ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. T.W., 2015 ONSC 2167
COURT FILE NO.: 646/13
DATE: 20150407
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
T.W.
Allison MacPherson, for the Crown
Michael Strathman, for the accused
HEARD: March 2, 2015
Subject to any further Order of a court of competent jurisdiction, Orders have been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of any complainants and any information that could disclose such identities, and any information that could identify any witness who is under the age of 18 years, or any person who is the subject of a representation, written material or a recording that may constitute child pornography, shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
Reasons for Sentence
A. Overview
[1] The accused stands convicted of two counts of possession of child pornography. These offences were committed in Toronto between July 10 and 17, 2012. One count relates to a small number of photographs, while the other count relates to a lengthy, three-volume journal consisting of a combination of photographs and writings by the accused. The subject matter of these counts was found in the accused’s basement apartment by members of the Toronto Police Service (TPS) during their execution of a series of search warrants. At the conclusion of the trial on these charges, the accused was found guilty. See R. v. T.W., 2014 ONSC 4532, [2014] O.J. No. 3667.
[2] The accused also stands convicted of having criminally harassed the complainant, H.B., by repeatedly communicating with her and thereby causing her to reasonably fear for her safety. By engaging in this criminal harassment, the accused failed to comply with a condition of a probation order requiring him to “keep the peace and be of good behavior.” Both of these offences were committed in Toronto between May 1 and July 9, 2012. At the conclusion of the separate trial on these charges, the accused was found guilty. See: R. v. T.W., 2014 ONSC 4533, [2014] O.J. No. 3662.
[3] The accused now appears for sentencing in relation to these charges. The Crown seeks the imposition of an effective global sentence of between six and eight years imprisonment. The Crown argues, more specifically, that the accused should receive a sentence of three to four years imprisonment for the child pornography offences, a consecutive sentence of three to four years imprisonment for the criminal harassment offence, and a concurrent sentence of one year imprisonment for the breach of probation offence.
[4] The accused argues that, given the length of his pre-sentence detention, he has already served the equivalent of any reasonable sentence of imprisonment that could be imposed in relation to these offences. The accused has been in custody since his arrest on July 10, 2012 and, accordingly, has already been in jail for close to two years and nine months. The parties agree that the accused is entitled to enhanced credit for this period of detention, at the rate of 1.5 days for each of the 1002 days the accused has been imprisoned to-date. Accordingly, given this credit, the parties have effectively agreed that the accused has already served a custodial sentence that is the equivalent of a term of four years and two months.
[5] The Crown seeks the imposition of a further term of imprisonment in the range of two to four years. Given the credit to which the accused is entitled by virtue of his pre-sentence detention, this would provide for the global effective sentence of six to eight years imprisonment. The accused, on the other hand, argues that no further imprisonment is required or justified, and that a three year term of probation, on strict terms, designed to protect the public and guide the accused in his rehabilitation, is the appropriate disposition in this case.
B. The Facts of the Offences
1. The Child Pornography Offences
[6] In finding the accused guilty of the two charges of possession of child pornography, I outlined in some detail the nature of the images that were found in the possession of the accused. For sentencing purposes, it will suffice to summarize the materials in the possession of the accused as follows.
[7] On his computer desk, together with other miscellaneous pornographic images, there was a page that displayed images of three pre-pubescent girls, approximately 9 to 11 years old, clad only in their underwear, and posed provocatively, with a focus on their genitals or buttocks. These were highly sexualized images of three young girls, and constitute “child pornography.”
[8] On his bathroom wall, the accused had a large framed picture of a completely naked and provocatively posed young female, approximately 12 to 14 years of age. The picture appeared to have originated from the internet. As the image displayed the breasts and vaginal area of the pubescent female, the image constitutes child pornography.
[9] While the accused’s possession of these individual images certainly amounted to criminal conduct, these few photographic images were dwarfed, both in sheer volume and offensive content, by the three volume journal that had been created by the accused. This journal contained a significant quantity of child pornography. It is apparent that the accused has privately laboured for years in the creation of this disturbing personal journal, which filled three large binders and totaled 490 pages in length. At the time of his arrest, the accused was continuing to work on his journal, as there were 39 loose pages on his computer desk that appeared to be “in progress” for eventual inclusion in his journal.
