2017 onsc 7785

FILE NO. CR-15-275

superior COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

D.F.

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE MULLIGAN

on JUNE 26, 2017 at BARRIE, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,

BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA

Appearances:

R. Williams Counsel for the Provincial Crown

C. Hanson Counsel for D.F.

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

WITNESSES

IN-CH

CR-EX

RE-EX

No Witness Examinations

Reasons for sentence 2

Transcript Ordered....................... August 2017

Transcript Completed..................... February 2018

Ordering Party Notified.................. February 2018

MONDAY, JUNE 26, 2017

CITATION: R. V. D.F. 2017 ONSC 7785

Reasons for sentence

MULLIGAN, J.(Orally):

On April 25, 2016, D.F. pleaded guilty to two offences:

(a) Possession of child pornography, contrary to s. 163.1(4) of the Criminal Code of Canada;

(b) Making images of child pornography, contrary to s. 163.1(2) of the Criminal Code of Canada.

Both of these offences occurred on the 14th day of October, 2014, in the Township of Clearview.

OVERVIEW

This matter proceeded by way of the Crown’s application for a long-term offender designation pursuant to s. 753.1(1) of the Criminal Code. The Crown received consent from the Attorney General for the Province of Ontario, and provided notice of this application to Mr. D.F.. Dr. Phillip Klassen, a forensic psychiatrist, conducted an assessment of Mr. D.F.. His report was filed as an exhibit and he was called as a witness and was subject to cross-examination by counsel for Mr. D.F..

In addition to calling Dr. Klassen as a witness, the Crown also called Ms. Jay Stoneman, a parole officer employed by Correction Services Canada (CSC).

The Positions of Crown and Defence

The Crown’s position is that Mr. D.F. ought to receive a sentence of seven-and-a-half years for the predicate offences, followed by a 10-year long-term supervision order. As Mr. D.F. has been in custody since November 5, 2014, and after applying enhanced credit of 1.5:1, Mr. D.F. would have three-and-a-half years to serve in the penitentiary.

The defence submits that a fit sentence for Mr. D.F. would be a sentence of two years less a day at a provincial institution which focuses on sex offenders, followed by a term of probation. Counsel for Mr. D.F. submits that in the alternative that if a penitentiary sentence is warranted and if a long-term supervision order is warranted, a five-year long-term offender supervision term would be appropriate for Mr. D.F..

Statutory Framework for a Long-Term Offender Designation

Section 753.1 provides a framework for the court to consider when an application for a long-term offender designation is brought by the Crown. 753.1(1) provides as follows:

753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that:

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

Section 753.1(2) provides in part:

The court shall be satisfied that there is a substantial risk that the offender will re-offend if:

(a) the offender has been convicted of an offence under section 151 (sexual interference), ...subsection 163.1(2) (making child pornography), ...section 163.1(4) (possession of child pornography)...and

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting sever psychological damage on other persons, or

(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

Upon such a finding, the sentencing judge must impose a minimum period of punishment of two years, followed by a supervision order not to exceed 10 years: s. 753.1(3).

If the sentencing judge does not find the offender to be a long-term offender, the court is required to impose a sentence for the offences before the court: s. 753.1(6).

Mr. D.F.’s Criminal Record

Mr. D.F. has a criminal record for sexual offences and related breaches of probation offences. I will not read his full record here, it was filed as an exhibit at the sentencing hearing. I will make reference to some offences as I go through this decision.

The Predicate Offences

On October 14, 2014, Mr. D.F. was involved in a single-vehicle motor accident. Police attended. Mr. D.F. was not present but was found nearby. The Agreed Statement of Facts indicates that Mr. D.F. had in his possession, in his vehicle, a large collection of child pornography. As the Agreed Statement of Facts indicates:

In total, police found 10,110 images of child pornography. These images show a person who is, or is depicted as being, under the age of 18 years and is engaged in, or is depicted in, as engaged in, explicit sexual activity or the depiction for a sexual purpose of a sexual organ or the anal region of a person under the age of 18 years. From the 10,110 total child pornography images, there were 3,796 unique images.

