ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 23/18 and 57/19
DATE: 20201208
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.B.
Defendant
L. Dafoe, for the Crown
B. Earhart, for the Defendant
HEARD: November 16, 2020
RESTRICTION ON PUBLICATION
By court order made under s. 486.4 of the Criminal Code, information
that may identify the person described in this judgment as the complainant may
not be published, broadcasted or transmitted in any manner. This judgment
complies with this restriction so that it can be published.
RESTRICTION ON PUBLICATION
By order of this court, there is a ban on the publication of any information that could identify any witness in this proceeding pursuant to s. 486.31 of the Criminal Code.
REASONS For SENTENCE
McArthur, M. D., J
[1] M.B. pled guilty to the following charges:
a. Make available child pornography on or about June 14, 2017 contrary to Section 163.1(3) of the Criminal Code;
b. Possess child pornography on or about August 2, 2017 contrary to Section 163.1(4) of the Criminal Code;
c. Make child pornography on or about August 2, 2017 contrary to Section 163.1(2) of the Criminal Code;
d. Communicate between July 23, 2016 and January 15, 2017 with a person he believed was under 18 years of age for the purpose of facilitating an offence with that person under Section 163.1 of the Criminal Code contrary to Section 172.1(1)(a) of the Criminal Code;
e. Possess child pornography on or about January 5, 2019 contrary to Section 163.1(4) of the Criminal Code; and
f. Fail to comply with a recognizance on or about May 31, 2019 by possessing a device capable of accessing the internet contrary to Section 145(3) of the Criminal Code.
Factual background
Initial charges
[2] A detailed agreed statement of facts along with digital forensic reports were filed collectively as Exhibit 1. An abbreviated summary of the factual background follows.
[3] On August 2, 2017, after a short police investigation commenced as a result of internet monitoring and reports of child pornography activity, police obtained and executed a search warrant at M.B.’s residence and seized his laptop computer. A forensic analysis revealed his laptop computer contained over 49,000 images of child pornography; most were single images with some videos and a small number of which the defendant had made.
[4] M.B. admitted to police that he distributed an image of a little girl in a bathing suit at a swimming pool to a person in the Philippines. Approximately 300 images of the next-door neighbour’s child had been taken surreptitiously by him from his home while the child was in the pool next door. He had also purchased and given her family floating devices and pool toys for the young girl. The images all generally focussed on the anal and vaginal area of the child.
[5] On June 14, 2017, M.B. uploaded a single image of child pornography to Skype with the reference “a guy having sex with a young girl” and described the girl as ten-ish years old. M.B. never had sexual contact with the young girl nor any other child at any time. He knew the female in the photos and had taken some of the pictures of her. He was using the images for sexual purposes.
[6] It was also discovered that M.B. had taken and stored 24 photos of a girl approximately 5 to 7 years old at a resort pool on December 4 and 5, 2015.
[7] M.B. told police his interest in pornography started about 10 years earlier with female teens, younger teens and just kept getting younger.
[8] Between June 2016 and July 2017, M.B. recorded 85 videos of live naked females from 5 years to 15 years of age conducting themselves in a sexual manner. On some of these videos, he is recorded within an inserted screen and masturbates, on one or two occasions, he directs acts to be performed by the females while making sexual comments. For example, he asks and directs a young female to see and “stroke” her vagina.
[9] On December 5, 2017, M.B. was released on a bail recognizance that included terms that he reside at 47910 Conservation Line in Aylmer, Ontario, remain in the residence 24 hours a day except for family medical emergencies or in the presence of his surety or other named persons for lawn cutting or maintenance and to not possess any device capable of accessing the internet, including a cell phone, computer or tablet.
Subsequent charges
[10] Just over a year later, on January 5, 2019 police investigation discovered the posting of an album of images entitled “sexy 14 yo friend” that involved 12 images of a young female on a boat and at a pool dressed in a bikini. This account was soon blocked by the internet service. The account was later investigated and found to be connected to M.B.
[11] On February 13, 2019, police further became aware of a similarly-named account that stated “My other account got blocked so I’m back on with this on? Still wanna see your daughters, nieces and granddaughters through” and referenced one image of a young female in a bathing suit with the face cropped out. The main focus of the image was of the female child’s breasts and vaginal area with her legs spread open.
[12] M.B. had transferred the internet account from his recently deceased mother to himself. He connected computer devices through this account contrary to the bail recognizance terms. Also, on May 17 and 24, 2019 after signing into the police station as required, M.B. was observed specifically to go on to make multiple stops in his vehicle and was never in the presence of his surety, also in violation of his bail terms.