[10] The vast majority of the pages of this journal displayed explicit pornographic images, which provided the visual background for the accompanying extensive written commentary by the accused. The contents of this journal leave no doubt that the accused has a long-standing sexual interest in young females. Some of the young females in these graphic images are clearly less than 18 years of age. In his commentaries, the accused wrote about the young females depicted in these images in the most vulgar and degrading terms. After reviewing the contents of this journal, I concluded that significant portions of it constituted child pornography, as it sent the message, both directly and implicitly, that females between the ages of 13 and 17: (1) want and enjoy all manner of sexual activities with adults; (2) deliberately dress provocatively so as to entice adults and signal their interest in, and availability for, sexual activities; and (3) want to be raped, enjoy being raped, and deserve to be raped.
[11] Further, portions of the journal suggested that sexual activities with young females, whether consensual or otherwise, were worth any potential punishment that might eventually be inflicted on adults by society, and can and should be pursued by adult males. Indeed, after being convicted of a sexual offence against his 14-year-old niece, serving a term of imprisonment, and being placed on the sex offender registry, the accused wrote about this experience in his journal. The accused graphically detailed the sexual activities with his niece, including intercourse, outlined the details of the sentence he received, and explained how it was all “worth it” as he “got to steal [his] nieces virginity” and he would be “[remembering] that night for years and years to come.” The accused went so far as to construct a page of child pornography out of an official sex offender registry document. The accused wrote that even after he had personally spent 540 days in prison as a result of this sexual offence, he still believed that such “vermins deserved to be raped,” and that his “hunger” for such sexual violence remained.
[12] In short, significant portions of the journal encouraged, expressly and implicitly, criminal sexual activity. By his journal commentaries, the accused advocated and counseled sexual activities with children.
[13] Moreover, the contents of this journal could only have served to reinforce the accused’s warped and distorted perspective that his sexual preference for young teenage girls was acceptable, stoke his frequent fantasies about unlawful sexual activities with such young teenage girls, and provoke him to act upon those fantasies. Accordingly, his possession of the child pornography contained in his journal posed a real risk of harm to children.
2. The Criminal Harassment and Breach of Probation Offences
[14] In finding the accused guilty of the charges of criminal harassment and breach of probation, I outlined in some detail the nature of these offences. For sentencing purposes, it will suffice to summarize these offences as follows.
[15] The accused first met the complainant in 2000. She was working in the business center of a retail store in a city in southern Ontario. The accused was living in the same city with his common law spouse. The complainant helped the accused with his photocopying needs in relation to his scrapbooks about serial killers. The accused quickly became obsessed with the complainant. The accused wrote about her in his journal entries, referring to her as his “soulmate.” He chronicled his brief phone call to her at work on April 1, 2000, when he discovered that she had a boyfriend, and how she hung up the phone when he asked if he could call her sometime. Notwithstanding this rejection, in his subsequent journal entries the accused professed his unending love for the complainant, and vowed that he was “not giving up” on becoming her “lover.” However, by April 18, 2000, the accused appeared to have realized that the complainant was not the one for him, as he had realized that his true love was another young woman he had also been obsessing over.
[16] In the subsequent police investigation that was initiated by the accused’s mother and common law spouse, the police contacted the complainant and let her know that she “could be in some kind of danger” from one of her male customers who “might do something.” The complainant gathered from what she was told by the police that the male customer might have been collecting material or information about her, and may have been secretly “stalking” her.
[17] On February 13, 2001, the accused entered into a peace bond. The information charged that there were reasonable grounds to fear that the accused “will cause personal injury” to the complainant, on account of a threat made between December 1998 and June 10, 2000, by “communicating with” and “watching” the complainant at her place of employment. The accused consented to enter into a “recognizance to keep the peace” in the amount of $500. This recognizance required the accused to keep the peace and be of good behavior for 12 months on terms requiring that he: (1) have “no contact directly or indirectly” with the complainant; (2) “not attend” at the complainant’s residence, her school, or any place of her employment; (3) report to a named police officer in the “offender management unit”; (4) attend such counseling as may be deemed appropriate by the supervising police officer; and (5) abstain from acquiring or possessing any firearm, cross-bow, prohibited or restricted weapon or device, ammunition, or explosive substance. The accused personally signed this peace bond.