This collection was spread over compact disks, DVDs, and portable jump drives.

As to making of child pornography, the Agreed Statement of Facts provides:

One of the child pornography images is a photograph of M.F., the daughter of Mr. D.F.. The photograph depicts M. in her bathing suit with a skirt. M.F. is bent over and her skirt is pulled up over her hips. The image is a close-up of her clothed buttocks/anal and vaginal area, ...she would be a child at the time.

At the time Mr. D.F. committed the offence of possession of child pornography, Criminal Code s. 163.1(4) provided a minimum sentence of six months and a maximum sentence of five years. With respect to making child pornography, Code s. 163.1(2) indicates a minimum sentence of one year and a maximum of 10 years.

Before considering a fit sentence for Mr. D.F. and whether or not a long-term supervision order should be imposed, it is important to review his previous sexual offences.

Possession of Child Pornography – January 22, 2009

Mr. D.F. pleaded guilty to possession of child pornography in 2009, and received a jail sentence of five months followed by a two-year probation order. The Agreed Statement of Facts indicated that Mr. D.F. had rented a U-Haul truck in October of 2006, but left a CD holder in that vehicle. Staff for the rental company later reviewed the contents and turned the matter over to the O.P.P. When the CDs were reviewed, they were found to have contained 1,190 images of child pornography. The Agreed Statement of Facts indicated, “These images showed young prepubescent females. The officer estimated a range of three years of age to 12 years of age.” In addition, as a result of a search warrant, police seized five desktop computers, two laptop computers and related material. Further child pornography images were located on these devices. In addition to the child pornography, images of Mr. D.F.’s daughter, M.F., then 8 years of age, were located. The images were of M.F. in various nude poses in her bedroom.

In speaking to the court, Mr. D.F. expressed regret for what occurred. In imposing sentence and probation, Justice Wilson noted:

He and the report indicates a willingness to undergo counselling following the completion of the term of custody and in my view, he has genuinely expressed his remorse and he has a clear understanding that his actions affect the lives of many, not just himself, but the public and his immediate family and he specifically mentioned concern in the future for his daughter with respect to publication of these events with respect to his conduct.

September 14, 2011 – Possession of Child Pornography, Sexual Interference, Breach of Probation

Mr. D.F.’s next conviction was on September 14, 2011. He entered a plea of guilty to the offences noted on his criminal record. Although the convictions were entered in September of 2011, it is significant to note that the charges relate to offences that were said to have occurred in January of 2010, only one year after his previous conviction and at a time when he was still bound by a probation order. With respect to the count of possession of child pornography, Mr. D.F. was found to be in possession of external hard-drive containing images of child pornography.

Mr. D.F. was found guilty of two counts of sexual interference. The first related to sexual interference with respect to his daughter’s friend, S.K. He slept in the same bed between her and his daughter, M.F. S.K. was 12 at the time and his daughter was 11. This occurred at a cottage. Mr. D.F. had been consuming alcohol. Several times during the night he touched S.K.’s buttocks. As the Crown told the court in submissions:

That evening, S.K. and M.F. had gone to bed together. S.K. started waking up to see the accused, D.F.. She referred to him as “Don” naked in the bedroom. He continued to crawl into bed with her...so he was lying between M.F. and S.K. S.K. stated that when Don was in bed, he went down her pyjama bottoms, rubbing and grabbing her bum throughout the evening. ...S.K. stated that she was very uncomfortable with what Don was doing and left the room three times, only to be followed by Don. S.K. stated, not knowing what to do, she went back to bed where Don continued touching her bare bum all night long...

Sexual Interference with M.F.

The second sexual interference count in connection with his September 2011 convictions relate to an occurrence with his daughter, then 11. The agreed statement of facts indicate that while she was sitting with him in a hot tub, she told officers in her interview that D.F. had leaned over, telling her he would show her what a French kiss was and he continued to kiss the victim on the lips with an open mouth, putting his tongue into the victim’s mouth in an intimate and sexual manner. The victim voiced her dislike and how she was uncomfortable, prompting her to leave the hot tub, going to the house, seeking the safety of her mother.

