His Majesty the King v. Nicholas Cooper, 2023 ONSC 875

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-21-1-067

DATE: 20230210

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

NICHOLAS COOPER

Defendant

Maggie Brown, for the Crown

Dragi Zekavica, for the Defendant

HEARD: December 22, 2022

JUSTICE S. NAKATSURU

1Mr. Cooper, you pleaded guilty to ten counts that capture a series of offences that happened between January 1, 2017, to April 3, 2019. You used false Facebook and other social media accounts, using false identities, to distribute images of child pornography and sexually explicit materials, made and possessed child pornography, and communicated in a sexually explicit manner with young females for the purpose of facilitating the commission of the offences of sexual interference and child pornography. This all came to the attention of the police when an IP address associated to a Facebook user, “Julia Cole”, purportedly an underaged female, raised concerns about the sharing of child pornography images. This IP address was traced to your home. You were posing as Julia Cole. A search warrant uncovered a large cache of evidence about your misdeeds.

2Factually, taking a bird’s eye view of this sentencing, I am to impose a sentence on a mature but troubled man who has, over a long period of time, with considerable planning and effort, including the manipulation of internet images of innocent young girls to sexualize them, tried to actualize his deviant sexual fantasies with underage females through the internet and social media. You made child pornography, distributed child pornography, and possessed it. Specifically, in chats and in other electronic communications, you engaged with a 17-year-old, K.D., a 16-year-old, T.P., and a 13-year-old, A.B. Your purpose was to facilitate the sexual offences of child pornography and sexual interference. Your modus operandi was similar; you would try to gain their trust, push the boundaries, exchange sexually explicit materials, and have sexualized online communications.

3The lengthy Agreed Statement of Facts and the representative materials found by the police set out much of the sordid details. I need not get into it in any great detail. To be utterly frank, your conduct was deplorable.

4In sentencing you, I must ensure the sentence remains fit and fair. It cannot be unduly affected by emotion. Fundamentally, a sentence must be proportional to the gravity of the offences and the degree of your moral culpability. It must meet all the objectives of sentencing, including ensuring the safety of our community. In this case, the safety of our children.

5It is agreed that, on the basis of the Kienapple principle, counts 4 and 17 are to be stayed. Those counts are stayed.

6The Crown seeks a global sentence of six years. The defence seeks a global sentence of four years. Given the number of counts, both counsel have arrived at these positions taking into account the principle of totality. In other words, the total sentence should not be excessive.

7I shall start with the aggravating factors.

8First, the victims. The victims were young. You were a lot older. You were about 39 at the time. It was especially aggravating that A.B. was so young. You knew their ages, but this did nothing to deter your sexual behavior towards them. They were vulnerable and you preyed on that vulnerability.

9Second, there were multiple victims. Three were identified and interviewed by the police in this country and by Homeland Security investigators in the United States. However, your creation and distribution of child pornography also caused harm even when no individual child was identified. Just as an example, you altered images of innocent anonymous children, sexualized them, and made them publicly available to others, including other adults who may share similar deviant sexual interests.

10Third, these offences were not brief or isolated instances of poor judgment. The span of time covered by the Indictment was over two years. Your interactions with K.D. lasted about four months. T.P. about six months. A.B. nearly two years. You exchanged numerous sexually explicit messages which meet the definition of child pornography. With all three victims, you sent sexually explicit images, including pictures of your penis and yourself masturbating. You asked and received from K.D. an image of her exposing her buttocks and genital area and you saved that image. You received other images of her in various states of undress. You asked T.P. for nude photos of her. You sent A.B. an image of you having sex with a girl and there are comments in the chats seized from your devices stating that you had seen images of her breasts and genital area. For such extended periods of time, your efforts to violate their sexual privacy and integrity were persistent and sustained. It did not stop because you desisted. Two of these girls had to block you. I find that your overall scheme to lure underaged girls to engage in overtly sexualized communications and to send you sexual images would not have stopped had the police not interceded and arrested you when they executed the search warrant on your home on April 3, 2019.

11Fourth, there was considerable sophistication, planning, and effort that went in your online scheme to lure, groom, gain trust, and manipulate these girls for your own sexual gratification. This included creating fictitious profiles and accounts of other underaged girls and a family unit in order to communicate with the victims, no doubt, as a means to gain their trust. You went to a lot of effort in photoshopping pictures. For example, you inserted yourself in photographs of innocent people that you no doubt found online. Other unknowing children had their bodies photoshopped to accentuate their sexual organs. You saved numerous electronic messages and images from children you communicated with that otherwise would have disappeared from the digital platforms. A common theme you used was to pose as a teacher or a swim coach. Undoubtedly, this too was to gain your victims’ trust. The comments you exchanged with them were sexually graphic and repulsive: you portrayed yourself as a teacher who had sex with their students, impregnated some, and committed “rape”. In my view, this was done to test the limits and boundaries of your potential victims, as well as with the hopes to elicit further communications to feed your fantasies. The police found written materials and children’s clothes in your bedroom, which undoubtedly played some role in your overall scheme. Your scheme was effective.

