Court File and Parties
Court File No. CR-18-00000089-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
BENJAMIN ENOSSE
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE M. FUERST
on August 29, 2019, at BARRIE, Ontario
APPEARANCES:
L. Saunders Counsel for the Crown
M. Malick Counsel for Benjamin Enosse
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
Reasons for Sentence ................................. Page 1
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically.
Transcript Ordered: ......................... October 17, 2019
Transcript Completed: ......................... November 14, 2019
Ordering Party Notified: ...................... November 15, 2019
R E A S O N S F O R S E N T E N C E
FUERST, J. (Orally):
In late August 2018, Benjamin Enosse pleaded guilty to one count of possession of child pornography, and one count of making available child pornography.
Ordinarily, Mr. Enosse would have been sentenced months ago. However, following his guilty pleas, Crown counsel sought to have him assessed as a possible dangerous or long term offender. The assessment order was made in October 2018, after a forensic psychiatrist was identified to do the assessment. The assessment report was not made available until January 2019. Crown counsel then required time to consider the result of the assessment.
In April 2019, I was advised that the Crown would not make a dangerous or long term offender application. The matter then proceeded to a sentencing hearing.
The Circumstances of the Offences
A police officer received notification in October 2016 from the National Child Exploitation Coordination Centre that a user of a specified IP address, who was associated to a particular email, with the screen or user name "chicken winger" was in possession of child pornography on September 1st, 2016.
On October 28th, 2016, the officer viewed six images that were captured being uploaded by that user on September 1st, 2016. The images, which are described in the Facts read in in support of the guilty plea, depicted two females believed to be between 7 and 10 years of age, one female believed to be between 8 and 10 years of age, two females believed to be between 8 and 11 years of age, and one female believed to be under 11 years of age. Because of the nature of the images, the officer believed that they all fit the Criminal Code definition of child pornography.
The officer determined, by way of a production order, that the user was using an electronic device located at a specific residential address in Orillia.
On January 3rd, 2017, the Ontario Provincial Police commenced a parallel investigation, as the result of the monitoring of a particular chat room on the internet. A user posted a number of links to images and movies of child pornography. Further investigation revealed that it was someone at the residential address in Orillia already identified by the police who made the links available to others.
The police obtained a search warrant and on January 19th, 2017, executed it at the Orillia residence of Mr. Enosse. Mr. Enosse was not home at the time.
The police found and previewed three laptops, one thumb drive, and one SD card.
On the laptop located in Mr. Enosse's bedroom, the police viewed four images of what they believed was child pornography. The computer was seized.
Forensic analysis confirmed that the laptop held 50,790 files depicting child pornography. Over 47,400 of these were images, and over 3,100 were videos. In all, approximately 26,000 of the images and videos were unique.
The images depicted male and female children between one year and 14 years of age in poses with the main focus being their vaginal, penile or anal regions. There were images of children defecating on adult males, and images of children involved sexually with animals. The videos depicted males and females between one year and 14 years of age engaged in explicit sexual acts with adult males and females, and other children. There were videos of young children being raped by adult males.
Mr. Enosse specifically admitted that he knew the images and videos of child pornography were on his computer, and that he was making images and videos of child pornography available to other users on the internet.
The Circumstances of Mr. Enosse
Mr. Enosse is 37 years old. He is single. He is Indigenous. His background is Ojibway. He, like his mother, is a band member of Wiikwemkoong on Manitoulin Island. His father was a member of Magnetawan First Nation.
Mr. Enosse's maternal grandmother was a survivor of the residential school at Spanish, Ontario. She struggled with alcohol and relationships. She was verbally and physically abusive of her children, including Mr. Enosse's mother.
Mr. Enosse's parents separated when he was young. He was raised by his mother in Wiikwemkoong. She was a caring and supportive parent. Mr. Enosse is close to her. He had little contact with his father when he was growing up.
A Gladue report was obtained at the request of the defence. The Gladue report describes Wiikwemkoong as a community that has many social problems. Multigenerational trauma has manifested itself in alcohol and drug addictions, family violence, low self-esteem, and other issues.
Mr. Enosse's mother became an alcoholic when she was a teenager, although she eventually quit drinking after attending a substance treatment program. One of his mother's partners was physically abusive of her, although not of Mr. Enosse. Members of his mother's family had problems with alcohol, and some have criminal records.
Mr. Enosse finished high school on Manitoulin Island. After working for a few years, he briefly attended Georgian College. He did construction work in the Orillia area, and then returned to Wiikwemkoong. He worked seasonally as a firefighter, and as a kind of an apprentice teacher's aide at the local high school.
In July, 2008 he was convicted of sexual interference and sexual assault. He was sentenced to 18 months in jail, followed by two years of probation. On his release from jail in 2010, he returned to his mother's home in Wiikwemkoong.
In 2012 he moved to Orillia. He was joined there by his mother and younger brother. He began working in forming at an Orillia company in late 2012. He held this job until his arrest in 2017.
The Gladue report indicates that Mr. Enosse lost his best friend in a house fire in 2007. A close cousin died of hypothermia in 2016.
