COURT FILE NO.: CR-18-40000351-0000
DATE: 20210512
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
GODFREY JENKINS
Arian Khader, for the Crown
David Locke, for Godfrey Jenkins
HEARD: January 20, 2020; February 23 and April 1, 2021
Kelly j.
Reasons for Sentence
[1] The defendant, Godfrey Jenkins, has pleaded guilty to one offence: possession of child pornography, committed contrary to s. 163.1(4) of the Criminal Code, R.S.C., 1985, c. C-46. He now appears before me for sentencing.
[2] Crown counsel seeks a sentence of 18 months in custody. Counsel for Mr. Jenkins seeks a conditional sentence of two years, less one day or less. Both Counsel agree on the ancillary orders: DNA, SOIRA and forfeiture.
[3] For the reasons set out below, I find the appropriate sentence to be 18 months in custody. The ancillary orders are granted.
The Facts
[4] The facts, as agreed, are as follows:
a. In May of 2012, Toronto Police Service (“TPS”) received a number of complaints about a file sharing website, “www.lumfile.com” (“Lumfile”). Lumfile was a publicly available website.
b. The complaints alleged that Lumfile provided links to, and hosted, child pornography.
c. TPS accessed Lumfile and found more than 800 links to child abuse imagery and videos hosted there. These links were available for public download.
d. Lumfile was based out of Vietnam, but some of their online storage space was leased in Toronto.
e. On October 22, 2012, TPS executed a warrant on Lumfile’s servers in Toronto. Shortly after executing the warrant, TPS learned that all 32 servers leased by Lumfile were saturated with child pornography.
f. The servers were seized by TPS. A second warrant was authorized to examine them in their entirety. The Ontario Provincial Police (“OPP”) had to assist in what was one of the largest data seizures ever made in relation to a Canadian child pornography investigation.
g. There were so many hard drives seized that the OPP had to rent a trailer to house all the servers. The OPP then had to comb through approximately four pentabytes of data (approximately 4,000,000 gigabytes or 4,000,000,000 megabytes). That process took two years.
h. As part of the OPP analysis, they were able to provide target information on thousands of individuals involved with downloading child pornography, 32 of whom were in Toronto.
i. On April 28, 2016, the OPP provided TPS with six additional targets. Mr. Jenkins was one of those six new targets.
j. The OPP found that Mr. Jenkins used the username “9050712”, and the email address: goffjenkins@acn.net, when he signed in to Lumfile. He also provided his name as “Goff Jenkins”. He indicated that he lived in Toronto, Canada and that he had a postal code of “M6B 3H3”.
k. From 2012 to 2016, Mr. Jenkins subscribed to All Communications Network of Canada Co. (“ACN”) as his Internet Service Provider. In other words, Mr. Jenkins got his internet through the company, ACN.
l. When Mr. Jenkins signed up for ACN, he used the name “GOFF JENKINS” and provided the phone number 416-817-8518.
m. Mr. Jenkins’ ACN account was active at his home address, which was: 145 Marlee Avenue, Apt. 515, York, Ontario M6B 3H3.
n. Mr. Jenkins opened an email with ACN and used it between at least 2012 and 2016. His email was goffjenkins@acn.net.
o. The IP address associated to Mr. Jenkins’ username, “9050712”, was leased to ACN.
p. Police obtained a production order for ACN’s records which confirmed that Mr. Jenkins’ IP address for his home address matched the IP address that Lumfile had for Mr. Jenkins.
q. Between September 23, 2012 and September 24, 2012, Mr. Jenkins downloaded 169 files from Lumfile, 118 of which were child pornography. Mr. Jenkins believed that five of those files were child pornography. When police ultimately executed a search warrant at Mr. Jenkins’ home, they found four of the files that Mr. Jenkins had downloaded saved onto DVDs.
r. A sampling of some of the files Mr. Jenkins downloaded are described as follows:
i. “61.avi”: This video is 10 minutes and 31 seconds long. The video starts with a splash screen which reads, "euman presents" and is followed by a second splash screen which reads, “?HINDOO-1 part 3?”. The video then depicts a prepubescent female, approximately 8 to 10 years-old, wearing only socks and shoes. The girl repeatedly spreads her legs while the camera zooms in on her vagina. She then masturbates an adult male before he attempts to vaginally penetrate her with his penis.
ii. “afbv.flv”: This video is 34 minutes and 56 seconds long. It depicts three nude prepubescent females, ranging in age from 6 to 12 years-old, repeatedly exposing their vaginal and anal regions to the camera. The adult male filming the girls digitally penetrates their vaginas with his fingers and then penetrates them with his penis. He also anally penetrates them with his penis and receives fellatio from them. They masturbate him and the video ends with him ejaculating on the face of the eldest child.
iii. “bbmmg.flv”: This video is 11 minutes and 26 seconds long. It depicts an adult male wearing only a white t-shirt and a red hood (to cover his face) receiving fellatio from a nude prepubescent Asian female, approximately 8 years-old. The video then cuts to two nude prepubescent Asian females, both of whom appear to be approximately 8 to 10 years-old, having vaginal sex. One of the girls is wearing a strap-on dildo. The females are surrounded by a number of other children and a camera flash can be seen going off repeatedly. The male then enters back into the picture and has vaginal sex with one of the girls before receiving fellatio from her.
iv. “bbvcdh.flv”: This video is 20 minutes and 22 seconds long. It depicts a prepubescent female, approximately 12 years-old, stripping off her clothes and spreading her legs while the camera zooms in on her vagina. The child then performs fellatio on an adult male and urinates in a bucket before putting her clothes back on.
s. On September 19, 2016, police executed a search warrant at Mr. Jenkins’ home. Mr. Jenkins was the sole occupant inside. He was arrested and transported to 13 Division.