Prior to the sentencing hearing, Mr. D.F. was assessed by a forensic psychiatrist, Dr. Pearce. In imposing sentence, His Honour Justice Morneau noted:

The sheer number of images and the type of images and degree of abuse is disturbing. Mr. D.F. appears to have little, if any, insight into his behaviour. He does not appreciate the harm he has brought to his own daughter.

His Honour further noted:

I also know that the probation order that he has been on since the spring of 2009 was not effective, therefore, in neither monitoring nor controlling his behaviour. Mr. D.F. did not receive the necessary counselling and/or treatment that he required.

In noting he is a repeat offender, the court imposed a 24-month sentence less pre-trial custody followed by a three-year prohibition order. However, as the court noted in the sentencing decision:

For probation orders to be a successful tool to monitor an offender at risk of re-offending, even if the risk is low, requires a serious commitment of the offender and a clear recognition of the offender that their behaviour is deviant and they want to end that behaviour.

Mr. D.F. was invited to make submissions to the court at that hearing before sentencing and did so. As he stated to the court:

Well, first let me just say that I’m sorry for everything that happened last spring. I don’t want to make any excuses. It was all my responsibility. It was my fault. I feel terrible about what happened to the victims...and you know, I have no problem with going to counselling as I admitted on that report, as well.

November 26, 2013 – Breaches of Probation

On November 26, 2013, Mr. D.F. pleaded guilty to possession and consumption of alcohol while he was on a probation order relating to the previous offences. The court imposed a sentence of 154 days imprisonment in addition to time served and 12 months probation. Prior to sentencing, Mr. D.F. told the court:

I would just like to say, Your Honour, I have quit drinking before for a period of 23 years, and I plan to do that again, Your Honour, and that’s a promise to myself and you, and my parents. It’s just brought me nothing but trouble and I don’t plan on drinking again.

July 3, 2014 – Breaches of Probation

On July 3, 2014, Mr. D.F. pleaded guilty to breaches of probation. He failed to comply with an order that he abstain from possession and consumption of alcohol. After considering the plea of guilty and pre-sentence custody, His Honour Justice Weseloh imposed a sentence of 21 days left to be served.

January 5, 2015

Mr. D.F. entered pleas of guilty and was convicted of impaired operation of a motor vehicle and breach of probation. Mr. D.F. was given credit for pre-trial custody and one day jail time left to be served. Before imposing sentence, Mr. D.F. was given an opportunity to speak to the court. As Mr. D.F. stated, “I’m very sorry for what happened and the brakes on the car were not very good.”

Forensic Psychiatric Assessment

As part of this application, Mr. D.F. underwent a psychiatric assessment by Dr. Phillip Klassen, a forensic psychiatrist. Dr. Klassen prepared a report which was filed as an exhibit. He also gave evidence and was subject to cross-examination. He was admitted as an expert in the field of forensic psychiatry.

In order to prepare his report, he met with Mr. D.F. for close to five hours on three occasions, and subjected Mr. D.F. to a number of tests. In order to prepare for his work, he reviewed Mr. D.F.’s previous convictions and institutional records. He also spoke to several collaterals, including Mr. D.F.’s sister, K.F., and a previous partner, Ms. C.. At the time of the interview, Mr. D.F. was 59 years of age. Mr. D.F. has a grade 12 education and attended community college, but left after two years. He noted that Mr. D.F. has generally been employed, but alcohol consumption has been problematic and may have contributed to job losses.

Mr. D.F. has had several relationships and two marriages. His first marriage lasted 18 months. His second marriage covered a 25-year time span. He has a child, M.F., but he has had no contact with her since she was about 10. During his lengthy marriage with K.D., he did not consume alcohol for many years. The marriage broke down in part due to his return to alcohol consumption.