On his release on bail in 2017, Mr. Enosse, his mother, and brother returned to Wiikwemkoong. They have continued to live together there. He has not been employed while on bail, and receives Ontario Works. There have been no problems with adherence to his bail conditions.
I was not advised that Mr. Enosse spent any time in pre-trial custody, or that the conditions of his bail were particularly onerous.
Dr. Philip Klassen performed the Crown-requested assessment of Mr. Enosse. Both Crown and defence counsel referred to it in their submissions on the sentencing hearing. Dr. Klassen diagnosed Mr. Enosse with a paraphilic disorder. The results of phallometric testing crystalized a diagnosis of pedophilia (a sexual preference for pre-pubescent individuals) or pedohebephilia (a sexual preference for pubescent and pre-pubescent individuals). Mr. Enosse's score on the Static-99R, a risk assessment tool, showed an elevated risk of some form of sexual re-offending, which Dr. Klassen described as moderately high risk.
Dr. Klassen recommended that Mr. Enosse be offered sex offender treatment programming, although Mr. Enosse expressed to Dr. Klassen that he does not have an underlying sexual behaviour disorder.
Mr. Enosse told the Gladue reporter that he is open to receiving counselling and also traditional services, including sweat lodges. He plans to return to Wiikwemkoong after he serves his jail sentence. He would like to learn more about his culture and its teachings, to help him lead a more positive life.
The Gladue reporter advised that Wiikwemkoong Justice can facilitate access to services for its clients, such as treatment programs and mental health counselling. For example, there is a psychologist in Sudbury who runs a counselling program for offenders convicted of child pornography offences. The Wiikwemkoong Justice also can provide clients with culturally sensitive programming. It has access to a web-based child sexual abuse prevention and child pornography prevention program that can be made available to its clients. A Re-integration Coordinator can liaise with the correctional institution and be involved in release planning for Mr. Enosse. A Gladue Aftercare Worker also is available in the community.
Mr. Enosse told me in court that he intends to avail himself of programs while in jail, and to take counselling once he is back in the community.
The Positions of the Parties
On behalf of the Crown, Ms. Levasseur seeks a sentence of four years in jail. She acknowledges as mitigating factors the guilty pleas and the Gladue factors. However, the enormous size of the child pornography collection, the nature of it, including images of rape and bestiality, Mr. Enosse's prior criminal record for sexual offences, and his lack of insight into his disorder are highly aggravating and warrant a significant penitentiary sentence. Ms. Levasseur also seeks a DNA order; a SOIRA order for life; a s.161(a), (b), (c), and (d) order for life; and a forfeiture order.
On behalf of Mr. Enosse, Mr. Malick seeks a sentence of two years in jail. He acknowledges that a reformatory length sentence is out of the applicable range, and that a four year jail sentence is within the range, but at the top of it. He submits that a sentence of two years in jail would satisfy the needs of denunciation and deterrence. He makes no submissions about the ancillary orders sought by Crown counsel.
Mr. Malick emphasizes that Mr. Enosse grew up and has lived in a community that has a toxic atmosphere. His grandmother was a residential school survivor who was abusive to her children, including his mother. Nonetheless, Mr. Enosse worked at various jobs from a young age. He is not an alcohol abuser. He has abided by the conditions of his release for two and a half years. He is amenable to counselling, according to the Gladue reporter.
The Principles of Sentencing
The objectives of sentencing long recognized at common law have been codified in s.718 of the Criminal Code. They are the denunciation of unlawful conduct and the harm done to victims or the community, deterrence, both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community be considered.
Section 718.2(e) provides that in considering the latter factor, particular attention should be given to the circumstances of Aboriginal offenders. The Supreme Court of Canada explained in R. v. Gladue, [1991] 1 SCR 688, and again in R. v. Ipeelee, 2012 SCC 13, that this requires a sentencing judge to consider the unique systemic or background factors that may have played a role in bringing the Aboriginal offender before the courts, and the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his Aboriginal heritage or connection.
Two aspects of these sentencing principles are important in this case. The first is Mr. Enosse's Aboriginal status.
In R. v. F.H.L., 2018 ONCA 83, the Court of Appeal for Ontario addressed the correct approach to the sentencing of Aboriginal offenders. It held that first, a sentencing judge must take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canadian society. Second, the judge must consider whether those systemic and background factors have impacted the offender's life in a way that bears on his moral blameworthiness, or indicates which types of sentencing objectives should be prioritized in the offender's case. The Court made it clear that in some cases of aboriginal offenders, denunciation and deterrence will need to be prioritized.
The second aspect of sentencing principles that is important is the nature of Mr. Enosse's offences.
In R. v. Inksetter, 2018 ONCA 474, the Court of Appeal for Ontario reiterated at paragraph 16, that denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography. The Court recognized that possession of child pornography is a form of child sexual abuse, with the children depicted in the images being re-victimized each time the images are viewed. The Court termed child pornography as a pervasive social problem, and pointed out that it has signalled that more significant sentences for child pornography-related offences are appropriate.
