ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-10000633-0000
DATE: 2014/08/19
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Eric St. Martin
Accused
Jennifer Gibson, for the Crown
Adam Forbes, for the Defendant
HEARD: June 26, 2014
REASONS FOR SENTENCE
A.J. O’MARRA J.: (Delivered Orally)
[1] Eric St. Martin was found guilty after trial of possession of child pornography contrary to s.163.1(4)(a) and (b) and for accessing child pornography contrary to s.163.1(4.1) of the Criminal Code. He is here today to be sentenced.
[2] On Tuesday, March 6, 2012, at about 12:30 p.m. a patron of the Toronto Public Library observed a male, later determined to be Mr. St. Martin to be looking at pictures of naked girls approximately 10 to 12 years of age on a small laptop computer. Police attended to the library and after Mr. St. Martin was identified and a brief consensual examination of his laptop, on which were found images of child pornography, he was arrested.
[3] At the time of his arrest he was in possession of other electronic equipment, a tablet computer, an external hard drive, three USB keys and a cellular phone, all seized by the police. A search warrant was subsequently obtained and on examination of all of the items a number of images and videos categorized as child pornography were observed. The search of his laptop revealed 164 images and 5 videos of female children, the majority appearing in age approximately 5 to 9 years.
[4] Detective Constable Amy Davey of the Toronto Police Service Child Exploitation Unit examined the images and testified on the hearing that on a spectrum of child pornography the vast majority of images were in the mild category, depicting young girls clad scantily, photographed in provocative poses with the focus on their genital areas. However, approximately 20 to 25 were classified as hardcore images depicting penile penetration, and oral sex performed on and by female children.
The Offender
[5] Mr. St. Martin is 47 years of age. He is single and without dependents. He grew up in Quebec where he has a father and younger sister residing. There has been no contact with them for many years.
[6] He was living in a shelter in Toronto, unemployed and receiving Ontario Disability Support payments at the time of his arrest. Since his release on bail he has found accommodation in a rooming house and for the last year he has been employed doing factory work through a temporary employment agency.
[7] Mr. St. Martin has a dated criminal record from 1986 to 1993, which includes mischief, theft, fail to comply with recognizance, trespass by night, carry a concealed weapon, assault with intent to resist arrest, and possession of a narcotic.
[8] Mr. St. Martin appears to have mental health issues, which complicate his life. In a Pre-Sentence Report prepared in this matter it was reported that he articulated several paranoid beliefs that with respect to his current circumstances. He asserts that he is a skilled computer programmer and that he was: 1) set up by other programmers, 2) he was being framed by the government and Canadian Security Intelligent Service, and 3) the police and justice system set up a sting operation to frame him because of his computer programming savvy.
[9] He told the author of the PSR that he was currently engaged to a 21 year old female who he met over the internet residing in Europe. Detective Constable Davey noted that Mr. St. Martin had a cache of pornographic chat-room history with females from European countries with a focus on Russia; however, there were no reciprocal exchanges with any of these females to indicate any type of relationship with them.
[10] Mr. St. Martin has no positive ties or supports in the community.
[11] It was reported in the PSR and confirmed by counsel in submissions that Mr. St Martin attended for a mental health evaluation through the Illacqua Marino Costa el-Hage Psychological Centre with Dr. D. Giorgio Illacqua, although no report was tendered on the sentencing hearing. However, counsel advised Mr. St. Martin is interested and willing to attend for psychological treatment should the court see fit to order it.
[12] Mr. St. Martin denies any sexual interest in pre-pubescent children although it is of concern that as reported in the PSR he indicated that in his view it is possible for an adult male to engage a pre-pubescent female in sexual activity that would be enjoyable to both parties.
Position of the Parties
[13] The Crown seeks a period of incarceration in the range of 18 months to 2 years less a day and a period of probation. Further, the Crown seeks ancillary orders under s.161 to prohibit his attendance to areas where children may be reasonably expected to attend and to prevent his use of the internet except for limited purposes for a 10 year period. Also, the Crown seeks a DNA order, registration under the Sexual Offender Information Registration Act for life, and forfeiture of the digital media and equipment found in his possession on the date of his arrest.
[14] Defence counsel suggests a period of incarceration in the range of 60 to 90 days followed by a lengthy period of probation is appropriate to effect denunciation and deterrence. Counsel does not oppose the ancillary orders sought by the Crown, with the exception of the s.161 order. In that regard, he notes that Mr. St. Martin has been on strict bail conditions for the past two years which prohibited use of the internet. There is no evidence that he has physically acted on any interest in pre-pubescent children during that period. However, counsel submits that if the court does make a s.161 order that it be for a period less than 10 years.
Sentencing Principles
[15] In imposing the appropriate sentence in this matter, in addition objectives set out in s.718 of the Criminal Code, I consider the primary objectives as set out in s.718.01:
When a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[16] Mr. St. Martin has been found guilty of an offence in which children under the age of 18 have been abused. Possession of child pornography harms children. Even those who possess child pornography cause harm for they are the very market of the purveyors of child pornography in which children are sexually, physically and emotionally victimized. The harm caused by possession of child pornography was summarized by McLachlin C.J. in R. v. Sharpe, [2001] S.C.R. 45 at para. 94 as follows:
…possession of child pornography increases the risk of child abuse. It introduces risk, moreover, that cannot be entirely targeted by laws prohibiting the manufacture, publication and distribution of child pornography. Laws against publication and distribution of child pornography cannot catch the private viewing of child pornography, yet private viewing may induce attitudes and arousals that increase the risk of offence. Nor do such laws catch the use of pornography to groom and seduce children. Only by extending the law to private possession can these harms be squarely attacked.