[18] In May of 2012, more than 11 years after the accused signed this peace bond, and with no intervening contact or communication between them, the accused began communicating with the complainant. At the time, the complainant was working at a women’s shelter. The accused left the complainant an odd voice-mail message, using the complainant’s first name and stating: “I’m still waiting for you Princess [H.B.] – shall you accept?” When the complainant heard this message she thought back to the accused and the events of 2000.
[19] Approximately two months later, the complainant received four further calls from the accused. These calls were all placed late at night, in early July of 2012. The complainant heard the messages when she returned to work after a vacation. In these four messages, the accused stated:
• “Uncover your eyes. Do our souls collide? Invite me in.”
• “Please Princess [H.B.] I’m very proud of you since [her job in the copy center] and now a women’s shelter. I love you and always will. I love you.”
• “You’ve come a long way Princess [H.B.]. I’m very proud of you since [her job in the copy center] and now a women’s shelter. I love you and always will. I love you.”
• “Good evening. If you know we’re meant to be one call me on Friday between 7 and eleven [at his seven-digit cell phone number]. You know who I am, Princess [H.B.].”
[20] From the evidence seized by the police from the accused’s apartment, it was apparent that the accused had continued his irrational obsession with the complainant over the intervening 11 years. He had framed documents hanging in his apartment with images of her name and professing his love for her, and a photograph of the complainant that had been available on the internet. There were also many entries in his journal about the complainant. He also wrote poetry about the complainant. Documentary evidence from the accused’s apartment also established that the accused had recently found the complainant on the internet, had obtained photographs of her, and learned where she worked and how to contact her. In these documents the accused referred to the complainant as his “beloved wife,” and expressed his upset that she had not yet realized that they were “meant to be one.”
[21] At the time of his harassment of the complainant in the summer of 2012, the accused was bound by probation order that required him to “keep the peace and be of good behaviour.”
C. The Victim Impact Evidence –The Criminal Harassment Offence
[22] The commission of the criminal harassment offence had a very serious impact upon the complainant.
[23] When the complainant first learned about the accused’s interest in her in 2000, she became very scared and intimidated. As a result of the meetings with the police, the complainant and her parents approached their neighbours and the complainant’s co-workers with a photograph of the accused, explained to them the seriousness of the situation, and asked them to call the police immediately if they saw the accused. The complainant also contacted all of her family members listed in the telephone directory, and urged them not to provide any information about her or her family, in the event that the accused reached out to them for information.
[24] When the complainant heard the first strange male-caller voice-mail message in May of 2012, more than a decade after the accused had entered into the peace bond, she thought back to the accused and the events of 2000. The complainant immediately spoke to her supervisor about the call, and explained the history of the events involving the accused in 2000. This information was then shared with other employees of the women’s shelter so that they would be aware of what had happened, and could be alerted not to provide anyone with any information about the complainant or her whereabouts. This made her daily employment routine in public-relations more challenging.
[25] When the complainant heard the “very creepy” voice mail messages the accused left for her in July of 2012, they “frightened [her] to say the least.” While the caller sounded “somewhat drunk,” the calls were “terrifying” as it had been such a long time since the events of 2000. After hearing the messages, the complainant immediately called her supervisor and the police. The complainant also notified the rest of the staff at the women’s shelter about these messages.
[26] The complainant changed her personal life dramatically as a result of these offences. She changed almost all of the doors and windows on her house, installing “very costly” new doors and steel frames. In social activities she does not use her real name as she is terrified that the accused might be able to find her on the internet. She found it very embarrassing and humbling to tell her friends what happened, but she felt she had to explain why she could not have any photographs taken of her, and why there could be nothing on the internet about her. She has not been involved in any social media.
[27] The harassment by the accused had a significant impact on the complainant’s daily work routine. While her responsibilities were largely in the area of public relations, her promotions can only be publicized after the fact, and without any photographs of her. She can no longer be the public “face” of the women’s shelter.
[28] According to the complainant, her greatest difficulty was with respect to her friends and colleagues at work. The complainant felt as if her mere presence in the workplace might be putting other employees and volunteers in the shelter in danger. The complainant explained that the conduct of the accused was that which they collectively worked toward preventing.
[29] In summary, these messages from the accused harassed the complainant professionally and personally, and caused her to fear for her safety and the safety of those around her. She notified her family, friends, tenant, and work colleagues about the potential danger the accused presented. She took significant steps to try to ensure her safety, by changing her daily routine, altering the way she met her professional responsibilities, avoiding photographs and involvement in any social media, and by fortifying her residence. The complainant found all of this embarrassing, humiliating, humbling and frightening.