[13] On May 24, 2019, M.B. was arrested for the additional charges. He has remained in custody since that time.
Digital forensic analysis
[14] Digital forensic analysis was conducted as to the equipment belonging to the defendant in relation to the initial charges. Investigation revealed a total of 49,539 images and videos of child pornography being 48,254 images and 1,285 videos.
[15] A further analysis of the laptop and equipment belonging to the defendant for the subsequent charges revealed a total of 1,167 images and videos of child pornography, being 1,100 images and 67 videos.
[16] The images and videos by way of example depict a range of sexual activities of persons with children of various ages and include the following:
a. naked female age 10 to 12 performing oral sex on a male penis and then the male having sexual intercourse with her;
b. a female 18 months old or less with legs spread apart with an adult male touching, rubbing, squeezing and spreading the vaginal area apart and inserting a finger into the girl’s vagina;
c. an adult male sticking his penis into the anus of a small 2 year old male child who is lying on a blanket and appears sleeping;
d. images of a 7 year old girl with no shirt on undoing the belt and zipper of an adult male and showing a male’s penis with a further image showing the male’s penis in the girl’s mouth;
e. images of an infant baby in car set with an adult male’s penis inside the child’s mouth and another image depicting semen all over the child’s head and face, and
f. videos of a naked toddler female on a bed with an adult male forcing his penis in the female’s mouth. The adult male masturbates and touches the anus and vaginal area, performs oral sex on her and then ejaculates on the vaginal area of the toddler.
[17] There are also some videos involving the defendant. These included the following:
a. a five to seven year old female child possibly from the Philippines with bruises and scabs on the inside of her thighs, vaginal and anal areas. During this video, the defendant communicates with a person who says the child was raped by her father and burned with cigarettes. The defendant comments while masturbating “wonder if she can take my cock” and “I want to fuck her so bad but not hurt her.”
b. a close-up video of the breasts of a 15 year old female. During this video, the defendant masturbates and asks to see the female’s vaginal area. He then tells her “stroke it baby” and the girl then touches her vagina;
[18] It is also a feature from the digital analysis that, while on bail, the defendant had a Skype contact with a person named “nastya”. The defendant tells this person that he has been gone for over a year, was arrested for child porn on his computer as a result of a picture on Skype that was intercepted and asks the person if she was 15. The defendant had had earlier sexual communications throughout the latter half of 2016 and into January 2017 with this then apparent 15 year old female. The defendant then stated to her that he “wanted to fuck her”. He tells her “I like young girls very much” and from “0 – 12 for me…with a bald pussy.”
Positions of the Parties
[19] The Crown seeks a global sentence of 7 years in custody along with the associated ancillary orders.
[20] The defence submits, as of the sentencing hearing, the defendant has been incarcerated for 27 months on a 1.5 to 1 basis and, if additional credit is granted for past and ongoing conditions of incarceration, any additional period of incarceration is minimal. The defence suggested ranges for many of the counts could be 15 to 18 months, mostly concurrent, with some consecutive periods involving perhaps one of other counts.
Legal Principles
[21] The central principle is any sentence must be proportionate to the gravity of the offence and the degree and responsibility of the offender and taking into consideration the aggravating and mitigating factors of both the offence and the offender.
[22] The court must also be mindful that an emphasis on general deterrence must still consider the principle of restraint and proportionality. See R. v. Lacasse, 2015 SCC 64, 2015SCC64 at para 133 per Gascon, J. and McLachlin, CJ.
[23] Sentences must meet one or more of the objectives that are now codified in s. 718 of the Criminal Code. Deterrence and denunciation are the preeminent objectives in the sentencing for offences of child pornography. See s. 718.04 and s. 718.2 of the Criminal Code and the Ontario Court of Appeal in R. v. Inksetter, 2018 ONCA 474 at paragraph 16.
[24] A helpful review of recent cases in this regard was completed by Justice Stribopoulos in R. v. Branco, 2019 ONSC 3591. There is recognition that the statutory sanctions as well as the sentences of imprisonment have continued to increase.
