Court File and Parties

COURT FILE NO.: CR-15-0055 DATE: 2017-02-27

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen Robert Kozak, for the Crown

- and -

Jeffery Frederick Miro, Accused Christopher C. Watkins, for the Accused

HEARD: January 6, 2017, at Thunder Bay, Ontario

BEFORE: Mr. Justice F. Bruce Fitzpatrick

Reasons On Sentence

[1] On August 5, 2016, following a one day trial in May 2016, Jeffery Frederick Miro was found guilty of one count of possession of child pornography, pursuant to s. 163.1(4) of the Criminal Code. He was also found guilty on one count of making child pornography available pursuant to s. 163.1(3).

The Facts

[2] I do not propose to describe in detail the facts which I found as the basis to convict Mr. Miro on the two counts with which he was charged. These were set out in my reasons for judgment. Basically in the spring of 2014, Mr. Miro had an extensive child pornography collection in his possession. It contained 479 unique pictures and six videos. The defence conceded these images constituted child pornography. In addition, the actual text of various chats Mr. Miro was having with other persons who were interested in Mr. Miro’s child pornography collection were entered into evidence. From these texts, Exhibit 3 on the trial, it is quite evident Mr. Miro was actively trading these images. He also was giving advice on how to avoid detection by authorities for these types of child pornography trading activities by using the “deep web underground network” TorProject. He was also expressing his interest in having sex with underage girls. He was also expressing satisfaction in his ability to trade these images. According to one of his fellow child pornography aficionados, Mr. Miro, aka Dig op, was the “preteen King.”

Circumstances of Mr. Miro

[3] A pre-sentence report was prepared and provided to the Court. It outlines Mr. Miro’s background as well as his circumstances as of late August 2016. I was also provided with personal information from the submissions of counsel.

[4] Mr. Miro was 52 years old at the time he committed the offences at issue. He has been with his present spouse for approximately 25 years. He had no children with his wife, but has treated her two daughters from a previous relationship as his own. He has no criminal record.

[5] He was an only child. He is a first generation Canadian and had a stable upbringing here in Thunder Bay. He has a grade 12 education. At the urging of his father, Mr. Miro went to work right out of high school with Great Lakes Forest products. This company and its various successors, today Resolute Paper Products, operated a large paper mill here in Thunder Bay. Mr. Miro was terminated for cause by Resolute in September 2016 as a result of this conviction. He has found alternative employment with a local long term care facility. Mr. Miro is a social drinker. Drugs and alcohol played no part in this matter.

[6] Mr. Miro reports becoming depressed and developing an anxiety disorder as the result of being charged. He has had a heart attack since being charged. While he owns his own home mortgage free, the couple reports being in dire financial circumstances as the result of these charges.

[7] Mr. Miro claims to be remorseful about the offence. He reports he has no sexual interest in children. He has done well on his bail conditions. He did not understand how serious it was to make child pornography available. He does not defend his behaviour but had difficulty expressing why he committed the offences and was unable to elaborate for the presentence report writer “what was going on for him during his time on the computer.” The pre-sentence report was silent on the issue of the risk of Mr. Miro re-offending.

[8] In his address to the Court, Mr. Miro acknowledged his remorse and expressed that he was sorry for what he had done. However, he indicated that he did not think that incarceration for him represented a wise use of societal assets. He said he wanted to get back to a normal lifestyle as soon as possible.

Impact on the Victims and/or the Community

[9] There were no victim impact statements filed in this matter. However, in my view there were many children victimized by Mr. Miro’s actions. They appeared in the images and videos he traded. This Court takes it as a notorious fact that the possession and making available of child pornography has a hugely negative impact on the community and on the persons who are in these photographs and videos.

Legal Parameters on sentence

[10] Both charges for which Mr. Miro was found guilty carry a mandatory minimum sentence of one year, and a maximum sentence of fourteen years.

Position of the Crown

[11] The Crown seeks two years less a day concurrent for both counts plus a period of probation of three years with a variety of terms. It also seeks ancillary orders relating to the collection of a DNA sample, prohibitions on Mr. Miro’s activities during the period of probation pursuant to section 161.(1)(a)(b)(c) and (d), and registration on the Sex Offender Registry for life.