t. At the station, Mr. Jenkins’ gave a voluntary, inculpatory videotaped statement in which he admitted the following:
i. that he had lived at 145 Marlee Avenue, Apt. 515 for 33 years;
ii. that he lived there alone;
iii. that no one else had access to his computer;
iv. that he bought his computer new from Dell;
v. that he did not store property for anyone else;
vi. that he used the email address goffjenkins@acn.net;
vii. that he downloaded child pornography in the past few months;
viii. that he had child pornography on discs;
ix. that he had child pornography books; and
x. that he had child pornography bookmarks on his computer.
u. Meanwhile, as a result of the search warrant executed at Mr. Jenkins’ home, police seized approximately 1,500 DVDs, a number of books, and three computers.
v. Police analyzed the seized DVDs, books, and computers. They found content meeting the Criminal Code definition of child pornography on all three mediums.
w. This analysis was done using ‘LACE’ software to determine the number of “pre-categorized” images and videos on the DVDs and computers. Police then confirmed this categorization by visually examining each image and video. Police produced a LACE Report regarding the number of images and videos in Mr. Jenkins’ possession.
x. There were 28,968 images of child pornography contained on the DVDs and computer hard drives and 1,125 child pornography videos contained on the DVDs and computer hard drives.[^1]
y. Police also analyzed Mr. Jenkins’ computers using a program named “Internet Evidence Finder” (“IEF”). This program extracted items such as Mr. Jenkins’ internet history, his browser ‘favourites’, and emails.[^2]
z. The child pornography found in Mr. Jenkins’ possession included images and videos of children from toddler age to pre-teen, being vaginally and anally raped by adult men, being forced to perform sexual acts on other children, and being forced to model nude or in a way that their sexual organs were the primary dominant characteristic of the record.
aa. The child pornography books in Mr. Jenkins’ possession included written material whose dominant characteristic was the description, for a sexual purpose, of sexual activity with children under 18. Examples include: a book titled “The 10 Year Old Lesbian” where the cover depicts a group of naked, underage girls engaging in sexual acts, as well as a book titled “Her Lips Are For The Lads” which is about a middle aged woman engaging in sex acts with two 15 year-old boys.
Attached hereto as Appendices “A” and “B” are descriptions of a sampling of the images and videos found in Mr. Jenkins’ collection as provided by Crown counsel.
[5] These are the facts upon which Mr. Jenkins is being sentenced. I will now consider the impact of his crimes.
Victim Impact
[6] Several Victim Impact Statements were provided during this hearing. An affidavit was sworn by Ms. Monique St. Germain. She is General Counsel for the Canadian Centre for Child Protection (the “Canadian Centre”). The Canadian Centre is a charity that provides programs and services to the Canadian public that are “aimed at reducing all forms of child victimization, including victimization through the creation, distribution and viewing of sexual abuse material”.[^3]
[7] In her capacity, Ms. St. Germain was provided with Victim Impact Statements from those victims whose images or videos form part of the evidence against Mr. Jenkins. In this case, Ms. St. Germain also provided a videotaped statement provided by the adoptive mother of two victims. It is a recorded version of their written Victim Impact Statements. Pseudonyms were used for the victims to protect their privacy. The contents of their statements may be summarized as follows:
“Sarah”: Sarah advised that there are pictures of her posted on the Internet showing what her father did to her. She was sexually molested by him as a child. She was groomed to the point that her father was molesting her using his own body parts and sometimes a vibrator. He took pictures and posted them on the Internet. She worries that “the pictures of me and what he did have been passed on and on and on to many other pedophiles and any one of them or more could be in my neighborhood or at the store I go to or anywhere around me”. She says that she does not go out of her house unless in the presence of a friend whom she trusts. She states:
If you are looking at pictures or videos of me, or any other child for that matter, then you are hurting every child that you look at. Anyone who looks at those horrible pictures of me or other children are abusing us. Anyone who looks is keeping my pain going for the rest of my life.
Sarah describes that her fears keep her from doing things that girls her age normally do. She needs help but cannot afford the counseling costs. She has medical conditions. She would like to operate a daycare business but feels such tremendous stress so she cannot work.
“Maureen”: Maureen is a victim of child molestation and rape. She was filmed and photographed. Because her photos and videos are shared, she describes a “succession of my torture going on forever”. She is unable to “escape it”. She finds it hard to be around people, including her family. She wants to participate in therapy but is reluctant to talk about the incidents that continue. Maureen constantly wonders if someone she knows is aware of the videos or if they are not aware of them, whether they will find out about them. In middle school, her past was disclosed, and she was bullied. At age 16, an older man “came onto her” and asked for pictures, causing her to be revictimized.
Maureen expresses that she wishes to lead a normal life, but she is afraid of “being recognized or discovered and exposed, again”. She says that the “worst moments” of her life are being “forever” replayed on the Internet. She says that she feels insecure because she does not know how many people have witnessed her abuse. She feels great shame. She has become overwhelmingly protective of her own children because she knows that this abuse can happen to anyone, “because it happened to me”.
“Jenny”: Jenny was seven years of age when her predator began molesting and photographing her. It went on for two years before it was discovered that he was posting photos on the Internet. Her life has never been the same. She is uncomfortable in the presence of men and boys. She fears that someone will recognize her. She wishes that every depiction of her could be found and destroyed. She wants to “shut off her brain” to forget about what happened to her. However, with pictures “still out there” she cannot.
Mother of “Skylar” and “Savannah”: The mother of Skylar and Savannah provided a DVD of her victim impact statement. In it, she says that she has concerns about the futures of her children as a result of the videos and photos taken in their biological parents’ home. There are images on the Internet and that cause her great concern. While she has tried to teach her daughters that these images do not define their future, they think that they are “bad”. They attend therapy, sometimes multiple times per week.