[25] In R. v. Inksetter 2018 ONCA 474, the Ontario Court of Appeal allowed the Crown’s appeal against a sentence of two years less a day imprisonment, concurrent on one count of possessing child pornography and one count of making child pornography available. The court substituted sentences of three and one-half years imprisonment concurrent on both counts. The offender who pled guilty was found to have amassed one of the largest and worst collections of child pornography that the Ottawa Police Service had ever uncovered including over 28,052 images and 1,144 videos which were part of a collection that exceeded 1.2 million images and 40,000 videos. Actual penetration and other explicit sexual activity was depicted in almost 95% of the materials obtained with children as young as one year of age as well as acts or bondage and bestiality.
[26] In R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, the Supreme Court of Canada left no doubt in the sentencing of sexual offences against children when it stated at paragraph 5:
…we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
[27] In Friesen, the defendant had embarked with the mother to have sexual intercourse upon the mother’s four year old child and directed to the mother to force the child’s head down so he could force the defendant’s penis into the child’s mouth. The court restored the trial judge’s six year sentence for sexual interference and a concurrent six year sentence for attempted extortion. The defendant had sought a three year sentence.
[28] The Supreme Court of Canada expressly states that the principles outlined in Friesen also have relevance to sentencing for other sexual offences against children including pornography offences (see paragraph 44 and associated footnote). In particular, the court details the prevalence and role of technology in the sexual violence against children, implores sentencing judges to properly understand the wrongfulness and harm caused of sexual offences against children and acknowledges that the prime interests to protect are children’s autonomy, bodily integrity, sexual integrity, dignity and the equality of children as previously recognized by that court in the child pornography case of R. v. Sharpe 2001 SCC 2. Indeed, both Parliament and the courts recognize the inherent vulnerability of children and the wrongfulness of exploiting that vulnerability. Many similar points were also earlier recognized in Inksetter, a decision released in May 2018. There appears to be no reference made to Inksetter in the Friesen decision released in April 2020.
[29] As to current sentencing ranges, the parties submitted a number of cases. I will make reference to those cases provided by counsel to provide guidance and consideration in view of Friesen and Inksetter decisions.
[30] In R. v. John, (2018) 2018 ONCA 702, 142 O.R. (3d) 670, the Ontario Court of Appeal dismissed the defendant’s appeal of a 10 month sentence of imprisonment of a 31 year old offender who suffered from serious mental health problems for which he had been inadequately treated. He had since pursued an effective course of psychotherapy, was remorseful and there were no risk factors identified requiring further treatment. The appellant had sought a large collection of child pornography that included 89 unique videos and 50 unique images which involved children as young as 4 years of age and some perhaps as young as two to three years and subjected to anal and vaginal penetration with sex toys and adult penises.
[31] In R. v. S.C., 2019 ONCA 199, [2019] O.J. No. 1286, the Court of Appeal dealt specifically with s. 718.3(7) of the Criminal Code involving the imposition of consecutive sentences in child sexual abuse offences. The court dismissed the Crown appeal from a 9 year term of imprisonment where in the course of an investigation, the 38 year old defendant was found to posses a massive amount of graphic and highly disturbing child pornography involving images and video of young prepubescent children and also close-up images taken by the defendant of the genitals of 8 female toddlers between the ages of 2 and 3 years. While supervising the children on his own, the defendant had pulled down the toddlers clothing to expose the children’s genitals during their nap period and took close-up photographs with his phone while touching their genitals with one of his fingers. The court found, among other things, these were very serious offences that involved an abuse of the defendant’s position of trust as a caregiver of these defenceless toddlers.
[32] In R. v S.C., the court also found the sentence was not illegal, the total number of years was well within the sentence imposed by the trial judge and, in any event, the section was subject to the totality principle.
[33] In R. v. Sawyer, [2019] O.J. No. 6750, Justice Webber imposed a sentence of 3 years and 5 months imprisonment for a 23 year old university student who was possessing and making available child pornography that was discovered in a similar manner as this case. There was a large collection of 29,312 images and 3,205 videos of child pornography. The defendant had undergone assessment, was diagnosed a pedophile and exhibited some of the factors of recidivism.
[34] In R. v. Branco, 2019, ONSC 3591, Justice Stribopoulos , after a trial and 9 years after arrest, imposed a sentence on a 53 year old defendant who had a past record of two assaults of 179 days in custody and commented he would have imposed 7 months in custody but for the discretion for immigration consequences. The defendant possessed a significant collection of still images and videos involving prepubescent and pubescent girls. There were 302 unique child pornography images, mostly nude depictions with the predominant focus being on the chest, vaginal and anal regions. Four videos showed four pubescent girls involved in sexual activity with an adult man. At the time of sentencing, the defendant has not undertaken any counselling or treatment to address the root cause of his interest in child pornography.