[12] The Crown points to the purposeful aspect of Mr. Miro’s acts. This is very evident from the texts entered as evidence in the matter. The texts filed as evidence contained the date, time and user name. I have found that the user named “Dig op” was Mr. Miro. Mr. Miro was active in providing the material, seeking the material, advising others on how to avoid detection, and normalizing a culture of sexual exploitation of persons under the age of eighteen. The Crown pointed to numerous examples in the texts where on a simple reading, Mr. Miro’s intentions and actions were plainly evident. For example, (these only set out the date, time, user name and the actual text)

Example I

“3/2/2014 5:51:26 digop I mostly post jailbait, easier to find. I’m new on ig, theres more to come, and I’m always looking for young teens and kids 3/2/2014 5:53:04 killah2403 Yea jailbaits r way easier to find I am also always looking for teens n kids. Can’t wait to see more keep em comin… 3/2/2014 5:55:38 digop you have some fine girls there, I gotta go jerkoff now, thx

Example II

3/3/2014 12:54:28 designedink Nice pics, hope you go private. You got more 3/3/2014 1:00:59 digop Thx, I’m considering private, I’ll have more in the next few days 3/3/2014 1:03:36 designedink Where do you get your pics 3/3/2014 1:08:50 digop TorProject 3/3/2014 1:10:17 designedink ? Never heard of it…Dot.com? 3/3/2014 1:15:55 digop It’s the deep web underground network, it’s a pain in the ass but that’s where the criminals and pedos hangout 3/3/2014 1:17:10 digop It gives an u an anon ip and bounces ip address around the world 3/3/2014 1:17:55 designedink Weird and interesting 3/3/2014 1:22:43 digop TorProject.org is legal, but it gets u to the pedo sites and boards and blogs, but remember do not peer to peer, that how they get caught by trading with others

Example III

3/9/2014 11:07 digop (three texts in a row) I wish I was your daddy, it would have been so cool to walk past your room the door is slightly open and you are getting dressed… I would peek to watch you play with your new perky tits…maybe even get to see you rub your wet pussy till you cum 3/9/2014 11:12:11 x.Julias (three texts in a row) Ooh… that’s kinky..Im 16 3/9/2014 11:17:58 digop Ohhhhh to have a sweet 16 yo, you are my dream fantasy… (18 more texts go back and forth between digop and x.Julias) 3/9/2014 11:49:49 digop Maybe u could snap a quick pic for me hun, I would love that, I promise, just between us

[13] While the Crown rightly and clearly identified the metaphor as distasteful, Crown counsel submitted Mr. Miro was acting like trading images was like trading hockey cards. The Crown emphasized denunciation and deterrence in addition to the other factors contained in section 718. The Crown noted that while a low range penitentiary sentence may be appropriate in this case, balancing goals such as protection of the public and giving Mr. Miro the possibility to seek significant treatment would be best served by way of him receiving a combination of a reformatory sentence and a lengthy period of probation.

[14] With respect to the terms for probation, in addition to the usual statutory terms, keep the peace and report to court and probation officer as required, the Crown referred to terms imposed by N. Brow J. of the British Columbia Supreme Court in a child pornography case R. v. Hopps, [2010] B.C.J. No. 2698. After a more careful review it appears to me all the terms would be covered by the order requested under s. 161.(1).

Position of the Defence

[15] Counsel for Mr. Miro argues for the imposition of the minimum mandatory sentence of one year for both counts to run concurrently. The defence did not object to the Crown submission for a reformatory sentence that was followed by a period of three years of probation on the terms proposed. The defence submitted that any term of incarceration will be very difficult for a person in Mr. Miro’s circumstances. Mr. Miro has already paid a heavy economic, physical and social price arising from these charges. He has lost his job, he has developed a serious medical condition and he had been exposed to public ridicule as the result of his name being published locally. The defence relies on a number of authorities where terms of less than one year were imposed for possession of child pornography prior to the most recent mandatory minimum being raised to one year.