Dr. Klassen reviewed the criminal record of Mr. D.F.. As to the period of time between the 2009 conviction and the 2011 conviction, he noted that Mr. D.F. rapidly returned to re-offending and he has had no significant offence-free intervals since the 2009 conviction.

With respect to child pornography offenders in general, Dr. Klassen noted that there were two groups of offenders. The first group viewed child pornography but did not progress to touching or luring of children, and therefore fell into a low-risk group. The second group were offenders who also engaged in hands-on sexual contact. He noted that Mr. D.F. fell into this category because of the circumstances surrounding the two sexual interference convictions involving S.K. and M.F.

Dr. Klassen had an opportunity to review previous mental health documents, including the report of Dr. Mark Pearce, the forensic psychiatrist who had assessed Mr. D.F. in connection with his 2011 convictions.

Testing

Dr. Klassen ordered and supervised a number of tests for Mr. D.F., including phallometric testing.

Psychiatric Diagnosis

Dr. Klassen concluded, “In my opinion, this gentleman does meet criteria for two psychiatric diagnoses, those being a paraphilic disorder, and a substance use disorder.

As to the paraphilic disorder, Dr. Klassen opined:

This gentleman’s offending behaviour, given the risk/losses it’s caused him, is strongly indicative of a paraphilic disorder. I would submit, as did Dr. Pearce, that this gentleman suffers from either hebephilia (a preference for pubescent-aged individuals), heterosexual-type, or possibly pedohebephilia. I would note that his “hands-on” victims were 11 and 12 years of age (hebephilic age bracket). I would note that this gentleman reported that he was exhilarated looking at child pornography.

As to the alcohol use disorder, Dr. Klassen opined:

That this gentleman has suffered at periods of time in his life, from alcohol use disorder, it is abundantly apparent, at least to the undersigned, and also to people that know Mr. D.F.. Active alcohol use has affected most domains of his life, including education, work, intimate relationships, parenting, and his offending history.

Risk Assessment

Dr. Klassen conducted a number of tests to determine Mr. D.F.’s risk of re-offence: the Violence Risk Appraisal Guide (VRAG), the Sex Offender Risk Appraisal Guide (SORAG) or Static-99R, and the Psychopathy Checklist Revised (PCL-R). In Dr. Klassen’s opinion, the best instruments available to assess the risk of sex offender recidivism are the SORAG and the Static-99R. As he noted with respect to Mr. D.F.:

Mr. D.F.’s score on the Static-99R is 6. A score of 6 is a high score. This places Mr. D.F. on the 94th percentile with respect to the reference or standardization sample...I would note, however, that when this gentleman turns 60 years of age (in approximately 11 months), his score on the Static-99R will fall to 4. The risk is known to decline with age and is represented by the age item in this tool. At a score of 4, this gentleman will fall on approximately the 80th percentile with respect to the reference or standardization sample (might be described qualitatively as moderate-high score).

Dr. Klassen scored Mr. D.F. as -6 on the SORAG instrument, which he indicated was a very low score.

Dr. Klassen indicated that these instruments were meant to predict probability. As he stated:

In addition to probability, risk management also entails addressing issues of imminence, frequency, and severity. In these domains, we are left with clinical judgment alone. With respect to imminence, I think there are reasons to be concerned, if Mr. D.F. continues to use alcohol. Frequency would also appear to be live, severity less live issue, taking into account this gentleman’s offending history.

In his conclusion, Dr. Klassen stated:

From a purely psychiatric perspective, and taking into account actuarial assessment of risk, it is not my opinion that this gentleman presents with a probability of re-offence. I do believe that this gentleman presents with a substantial risk of re-offence, given the result of the Static-99R.

The terms “probability” and “substantial risk” were explained by Dr. Klassen in his report and in his testimony. An offender who presented with a probability of re-offence would be an offender where the risk was greater than 50 percent. Dr. Klassen felt that Mr. D.F. did not belong to this category. However, his opinion was that Mr. D.F.’s risk of re-offence was in the 30 percent range, therefore representing a substantial risk of re-offence.