[35] In R. v. Enosse, 2019 ONSC 6521, Justice Fuerst imposed a sentence after a guilty plea of one count of possession and another count of making available child pornography of 3 years and 10 months imprisonment. The defendant possessed on his laptop over 50,790 files depicting child pornography with over 47,400 images and 3,100 videos of which 26,000 were unique. The images depicted both male and female children between 1 and 14 years in poses with the main focus being their vaginal, penile or anal regions. Some images were of children defecating on adult males, children involved sexually with animals and being raped by adult males. The images were described as representing the extreme victimization of children. The 37 year old defendant had been diagnosed with a paraphilic disorder that he had not fully acknowledged, was a moderately high risk of some form of sexual recidivism, and had a past record for sexual interference and sexual assault where he had been sentenced to 18 months in jail and 2 years probation.
[36] Friesen also comments on significant factors to consider toward determining a fit sentence for sexual offences against children. These are:
a. Likelihood to reoffend;
b. Abuse of a position of trust or authority;
c. Duration and frequency;
d. Age of the child victim;
e. Degree of physical interference;and
f. Victim participation
[37] This court has also been referred by counsel to the Ontario Court of Appeal decision in R. v. Joseph, 2020 ONCA 733 in relation to the mandatory minimums involving child pornography. In addition, the Crown made submissions in relation to s. 718.3(7) of the Criminal Code and the decision of R. v. S.C. as referenced earlier and the necessity of the court to respect the totality principle.
Analysis
[38] M.B. is 58 years of age. He has no prior criminal history. The presentence report is mostly positive and favourable. He enjoyed a normal upbringing; he completed his high school education without any discipline issues, was involved in pro-social activities, had friends and other interests and was never exposed to domestic violence, marital discord, substance or alcohol misuse nor had any serious emotional or mental health concerns. The report does question, based on the breach of his bail conditions and seriousness of the charges, his suitability for a community-based supervision order.
[39] He has one older sister who he has not had contact with since he was incarcerated. There has since occurred estrangements from family members and friends as a result of the charges.
[40] Both of his parents are pre-deceased and he intends to return to the family’s farm that he now owns. He also receives a retirement pension.
[41] M.B. was employed throughout his entire adult life. He was a fireman for 29 years until he retired in 2017. Alcohol and drugs are neither features of these offences nor do they have any negative bearing on the defendant’s current life and functioning. His friends and associates did not have any criminal records nor involvement in criminal activities.
[42] M.B. has been married twice; the first in his early twenties for seven years resulting in three sons now ages 29, 32 and 34. The second marriage was just over a year with a son, now age 23. He fulfilled his support obligations throughout in both family situations. He also has had some other casual relationships with adult females. There appears no indications or suggestion of any obvious problems or deviance with any of these his relationships. He has a granddaughter, now age 6 who he has met but does not have ongoing contact with.
[43] M.B. underwent a psycho-sexual and risk assessment as arranged by the defence. The report of Len Kushnier in this regard is filed as Exhibit 2 and identified pertinent risk factors. M.B.’s risk management needs were initially determined to be low to moderate with a later revision to moderate as it involves child pornography. This report and further supplementary details will be commented on further.
Mitigating Factors
[44] M.B. is a person without a prior criminal record, a good work history and a positive record of taking reasonable and responsible steps to meet his work and family obligations.
[45] M.B. pled guilty to these offences. He also provided statements to police upon his initial arrest. In the presentence report, M.B. is reported to be aware of the difference between what is right and wrong and takes responsibility for his actions.
[46] He is aware of and prepared to make amends for his sexually deviant choices. He also indicated he is willing to be directed by supervising officials and attend programming for his addiction and attraction to underage girls.
[47] M.B. also addressed the court. He was apologetic and stated that he had no intention to hurt anyone and had hoped that if he kept the activity hidden, there would be no harm. He also expressed that through his assessment, he learned about the hurt and harm to others.
[48] M.B. indicated that his use of child pornography started after a workplace incident where he witnessed firsthand the death of the fire chief while on duty at a fire. He said he lived with grief and guilt after this. In the psycho-sexual report, he is reported to have first turned to alcohol excessively to cope with the aftermath and stress that included an inquest into the workplace death. He used prescribed medication for a period which was discontinued due to undesirable effects. He then started exploring pornography on the internet as an aid to masturbation and expanded his dependence on explicit sex towards underage females through peer to peer as well as images and videos of child pornography.