[30] In her victim impact statement, the complainant described the effect of the offences in a more personal way. She indicated that, since the messages from the accused in 2012, she has struggled in her relationships at work, placing boundaries between herself and the volunteers and donors she works with. She explained that she offers little or no personal information about herself and is “forever cautious.” In thinking about having children, the complainant worries about raising children who are afraid of the accused. The complainant also indicated that she had not realized how frightened she was of the accused until she testified at the trial, and found herself afraid to look up. She is afraid that, once he is released from custody, the accused will continue to look for her and find her yet again.
[31] In their victim impact statement, the complainant’s parents echoed these feelings. They described how they have lived every day “on guard” and in fear of the accused, who they believe is “truly violent and unstable.” They described the accused’s delusional persistence in his harassment of their daughter as leaving them with a “vulnerable feeling,” and as having put the “darkest cloud” over their family. They fear that he is “capable of doing almost anything” to act out his “horrible fantasies.” They have little confidence that court orders will successfully keep the accused away from their daughter.
D. The Personal Circumstances of the Accused
1. General Background Information
[32] The personal circumstances of the accused are both unfortunate and disturbing.
[33] The accused was born and raised in Newfoundland. He has one brother and one sister. His family settled in Ontario when the accused was approximately 12 years old. He was an “isolated” child growing up. When he was a teenager, the accused used to cut his arms, just “to see what it feels like.” He thought this may have been a “coping mechanism.” When he was 14 and 15 years of age, the accused twice attempted suicide. The accused indicated that he may have been depressed at the time, and wanted to “escape from a sick society.” While he has not subsequently made any further suicide attempts, he continues to have suicidal thoughts. The accused moved away from home when he was approximately 17 years old, shortly after his parents divorced.
[34] The accused is now 37 years of age. He has an IQ of approximately 80, which is well below average, in the bottom tenth percentile. The accused has a grade eight education. He is single and has no children. He has a speech impediment. His mother has recently passed away. The accused speaks to his father on a weekly basis. For about three years, the accused worked as a janitor. For about seven or eight years, the accused worked in the construction industry with his father. The accused is now unemployed.
[35] While the accused has previously had relatively long-term relationships with a couple of women, the accused now has no friends and no interest in socializing. Indeed, he has a social phobia as he feels anxious in public. Instead of friends, the accused has three dolls. He refers to them as his “three girls.” He obtained them in approximately 1999, and he has developed “an important relationship” with them, treating them like his family, and communicating with them like they were his daughters. While the accused reports that these dolls, which he has named, sometimes counsel him to “rape the bitches,” he thinks the dolls are a positive influence on him.
[36] The accused has, in the past, periodically abused alcohol. He admitted that, for approximately a seven year period, he consumed 12 glasses of whiskey daily. He has a “fairly clear history of alcohol dependence.”
[37] In the past the accused has occasionally experienced auditory and visual hallucinations, but they have not persisted.
2. The Accused’s Criminal Record
[38] The accused has a criminal record. On October 12, 2010 he was convicted of the offences of sexual assault and invitation to sexual touching in relation to his unlawful sexual activities with his 14 year old niece. According to the records of that case, the accused accessed some online pornography while he was alone with his sexually inactive niece late one night, and then had her perform fellatio on him, and engage in an act of vaginal intercourse. In the result, the accused was sentenced to a maximum reformatory sentence of two years less a day imprisonment, followed by a three year term of probation. The accused was subject to the terms of this probation order when he committed the present offences.
3. The Psychiatric Reports
[39] After being sentenced for his sexual offences against his niece, the accused was assessed by psychiatrists. Their reports were filed as exhibits on the sentencing hearing in this case.
[40] The detailed and lengthy report of Dr. Michael Colleton, a Staff Psychiatrist at the Centre for Addiction and Mental Health, dated June 19, 2012, outlined the results of his assessment of the accused. This report provided the following information:
• The accused expressed having “no regrets” about his sexual activities with his 14 year old niece. He believed she consented to the activities and did not resist his advances. He enjoyed the interaction and has fantasized about it since it happened. Indeed, the accused indicated that he would like to do it again, but won’t as he does not want to return to jail.
• The accused identified as being bisexual, and as having had sexual relationships with females and males.