Mitigating and Aggravating Factors

[16] Section 718.2 of the Criminal Code requires the sentencing judge to increase or decrease the sentence imposed by any aggravating or mitigating factors in this case. In an authority provided by the defence R v. Kwok, [2007] O.J. No. 457 (OSCJ) at paragraph 7, Molloy J. set out a number of aggravating and mitigating factors that had been generally accepted at that time. This case was more recently referred to in an O.C.J. authority referred to by the Crown, the decision of H.A. McArthur J. in R v. Levin, [2015] O.J. No. 2768. The list prepared by Molloy J. was not exhaustive but very useful for this case.

[17] In my view there are several mitigating factors. Mr. Miro has no criminal record. He has already suffered for his crime through the loss of his job. He is otherwise of good character.

[18] There are several aggravating factors. Mr. Miro has actively distributed child pornography. Also his collection is not small.

Principles of Sentencing

[19] In this case, I am mindful of the sentencing principles contained in ss. 718 of the Criminal Code of Canada.

[20] Section 718 provides:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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: (a) to denounce unlawful conduct; (b) to deter the offender and other persons 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 to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[21] Section 718.1 provides that it is a fundamental principle of sentencing that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[22] Section 718.2 requires the Court to impose a sentence that is similar to sentences imposed on other similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the cumulative effect must not be unduly long.

Reasons for Sentence

[23] I am persuaded that the position of the Crown in this matter represents the most just, fit and appropriate sentence for Mr. Miro. In my view, a penitentiary sentence of three years could also have been an appropriate disposition of this matter. The reasoning of D.F. Baltman J. in R v. C.C., 2016 ONSC 1330 and of the Court of Appeal in R v. Carlos, 2016 ONCA 920, [2016] O.J. No. 6288 wherein three year penitentiary sentences were given to first time offenders convicted of making child pornography available indicates to me that the reformatory sentence being sought by the Crown is within the range of appropriate sentences for the type of offences that Mr. Miro has committed. I see the logic in the Crown’s position that a reformatory sentence allows for a lengthy period of probation which is very important both from a protection of the community standpoint and to give Mr. Miro the opportunity to seek help.

[24] I am directed by the Criminal Code to also respect a principle of proportionality in sentencing. Like offences attract like sentences. It is a cornerstone of our justice system and our democracy which strives to create similar conditions for all citizens regardless of their personal circumstances. The three year penitentiary sentences given in R v. C.C. (supra) and R v. Carlos are recent and up to date indicators of the level of sentence that should be available to those who make child pornography available.

[25] I am not convinced that Mr. Miro is genuinely remorseful. I say this because of comments from the presentence report and from what Mr. Miro said when he addressed the Court. The presentence report notes Mr. Miro’s inability to understand what he had gotten himself into. It notes he did not understand how serious this was. It notes he was not prepared to elaborate on what was going on for him during his time on the computer. From reading the texts of the conversations Mr. Miro was having while trading child pornography, it is very clear to me what was going on with Mr. Miro. He was getting sexual satisfaction from looking at pornographic images of children. He was enjoying trading these images. He was trying to obtain new images from a person who was representing themselves as a sixteen year old girl.

[26] When given the opportunity to address the Court Mr. Miro’s focus was “getting back to a regular life.” To me this makes his expression of remorse ring hollow. Comments by his counsel during submissions concerning the manner in which the images of child pornography were not “real” and were part of a fantasy world for Mr. Miro are insightful remarks. I note the comment of Molloy J. in Kwok at paras 49 -50 (supra):

Collectors of child pornography seek to distance themselves from the direct physical and emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators ...The existence of this ready and eager consumer base can only be seen as an incitement to those who would perpetrate further child abuse...

[27] From the texts introduced at trial I have Mr. Miro’s advice to others, his comments that he would only trade if he would get things back and many many other remarks in the texts can only lead one to the conclusions that he fully knew and understood exactly at all times what he was doing. In particular his comments to the presentence writer about “he got caught into something and he can’t understand why” suggest to me simply he cannot understand why he got caught. I think Mr. Miro is still minimizing his behaviour. I am concerned he is at risk to reoffend. I am of the view that a lengthy reformatory sentence is necessary to denounce and specifically deter Mr. Miro. He needs to get help for his child pornography problem. He needs to have his access to the Internet stopped for a while and then limited once he can be trusted again not to fall back in to his role of being the “King of Preteen.”