Dr. Klassen felt that there were some reasons to be hopeful. He opined that Mr. D.F. was not a deeply criminal person. He had had a previous stable relationship and no involvement with the criminal justice system for offences such as these until 2009. As such, he was an anomaly from a psychiatric perspective, an individual who manifests an interest in child pornography in later years in life. Dr. Klassen noted that his underlying issues such as alcoholism had never been addressed. Although an individual cannot be cured of alcoholism or pedophilia, they can be controlled by management tools such as counselling, therapy and prescription medication if the offender were to agree to such a regime.

Dr. Klassen opined that if the court were to find Mr. D.F. a long-term offender, there are a number of risk management tools that may assist him. His recommendations can be highlighted as follows:

(a) Mr. D.F. may benefit from sex offender treatment;

(b) Mr. D.F. may benefit from substance-related treatment;

(c) Mr. D.F. should be subject to regular urinalysis;

(d) Mr. D.F. could benefit from sex drive-reducing pharmacotherapy;

(e) Mr. D.F. would benefit by living in a community corrections centre or community release facility upon release from incarceration;

(f) Mr. D.F. would benefit from structured daytime pursuits, such as education or employment; and

(g) Mr. D.F. should be restricted as to his use of the Internet and in the presence of minors.

The Crown also called as a witness, Ms. Jay Stoneman. Ms. Stoneman is a parole officer employed by Corrections Services Canada. She has been a parole officer in the Barrie office since 2008. She manages a caseload of 17 to 25 people who have been released from federal institutions on parole or who are subject to a long-term supervision orders. She meets with an offender immediately upon their release from a federal institution, or upon their warrant expiry date if they were incarcerated in a provincial institution. She begins with a four-hour interview after doing file preparation, including a review of any conditions established by the Parole Board.

She spoke about the intake process at a federal institution for all offenders. Offenders undergo a two or three-month initial intake process to determine their risk assessment and their needs. Sex offenders are dealt with separately. Offenders receive a primer program of ten group sessions.

The assessment determines the level of risk of an offender, whether it is low, medium or high. Goals are set to help the offender with respect to lifestyle, psychological and educational needs.

Offenders found to in a medium risk would be enrolled in a three-month program involving five two-hour group sessions each week, with one facilitator managing a group of ten throughout. The facilitators employ an integrated model dealing with a number of issues, including alcohol abuse, as well as specialized programs for sex offenders.

High risk offenders receive a more intensified program which lasts about six months with five two-hour sessions per week.

After the offender has completed that program, they may be referred to a maintenance program to assist them with the tools that they have learned. Some offenders may be required to repeat the program before they can go out into the community.

If offenders who are made subject to a long-term supervision order are incarcerated provincially, they do not come into her caseload until the offender has reached his or her warrant expiry date. In other words, an offender sentenced to two years less a day in a provincial institution, who receives early release, for example after 12 months, would be supervised by a probation officer until his or her warrant expiry date after the 24 months. The offender would not have had the benefit of the intensive assessment process at a federal institution or any maintenance programs there that may be of assistance.

When an offender is released from a federal penitentiary, they are made subject to conditions of release by the Parole Board. This often requires the offender to start by living for his first year of his release in a community correction centre (CCC) or a community residential centre (CRC). A community correction centre houses about 30 individuals in a residential setting. The offenders are allowed to be out for the day to pursue job interviews or other programs that they may be referred to. They are subject to a curfew. Community residential centres are halfway houses often run by charitable organizations. They are rooming houses for about 15 people. They have a curfew and residents can go out for work or programs. Room and board is provided and they get a very small allowance for their daily needs.

Offenders may be subject to regular breathalyzer testing. A breach could lead to charges or other disciplinary matters.

When offenders are integrated into the community, they are subject to frequent contact with their parole officer. This officer typically sees her parolees up to eight times a month for those with high needs, taping off to less frequent visits thereafter. Some offenders may be subject to unannounced urinalysis with consequences if there is a presence of alcohol in their system.

