COURT FILE NO.: CR-21-10000020

DATE: 20211021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

JEREMY SNEAD

Respondent

Peter Van den Bergh, for the Crown

John Erickson, for the Respondent

HEARD: October 7 and 12, 2021

REASONS FOR JUDGEMENT

B.P.O’MARRA J.

1This is an appeal from the sentence imposed on February 22, 2021 by Justice M. McLeod of the Ontario Court of Justice (OCJ).

2On March 3, 2020, the respondent pleaded guilty to one count of possession of child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c.C-46. The facts he admitted to in support of the guilty plea related to events on March 9 and April 13, 2018 as well as images and conversations retrieved from his iPhone pursuant to a search warrant on November 21, 2018. He was arrested that day and held for a bail hearing. He was released later that day on strict terms.

3On Feb 22, 2021, the respondent was sentenced to an eight month conditional sentence plus twelve months probation. There were also ancillary orders for DNA, forfeiture of the cell phone, SOIRA order for ten years and a seven year order pursuant to s. 161 of the Criminal Code. The probation term and the other ancillary orders are not the subjects of this appeal.

4The Crown appealed the imposition of the conditional sentence and sought a jail term. Submissions of counsel were completed on October 7, 2021. I reserved my decision but advised counsel that I would deliver a ruling on October 12, 2021 with reasons to follow on a later date. I felt there was some degree of urgency since the respondent had by then completed a significant portion of the conditional sentence.

5On October 12, 2021, I allowed the Crown appeal. These are my reasons.

6The following is a brief overview of the facts as were admitted on the guilty plea.

7On March 9, 2018, the respondent virtually entered a zoom room where child pornography was being streamed. He displayed the screen name “TWISTED PERV”. He joined more than fifty other men who were already watching. Many of the others, and the respondent, were masturbating as they watched the child pornography. Five videos and still images were streamed into the room. One showed a man masturbating a boy. Another showed a boy masturbating a man. One showed a boy in bondage. One video showed an infant appearing to be penetrated by a man’s penis.

8On April 13, 2018, the respondent again joined a zoom conference this time with over sixty other men viewing child pornography. He first entered with the screen name “TwistedPed” and then as “Upforallfun-skype”. The respondent pointed his web cam at his penis and masturbated. Many of the other men viewing did the same. Six videos were streamed in. Four videos showed boys appearing to be between six and twelve years of age being orally and anally penetrated by adult men or by sex toys. One video showed a girl who looked between nine and thirteen years of age being vaginally penetrated by an adult male’s penis.

9The Toronto Police Service (TPS) became involved in this investigation after a police officer in England observed and recorded the incidents. The fact that a police officer across the ocean detected and reported these events and images demonstrates and confirms that this type of crime has no borders.

10The TPS executed a search warrant on November 21, 2018. On the respondent’s cell phone they located six images of child pornography. Those images focused on the genitalia and breasts of unclothed and partially clothed male and female children. The TPS also retrieved a record of numerous conversations where the respondent expressed an interest in looking for sexualized images and videos of children.

11Sentencing was adjourned to May 5, 2020, and several times thereafter due to the Covid-19 pandemic.

12The Crown sought a jail term of twelve months plus three years probation. The defence sought a conditional sentence of between six and eight months plus two to three years probation.

13The defence filed two reports from psychiatrist Dr. Julian Gojer dated December 19, 2020 and January 24, 2021 as well as a report of Caroline Kerjikian, Social Worker in Forensic Practice, dated December 10, 2020. Those reports stated that the respondent was cooperative and fully engaged in therapy, had acquired insight into his actions and was very remorseful. He denied that he ever had inappropriate contact with any underage person. He denied having any overt sexual attraction to minors. He claimed that he entered the zoom meetings to engage in virtual masturbation with other men. He initially justified his involvement as “not real” and that he was not hurting anyone. He claimed he was disgusted by what he saw on the second occasion and did not return. He was assessed at low risk to reoffend.

