of the offence (and its consequences) as well as the moral blameworthiness of the offender; see R v Lacasse 2015 SCC 64. Child pornography offences often result in jail sentences. Personal circumstances are relevant in determining proportionality in light of the seriousness of the offence, but they do not alter the seriousness of the offence: see R v Schofield [2019] B.C.J. No. 22 (BCCA).

[14] Child pornography offences often result in jail. Making available child pornography warrants longer sentences because allowing others to observe the images contributes to further victimization of children: see R v Inksetter, 2018 ONCA 474. In making and distributing the prohibited images in this case, the defendant sexually interfered with the young boy.

[15] Since this offence involves the abuse of a person under the age of 18 years, I must give primary consideration to the objectives of denunciation and deterrence. In applying these principles, I am guided by the decision, of the Supreme Court of Canada, in R. v. Friesen, 2020 SCC 9.

[16] Crown counsel argues that that “the message from Friesen is loud and clear... a single act of child sexual abuse should attract a penitentiary sentence”. Counsel pressed this point by adding that it is an error to elevate an offender’s personal circumstances above the principles of deterrence and denunciation. The Crown concluded by stating that the suggested five-year prison term accounts for the fact that I am dealing with a young first offender.

[17] Defence counsel emphasized that I am called upon to sentence a 19-year-old woman who lives with her mother and sister, both of whom are supportive of her. She has never been in trouble with the law before and is known to be quiet and shy. There are no substance abuse issues. She is the victim of child sexual abuse, has Tourette Syndrome and has engaged in self-harm. Counsel notes that I must not lose sight of rehabilitation and suggests that a reformatory sentence can, in this case, address the principles of denunciation and deterrence.

[18] In Friesen, the Court provided comprehensive guidance to lower Courts by restating and reformulating certain governing principles in cases of sexual interference. These are the four messages that I take from Friesen: (1) Protecting children from wrongful exploitation and harm defines the legislative scheme of sexual offences against children; (2) Understanding this wrongfulness and harm is the critical duty of sentencing judges: (3) The performance of this duty means that those who commit this offence will usually go to jail; and (4) Exceptional circumstances, that justify a non-custodial sentence, are those that mitigate an offender’s moral responsibility, such as mental or cognitive disabilities.

[19] Crown counsel is correct in his characterization of Friesen; indeed, in that case, the Supreme Court adopted the comments in R v Woodward 2011 ONCA 610 at para 76:

... when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

[20] The Crown referred me to several trial decisions. These decisions reflect the message sent by the Supreme Court; Mid-single digit penitentiary terms for sexual offences against children are to be the norm and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. However, neither Friesen nor the subsequent cases brought to my attention concern an offender like the one before me; an 18-year-old at the time of the offence (without a criminal record, who pled guilty).

[21] In R v Priest 1996 ONCA 1381 it was held that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence and that if a custodial sentence is appropriate, a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. This principle of restraint with respect to young first offenders was reiterated by the Court of Appeal for Ontario in R. v. Beauchamp, 2015 ONCA 260 and again, more recently, in R v Randhawa 2020 ONCA 668.

[22] None of these cases I cite in the previous paragraph involved the sexual abuse of children. However, I do not consider the strong message in Friesen to displace the established principle of restraint when dealing with a youthful first offender. In this regard, I note that in R v Arbuthnot 2009 MBCA 106 it was held that “youthful” means a person aged 25 years or younger.

[23] Jail is required to address the seriousness of the offences, including the harm caused to the victims. Having considered what the Supreme Court of Canada has said in Friesen and what the Court of Appeal for Ontario has said about young first offenders, I conclude that the right sentence is 18 months in a provincial reformatory, for each count, to be served concurrently. This will be followed by probation for a period of three years on terms that include reporting to a probation officer, taking counselling as directed, and having no contact with the victims or their immediate families.

[24] The offender will provide a sample of her D.N.A. She will register with the federal sex offender registry, for life. While in custody she will have no contact with the victims or their immediate families. Finally, pursuant to section 161 of the Criminal Code, the offender is prohibited for the rest of her life from seeking, obtaining or continuing any employment, whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

[25] The offender must pay the victim fine surcharge in the amount of $200.00 per count.

Released: July 26, 2022 Signed: Justice J. De Filippis

Footnotes

[1] The other case is R v R. (K.) also released on July 26, 2022. In both decisions, I provide identical reasons with respect to the principles of sentencing pertaining to acts of sexual interference.