Ms. Stoneman was given a draft list of recommendations for the court to consider to assist the Parole Board if a long-term supervision order was warranted in this case. Her input, together with questions from Crown and defence enabled the Crown to refine these recommendations, which were filed as Exhibit 8 in this sentencing hearing.

Analysis

The Crown filed a Casebook of Authorities providing cases as to the appropriate fixed sentence for an offender such as Mr. D.F.. In addition, the Crown filed cases where long-term offender designations had been made for convictions relating to possession of child pornography.

In R. v. Hudic, 2016 SKPC 16, [2016] S.J. No. 74 (Sask. BC), the offender with three prior child pornography convictions received a total sentence of five-and-a-half years, followed by a 10-year long-term supervision order. The offender was diagnosed with pedophilic disorder and the court found that there was a substantial risk that he would reoffend.

In R. v. Rhode, 2016 SKQB 330, [2016] S.J. No. 598 (Sask. QB), a 37-year-old offender with two prior child pornography convictions, was sentenced to six years followed by a 10-year long-term supervision order. He had no prior convictions for “hands-on” sexual offences.

The Court of Appeal of Ontario dealt with a long-term supervision order in R. v. Rotman, [2015] O.J. No. 5108. The offender was convicted of possession of child pornography and breach of probation offences. The trial judge sentenced him to a sentence of three years of imprisonment in addition to his pre-sentence custody of over two years, followed by a long-term supervision order for 10 years.

The Court of Appeal reduced the sentence to 4.5 years based on fresh evidence. The sentence was also reduced because the original sentence exceeded the five-year maximum then in place for the offence in question. The Court of Appeal did not disturb the long-term supervision order and noted at para. 10:

Denunciation and general deterrence are the primary applicable sentencing principles when sentencing for child pornography offences. This was a second pornography-related offence by the appellant.

The Court further noted at para. 12:

Within two months of his release from jail in March of 2012, the appellant had breached the conditions of his section 161 prohibition order and probation orders, and had collected more child pornography.

After reviewing the findings of the trial judge, the Court of Appeal continued:

The appellant’s record for similar offences and his disregard for terms of his probation and prohibition orders operate as strong, aggravating factors in the circumstances.

In upholding the long-term supervision order of 10 years, the Court of Appeal noted the following key findings of the trial judge, which were relevant to this determination at para. 23:

(i) The appellant’s risk of re-offending is very high and would continue to exist absent meaningful treatment, close supervision, and a gradual reintegration into the community;

(ii) Probation as a form of control and rehabilitation has been a complete failure because the appellant has displayed a contempt of court orders and has demonstrated his proclivity for engaging in criminal conduct similar to the predicate offences over and over again; and

(iii) The appellant did not seem to recognize that he had a problem and was in denial regarding his situation.

Long-term Supervision Order

I am satisfied that a long-term supervision order of 10 years is warranted for Mr. D.F.. The comments of the Court of Appeal in Rotman ring true for Mr. D.F.. This is his third conviction in less than 10 years for possession of child pornography. He was also previously convicted of two sexual interference offences and has breached numerous probation orders flowing from his previous convictions. I accept Dr. Klassen’s opinion that Mr. D.F. is at a substantial risk of re-offending absent treatment and supervision. A gradual reintegration into the community under the supervision of a parole officer subject to the recommendations of the Parole Board, and with the support of his family, may assist him with his reintegration.

Probation certainly has not worked for Mr. D.F.. He has had several custodial sentences in the provincial system followed by probation. However, there is no evidence before the court that he has taken personal responsibility for his alcohol and pedophilia disorders. He has reoffended with respect to child pornography while he was on probation.

Mr. D.F. expressed regret and shame when he spoke to sentencing judges on other occasions, but it is clear that he was in denial with respect to his underlying problems. Even after a period of forced sobriety while incarcerated, he returned to alcohol upon his release and returned to accumulate child pornography.