[28] The demand and trade of child pornography is a serious problem in our society. It encourages the exploitation of the most vulnerable in our society. The virtual world of the Internet. It is not easy to combat. It is an international problem. It happens underground and in the shadows. When brought to the surface it should be faced head on and those who perpetrate these offences should face real and serious consequences for their actions.

[29] I do not accept the submission of the defence that the sentence in this case should be mitigated as there was a possible Charter breach of Mr. Miro’s rights to be free from unreasonable search and seizure. No application to exclude evidence was brought because, I take it, the defence assessed that it had no possibility of success. In any event, based on the evidence I heard, I cannot see how state action in this case amounted to misconduct let alone serious or egregious misconduct relating to Mr. Miro or the charges at issue.

[30] I also do not accept the submissions of Mr. Miro’s counsel that imposing the minimum sentence is appropriate in these circumstances. It is not supported by the facts. It does not appropriately reflect all the principles to which I am to give regard. In particular, it would not address the very real need for denunciation and deterrence in this case. I believe the authorities upon which Mr. Miro relies can be distinguished from the circumstances in this case. I believe they were all done before the minimum sentence was raised to one year.

[31] I appreciate Mr. Miro has suffered as the result of being charged. I appreciate he has a good work history and no problems with drugs or alcohol. However, these mitigating factors are not enough to overcome the aggravating factors of the making available of child pornography and how Mr. Miro was carefully and actively trading it.

[32] In this case, I will make some specific comments about the imposition of ancillary orders under section 161.(1). All orders under section 161 are to run in accordance with the provisions of section 161.(2); that is, from the date, Mr. Miro is released from imprisonment for the offence including release on parole, mandatory supervision or statutory release. However, I am imposing an additional term of prohibition of five years on the order under section 161.(1)(d), the prohibition concerning Internet use. I am doing this because at this point I am concerned about the possibility that Mr. Miro may reoffend. He used a cell phone to exchange child pornography and was convicted for this. According to some of the texts, he was doing so while at work on occasion. In order to protect the public, I am requiring that Mr. Miro have an additional limitation on both time and how he can use the Internet which will require him to be in the presence of another adult if he chooses to access the Internet during the additional period. This may mean practically that Mr. Miro does not use a smart phone or tablet for some time. I appreciate the difficulty that may be imposed by enforcement of this particular section but I feel it necessary to bring home to Mr. Miro that what he did was serious, harmful and dangerous and he has to pay a real price for his actions in addition to the period of incarceration and probation. In my view, it is akin to an alcohol prohibition on a person whose conviction resulted from their poor choices in the use of alcohol.

[33] Stand up please, Mr. Miro.

[34] Taking all of this in to account, I accept the submissions of the Crown in this matter with respect to sentence. In my view, a just and fit sentence for you is as follows:

• On Count 1 for possession of child pornography you are sentenced to a period of incarceration of two years less a day;
• On Count 2 for making available child pornography you are sentenced to a period of incarceration of two years less a day. This sentence shall run concurrently to the sentence on count one;
• When you complete your sentence you shall be on probation for a period of three years. During that time you shall keep the peace and be of good behaviour, you shall report to your probation officer as directed and you shall take and complete any programs for the modification and control of sexual behaviours to which you are directed;
• You shall provide a sample of your DNA pursuant to s. 487;
• You shall comply with the registration requirements of the Sex Offender Information Registration Act pursuant to s. 490.012 and the relevant subsections for life;
• You shall be prohibited for three years from attending those places set out in s. 161(1)(a);
• Further, you shall be prohibited for three years from those actions set out in s. 161(1)(b) and (c);
• Further, you shall be prohibited for a period of three years from using the Internet or other digital network pursuant to the provisions of section 161.(1)(d);
• Further, following the expiry of the first three years of absolute prohibition from using the Internet or some other digital network, Mr. Miro shall be prohibited from using the Internet or some other digital network unless in the presence of another person over the age of eighteen years for a period of further five years;
• A victim impact surcharge of $200 for each count shall be levied against Mr. Miro. He shall have one year to pay this following his release from imprisonment.

”original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: February 27, 2017