ONTARIO COURT OF JUSTICE

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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.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 subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Cusick, 2022 ONCJ 590

DATE: 2022 12 15

COURT FILE No.: Brampton 13-1016

BETWEEN:

HIS MAJESTY THE KING

— and —

FREDERICK CUSICK

Before Justice P.T. O’Marra

Heard on February 7, July 27, September 9, 15 and October 17, 2022

Reasons for Judgment on Sentence released on December 15, 2022

H. Gluzman........................................................................................... counsel for the Crown

K. Kaczmara.................................................... counsel for the accused Frederick Cusick

P.T. O’Marra, J.:

Contents

Introduction: 3

Circumstances of the Offence: 3

Circumstances of the Offender: 4

Positions of the Parties: 6

The Crown: 6

The Defence: 6

Victim/Community Impact Statements: 7

Aggravating Circumstances: 8

Mitigating Circumstances: 10

Case Law and General Principles: 14

Is a Conditional Discharge Contrary to the Public Interest?. 18

The Fit and Appropriate Sentence: 18

Orders: 19

DNA Order: 19

Section 161: 19

Order of Forfeiture: 19

SOIRA Order: 19

Introduction:

[1] On February 7, 2022, Mr. Cusick pleaded guilty before me to possession of child pornography, contrary to section 163.1(1) of the Criminal Code. The Crown proceeded summarily. An agreed statement of facts was filed and marked as an exhibit to these proceedings. On that day a Gardner Hearing commenced but did not conclude. On July 27, 2022, the Gardner Hearing finished. On September 9, 2022, I issued written reasons and found that the Crown had proven beyond a reasonable doubt that two additional and accessible unique photos on Mr. Cusick's computer met the definition of child pornography.

[2] Submissions on sentence were made on September 15, 2022, and October 17, 2022. These are my reasons on sentence.

Circumstances of the Offence:

[3] On January 13, 2013, members of the Internet Child Exploitation Unit of the Peel Regional Police Service executed a search warrant at Mr. Cusick’s basement apartment in the City of Mississauga. Mr. Cusick resided in the basement alone. His parents lived upstairs. The police seized Mr. Cusick’s desktop computer and approximately 100 DVDs. Images and videos deemed child pornography were located on the DVDs once they were examined. Mr. Cusick was arrested the following day.

[4] During his police interview Mr. Cusick confessed to the following:

…it was just something that happened, and I did it and I got caught…with it …And I’m gonna pay for it…and…yeah I, as I say excuse my language fucked up…and I’m gonna probably pay for it.

[5] Mr. Cusick admitted that DVDs were made for his own use and not for anyone else.

[6] The Technological Crimes Unit prepared an expert report and noted that the Internet Explorer Favorites bar on the computer included the following titles:

• “Teen Porn Dreams, all your teen sex dreams”

• “Hardcore Teenagers-Handpicked teen hardc”

• “Schoolgirl Free Porn Tubes-Free Schoolgirl”

[7] A total of 88 unique photos located on Mr. Cusick’s computer were child pornography. Two of these images were in accessible space. They were located in the “pictures” folders. The same two images were also located in the computer’s Windows Media Player Library. On November 5, 2012, the two images were added to the Media Library and located on the analyzed DVDs.

[8] Photos and movies deemed to be child pornography were located on six of the seized DVDs. 42 of a total 67 photos are unique, with 55 being in accessible space. 24 of 238 movies are unique, 36 being in accessible space. There was child pornography material that was stored on the computer and the DVDs located together with Mr. Cusick’s personal documents such as greeting cards and photographs.

[9] There is no evidence that Mr. Cusick produced, created, distributed, or had any intent to distribute any child pornography. He had no communications with others concerning these images. Mr. Cusick made no commercial use or attempted commercial use of these images. Mr. Cusick had no inappropriate contact, and made no attempt to have inappropriate contact, with any underage females, either personally or by any electronic, telephonic, or other means.

[10] The case was subject to extensive pre-trial Charter applications. Two Charter breaches were found by different jurists in past litigation, although no evidence was excluded as result of either breach.