12Fifth, in terms of child pornography, there was a lot discovered on your electronic devices. I do recognize that these were mainly electronic communications and not videos of the actual sexual abuse of young children, such as those containing graphic depictions of sexual activities. But this fact is not a mitigating circumstance: R. v. M.M., 2022 ONCA 441, at para. 18. Moreover, the amount was not small: 1877 images and 30 videos that would meet the definition of child pornography, although you did not share the images with others.

13Sixth, these were not just online fantasy chats you had with the three victims. Your intent was clearly to obtain child pornography from them, to meet with them, and to have sex with them. Your stated purpose in your electronic messages was to meet them for sex. With K.D., she did meet with you twice: once in your home and once in your car. On the first occasion, you gave K.D. a bra and underwear that, unknown to her, you had ejaculated on. On the second occasion, there was some sexual contact, but K.D. did not want to continue. You stopped, but then you told her online that you could have “raped” her if you had wanted to. I refer to these meetings fully appreciating that K.D. could have legally consented to having sex with you. But these meetings demonstrate the nature of the communications you had with her and gives more context to your efforts to obtain child pornography from her.

14With T.P., you discussed meeting with her, paying for her trip to Toronto, and paying to have sex with her.

15With A.B., you also tried to arrange a meeting with her. In this case, you posed as a 19-year-old, saying you had been “raped” yourself and had been arrested for sexual assault. Along with other sexually explicit images you sent her, you sent her a video of you masturbating and ejaculating, claiming you had a form of sexual dysfunction that caused an overproduction of ejaculate. In A.B.’s case, your admitted purpose for your communications was to commit the offence of sexual interference.

16Let me move on to the mitigating factors.

17Amongst the mitigating factors, the most significant is your plea of guilty. Now, I do appreciate that the Crown’s case was strong, but had you chosen to contest it, it would have taken significant resources and could have involved some of the young victims testifying. I accept that, through your plea, you have shown remorse and accepted responsibility subject to the further comments I will make on this topic.

18Another mitigating factor is that you are now 43 years old and only have one criminal conviction in 2008 for driving with more than 80 mg of alcohol in your body. This is old and unrelated. You are essentially a first offender. With that in mind, any penitentiary term should be as short as it can, so long as it meets all the necessary objectives of sentencing.

19The Pre-sentence Report is well-sourced and has provided me with significant information about you. It sets out some other mitigating circumstances.

20You have family support. Your childhood upbringing was stable, positive, supported by middle-class means, and with no significant concerns until your teenage years. You are intelligent, were in gifted programs, and have a post-secondary degree obtained in 2011. You have a strong passion for music. You have been gainfully employed and you say you are a good employee, although, for reasons I understand, you did not want your employers contacted. Given your interests and abilities, and I truly do appreciate the value of manual labour, it seems that you could have taken a different employment path if you had wanted to. Past drug and alcohol use may have had something to do with that, but it seems that it is not an issue anymore and has not been so for some time. Though drugs were found in your room, I do not see any clear link between substance abuse and the offences. In short, your background supports the prospect of rehabilitation.

21But there are obvious red flags. It seems that you do not view yourself as a predator or a threat to others. You see yourself as pushing limits. You feel that it is a result of your unique and eccentric character. Your family and friends support that view. But there have been past concerns about you. You have been assessed two or three times in your life by psychiatrists or psychologists, the last time being sometime in your mid-twenties. It is unfortunate that we do not have those assessments, nor do we have a formal diagnosis. You did not want to pursue these investigations, though your father believed that “oppositional defiance disorder” was suggested as a possible diagnosis.

22A consistent description of you is that of a person who lacks empathy, is self-centered, and views themselves as a smart but non-compliant “outlier”. In my view, these traits, as well as an isolated lifestyle, a tendency to get easily bored despite having intense passions for things that interest you, and a desire to challenge what you view as mainstream social norms, could well have played a significant role in these offences.

23But these alone do not explain it.

24The probation officer noted your attitude to the offences. In my view, in a balanced way. She writes that you take responsibility by not deflecting blame on anyone else, but also that you minimize the seriousness of the offences. She feels that you would likely benefit from further clinical assessment and intervention to ensure victim and community safety.