14The respondent is a permanent resident of Canada who was born on May 22, 1978 in Rome, Georgia. He immigrated to Canada in 2010. He had no prior criminal record. He continues to be in a committed common law relationship with his spouse who acted as his surety. In addressing the court before he was sentenced, he said he was ashamed of his actions and now realized that these were not victimless crimes. He regretted the harm done to children by such activity.

THE REASONS FOR SENTENCE IN THE OCJ

15In R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670, the six month mandatory minimum for possession of child pornography was found to violate the Charter and was struck down. Based on that the sentencing judge in this matter found that “as a result of the striking of the minimum mandatory sentence the floor has been lowered to 90 days…the benchmark sentence for offences committed by Mr. Snead would be in the range of 90 days…a sentence that could be served intermittently.”

16The reasons for sentence also referred to the issue of “exceptionality”. The court found that the reasoning in some of the cases where conditional sentences were granted used the language of “exceptionality” but that was “more in the nature of each case–involving a less serious form of the offence and offender who presented as being a low risk to re-offend.” He also held that conditional sentences in child pornography cases “were fewer in number than cases where sentences of incarceration were imposed–but they were not rare or unique or exceptional.”

17The court referred to the circumstances in the case of R. v. Doucette, 2021 ONSC 371 as “strikingly similar”. Justice McLeod had also been the trial judge in that case. In Doucette the accused appealed the imposition of a six month jail term for two counts of accessing child pornography. The summary conviction appeal was allowed and a four month conditional sentence was imposed.

ANALYSIS

18An appellate court can only intervene to vary a sentence if it is demonstrably unfit or where the sentencing judge made an error in principle that impacted the sentence. If either basis to intervene is shown the appellate court must perform its own sentencing analysis to determine a fit sentence: R. v. Lacasse, 2015 SCC 64 at paras. 41, 43, 44.

19The sentencing judge made errors in law related to the effect of the striking down of the mandatory minimum sentences for child pornography and the proper basis to impose a conditional sentence. He specifically misinterpreted and misapplied the appellate decision in Doucette. The sentence he imposed was demonstrably unfit as it failed to reflect the well established need for general deterrence and denunciation for such offences.

20The possession of child pornography harms children. It is itself child abuse: R. v. Sharpe, 2001 SCC 2; R. v. Inksetter, 2018 ONCA 474 at para. 22.

21Viewers and purchasers of child pornography fuel the market for producing “this odious material”. The victimization of children must be opposed with unremitting purpose. Condemnation through the imposition of harsh sentences is necessary to fight against the evil of child pornography: R. v. Rytel, 2019 ONSC 5541 at para. 28.

22The primary focus for sentencing in such cases has long been general deterrence and denunciation: Inksetter at para. 16; John at para. 41.

23The range of sentence for such cases has been identified as between six and eighteen months: R. v. Kwok , 2007 2942 (ON SC), [2007] O.J. No. 457 (Sup. Crt) at para. 50.

24While incarceration is “almost always the inevitable sentence” for such offences there exist reasonable hypotheticals in which a jail sentence would be grossly disproportionate. The offence of child pornography is broad enough to capture conduct that, while morally blameworthy, does not justify a prison term: R. v. Swaby, 2018 BCCA 416 at para. 96, 97.

25In John at para. 41 the Court of Appeal emphasized that “the mandatory minimum is entirely unnecessary”. This implies that sentences would normally be at or above the six month range. That decision did not signal sentences for such offences should be lessened. In that case a ten month jail sentence was upheld for a 31 year old first offender who had serious mental health issues, pursued counselling, was remorseful and was at a low risk to re-offend.

26Parliament has recognized the profound harm of sexual offences against children and has determined that sentences for such offences should be increased. The enactment of s. 718.01 of the Criminal Code relating to offences against children confirms that the paramount consideration shall be to the objectives of denunciation and deterrence. This calls for more severe sanctions for such offences: R. v. Friesen, 2020 SCC 9 at paras. 95, 101-105.

27Courts have imposed conditional sentences for such offences where there were exceptional circumstances.