• The accused admitted that his strongest sexual attraction was to females between 12 and 15 years of age. He also admitted being sexually attracted to somewhat older teenaged females (between 16 and 19 years of age) and younger, sexually immature females. He admitted that his most arousing sexual fantasy was about “raping a preteen female.” He reported recurrent violent sexual fantasies involving the rape of females between the ages of 12 and 18 years.
• The accused admitted frequent masturbation to internet pornography, and he frankly indicated that he was “most interested” in, and stimulated by, video content with “rape and bestiality themes.” He admitted to frequently engaging in acts of bestiality with dogs.
• The accused expressed a strong interest in voyeurism, and admitted frequently engaging in late-night activities peering into residential homes hoping to see young females engaged in sexual activities.
• The accused admitted exposing himself to young girls.
• The accused admitted having sexual fantasies about killing a teenaged female between 12 and 15 years of age, and having sexual intercourse with the young female both before and after her death. The accused admitted accessing and being aroused by pornography depicting sexually motivated killing.
• The accused admitted a history of following teenaged females. He indicated that, for a time, he did this in a “constant fashion.” On occasion, he carried a knife with him “in service” of his sexual fantasies.
• The accused is obsessed with the “Friday the 13th” horror movies. He watches them with great regularity.
• In 2000 the accused was diagnosed by Dr. Stephen Hucker as suffering from “sexual sadism.” According to Dr. Colleton, the accused meets the criteria for a number of paraphilias, including “sexual sadism, pedophilia, hebephilia, voyeurism, exhibitionism, necrophilia and bestiality.” Dr. Colleton also noted that, by his self-report, the accused’s strongest sexual interests are “coercive sexual contact with minors (likely partially developed females) and bestiality.” Further, Dr. Colleton noted that the accused was “uninterested in sex-drive reducing medication” and had “no concern about the nature of his sexual fantasies or desires.” Dr. Colleton also concluded that the accused displayed some features of an “obsessive-compulsive personality disorder.”
[41] The detailed report prepared by Dr. Brad Booth, a psychiatrist with the Royal Ottawa Hospital, dated January 30, 2012, is of a very similar nature. Significantly, this report also discussed the accused’s “recurrent sexual fantasies” of “raping girls between the ages of 12 and 18” years, which often include thoughts of “choking and killing” someone and having sex with the dead body. The accused advised Dr. Booth that he has “never acted on these fantasies as he does not want to actually hurt somebody” and his conscience prevents him, but he admitted that these violent rape fantasies account for approximately 80% of his sexual fantasies. This report also detailed the accused’s interest in bestiality and voyeurism. The report indicated that “it became clear that that [the accused] had no motivation whatsoever to change his abnormal sexual fantasies,” and “did not really see a problem with it.” While the accused had tried various medications, the report indicated that “he had no interest in interfering with [his] sexual functioning.” The report also indicated that the accused had some Asperger’s tendencies. The report also suggested that the accused may have developed schizophrenia given his “bizarre delusions involving dolls talking to him and interacting with him.”
[42] In the conclusion of his report, Dr. Booth diagnosed the accused with schizophrenia (undifferentiated), an obsessive-compulsive disorder, social phobia, sexual sadism, exhibitionism, voyeurism, fetishism, alcohol dependence, various paraphilias (including beastiality, rapism, necrophilia, lust murder, and hypersexuality), and Asperger’s.
[43] According to the brief report by Dr. Scott Whiteside, the Clinical Head of the Sexual Behaviors Clinic at the Centre for Addiction and Mental Health, dated June 19, 2012, phallometric testing of the accused revealed that the accused suffers from Pedohebephilia (a sexual preference for children or pubescents), and has a preference for “coercive sexual interaction” with females.
E. The Governing Sentencing Principles
[44] According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[45] Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[46] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:
• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
F. The Aggravating and Mitigating Circumstances
[47] As the Crown observed during the course of her sentencing submissions, in seeking the imposition of a global sentence in the range of six to eight years, there are a number of aggravating circumstances in the present case:
• At the time of these offences, the accused was on probation for sexually assaulting his niece, and was involved in extensive counseling and specialized supervision by his probation officer. By this point, the psychiatric reports had already identified the accused’s personal problems, and the risk he posed to society.
• The accused has acknowledged “no regrets” about his sexual activities with his niece, enjoyed his sexual activities with her, and has fantasized about it since it happened. The accused said that he would like to do it again, but denied that he would do it again as he did not want to return to jail.