One of the daughters likes to sing and perform. However, when it came time for her to perform solo, she became paralyzed. It was not the singing that paralyzed her, it was the cameras pointed at her. Both daughters suffer from nightmares. They pinch and hurt themselves. She describes that their anxiety is “through the roof”. Skylar shuts down in the presence of those she does not know. Savannah becomes overly friendly hoping to get attention or impress. They cut up their clothes. They destroy their toys. She says:
I need them to be able to separate themselves from the abuse that happened but the videos and the pictures being out there and seen on a daily basis will constantly remind them of the abuse they had as children.
In order to deal with this in a healthy manner; they need to know that none of this was their fault … And only by stopping the future spread of these videos do my children have a chance to grow up to be the independent, self-confident girls they deserve to be.
[8] A Victim Impact Statement was provided by the Canadian Centre, authored by Ms. St. Germain. The content of the statement may be summarized as follows:
a. The creation of sexual abuse material has a lasting impact on the victims because there is a permanent record of the abuse that has occurred. As such, the survivors of this abuse face potential victimization daily.
b. One victim in a criminal proceeding described the impact of the child pornography conviction of the defendant:
Usually when someone is raped and abused, the abuse ends. But seeing [offender name] put those pictures on the Internet, my abuse is still going on. Anyone can see them. People ask for them and are downloading them. Day after day. People want to see me abused.
c. Being a victim of sexual abuse in circumstances (such as those before me) encompass two stages of victimization. The first, of course, is when the abuse occurs. The second is the “ongoing vulnerability of survivors and the unknown aspect regarding the circulation of the image”.[^4]
d. The vast majority of those abused have said they received a psychiatric diagnosis linked to the imagery of their abuse. Mental health struggles included anxiety, depression, suicidal ideation, and self-harm. Survivors have advised that they have misused alcohol and drugs. Many suffered post-traumatic stress disorder, dissociative disorders and hospitalization.
e. For many, there is a physical impact. Not only is there pain and suffering experienced during the making of the sexual abuse material, there are ongoing physical harms including scarred tissue, fibromyalgia, incontinence and hemorrhoids. Some experience reduced sex drives or an inability to engage in sexual activity, experiences that may be tied to difficulties around their ability to engage in emotional intimacy.
f. There is also an economic impact arising from this type of abuse. Many victims have reported an inability to complete school; an inability to work; difficulty concentrating; illnesses; difficulty maintaining employment; social anxiety while at work; and fear of being recognized, which has prevented them from going to work.
g. Some experience real fears for their security. Some fear they will be recognized.
[9] I will now turn to a consideration of Mr. Jenkins’ background.
Personal Background
[10] The personal background of Mr. Jenkins is set out in the letters provided by members of his community and during the submissions of counsel:
a. Mr. Jenkins attended and graduated from the University of Toronto.
b. He commenced employment at Bristol Myers where he assessed the safety of pharmaceutical products.
c. Mr. Jenkins went to the Ministry of Environment in 1973 and made significant contributions. He was recognized for those contributions and awarded the Norman J. Howard Award for his leadership and outstanding scientific works for drinking water quality.
d. He is married and has the support of his community, many of whom were present at the various court appearances, including sentencing.
e. When his apartment was cleaned by his wife, it contained a numerous amount of adult pornography. He has made great strides since his marriage. He no longer possesses any pornography, at all.
f. At the end of the hearing, Mr. Jenkins advised that he had apologized to his wife, his friends and the court. He is remorseful for his conduct and will not recidivate.
[11] Mr. Jenkins suffers from a number of medical ailments, some of which are as follows:
a. Abdominal Aortic Aneurysm, which was repaired on March 21, 2019;
b. Advanced cancer of the urinary bladder which has spread to his prostate gland. This resulted in several medical procedures which were performed in 2019. His cancer was described as “stable” but requiring further follow-up visits in March 2020 and October 2020;
c. There were concerns of a cardiac arrhythmia, found in May and September 2020. There have been ongoing assessments to monitor this condition.
d. Gastro-intestinal conditions including pain, alternating bouts of constipation, uncontrollable flatulence and diarrhea; and
e. He suffers from generalized painful body shudders several times a day and is unable to sleep for lengthy periods of time.
[12] In letters dated October 7, 2020 and February 18, 2021 from Dr. Robert Goldberger, Mr. Jenkins is described as a “72 year-old man with several significant medical conditions including Bladder Cancer, Hypertension, Paroxysmal Atrial Fibrillation, Hyperlipidemia, Abdominal Aortic Aneurysm Repair, a long history of smoking, and as of yet not fully diagnosed gastrointestinal condition”.
[13] Mr. Jenkins expressed concern to Dr. Goldberger about “possible incarceration at this time in view of serious medical concerns”. He has various follow-up appointments scheduled in April and May 2021. Dr. Goldberger opined that incarceration would pose a significant and increased health risk for Mr. Jenkins if incarcerated during the pandemic.
[14] Mr. Jenkins was vaccinated for COVID-19 on Friday, April 2, 2021. It appears that he will receive a second vaccination several months thereafter.
[15] Various letters of support were filed on behalf of Mr. Jenkins. They may be summarized as follows:
Ms. Anne Loreen Schaedlich: Anne is Mr. Jenkins’ wife. She is a registered nurse who retired in 2011. Anne was friends with Mr. Jenkins for many years before marrying him in 2019. She describes Mr. Jenkins as an active family man, both with his immediate family and the families of his tight knit community. She describes Mr. Jenkins’ employment at the Ministry of the Environment and the significant role he played during the Walkerton Inquiry, advising O’Connor J.A. and being involved in the safe reopening of Walkerton’s water system. Upon his retirement, he lived alone in his apartment and almost became a recluse. Mr. Jenkins was very supportive of Anne’s children and played an integral role when her son, Kevin, died in an accident. He was also supportive when Anne lost a son at age three to cancer. She also described the medical hardships that Mr. Jenkins has suffered since March 2019. She concludes her letter by saying:
Goff, my dear husband, is a remarkable man. He made a mistake, and has admitted to it, saving the court time. He is facing a difficult future with many health issues. We, his family and friends, are very concerned for him. He has been an important person to all of us for 50 years and suffers tremendous guilt because he feels he has let us down. He is extremely remorseful.