[17] Similarly in R. v. Smith, [2008] O.J. No. 4558 (SCJ) R.A. Clark J. at para. 37 wrote:
It is self-evident that without the broad base of persons who desire to possess this material it would not exist, at least not on the scale that it presently does. Accordingly, even mere possession contributes to the aforementioned exploitation and degradation of children and, by extension, society in general. In recent years, the advent of the internet has greatly augmented the production and distribution of this vile and pernicious material. The ability to access child pornography in the privacy of one’s own home makes it all the more insidious. Therefore, sentences that serve to deter people from accessing this material are required to reduce, in some measure at least, the exploitation of children for this purpose.
[18] The primary sentencing objectives in dealing with offenders who possess child pornography are deterrence and denunciation. While the objectives of rehabilitation and individual deterrence are not to be ignored, they are of marginal relevance in this instance.
[19] There is little by way of mitigation in the circumstances of this case, other than Mr. St. Martin’s declaration through counsel of a willingness to partake in counseling and/or treatment as may be required and that he has no criminal history for more than eighteen years.
[20] There are, however, a number of aggravating factors which I take into account. While Mr. St. Martin’s collection of images and videos was relatively small, he possessed a number of hardcore depictions of vile, degradation of female children by male adults. Further, even though Mr. St. Martin denies any interest in pre-pubescent females he appears to harbour a view that would condone such exploitive interaction. I consider as well that Mr. St. Martin was viewing child pornography openly in a public library mid-day.
[21] At the time of the offence, which occurred in March 2012, the minimum sentence for possession of child pornography pursuant to s.161.1 of the Criminal Code was 45 days and the maximum period of incarceration five years.
[22] Henderson J. in R. v. Wayne Bock, [2010] ONSC 3117, and Spies J. in R. v. Kenneth Davies, [2012] ONSC 6021, both thoroughly reviewed sentencing cases dealing with possession of child pornography, which I consider instructive. The range of incarceration necessary to emphasize deterrence and denunciation, depending on the size and nature of the collection of child pornography was between six months to two years in jail, in addition to a probationary period. The higher end of the range was imposed where the offender’s collection of images where in the thousands and there was distribution or file sharing involved. In my view, the appropriate sentence in this instance would be toward the lower end of the range.
Sentence
[23] In this instance, considering the need to emphasize the principles of deterrence and denunciation I sentence Mr. St. Martin to 8 months incarceration less credit of 1 month for pre-trial custody. The period of incarceration will be for 7 months.
[24] There will be a period of probation for 24 months following his release from incarceration. In addition to the compulsory statutory terms under s.732.1(2) he will be required to comply with the following conditions:
a) report to a probation officer within two business days of release from custody and thereafter as required by the probation officer,
b) reside at an address that is approved of in writing by your probation officer;
c) remain within the province of Ontario unless written permission to leave the province is obtained from your probation officer, or approval is given by the court;
d) abstain from owning, possessing or carrying any weapon including any offensive weapon, ammunition, explosive substance as defined by the Criminal Code;
e) attend and actively participate in counselling or treatment programmes as recommended by your probation officer and to undergo any recommended assessments. Sign releases or any other form required by the probation officer to monitor your attendance and/or progress at any assessment, counselling or treatment sessions;
f) actively pursue education or employment and provide proof of progress to the probation officer;
g) not to possess any pornographic imagery or pornographic material in any form or medium whatsoever.
[25] Pursuant to s. 487.051(1) of the Criminal Code I order that you provide such samples of your DNA as may be required for forensic analysis.
[26] Pursuant to ss.490.012(1) and 490.013(2.1) of the Criminal Code I order that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for life.
[27] Pursuant to s. 161 of the Criminal Code you are prohibited from:
a) attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present or a daycare centre, school ground, playground or community centre;
b) seeking or obtaining 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; or
c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with the person under the age of 16 years. The conditions are that you are not to use or access the internet or other digital network unless you do so:
on your own personal telecommunications device which is equipped with software or hardware that blocks access to: a) social networking sites, b) appear to be file sharing networks, c) Usenet or Freenet;
where you are not self-employed, at your place of business, for business purposes and in accordance with IT and other policies at your place of business;
not to use any telecommunication device to access the internet or other digital network in order to: a) access child pornography, b) participate in chat rooms or bulletin boards that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material, c) access Usenet or Freenet.
[28] The order pursuant to s.161 shall take effect on the day you are released from custody and continue in force for a period of five years.
[29] Forfeiture of the digital media and equipment seized was ordered on consent on the hearing date June 27, 2014.
A.J. O’Marra J.
Released: August 19, 2014
COURT FILE NO.: 13-10000633-0000
DATE: 2014/08/19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Eric St. Martin
Accused
REASONS FOR SENTENCE
A.J. O’Marra J.
Released: August 19, 2014