• According to the psychiatric reports, the accused has a sexual preference for female children or pubescent females, and he prefers “coercive sexual interaction” with females. The contents of his lengthy journal certainly support that conclusion. Indeed, the accused has acknowledged his frequent sexual fantasies about raping young women.
• The accused’s thought processes have obviously been profoundly influenced by his obsession with the kind of child pornography contained in his journal, in that he continues to fantasize about raping young teenagers, and he appears to lack any insight into the distorted nature of his thinking. Indeed, the accused is so accepting of child pornography that he had framed images of such pornography on the bathroom wall of his apartment.
• The accused has actually already acted on his coercive sexual fantasies in committing his sexual offences against his niece, and the psychiatric reports make it clear that the accused is a real danger to the public as a result of his paraphilias.
• The accused’s disturbing criminal harassment of the complainant, a young woman with whom the accused has never had any kind of relationship, further demonstrates the dangerous delusional thinking of the accused, and his lack of insight into the reality that exists beyond his fantasies and distorted thought processes. The commission of this offence was horrifying for the complainant and her parents, and had an enormous personal impact on them and their lives.
• The accused put a great deal of time and energy into his misogynistic thinking about young girls and teenaged females, as evidenced by the time it must have taken him to create his lengthy journal, and by the admissions he has made to the psychiatrists. His violent sexual fantasies have been going on for years, and will be difficult to eradicate through treatment, as evidenced by the fact that he continued to labour over his journal even while his probation officer was trying to engage him in treatment and counseling.
[48] As defence counsel noted during the course of his sentencing submissions, in seeking a three year probationary disposition, there are also a number of mitigating circumstances in the present case. More particularly, defence counsel placed reliance upon the following considerations:
• The accused has had a difficult life. But he still enjoys the support of his step-father. The accused was oxygen deprived at birth and has an IQ of only 80, his vocabulary is “very much below average,” and he has a speech impediment. He also has a reduced capacity for abstract thought. He has been isolated and lonely for much of his life.
• The accused has been employed, and he worked significantly in the construction industry from 2001 until 2010. This suggests that the accused can be a productive member of society.
• Prior to the commission of these offences, the accused had been making his best efforts to comply with the strict terms of his probation order. His mother, who died while he was in custody pending his trial, had been working with him in conjunction with the efforts of the probation officer. His mother had been critical of the probation order as it did not include a condition prohibiting her son from the consumption of alcohol. However, the accused voluntarily agreed to observe a curfew that had subsequently been proposed by his probation officer. Further, at the time of his arrest for these offences, the accused had a pending psychiatric appointment.
• Defence counsel argued that, if the accused been prohibited from the consumption of alcohol while on probation, there might well have been no criminal harassment offence, as the telephone calls to the complainant were made late at night and after the accused had been drinking. It was the alcohol that gave the accused the “courage” to contact the complainant, while perhaps hoping, within the confines of his rich fantasy life, that the complainant might one day be interested in him romantically.
• The accused has been convicted of only one previous criminal offence, namely, the sexual offence against his niece, and he pled guilty to the commission of that offence, given the age of his niece and her legal inability to consent.
• The accused’s journal contains images and writings that were very similar to materials that originally led to his common law spouse and his mother to contact the police in 2000, when the police returned these journal writings to the accused. Defence counsel suggested that this might have led the accused to believe that, maintained personally and privately, these journal writings were an “acceptable outlet” for his fantasies. Further, defence counsel argued that much of this journal must have been created in the years between 2000 and 2012.
• The accused currently faces an application by the Crown to have him declared a dangerous offender, in relation to another outstanding conviction, and he is now willing to take the necessary medication to deal with his alcohol problems, and to limit his sex drive. This was medical treatment that he had previously rejected, but the accused now understands his situation, and does not want to spend the rest of his life in jail. He is motivated to accept this medication treatment.
• The accused willingly shared his “gruesome thoughts” quite directly and frankly with others, including psychiatrists, and he is willing to be supervised on probation. The accused does not want to act on his thoughts. Indeed, in the past the accused has voluntarily attended at the hospital when he was afraid he might act on these thoughts. This should make it easier to craft a treatment program to address his various issues.