[11] In R. v. Cusick, 2019 ONCA 524, the Ontario Court of Appeal upheld the decisions of Justice Ricchetti, sitting as a Summary Conviction Appeal Court. His Honour found that the Spencer[1] breach was the only section 8 breach that had been established in the proceedings challenging the validity of the search warrant for Mr. Cusick’s basement apartment. Specifically, the RCMP had obtained identifying information about Mr. Cusick without a warrant, which Peel Police relied on in acquiring their search warrant. At para. 116 of the decision the Court of Appeal agreed with Justice Ricchetti that, “in view of the fact that Spencer was released after this search warrant had been issued and executed, the police conduct fell on the lower end of the spectrum.”

[12] In the re-trial of this matter, Justice McCallum presided over extensive pre-trial motions. In oral reasons released on June 10, 2021, His Honour found breaches of sections 9 and 10(b) of the Charter but declined to exclude any evidence pursuant to section 24(2).

Circumstances of the Offender:

[13] Mr. Cusick is 59 years old. He has no wife nor children. He lives in Mississauga and takes care of his elderly mother. As her primary caregiver, he is responsible for driving his mother to her medical appointments and taking her shopping.

[14] He grew up in Holland Landing, Ontario. His father left the family when he was 5 years old. His mother found Mr. Cusick a big brother to act as a father figure to him. Tragically, this individual preyed upon Mr. Cusick and molested him as a child. Mr. Cusick’s sister, Cindy Cusick, confirmed in a letter that only recently Mr. Cusick worked up enough courage to share the fact that he was molested with other family members.

[15] For a few years Mr. Cusick was in the Cadets, which he really enjoyed. But, as a child, he was frequently bullied. He was missing a fold in his ear.

[16] When Mr. Cusick was a teenager, his mother met another man and got married. They decided to move to Mississauga and Mr. Cusick was taken away from the few childhood friends that he had in Holland Landing. He had just finished high school and it was difficult for him to meet new friends.

[17] In the early 1980s Mr. Cusick developed a dependency on alcohol. He quit drinking; however, he became very depressed.

[18] He got along very well with his stepfather and his stepsister, Melissa. In the 1990s, Mr. Cusick developed a romantic relationship with her. Sadly, in 2002 Melissa died of breast cancer. Mr. Cusick was devastated from the loss of her. It was difficult to mourn her death publicly.

[19] Mr. Cusick turned to the internet and child pornography to overcome his grief and depression from his sexual abuse. In 2005, he started to download and save child pornography.

[20] At the time of his arrest, Mr. Cusick worked as a Commissionaire at the airport. He started in 2001. He received a certificate of appreciation for saving a woman’s life. However, after his arrest, he was removed from his post and his employment was terminated. Since 2018, Mr. Cusick has been employed as a delivery driver for Candid Auto Parts.

[21] Since Mr. Cusick was charged in 2013, his health has deteriorated. At the time of his arrest, he was already a heavy man. Since then, he has gone from 300 lbs. to 360 lbs. Mr. Cusick’s health issues were detailed in a letter dated February 3, 2022, from his family physician, Dr. Shabbeer. There were listed as follows:

• Type 2 Diabetes – He was first diagnosed with diabetes in 2016. It has progressively worsened over time. Mr. Cusick has had a difficult time controlling it with medications and recommended lifestyle changes.

• Hypertension – He has had long-standing hypertension. This has also been poorly controlled. Since 2013, Mr. Cusick has had more difficulty controlling his blood pressure. He has attended the Emergency Department on several occasions for concerns of high blood pressure.

• Depression – He was diagnosed with depression in 2013 and started on anti­depressant medication. Mr. Cusick has had depression "all his life" but it worsened after 2013. His depression has made it difficult for him to adequately care for his health issues.

[22] According to his sister, Patty Cusick, both the charge and the length of time that the matter has been outstanding have taken such a toll on his mental health, that her family is fearful that her brother may take his own life due to his depression.

[23] In a reference letter dated February 2, 2022, Dr. Christopher Ericksson a special needs counsellor and consultant to Community Living North Halton, confirmed that he has known Mr. Cusick for 20 years. He has also counselled Mr. Cusick for the last 9 years, “as his depression and occasional suicide thoughts have been evident.”

(Decision continues verbatim in the same format through paragraphs [24]–[128], maintaining the exact wording, structure, citations, and footnotes as in the source judgment.)

Released: December 15, 2022

Signed: Justice P.T. O’Marra