[49] In the presentence report the defendant informed the officer “that it was not until his arrest and involvement with police that he became cognizant that viewing child sexual abuse images is not a victimless crime” and “there wouldn’t be this problem if there wasn’t an audience like him.”
[50] I have also carefully weighed and considered the conduct of the defendant after his initial arrest and subsequent arrest. He had returned in that intervening period between arrests to access and use pornography through a laptop computer and did not abide by the terms of his bail residence restriction. This feature is troubling for various obvious reasons.
[51] M.B.’s intervening efforts were neither sophisticated nor complex; he used the existing internet access, connected a laptop to past websites and known contacts and used similar names for himself. He did this knowing his actions were a violation of his bail and that his conduct was a return to the use of child pornography. These actions, as clandestine as may appear, sadly, demonstrate just how easy it has become to access child pornography.
[52] Nevertheless, I find that M.B.’s expressions of remorse are genuine and sincere. M.B. exhibits thought distortion, a tendency to personally withdraw to himself and minimization. These features will present challenges for him and are not unusual in cases of child pornography. However, there is a consistency and congruency as well as a sincerity and straight-forward quality that comes through in his statements, the assessment, reports and his address to the court, despite his challenges, embarrassment and obvious jeopardy.
[53] M.B. has acquired some insight into his own behaviour and the harm to others from his assessment, however, the depth of his insights remains rudimentary. He will no doubt require and benefit from necessary intensive therapy and treatment. He is prepared to do so.
Aggravating Factors
[54] I will now address those factors in Friesen as adapted to the child pornography context in this case.
Abuse of a position of trust or authority
[55] This is not a situation where there was an abuse of a position of trust or authority as in the case of R. v. S.C. referred to earlier.
Amount and nature of child pornography
[56] In the context of child pornography, the frequency and duration factors encompass what courts have traditionally addressed involving the size and nature of the child pornography.
[57] As courts well know, child pornography has become more accessible through the internet and continues to proliferate. There are enormous caches and collections of child pornography, multiple methods of access, production, recording, distribution and sharing that occurs instantaneously worldwide. These new technologies have enabled new forms of sexual violence against children. This is expressly recognized in Freisen (para. 46).
[58] This court also acknowledges that the use of child pornography by offenders is frequently regarded as a private domain matter with the illusions of anonymity and intimacy. This is the case here. Such a characterization is, at best, misguided and, at worst, dangerous. It serves no purpose nor assists the court, the public nor the offender. In any and every situation, child pornography is sexual violence perpetrated against children and can never be justified, tolerated nor its gravity misstated, misunderstood or minimized.
[59] What must be kept front and center for the court and the public in all cases is that it is the interests of children that must be protected. Children must be free from sexual interference and exploitation by adults.
[60] M.B. initially possessed a large collection of child pornography, however, it is not on the scale described in Inksetter nor Enosse. There was also not near the number videos as in Inksetter.
[61] I do note that in two of the videos M.B. had recorded with him on an inset frame, he masturbated and also directed a young child to touch herself sexually. M.B. was effectively a participant to the coercion and sexual violence upon these two vulnerable children.
[62] It is an also aggravating feature that while on bail release, M.B. not only obtained a laptop but collected additional images and videos of child pornography and engaged in a peer to peer manner with a female with whom he had earlier, when the female was 15 years of age, committed the offence outlined in paragraph 1(d).
[63] A lack of sophistication or misguided reasoning for using child pornography should never lead to the misidentification and misapplication of aggravating and mitigating factors identified in Friesen. The Supreme Court emphatically stated at para 50:
…sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause…. Properly understanding the harmfulness will help bring sentencing law into line with society's contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process.
Age of the child victims
[64] In this case there are many images and videos of pubescent females. However, the depictions also extended to prepubescent females and toddlers. In many videos, sexual violence is perpetrated upon them by adults. The defendant’s involvement in the videos comprises less than 2 minutes in total and is as outlined above.
[65] Det/Cst. Hindley of the Internet Childhood exploitation unit testified that she reviewed a randomly selected sample of 1000 files. Of these, most depicted close-ups of vaginal penetration from young females to babies, oral sex upon female children from 6 months to 12 years of age and with some males less than 12 years of age. Many of the sample depicted female children under 12 years of age with the vast majority under 8 years of age. There were some depictions of female bondage and one image of bestiality. Most of the images do not involve any clothing.