Mr. Klaus Schaedlich: Klaus is Anne’s ex-husband and a friend of Mr. Jenkins. Together, they were students at the University of Toronto. They play bridge together (weekly) and socialize with a larger group of mutual friends. Klaus describes that Mr. Jenkins has been supportive during difficult times, including the death of two of his children. He offers his support to Mr. Jenkins in the future.
Mr. Paul Schaedlich: Paul is the son of Anne and Klaus. Paul considers Mr. Jenkins a good friend, one that he has known all his life. Of course, Mr. Jenkins is now Paul’s stepfather. He describes Mr. Jenkins as a person who “truly listens and cares”. Mr. Jenkins was supportive of Paul (and his children) as he went through his own marital separation. Paul’s description leads one to the conclusion that Mr. Jenkins is a valuable member of their family.
Mr. Frank Schaedlich: Frank is a family friend who attended the University of Toronto. He and Mr. Jenkins shared a home. He says that he is “surprised and shocked” that Mr. Jenkins has been charged with child pornography offences. He says that this is “totally unlike the person” that he has known for many years. He says that he has always found Mr. Jenkins to be a “kind-hearted, good humored, gentle soul”. He is proud to call Mr. Jenkins a friend.
Mr. Stephen Jenkins: Stephen is Mr. Jenkins’ younger brother. He says that he has always looked up to Mr. Jenkins as an “honest, responsible, hero figure”. He says he has noticed that Mr. Jenkins has been more despondent and depressed since they made the difficult decision to end mechanical assistance for their mother’s breathing, resulting in her ultimate passing. He describes Mr. Jenkins as a principled employee, taking difficult positions on programs and products. As Stephen so eloquently described, Mr. Jenkins “has been very principled when it came to the public’s health versus possible retribution from employers”. Mr. Jenkins has advocated to make important decisions regarding drinking water source protection, many of which were ignored. After the Walkerton Inquiry, Mr. Jenkins was more reserved and stressed. Since his marriage to Anne, Stephen believes that the “caring, responsible, personable brother I used to have, is back”.
Bick Nguyen: Bick is the sister-in-law of Mr. Jenkins (married to Stephen). She describes Mr. Jenkins as a “loyal and trustworthy friend”. She believes that the conduct of these charges is “out of character”.
Ms. Yvonne Slupinski: Yvonne was in an intimate relationship with Mr. Jenkins for eight years. She believes that the offences do not reflect Mr. Jenkins’ character. He has been supportive of Yvonne’s endeavours and family. She describes Mr. Jenkins as both patient and compassionate. After the Walkerton Inquiry, Mr. Jenkins took early retirement. She says that this retirement, combined with the “prolonged pressures at work, of losing his father, leaving a job that he had once loved and, in particular, losing his own mother, had a devastating and lasting impact” on his emotional health. She describes Mr. Jenkins as a “gentle” and “decent” man.
Mr. Stephen Markson: Stephen is a longtime friend. They speak to each other often. He describes Mr. Jenkins as the “glue” of a wide friendship circle. He says that Mr. Jenkins has integrity, saying that Mr. Jenkins “was the continuing voice of reason at the Ontario Ministry of Environment during the tragic water contamination in Walkerton and as he testified at the Inquiry that followed. It caused friction and a great deal of stress for Goff, but he never compromised science or common sense (or would he ever) to satisfy political expedience or ignorance”.
Mr. Roger Clarke: Roger is also a university friend. He describes that over the many years of their friendship, Mr. Jenkins has demonstrated “empathy and support to all those around him and always willing to listen”. He is trustworthy and a confidant to many.
Mr. Gerard Van Wyk: While studying at the University of Waterloo, Gerard met Mr. Jenkins. He became a member of Mr. Jenkins’ Tuesday evening card club and has been a member for 40 years. They also played together for a slow pitch hardball team that Mr. Jenkins formed and managed. They also golf together regularly. He has observed the respect and friendship that others have for Mr. Jenkins amongst colleagues. He describes Mr. Jenkins as “polite, diplomatic, charming, ethical, reliable, supportive and humorous”.
Ms. Laura Van Wyk: Laura has also been a friend for over 40 years. She describes Mr. Jenkins as always having acted in a respectful manner in her company. She is aware of the seriousness of the charges. She feels that his conduct is out of character and inconsistent with the person she knows.
[16] I will now turn to a consideration of the law.
The Legal Framework
a. Criminal Code Provisions
[17] In determining an appropriate sentence, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:
- The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[18] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^5]
[19] Pursuant to s. 718.1 of the Criminal Code, "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.[^6]
[20] In cases involving the abuse of a child, the Court must also consider s. 718.01 which provides as follows:
When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[21] Both Counsel have provided case law which supports their respective positions.[^7] However, it remains trite to say that each sentence imposed depends on the particular facts of the case and the particulars of the offender.[^8]
b. Range of Sentence
[22] Crown Counsel has provided cases in support of his submission that 18 months is the appropriate sentence to be imposed. Some of them are summarized below.[^9]
R. v. Friesen:[^10] Mr. Friesen pleaded guilty to sexual interference of a four year-old and extortion. In upholding the sentence of six years, the reasons of the Supreme Court of Canada were clear. Amongst other things, it held at para. 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.
In dealing with child pornography, the Court in Friesen held as follows, at para. 48:
Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at para. 92; R. v. S. (J.), 2018 ONCA 675, 142 O.R. (3d) 81, at para. 120).