Mr. D.F. spoke to the court at this sentencing hearing, expressing that he has lost everything and he is sorry for the pain he has caused his daughter, whom he has lost contact with. On a positive note, he acknowledged that he needed help, including counselling and related programs, and attendance at programs such as Alcoholics Anonymous. Although Mr. D.F. has expressed regret before, it is clear that he has never received any form of counselling or related programs to assist him with his underlying problems.

Fixed Sentence

In my view, Mr. D.F. requires a fixed sentence in a federal institution. A comprehensive assessment developed over several months would lead to a designated risk assessment and intensive program thereafter. Obviously, his alcohol addiction and pedophilia need to be of primary focus. If Mr. D.F. takes responsibility, he may be entitled to day passes or some form of early parole. His reintegration into the community may be assisted if he is sent to a community correctional centre or a community residential centre. He will have a curfew but he will be monitored to ensure there is no alcohol consumption. He may be entitled to go out for the day to look for employment or attend specialized programs that may assist him.

Mr. D.F. is a man who has family support. His sister and his parents were in court throughout his sentencing hearing. They filed letters in support. The support of family will be of great assistance to him as he begins the process of accepting responsibility and gradual reintegration into the community. The offence of possession of child pornography carries with it a maximum five-year sentence at the time this offence was committed. The maximum sentence ought to be reserved for the worst offender. In this case, Mr. D.F. entered a plea of guilty. I accept the plea of guilty as a mitigating factor and therefore I impose a sentence of four-and-a-half years for this offence.

Making Child Pornography

The Crown submits that this offence ought to attract a sentence of two-and-a-half years consecutive to the possession sentence. A plea of guilty, once again, ought to be considered as a mitigating factor. The fact that the individual that was the subject matter of the child pornography was his daughter, M.F., is particularly aggravating. I would therefore impose a sentence of two years to be served consecutively for this offence.

Mr. D.F.’s global sentence is therefore six-and-a-half years. However, he is entitled to credit for his pre-trial custody. He has spent 965 days in custody. When credit is applied on the basis of 1.5:1, he is entitled to 1447 days credit, which I would round up to four years. Therefore, Mr. D.F. has a two-and-a-half-year sentence left to be served.

In addition to the fixed sentence and the long-term supervision order, I order the following ancillary orders:

(i) A copy of this transcript, including the testimony and report of Dr. Klassen, shall be forwarded to the CSC pursuant to s. 760(b) of the Criminal Code of Canada.

(ii) The predicate offences are primary designated offences under s. 487.04 of the Criminal Code. I find that an order allowing the taking of bodily substances for DNA analysis would not be grossly disproportionate to the public interest, protection of society, and the proper administration of justice. Therefore, an order in Form 5.03 shall ensue.

(iii) Because of the nature of the predicate offences, s. 490.011(1) of the Criminal Code applies. Mr. D.F. shall comply with the Sex Offender Information Registration Act (SOIRA), for life.

(iv) I am also satisfied that an order under s. 161 of the Criminal Code for life is appropriate in these circumstances. Therefore, Mr. D.F. is prohibited from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can be reasonably be expected to be present, or a daycare centre, school-ground, playground or community centre;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact, including communicating by any means, with a person who is under the age of 16 years, unless Mr. D.F. does so under the supervision of a person, his probation officer, or the court considers appropriate; or

(d) using the Internet or other digital network, unless Mr. D.F. does so in accordance with conditions set by his parole officer or the court.

(v) The Crown seeks a discretionary order under s. 164.2(1). I am satisfied that the digital storage devices seized from Mr. D.F. as a part of this investigation be forfeited to Her Majesty and disposed of as the Attorney General directs.

As Mr. D.F. pled guilty to two indictable offences, I order that he is to pay a $400 victim surcharge to be paid within 90 days after his release from prison.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Shannon Heryet, certify that this document is a true and

accurate transcript of the recording of R. v. D.F. in

the Superior Court of Justice, held at 75 Mulcaster Street,

Barrie, Ontario, taken from Recording No.(’s)

3811-02-20170626-083158-10-Mulligg.dcr which has been

certified in Form 1.

February 2018 ___________________________________________

Shannon Heryet - ACT #3389634078