Victim participation
[66] As mentioned, the defendant had taken surreptitious photographs of at least 3 children with the images predominantly depicting the breast, vaginal and anal areas of children wearing bathing suits. There was no child sexual participation or coercion of these children. The defendant bought the items to encourage the presence and participation of the child at the adjacent pool that would have facilitated him to take photographs of the child.
[67] In one video, the defendant has conversation with a female whom he had earlier communicated when she was age 15. Another video involves a five to seven year old female child from the Philippines. Regardless of the short duration and overall limited involvement by the defendant, both children were participating for sexual purposes in real time. There was recording and the defendant was virtually present during these times.
[68] These two videos may be limited in number but they nonetheless demonstrate the reprehensible conduct that the defendant engaged in on a commercial basis at least in relation to the younger girl identified as in the Philippines. Although we may not have any victim impact statements, this court does not need these to know and recognize the devastation to young children.
[69] In either case, the production of these images and video by the defendant nevertheless directly traumatizes these children and violates their autonomy and dignity by treating them as sexual objects and causes harm that may continue for significant periods of time. In addition, as the courts have long recognized many of these persons have no control over the use of such images. This remains an insidious and everlasting effect upon all child sexual victims.
Likelihood to reoffend
[70] A pyscho-sexual and risk assessment report submitted by the defence was filed on consent with the Crown subject to some points that will be addressed. The report is Exhibit #2. Exhibit #3 is a supplementary note with Mr. Kushnier. Both documents were filed on consent. Both parties agreed that Mr. Kushnier was an expert to conduct psychosexual evaluation and provide opinion as to risk of re-offence and prognosis for the rehabilitation of adult sex offenders.
[71] Mr. Kushnier’s interviews of the defendant occurred over 4 1/2 hours while he has been incarcerated. The process was delayed by access restrictions due to Covid pandemic. The final two sessions had to be conducted by telephone. Mr. Kushnier also reviewed the Crown Brief Synopsis. No other collateral information was used since there were then no close partners or family members and M.B. was incarcerated.
[72] Mr. Kushnier initially opined that M.B.’s risk management needs were low to moderate. Mr. Kushnier subsequently revised this to moderate based on further interactional information. Mr. Kushnier found that M.B. is more a hebephile than a pedophile and that the measurements for recidivism are in relation to child pornography.
[73] Mr. Kushnier found that M.B. is an appropriate candidate for counselling. He indicated that the defendant would benefit from sex-specific individual or group counselling to address his sexuality and approach to relationships, incorporate self-management strategies and further understand the need to prevent child sexual abuse and sexual exploitation, manage deviant sexual arousal and address thinking errors.
[74] During the sentence hearing, the Crown submitted less weight should be accorded to the expert opinion given omissions by the defendant in relation to Mr. Kushnier regarding prepubescent children and babies given the nature and scope of the collection of pornography possessed by the defendant. The Crown questions the reliability of the opinion in what the defendant told Mr. Kushnier (that his interest was to female just entering puberty) was not consistent to what was actually found in the collection on his devices (which included infants and young children). There were also two videos involving the defendant with at least one prepubescent female. The Crown submitted that there was no notation by Mr. Kushnier that he was aware of what the pornography entailed and, as a result, there is no indication how his opinion would be impacted by this information or how this would reflect on a determination about the insight of the defendant.
[75] The Crown also submitted the criteria for Pedophilic Disorder in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, for consideration by the court in these areas.
[76] Firstly, this court is in no position to make any assessment or finding based on the Diagnostic and Statistical Manual of Mental Disorders.
[77] Secondly, I note that Mr. Kushnier raised the risk to reoffend as moderate. I am also mindful that M.B. has remained in custody and there has been little to no meaningful opportunity for counselling of any significance notwithstanding his willingness to do so. M.B. never had been previously under psychiatric care or psychological assessment otherwise and expressed some awareness of his deviant behaviour but was afraid of being found out.
[78] In his report, Mr. Kushnier states:
“…He preferred the age group of females who were just entering puberty. Researches have noted that the span of time (in years) of accessing pornography was not a predictor of recidivism, however was found to correlate with admitted sexual interest in children. Similarly, the amount of material collected does not predict sexual recidivism. However, the age ranges of the subjects are considered to indicate sexual deviance (eke at al. 2018)”
This should be seen in the context of the immediately preceding paragraph in the report that states:
“Over time. M.B. gravitated to pornography involving younger females. He was finding it difficult to get an erection so he turned to teen and “teeny” porn which gave him more arousal. He found that he always needed something new to get his penis erect and then could sleep after masturbating. He started with websites of legal aged females who dressed up as younger girls. Over time, he found peer to peer sites where he could download zip files of hundreds of pictures and videos of actual underage persons, mostly female. Some had bisexual themes and even bestiality which he ignored. He did not know the content until he “unzipped” them. M.B. had pictures of a daughter of his friend along with her female friends on his boat. They were clothed but wearing bathing suits in the picture. Because she was 15, M.B. understands that such pictures were deemed to be making child pornography.”