In this case, the children depicted in the child pornography images and videos are particularly young. As such, I take guidance from para. 134 of Friesen that provides as follows:
The age of the victim is also a significant aggravating factor. The power imbalance between children and adults is even more pronounced for younger children, whose ‘dependency is usually total’ and who are ‘often helpless without the protection and care of their parents’ (R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 66). Their personality and ability to recover from harm is still developing (Renaud, at s. 12.64; L. (J.-J.), at p. 250). Moreover, children who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life.
As the Supreme Court of Canada held in Sharpe and as set out in Friesen at para. 51, “… the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime”.
R. v. John:[^11] Mr. John was convicted of possessing child pornography. Police executed a warrant on his home. On his computer, police located 50 unique child pornography images and 89 unique videos. He was sentenced to 10 months in custody. He appealed his conviction and sentence on the basis that the six-month statutory mandatory minimum violated s. 12 of the Canadian Charter of Rights and Freedoms and that the 10-month sentence (less two months of credit) was unfit. The mandatory minimum sentence was struck down.[^12] However, the Court found that the sentence imposed was fit and proportionate to the gravity of the offence and the degree of responsibility of the offender. The Court referred to the fact that Mr. John was 29 years of age at the time of the offences and 31 at the time of sentencing. He suffered from serious mental health problems for which he was inadequately treated. At times he was suicidal. He was employed and was continuing counseling. He was remorseful and no risk factors had been identified. The Court concluded as follows in upholding the 10-month sentence:
[45] Despite these mitigating factors, the size and nature of the appellant's collection is a seriously aggravating factor. The appellant had possession of 89 unique videos and 50 unique images of child pornography. He actively sought out these images and videos. His collection included images of children as young as four years-old, and some perhaps as young as two or three years-old, subjected to anal and vaginal penetration with sex toys and adult penises. This is terrible abuse of young children. In R. v. Lynch-Staunton, [2012] O.J. No. 313, 2012 ONSC 218 (S.C.J.), at para. 57, Ratushny J. pointed out that:
It is to be understood by those trolling the Internet for child pornography that these pictures are acts of violence against children, that viewing and possessing them perpetuates the original violence, that viewing and possessing them encourages new child victims, and that as a consequence, jail terms will result. [page 682]
R. v. Inksetter:[^13] In 2018, Mr. Inksetter was a 51 year-old man who pled guilty to possessing 28,052 unique images and 1,144 unique videos of child pornography. He was sentenced to two years less a day plus three years’ probation for one count of possession of child pornography. Mr. Inksetter was also sentenced to one year concurrent for making child pornography available: he stored some material in shared files, though he did not take active steps to distribute it. Mr. Inksetter did not have a criminal record and was not seen as a danger to children. He was of otherwise good character, had demonstrated remorse, had pleaded guilty, had submitted to treatment, and was likely to lose his job as a result of the conviction. The Court of Appeal increased Mr. Inksetter’s sentence to 3.5 years.
The Court of Appeal reiterated the principles set out by Feldman J.A. at paras. 21 and 22 and 26 of R. v. D.G.F.:[^14]
21 …[O]ver the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately: …
22 Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.
At para. 22 of Inksetter, Hoy A.C.J.O. said:
Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe 2001 SCC 2, [2011] 1 S.C.R. 45, the Supreme Court described how possession of child pornography harms children. As Fraser C.C.A. wrote in R. v. Andrukonis, 2012 vx 148, at para. 29, ‘possession of child pornography is itself child sexual abuse’. The children depicted in pornographic images are re-victimized each time the images are viewed.
[23] Counsel for Mr. Jenkins submits that Mr. Jenkins meets the statutory pre-conditions for a conditional sentence. (For example, pursuant to s. 742.1, if the sentence to be imposed will be less than two years, the court should be satisfied that the service of the sentence in the community would not endanger the safety of the community, etc.) Counsel for Mr. Jenkins relies on the following cases in support of his position on sentencing:
R. v. Cohen:[^15] Mr. Cohen was convicted after trial of several counts of possession and distribution of child pornography. He appealed the sentence imposed of 14 months in jail. The appeal was granted, and a conditional sentence of 14 months was imposed. The Court of Appeal stated at paras. 15 and 20:
We share the concerns expressed by the trial judge about the need for a sentence that clearly denunciates the distribution of child pornography and deters those who might be tempted to engage in its dissemination. …
Taking all these factors into account, it is our view that a sentence of fourteen months imprisonment reflects an error in principle that justifies the intervention of this court. The goals of denunciation and deterrence in the circumstances of this offence and this offender would be adequately met by substituting a conditional sentence of fourteen months...
R. v. Weber:[^16] Mr. Weber pleaded guilty to various counts of possessing and distributing child pornography. He was given a conditional sentence of 14 months. Feldman J.A. dismissed a Crown appeal against sentence and stated at para. 19:
As this court stated in Cohen, the offences of possession and dissemination of child pornography are very serious and require a sentence which clearly denunciates the conduct and deters others. As the court also stated in that case, a conditional sentence with strict house arrest conditions can adequately serve the objectives of general deterrence and denunciation and is appropriate for certain offenders.
[24] The abovementioned cases were followed by Hill J. in the cases of R. v. W.C.[^17] and R. v. Mallet.[^18] In both cases, Hill J. imposed a conditional sentence for possessing child pornography. In Mallet, at para 14, he held as follows:
Counsel for the parties acknowledged that a conditional sentence of imprisonment can, in appropriate cases, be imposed for possession of child pornography. Given that general deterrence and denunciation continue to be the dominant sentencing principles for the s. 163.1(4) crime (R. v. E.(O.), 2003 ON CA 2017, [2003] O.J. No. 563 (C.A.), at para. 7; R. v. Weber, 2003 ON CA 28579, [2003] O.J. No. 3306 (C.A.), at para. 18; R. v. Cohen, 2001 ON CA 3862, [2001] O.J. No. 1606 (C.A.), at para. 15), such a disposition is, however, appropriate, other prerequisites present, only where these principles are not impermissibly diminished.