Section 718.02 of the Criminal Code provides that in sentencing an offender for an offence that involved the abuse of a person under the age of 18 years, the court must give primary consideration to denunciation and deterrence of such conduct.
Analysis
There are a number of significant aggravating factors in this case. They include:
The number of images and videos collected by Mr. Enosse was massive, totalling more than 50,000.
It is a reasonable inference, and one that I draw beyond a reasonable doubt, that it would have taken some time to amass a collection that size. This was not casual activity on the part of Mr. Enosse.
The images and videos were very graphic in nature. Videos of children being raped by adult males and images of children engaged in acts of bestiality represent the extreme victimization of children. These materials were created for the satisfaction of adults' deviant sexual interests, at the expense of the wellbeing of the most vulnerable members of our society.
Mr. Enosse has a prior criminal record for sexual offences against a young person.
Mr. Enosse has a sexual behaviour disorder. He is at a moderately high risk of some form of sexual recidivism according to Dr. Klassen.
Mr. Enosse has not fully acknowledged his disorder. He has yet to participate in sex offender treatment programming that might mitigate his risk of re-offence.
In mitigation, I take into account:
Mr. Enosse pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his wrongdoing.
He expressed some willingness to participate in programming while in jail and counselling in the community on his release.
I do not overlook the fact that Mr. Enosse is Indigenous, and will return to that factor before I conclude these Reasons.
In Inksetter, the Court of Appeal increased a reformatory sentence for possession of child pornography and making available child pornography, to a global jail term of three and a half years. Like Mr. Enosse, that offender had amassed a collection of images and videos of child pornography that numbered in the tens of thousands and included explicit sexual activity with children as young as a year old. Unlike Mr. Enosse, that offender had no prior criminal record of any kind, was not diagnosed with a pedophilic disorder, was at a very low risk to commit a future child pornography offence, and showed insight into his offending behaviour.
The images and videos that Mr. Enosse possessed and made available to others were degrading, dehumanizing, and objectifying depictions of real children. Some showed brutal acts of sexual violence being perpetrated against very young children. The nature of the images and videos in this case underscores that child pornography offences are not victimless crimes.
Denunciation and general deterrence are and must be primary sentencing goals in this case. In light of Mr. Enosse's diagnosis, his moderately high risk of some form of sexual recidivism, and his less than complete insight into his disorder, specific deterrence is also a principal objective.
Given Mr. Enosse's Indigenous background, I take judicial notice of the history of colonialism, displacement and residential schools that impacted Aboriginal persons, and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Indigenous offenders. See Ipeelee, at paragraph 60.
Although Mr. Enosse was raised by a mother who was and remains a supportive and caring parent, those systemic and background factors have had some impact on his life. His maternal grandmother was subjected to the residential school experience, there is a history of alcohol abuse in his family, and he was raised in a First Nations community that has had many social problems over the years.
I find, however, that the impact of systemic and background factors has not impacted his life in a way that alters the objectives of sentencing that are paramount, substantially reduces his high moral blameworthiness, or indicates that a sentence other than a significant penitentiary term is appropriate. I have factored his Indigenous background into my determination of the length of the penitentiary term to be imposed.
Conclusion
Mr. Enosse, please stand. I sentence you on count 2, making available child pornography, to three years and 10 months in the penitentiary. I sentence you on count 1, possession of child pornography, to three years and four months in the penitentiary, to be served concurrently.
I make the following ancillary orders on each count: DNA, SOIRA for life, s.161(a), (b), (c), and (d) for life. I order forfeiture as requested by Crown counsel.
As you requested, I recommend that you be placed in protective custody. The warrant of committal will record that recommendation. You may be seated.
Ms. Saunders and Mr. Malick, is there anything that needs to be addressed?
MS. SAUNDERS: The only thing I would address on behalf of the Crown is I'm not certain whether count 3 on the indictment remains outstanding, if it does, I'll ask that be marked withdrawn, please.
THE COURT: Mr. Malick, anything?
MR. MALICK: Nothing.
THE COURT: All right. I've made the following endorsement: Mr. Enosse is sentenced on count 2 to three years and 10 months in jail, on count 1 to three years and four months in jail, concurrent. On both counts there is a DNA order, SOIRA order for life, and s.161(a), (b), (c) order for life. There is a forfeiture order as requested by the Crown. Thank you.
MS. SAUNDERS: Was the other count previously withdrawn?
THE COURT: I will mark that withdrawn.
MS. SAUNDERS: Thank you very much.
...THESE PROCEEDINGS WERE COMPLETED
Form 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Julie Volkmann, certify that this document is a true and accurate transcript of the recording of R. v. Benjamin Enosse, in the Superior Court of Justice, held at 75 Mulcaster Street, BARRIE, Ontario, on August 29, 2019, taken from Recording No. 3811_01_20190829_083200__20_FUERSTM.dcr which has been certified in Form 1.
October 21, 2019
(Date) Julie Volkmann
ACT ID: 9735690149
1-800-913-5792