This is later followed by the comments in the report that:
“Some offenders are driven to engage in online sharing of child pornography for the ultimate purpose of contact with a victim while others are driven to engage in fantasy only. There was no evidence that M.B. attempted to connect with any underage persons online for the purpose of meeting in person. There are no indications that he has sexually interacted with underage persons in the past. He does not display the antisocial features that are typically noted with contact offenders. It is of course concerning that he took pictures of teen girls for a sexual purpose. In my opinion, his offence history is consistent with the profile of a fantasy-driven child pornography offender…This information provided in this assessment does not qualify M.B. as having a lifelong compulsively driven pattern of pedophilic disorder or what is now termed a “preferential sexual offender”. Offenders can have pedophilic interests without having an established erotic preference for children.”
[79] On the record, the court is not prepared to find that the defendant, intentionally or not, withheld information from Mr. Kushnier. Where there appears no specific mention of features that the Crown has raised, I also observe that none of these matters were raised in the subsequent discussion with Mr. Kushnier as evidenced in Exhibit 4.
[80] The opinion of Mr. Kushnier, in any event, accords with preponderance of evidence that there is at least moderate risk of reoffending. There has been no treatment and, as pointed out before, this was simply not possible given the restrictions given the current pandemic. This risk should be regarded as an aggravating factor in any event.
[81] As to the comments of the author of the presentence report that “it is questionable he would be suitable for a community-based supervision order” based on the violation of bail, this would never be the case for a conditional sentence. Furthermore, this court is in a position of more complete information and submissions to a determination of the defendant’s future compliance and follow-through.
Presentence and post-sentence incarceration
[82] M.B. has remained incarcerated since May 24, 2019. Fortunately, to date there have been limited COVID-19 cases at the Elgin-Middlesex Detention Centre. Nevertheless, the conditions in which M.B. has lived particularly since March of this year have been very restrictive beyond usual protective custody. Widespread and frequent general lockdowns have occurred, access to visitors and others has been curtailed and additional programs limited, particularly as to assessments and counselling. It is appropriate to consider the COVID-19 effect as having real consequences upon M.B.
[83] However, on a prospective basis from this date, in applying these factors based on the evidence before this court, COVID-19 has minimal relevance to the sentence and does not serve to reduce the sentence further on this basis. This situation is not unlike that encountered by Justice Skarika in R. v. Hannaford, 2020 ONSC 3665 in a case where he observed that the court can recognize and consider COVID-19 implications in sentencing: see at para. 37, citing R. v. McConnell, 2020 ONCJ 177 at para. 34; R. v. Kandhai, 2020 ONSC 1611 at para. 6; and R. v. Hearns, 2020 ONSC 2365 at paras. 2, 20.
[84] Other recent decisions and appellate decisions that have recognized that pre-sentence restrictions can and should be taken into account: See R. v. Brown, 2020 ONSC 6355, R. v. Persad, 2020 ONSC 188 and also R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 where Justice Rosenberg determined restrictive bail conditions as factors to be treated as a mitigating circumstance that should be taken in consideration. Other appellate decisions have recognized the impact as a collateral consequence: See R. v. Okash, 2015 ONCA 58.
[85] There should be recognition for the further restrictions and conditions that have existed for approximately the last nine months as a collateral consequence and 200 days of additional pretrial incarceration credit should be granted.
Summary and Conclusions
[86] M.B., like all members of the public, should know and expect that sentences have increased in severity and could continue in view of the continued epidemic of childhood sexual pornography and violence.
[87] This is a case where denunciation and general deterrence are the paramount sentencing objectives. This does not ignore rehabilitation and other sentencing objectives. I find there are prospects for M.B.’s rehabilitation. He has gained some insight but has much yet to work through, learn and understand. This will require his diligence, commitment and openness to treating professionals which appears sincere.
[88] M.B. has the intellectual ability and has demonstrated throughout his life that he can engage in sustained efforts. He also does not have alcohol nor drug dependency problems that often otherwise sabotage best intentions and genuine efforts.