[25] I note that all cases provided by Counsel for Mr. Jenkins pre-dated Friesen and Inksetter. The cases are from the early 2000’s and as such, do not reflect the principles recently set out by the Supreme Court of Canada.
c. COVID-19 Considerations as a Collateral Consequence
[26] Counsel for Mr. Jenkins also submits that Mr. Jenkins’ sentence should be reduced because he will be serving his sentence during the COVID-19 pandemic. In support of that position, he relies on the principles set out in R. v. Hearns[^19] and R. v. Studd.[^20] Boswell J. addressed this in the case of R. v. M.W.,[^21] at para. 51:
Going forward, any period of additional incarceration to be served by MW, will be subject to the same COVID-related restrictions he has been experiencing over the past three months, which will include increased time alone in his cell, reduced contact with other inmates, a heightened risk of contracting the novel coronavirus and a suspension of visits from family and friends. In other words, the conditions of his detention will continue to be particularly harsh.
[27] The COVID-19 pandemic and the resulting harsher conditions of incarceration have been considered a collateral consequence in sentencing an offender. The Ontario Court of Appeal, in R. v. Morgan,[^22] accepted this and referred to the Supreme Court of Canada case of R. v. Suter, at para. 46 where Moldaver J. held that “collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender”. The principle of proportionality must prevail.
[28] I will now turn to a consideration of the fit sentence.
The Fit Sentence
[29] In consideration of the fit sentence, I find the following to be the aggravating factors on sentencing:
a. The size of the collection possessed by Mr. Jenkins was significant. There were 28,968 images and 1,125 videos.
b. The videos include children being abused who range in age from toddlers to prepubescents. The videos show toddler-aged children being vaginally and anally raped by adult males.
c. The videos and images are extremely graphic in nature and are very close to the most depraved. As Fuerst J. said in R. v. Enosse,[^23] at para. 42, and which I adopt here, “Videos of children being raped by adult males and images of children engaged in acts of bestiality represent 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.”
d. The collection contains aspects at the higher end of relative depravity, given the ages of the children depicted and the types of abuse inflicted on them.
e. Some of the child pornography was found in plain sight on Mr. Jenkins’ computer.
f. Mr. Jenkins had three mediums of child pornography: DVD’s, digital downloads and child pornography books.
g. The collection was amassed over a period of years.
h. The level of moral culpability which Mr. Jenkins must assume is high. The collection is indicative of a sustained effort by Mr. Jenkins to obtain a “stockpile” of child pornography. As Crown counsel submitted: “Collecting almost 30,000 images and over a thousand videos takes time and each time that he downloaded, purchased or received child pornography, he had to commit an offence and he had to do so willingly tens of thousands of times.”
i. There were Victim Impact Statements provided from victims depicted in Mr. Jenkins’ collection. There are obvious concerns raised by the victims, including issues with their mental health and the re-traumatization caused by Mr. Jenkins and like-minded collectors.
j. Technological advancements have perpetuated the proliferation of child pornography. For example, the online distribution of films or images depicting sexual violence against a child repeats the original sexual offence. The child must live with the knowledge that others may be accessing those images which can resurface at any time during their lives.
k. Family members and caregivers of the victims suffer as well.
l. There is no evidence that Mr. Jenkins has taken any steps towards rehabilitation. For example, there is no evidence that he sought psychiatric help to provide an explanation as to why he has amassed such a large and vile collection of child pornography.
[30] I consider the following to be the mitigating factors on sentencing:
a. Mr. Jenkins pleaded guilty which is a sign of remorse.
b. Mr. Jenkins expressed remorse at the conclusion of the sentencing hearing when he addressed the court.
c. The plea saved resources at a time when the courts are dealing with the COVID-19 pandemic and resources are limited
d. The plea provided certainty of result.
e. Mr. Jenkins is 72 years of age.
f. Mr. Jenkins has no criminal record. He is a first-time offender.
g. Mr. Jenkins has led a pro-social life surrounded by a community of friends.
h. Mr. Jenkins has an education which provided him with meaningful employment.
i. Mr. Jenkins has made a significant contribution to our community through his courage (in particular) at the Walkerton Inquiry.
j. Mr. Jenkins is of advanced age and is likely at a low risk to reoffend.
k. He is frail and of ill health.
l. He will be serving his sentence during the pandemic.
[31] What is clear from the law is that denunciation and deterrence are the paramount sentencing objectives to be considered when sentencing persons who have possessed child pornography. It is those persons who enable its production. This contributes to the ongoing abuse, exploitation and degradation of the children involved. The innocent children depicted in these images and videos are re-victimized each time the images and videos are viewed.
[32] While I agree that a conditional sentence can be drafted to address the principles of denunciation and deterrence, a conditional sentence is not appropriate in this case. In my view, it is inconsistent with the fundamental purpose and the principles of sentencing. It is contrary to the public interest and not in keeping with the principles set out in Friesen or the intentions of parliament. The nature of the pornography collected by Mr. Jenkins must be denounced in the strongest of terms.
[33] While I also agree that the circumstances under which Mr. Jenkins will be serving his sentence will be harsher as a result of the pandemic, such a consideration has been taken into account in imposing a sentence of 18 months. To reduce the sentence of 18 months further as a result of this collateral consequence would reduce Mr. Jenkins’ sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of Mr. Jenkins.
[34] In coming to my conclusion about the appropriate sentence, I am also cognizant of the principles set out in R. v. Priest,[^24] at p. 296 which are applicable here:
[I]t is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.
[35] In coming to my conclusion, I have also taken Mr. Jenkins’ medical condition into consideration and the fact that serving his sentence during the COVID-19 pandemic may be more onerous. Had those two conditions not been present, Mr. Jenkins could easily have received a sentence in the penitentiary, closer to three years. There is no evidence that the Ministry of the Solicitor General is incapable of tending to Mr. Jenkins’ medical requirements. There is no evidence that Mr. Jenkins suffers from respiratory problems making him a more likely victim to Covid-19, although I do acknowledge that his age (72) does put him in the high risk category.