• Defence counsel argued that a probationary sentence would permit the imposition of a condition requiring the accused to participate actively in a treatment program. Defence counsel expressly indicated that the accused agrees to the imposition of such a condition, and will cooperate in any programs and take any necessary medications. When given the opportunity to speak on his own behalf at the conclusion of the sentencing hearing, the accused gave his own personal assurance that he would voluntarily accept treatment and medication to reduce his sex drive.
• With respect to the criminal harassment charge, defence counsel observed that the crime committed by the accused was very unusual, in that there was really no previous relationship between the parties, and the communications by the accused involved no threats to the complainant. Further, while the telephone messages were no doubt “creepy” and frightening, they were made in the fantasy-based hope that the complainant would reciprocate his feelings.
G. Analysis
[49] The offences committed by the accused were serious ones. They call for a sentence that denounces and repudiates the conduct of the accused, and provides an effective measure of general deterrence.
[50] The accused was in possession of a significant quantity of child pornography, the vast majority of which he had created himself, over a period of years, for inclusion in his depraved journal. This child pornography expressly and implicitly encouraged criminal sexual activity, by advocating and counseling sexual activities with children. By creating and consistently growing this journal, the accused continually reinforced his disturbing thought processes about the desirability of sexual activities with young females. Indeed, I have no doubt that his maintenance of this journal played an important role in his criminal sexual activities with his niece. With his journal entries, the accused no doubt encouraged himself to commit that very offence. Accordingly, his possession of this journal had unfortunate real-life consequences for his young niece.
[51] In addition, the criminal harassment offence committed by the accused quite reasonably caused the complainant to fear for her physical safety, and had a predictably significant adverse impact upon her personal life. After a peace bond prevented the accused from contacting her, more than a decade later he permitted his festering obsession with the complainant to result in ill-advised and frightful communications with her.
[52] Specific deterrence is also an important consideration in the circumstances of this case. It was only on October 12, 2010 that the accused was convicted of crimes in relation to his unlawful sexual activities with his 14 year old niece. Accordingly, it is apparent that the sentence of two years less a day of reformatory imprisonment and three year term of probation was not adequate to specifically deter the accused from the commission of further criminal offences. Indeed, after serving this term of imprisonment, the accused explained in his journal how it was all “worth it” as he “got to steal [his] nieces virginity” and he would be “[remembering] that night for years and years to come.” The accused subsequently reiterated this perspective when he told a psychiatrist that he has “no regrets” about his sexual activities with his niece, enjoyed the interaction, and has since fantasized about it. Further, the accused mocked the court order requiring his participation in the sex offender registry by constructing a page of child pornography from a sex offender registry document. Also, the accused was subject to the probation order imposed for his sexual offences when he committed the present offences. Clearly, a much more substantial sentence is required to specifically deter the accused from the commission of further offences.
[53] At the same time, the accused has only been convicted of offences on one earlier occasion, and his greatest and his only previous sentence was a maximum reformatory sentence and a three year term of probation. The sentence now imposed upon the accused must not “jump” inordinately beyond that required given the nature of the offences, and must not ignore his prospects for rehabilitation. The accused has, after all, professed a desire for medical intervention to help him deal with his psychiatric problems.
[54] According to the reports filed on sentencing, the accused has a variety of psychiatric issues which create a risk to public safety. Those issues will likely prove to be focal points in the pending dangerous offender proceedings. In the circumstances of the present case, however, while the protection of the public remains a fundamental consideration, the accused cannot now be sentenced on the basis of his potential risk of danger to the public in the future. Accordingly, the sentence imposed upon the accused cannot properly be any longer than the objective gravity of the offences committed by the accused justifies. As articulated in s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In other words, the sentence which must be imposed upon the accused cannot be disproportionate to the objective seriousness of the offences and the degree of personal responsibility of the accused based upon his perceived potential dangerousness to the public in the future.
[55] In the result, in my view, the accused should receive an effective sentence of five years imprisonment for these offences. This global sentence properly reflects the objective gravity of the serious crimes committed by the accused, and appropriately denounces and repudiates the conduct of the accused. It also provides an effective measure of general deterrence in an effort to properly protect the public. Further, as it is more than double the length of his previous sentence, this sentence will send the unmistakable message to the accused that his criminal conduct is unacceptable to society, will not be tolerated by courts and, if it continues, he will face increasing significant terms of imprisonment in order to adequately protect the public. At the same time, such a sentence is not an excessive or unjustified “jump” in sentencing that will interfere with the potential rehabilitation of the accused. Indeed, once the accused is given the enhanced credit of four years and two months for his pre-sentence custody, he will receive an actual sentence of only ten more months of imprisonment. Such a sentence, in my view, properly reflects the mitigating circumstances in this case.