[89] As to time that M.B. has been incarcerated since May 24, 2019 to December 8, 2020, this amounts to 564 days and, on a 1.5 to 1 basis, is 846 days. With the enhanced credit referred to above of 200 days, the total credit to be considered is 1046 days.
[90] To maintain the preeminent principles of denunciation and general deterrence as well as the principle of totality and proportionality, and after considering the aggravating and mitigating factors and the collateral consequences as referred to above and the other related statutory provisions, the total sentence should be 4 1/2 years incarceration as outlined and detailed as follows:
For the convictions in relation to the Indictment 23/18:
a. on count 1 of making available child pornography contrary to Section 163.1(3) of the Criminal Code, the sentence shall be 3 years incarceration;
b. on count 2 of making child pornography contrary to Section 163.1(2) of the Criminal Code, the sentence shall be 2 years incarceration concurrent to count 1
c. on count 4 for possessing child pornography contrary to Section 163.1(4) of the Criminal Code, the sentence shall be 2 years incarceration concurrent to counts 1 and 2
d. on count 6 for communicating over the six month period as specified with a person he believed was under 18 years of age for the purpose of facilitating an offence with that person under Section 163.1 of the Criminal Code contrary to Section 172.1(1)(a) of the Criminal Code, the sentence shall be 2 1/2 years incarceration concurrent to counts 1, 2 and 4;
The overall sentence on these counts is a total of 3 years or 1080 days. In view of the additional and collateral consequences identified earlier in these reasons, there shall be a credit of 1046 days, leaving a balance remaining to be served in relation to these counts of 34 days in jail.
For the convictions in relation to the Indictment 57/19:
e. on count 4 for possessing child pornography contrary to Section 163.1(4) of the Criminal Code, the sentence shall be 18 months in jail consecutive to the counts referred to earlier;
f. on count 5 for failing to comply with a recognizance on or about May 31, 2019 by possessing a device capable of accessing the internet contrary to Section 145(3) of the Criminal Code, the sentence shall be 12 months in jail concurrent to count four and concurrent to any other count;
[91] This court strongly recommends that the sentence be served at the Ontario Correctional Institute specifically relating to child pornography and sexual deviancy. The report of Len Kushnier, in particular, shall accompany the warrant of committal.
[92] There shall be also be a probationary order for 3 years on each count, with terms, in addition to the statutory terms, to be as follows:
a. Report to a probation officer within 48 hours of your release from custody and thereafter as and when directed by your probation officer;
b. Not to have any contact, directly or indirectly, with any child under the age of 16 years of age unless accompanied with another adult person or with the approval of your probation officer obtained in advance in writing;
c. Attend for any assessment, counselling and treatment as recommended by your probation officer, not limited to sexual deviance and trauma and provide your probation officer with proof of attendance upon request; and
d. Not to possess any electronic device that is capable of accessing the internet including but not limited to cell phones, computers, laptops, tablets or other similar devices unless authorized in advance in writing to do so by your probation officer limited to employment, medical, counselling or emergency purposes.
[93] I have considered Section 161 of the Criminal Code. In the circumstances, where the additional probation period following incarceration includes the terms that this court would have imposed otherwise under s. 161, such additional order in this regard is unnecessary.
[94] This is a substantial sentence for you M.B. This should be a clear message to others who venture into the world of child pornography. You will be in custody and under supervision for almost another 5 years, largely from ignoring bail and returning to old ways.
[95] There shall also be a DNA order in relation to all counts except the breach of recognizance count.
[96] There shall also be a lifetime prohibition order under Section 109 of the Criminal Code as to weapons on the applicable counts.
[97] There shall also be an order for 20 years in relation to the sexual offender registry for which you will be required to report and provide information as directed.
[98] M.B., I mentioned earlier about your insight. You have some start on this thanks to your lawyer. You will do yourself and others well to better deepen your understanding and insight into child pornography and its effects on you, your life and its victims. You have abilities and have expressed willingness for treatment. Be diligent in that way and look ahead.
[99] There shall also be a forfeiture order pursuant to s. 164.2 of the Criminal Code of all items seized including computer equipment. As to any firearms, such may be transferred to an adult third party who has an authorization/direction from the defendant and is in possession of a valid acquisition or possession certificate within 60 days, failing which the firearms shall be forfeited for destruction.
Justice M. D. McArthur
Released: December 8, 2020
COURT FILE NO.: 23/18 and 57/19
DATE: 20201208
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
M.B.
REASONS FOR JUDGMENT
McArthur J.
Released: December 8, 2020