[36] Crown counsel, rightly in my view, submitted that the gravity and moral culpability considered in these circumstances supports a sentence greater than that submitted by him. I agree but I will not impose a sentence greater than proposed.
[37] After considering the totality of the circumstances of this case, I find that the appropriate sentence is one of 18 months in custody. Such a sentence, in my view, denounces Mr. Jenkins’ conduct while delivering the message to others that possessing child pornography cannot be tolerated by our society and that there is a price for such conduct.
[38] In these circumstances a sentence of 18 months in jail is required to reflect society’s abhorrence of Mr. Jenkins’ conduct that exploits vulnerable children. As Molloy J. has so eloquently said: “… the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators”[^25]. It is my view that such a sentence will denounce Mr. Jenkins’ conduct and may deter others from perpetuating such vile acts on children – a most vulnerable segment of our society.
[39] In the circumstances, I decline to impose probation. Mr. Jenkins will be subject to the following ancillary orders as agreed:
a. That he provides a sample of his bodily substances as may be required for forensic analysis, pursuant to s. 487.051(b) of the Criminal Code.
b. That he complies with the requirements of the Sex Offender Information Registration Act, S.C. 2004, c. 10 for 10 years, pursuant to s. 490.011 of the Criminal Code.
c. That he forfeits all technological exhibits seized as part of this investigation, pursuant to s. 164.2 of the Criminal Code.
Kelly J.
Released: May 12, 2021
appendix “A”
Decision
Plea or Trial
Collection Description
Mitigating
Aggravating
Notable Comments
Sentence
R. v. Russell, [2020] O.J. No. 3841 (C.J.)
Plea
1859 videos
1042 images
All forms of intercourse – including bondage/bestiality
Anxiety/depression
No criminal record
Size and nature of collection
Age of children
Depravity depicted
Limited insight
Risk assessment discounted because of insufficient credentials
2 years + 2 years’ probation
R. v. Kim, [2019] O.J. No. 5267 (C.J.)
Plea
920 images
741 videos
Intercourse – all forms -- bondage
plea
remorse
no criminal record
family support
counseling undergone prior to sentencing
nature and gravity of collection
collection could be accessed by others (even though no mens rea for make available)
numerous victim impact statements filed that had a clear impact on sentence
30 months
R. v. Partsch, 2018 ONCJ 962
Plea
2053/863 images
6/5 videos
All forms of sexual activity – bondage – no bestiality
Sincere remorse
Guilty plea
No CR
Cerebral palsy
Open to counseling
Family support
Loss of employment
Size
Nature (age and content)
Organized/catalogued
Duty to view (para. 15)
- Duty to describe (para. 14)
19 months
3 years’ probation
R. v. Inksetter, 2018 ONCA 474
Plea
28052 images
1144 videos
No criminal record
Extensive counseling
Sincere remorse
Guilty plea
Loss of employment
Nature and size of collection (described by the police as one of the worst they had ever seen)
Increasing prevalence of crime in community
probation is a rehabilitative tool and cannot satisfy objective of deterrence
pre-2015 cases should be viewed with “caution”
Child pornography is a pervasive social problem demanding sentences reflecting denunciation and deterrence
3.5 years (make available)
3 years (possession – concurrent)
appendix “B”
Image Sampling[^26]
R v Jenkins
P357271_Disc0095_01.iso|Sorted\SM4\smm3\IMG_0034.JPG – This image depicts two prepubescent females (approximately 10 and 8 years old) lying nude on their sides. The bottoms of the two girls feet are pressed together and their legs are spread apart making their vaginal area the focus of the image.
P357271_Disc0095_01.iso|Sorted\3D\017_Daddy + Daughter\34.jpg – This image is an animation. The watermark on the image indicates it is from Dad & Daughter Diaries. The animation depicts a very small female with little breast development, no body hair and a vaginal opening consistent with a prepubescent female being vaginally penetrated by the penis of an adult. The daughter is saying, “Go slow now. Deep and slow Daddy.” There is a “diary” entry at the bottom of the image that reads, “She rolls over onto to her back and tells her daddy to slide in and out of her soaking pussy with his thick cock nice and slow. She wants to feel every single inch of it going in and out stretching her lips with every stroke.”
P357271_Disc0095_01.iso|Sorted\M\136866427961.jpg – This is an image of a prepubescent female, approximately 6 years old, on her hands and knees on a bed with her backside to the camera. The child is wearing a rainbow coloured top but is nude from the waist down. The child’s genital and anal areas are the focus of the image.
P357271_Disc0095_01.iso|Sorted\SM4\smm3\01_02 056.jpg – This image depicts two young females (approximately 10 years old) on either side of the erect penis of a prepubescent boy’s erection. Both girls have their tongues out as if to lick the penis.
P357271 ISO\R0001_D0568_01.iso|X\moe_ita1025.jpg – This image depicts a prepubescent female, approximately 8 years old, performing fellatio on an adult male.
P357271_Disc0539_01.iso|pix\2768576xDS.jpg – This image depicts a prepubescent, approximately 2 to 3 years old, lying nude on her stomach while an adult male attempts to penetrate her anally.
P357271_R0001_D0639_01.iso|unspic\Preteen blonde pthc (VERY GOOD)\img_0076a.jpg – This is an image of a nude prepubescent female, approximately 5 to 6 years old, lying back on a bed with her legs spread apart exposing her vagina. They girl has a sign on her stomach which reads, “I love you Carlos”.
P357271_R0001_D0639_01.iso|unspic\Thai-300hc\0168.jpg – This is an image of a nude adult male lying on top of a nude prepubescent female, approximately 6 years old, on a bed. They are in the missionary position and the male’s face is blurred out.