[56] In the result, the accused is sentenced to a five month term of imprisonment on each of the charges of possession of child pornography, with those two sentences to be served concurrently to each other. The accused is also sentenced to a further five month term of imprisonment on the charges of criminal harassment and breach of probation, with those two sentences to be served concurrently to each other, but consecutively to the sentences imposed on the accused in relation to the child pornography charges. This results in the imposition of a total sentence of ten months imprisonment. Of course, viewed together with his credit of four years and two months imprisonment for the time the accused has already served in pre-sentence custody, this achieves the effective global sentence of five years imprisonment.
H. The Terms of the Probation Order
[57] In my view, the accused should be bound to the conditions of a probation order upon his release from custody. Accordingly, upon his release from this term of imprisonment, the accused will serve a three year term of probation. This probation order will include the statutory terms outlined in s. 732.1(2) of the Criminal Code, together with the following additional terms:
• The accused shall report to a probation officer within two working days of his release from custody, and thereafter as directed by the probation officer;
• The accused shall abstain from the consumption of any alcohol, or other intoxicating substances;
• The accused shall abstain from the consumption of drugs, except in accordance with a medical prescription;
• The accused shall abstain from owning, possessing or carrying any weapons;
• The accused shall refrain from any contact or communication, direct or indirect, with the complainant, H.B., and shall not be within 500 meters of the complainant, or attend at or near any location where she is known to work or reside; and,
• The accused shall participate in such counseling and treatment programs as may be recommended, including psychiatric treatment and drug treatment programs – except that the accused shall not be required to submit to any treatment program or medication to which he does not consent. See R. v. Rogers (1990), 1990 CanLII 432 (BC CA), 61 C.C.C. (3d) 481, 2 C.R. (4th) 192 (B.C.C.A.); Fleming v. Reid (1991), 1991 CanLII 2728 (ON CA), 4 O.R. (3d) 74; 82 D.L.R. (4th) 298 (C.A.); R. v. L. (J.J.), 2001 MBCA 21, 152 C.C.C. (3d) 572; R. v. R.T., 2011 ONSC 1042, [2011] O.J. No. 1704, at paras. 51-62; R. v. Munroe, 2012 ONSC 4768, [2010] O.J. No. 4405, at para. 98; R. v. Burgar, 2014 BCSC 331, [2014] B.C.J. No. 356, at para. 108-112.
I. Ancillary Sentencing Orders
[58] In addition, in my view the following ancillary sentencing orders are appropriate in the circumstances of this case.
[59] First, pursuant to s. 487.051(1) of the Criminal Code, I make an order in Form 5.03, requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The offence of possession of child pornography is a “primary designated offence” as defined in s. 487.04(a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.
[60] Second, pursuant to ss. 490.012(1) and 490.013(4) of the Criminal Code, I make an order in Form 52, requiring the accused to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life.
[61] Third, pursuant to s. 161 of the Criminal Code, I make an order prohibiting the accused for life from: (a) attending 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 daycare centre, schoolground, 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; (c) having any contact or communication, by any means, with a person who is under the age of 16 years; and (d) using the Internet or other digital network, including any file sharing network, except during the course of his employment.
[62] Fourth, I order that the accused pay a victim surcharge in the amount of $100 pursuant to s. 737(2)(b)(ii) of the Criminal Code. This was the amount of the surcharge at the time the accused committed these offences.
J. Conclusion
[63] In the result, the accused is sentenced to concurrent five month terms of imprisonment on each of the charges of possession of child pornography, and consecutive five month concurrent terms of imprisonment on the charges of criminal harassment and breach of probation. This results in a total sentence of ten months imprisonment.
[64] This sentence will be followed by a three year term of probation, on the terms outlined. The accused is also subject to the ancillary sentencing orders that have been issued.
Kenneth L. Campbell J.
Released: April 7, 2015
CITATION: R. v. T.W., 2015 ONSC 2167
COURT FILE NO.: 646/13
DATE: 20150407
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
T.W.
REASONS FOR SENTENCE
K.L. Campbell J.
Released: April 7, 2015