28In R. v. Rytel, 2019 ONSC 5541, the accused was in possession of a very high volume of child pornography and videos. The Crown sought a jail term of eighteen months. The accused was profoundly impaired both cognitively and socially. He had a “long, sad psychiatric history”. He had not left his room for seven years, was unkempt, urinating and “ stooling” his room. The court indicated that in isolation from the particulars of the offender an eighteen month jail term was within the appropriate range. However, there was a causal link between his mental illness and his criminal responsibility. The court found that his moral blameworthiness was substantially diminished as a result. The effect of a jail term would be disproportionate to his moral blameworthiness. His schizophrenia would make incarceration substantially more onerous for him. Based on these exceptional circumstances a conditional sentence was imposed.

29In Doucette the accused was convicted after a trial in the OCJ of two counts of accessing child pornography. The mandatory minimum sentence of six months was still in effect and was imposed. By the time of the summary conviction appeal before Justice Schreck of this court the mandatory minimum had been struck down. At para. 53 he indicated that given the primacy of denunciation and deterrence as factors in sentences for such offences conditional sentences are rare, though not unheard of in exceptional cases. At para. 54 he indicated that at the initial sentencing there were not exceptional circumstances and a conditional sentence would not have been appropriate. There were now circumstances that, while not justifying a stay of sentence, did qualify as exceptional. There was a significant time lapse from the original sentencing on April 4, 2018 to the appeal ruling on Jan 15, 2021. The accused should have had his probation suspended when he was granted bail pending appeal. However, through an error that did not happen and the accused had completed almost all of his probation. The accused was now in poor health. He had been admitted to hospital for Covid-19. He had various psychiatric diagnoses and was HIV positive. Justice Schreck imposed a conditional sentence on appeal based on the unique and exceptional circumstances as of the date of the appeal ruling.

30The circumstances in Doucette were not strikingly similar to the matter before this court. They were distinctly different. The trial judge in this matter misapplied and misinterpreted the appellate ruling in Doucette. There were no exceptional circumstances that would have justified a conditional sentence in this case. There were some mitigating factors that I will address but they do not amount to exceptional circumstances.

A FIT SENTENCE

31Since the Crown appeal is allowed it falls to this court to craft a sentence that is fit in all the circumstances, including the passage of time since the original sentencing. I have considered and applied the relevant sentencing principles for such offences as set out earlier in these reasons.

32There are some mitigating circumstances. The accused is a first offender. He cooperated with the police at the time of his arrest in accessing his phone and computer. He entered a guilty plea. The evidence in such cases is often overwhelming subject to any Charter issues related to search and seizure. He is fortunate to have the support of his spouse in their relationship which should assist in his rehabilitation.

33The respondent continues to be involved in therapy. That will also assist in his rehabilitation. He made two comments to his therapists that were troubling. He initially denied that he had any overt sexual attraction to minors and also that his conduct was not hurting anyone. He later said that he now realized that these were not victimless crimes. His initial denial of overt sexual attraction to minors is flatly contradicted by the circumstances of these crimes and his eventual admissions. It is also hard to understand that as a mature adult he would not appreciate from the outset the pain and degradation imposed on the children, including an infant, in these dreadful images that are preserved and sent around the globe for the sexual gratification of those who access and possess child pornography.

34The number of videos and images in this case is much smaller than those in other reported decisions. However, the fact that more than one child, including an infant, were shown is an aggravating feature. A court does not require victim impact statements from these unnamed children or expert evidence to find that they have been severely impacted by this insidious type of crime.

35General deterrence and denunciation are the paramount but not exclusive factors on this sentencing. I have also considered the positive prospects for rehabilitation, his engagement in therapy and his expressions of remorse.

36In my view the appropriate sentence is twelve months in jail. The respondent has completed most of the eight month conditional sentence without incident. I will credit that time toward the custodial term required. Thus there will be a further four months in jail. That term will begin on October 21, 2021 when the respondent attends in person at the court to begin serving that sentence. The probation and ancillary orders will stand as imposed in the OCJ.

O’Marra J.

B.P.O’MARRA J.

Released: October 21, 2021

COURT FILE NO.: CR-21-10000020

DATE: 20211021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

JEREMY SNEAD

Respondent

REASONS FOR JUDGMENT