P357271_R0001_D0639_01.iso|unspic\a30420_3234_ehqif.jpg – This is an image of a boy, approximately 4 years old (based on his size), holding the erect penis of an adult male while suckling the breast of an adult female.
P357271_R0001_D0639_01.iso|unspic\img20040828040601.jpg – This is an image of a female child, approximately 1 years old, sleeping on her side in a bathing suit while an adult male presses his erect penis to her lips.
appendix “C”
Video Sampling[^27]
R v Jenkins
P357271_Disc0333_01.iso|S\webcams.pack 1-5\P42_13.flv – This video is 1 minute and 50 seconds long. It depicts a prepubescent female, approximately 10 years old, stripping off her clothes on a web camera. The girl then spreads her legs for the camera exposing her vagina and rubs her genitals.
P357271_Disc0378_01.iso|17 - up0321.avi – This video is 2 minutes and 19 seconds long. It depicts a prepubescent female, approximately 4 to 5 years old, performing fellatio on an adult male.
P357271_Disc0563_01.iso|08 - Happy New Year!.mpg – This video is 14 minutes and 12 seconds long. It depicts a 10 year old prepubescent female (identified victim) performing fellatio on an adult male. The camera then zooms in on her anus and vagina before the child resumes performing fellatio.
P357271_R0001_D0693_01.iso|L0rd_0f_The_Ring_Olya2.wmv – This video is 9 minutes and 44 seconds long. It depicts a nude prepubescent female, approximately 6 years old, in car with an adult male. The child performs fellatio on the male and then he tries to penetrate her vaginally with his penis. The video ends with the male ejaculating on the girl’s stomach.
R0001_D0509_01.iso|Veronika 100 - lezzy complete 2007.avi – This video is 3 minutes and 54 seconds long. It depicts two nude females on a couch. One of the girls is pubescent and approximately 12 years old. The second girl is prepubescent and approximately 8 to 10 years old. The girls engage in kissing, masturbation and cunnilingus.
P357271 ISO\R0001_D0769_01.iso|Daddy's Girl 4.wmv – This video is 38 seconds long and is captioned, “12yo daddy bj 03”. The video depicts a 12 year old female (identified) performing fellatio on a male wearing women’s panties.
P357255 ISOs\R0002_D0228_01.iso|JB\Day 3.AVI – This video is 12 minutes and 9 seconds long. It depicts a pubescent female, approximately 12 years old, undressing, taking a bath and penetrating herself vaginally with a Q-tip. An adult male then penetrates the child anally with various objects.
P357255 ISOs\R0003_D0070_01.iso|cel\10.mpg – This video is a collage of prepubescent boys and girls, approximately 8 to 10 years old, engaging in vaginal intercourse.
P357291 IOSs\R0001_D0089_01.iso|11 - av-06.avi – This video is 6 minutes and 22 seconds long. It is commercially made by www.video-angels.com and depicts a pubescent girl, approximately 12 to 13 years old, stripping off various outfits. At times, the female is only wearing a top but is nude from the waist down – making the focus of the video her vagina.
COURT FILE NO.: CR-18-40000351-0000
DATE: 20210512
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
GODFREY JENKINS
REASONS FOR sentence
Kelly J.
Released: May 12, 2021
[^1]: A representative sampling of the child pornography (books, images and videos) is filed as a sealed exhibit in these proceedings as Exhibit 2. The LACE Reports are filed as Exhibit 3, a sealed exhibit in these proceedings.
[^2]: The IEF report is filed as a sealed exhibit in these proceedings as Exhibit 4.
[^3]: See: paragraph 3 of the affidavit of Ms. St. Germain, sworn July 10, 2020.
[^4]: Ateret Gerwitz-Meydan, et. al., “The complex experience of child pornography survivors” (2018) 80 Child Abuse & Neglect 238-248.
[^5]: See: R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330; aff’d. 2013 ONCA 677; upheld 2015 SCC 15, [2015] 1 S.C.R. 773
[^6]: See: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paras. 80-82
[^7]: For the defence, see for example: R. v. Coutu, [2007] O.J. No. 5811 (S.C.J.). For the Crown, see for example: R. v. Dean, [2010] O.J. No. 5305
[^8]: See: R. v. Mallett, [2005] O.J. No. 3868 (S.C.J.) and R. v. Kwok, 2007 ON SC 2942, [2007] O.J. No. 457 (S.C.J.) at para. 7
[^9]: I have also attached a chart provided by Crown counsel which summarizes some other cases upon which he relies at Appendix “A”.
[^10]: [2019] S.C.J. No. 100 (QL), 2020 SCC 9
[^11]: 2018 ONCA 702
[^12]: The mandatory minimum sentences in sections 161.1(4.1) (accessing child pornography, a minimum of six months); and 161.1(3) (make available child pornography, a minimum of one year) have also been struck down as violating s. 12 of the Charter.
[^13]: 2018 ONCA 474
[^14]: 2010 ONCA 27, [2010] O.J. No. 127
[^15]: 2001 ON CA 3862, [2001] O.J. No. 1606 (ONCA)
[^16]: [2003] O.J. No. 3306, 2003 ONCA 28579,
[^17]: [2004] O.J. No. 5985 (ONSC
[^18]: [2005] O.J. No. 3868 (ONSC)
[^19]: 2020 ONSC 2365, [2020] O.J. No. 1648 (S.C.J.)
[^20]: 2020 ONSC 2810, [2020] O.J. No. 2035 (S.C.J.)
[^21]: 2020 ONSC 3513
[^22]: 2020 ONCA 279
[^23]: [2019] O.J. No. 5853 (S.C.J.)
[^24]: (1996), 1996 ON CA 1381, 110 C.C.C. (3d) 289 (Ont. C.A.)
[^25]: See: R. v. Kwok, supra, at para. 49
[^26]: Authored by D.C. Joel Manherz #7962
[^27]: Authored by D.C. Joel Manherz #7962