25A similar theme is picked up by the forensic psychologist hired by your lawyer.

26Dr. Monik Kalia was unable to finish a psychosexual risk assessment. I ignore completely the reason Dr. Kalia gives as the reason why it could not be finished. The presumption of innocence is a cherished value in our country. Therefore, your being brought back into custody has no relevance to your sentencing. I will just say that it was unfortunate the assessment was interrupted, as I do not have this important information. But you did attend four sessions with the forensic psychologist. Dr. Kalia notes that you have insight into your crimes in the sense that you recognize that you did not use proper judgment, but he also notes that further insight was lacking in that you continued to deny having any paraphilic sexual interests including any sexual attraction to pre-pubescent or pubescent individuals. Dr. Kalia’s opinion was that, based upon the nature of your conduct, the chats, and clinical data gathered to date, it is highly likely that you have an interest in underaged individuals, though it is not exclusive to them, as you had reportedly formed satisfying sexual relationships with age-appropriate partners.

27While shame could be a reason for your reluctance to acknowledge this deviant interest, your lack of acknowledgement would be an obstacle to any formal sex offender treatment program. Thus, Dr. Kalia recommends that initial counselling should focus on your denial of the offending behaviour since you use intellectualization as a defence. As I read it, Dr. Kalia’s view is that you have not yet done the work to truly get at the core problem that caused you to offend. While no risk assessment was provided, given the abridged assessment, my view is that Dr. Kalia’s opinion raises concerns about your future offending.

28On the other hand, I understand that you were cooperative with the psychologist and did not present with other issues, like personality disorders or cognitive or intellectual deficits that could pose a problem in your ability to obtain successful treatment. To that extent, his report remains hopeful.

29I agree with the Crown that Dr. Kalia’s assessment should be treated as a neutral factor.

30But looking at the whole of the evidence, it just seems plain to me, Mr. Cooper, that you have some very worrisome deviant sexual desires for underaged girls. I know that people don’t usually wish this affliction upon themselves, but it creates an ongoing risk and danger to a very vulnerable population.

31The lack of true insight by you into your offending and the lack of any treatment or counselling you have done to address this—or even to create a concrete treatment plan for the future—means that you still pose a significant risk. In other words, specific deterrence and separation are important principles of sentencing that I must address in your punishment. On the other hand, the sentence must not ignore your potential for rehabilitation, which I believe still exists.

32The law is very clear that the primary focus on sentence for this kind of offence is denunciation and deterrence because of the abuse of children: see s. 718.01 of the Criminal Code; R. v. McCaw, 2023 ONCA 8, at paras. 19, 28. Historically, sentences for the sexual abuse of children were too low, and the courts must increase them: M.M., at para. 15. Even without victim impact statements, our highest court in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 80, has mandated that I consider the harm done.

33I have reviewed the cases presented where sentences for similar offences were imposed; for example, R. v. Mootoo, 2022 ONSC 384.

34This is a difficult decision. But given the aggravating factors and the need for denunciation and deterrence, a significant sentence must be imposed. To your credit, through your lawyer’s submission, you recognize that. I must also give recognition to the principle of totality and to make sure that your overall sentence remains fit and proportionate. Finally, I must pay heed to the fact that this will be your first penitentiary sentence and it should not be so long as to crush hopes of rehabilitation.

35Taking into consideration all the appropriate factors, I find that the fit and proportionate sentence is five years.

36Respecting the principles of totality and concurrent/consecutive sentences, I have broken down that sentence in the following way:

37Regarding A.B.: Count 3 (luring contrary to s. 172.1(1)(b)): two years. Count 2 (make available sexually explicit material, s. 171.1(1)(b)): two years (concurrent).

38Regarding T.P.: Count 23 (luring contrary to s. 172.1(1)(a)): two years (consecutive). Count 22 (make available sexually explicit material, s. 171.1(1)(a)): two years (concurrent).

39Regarding K.D.: Count 33 ((luring contrary to s. 172.1(1)(a)): six months (consecutive). Count 32 (make available sexually explicit material, s. 171.1(1)(a)): six months (concurrent).

40Count 1 (make child pornography contrary to s. 163.1(2)): six months (consecutive).

41Count 14 (distribute child pornography contrary to s. 163.1(3)): one year (concurrent).

42The two days of pretrial custody you did before you got bail will be noted. On a 1 to 1.5 basis that is three days of credit. This is subtracted from your sentence, leaving a total sentence of 4 years 362 days. This pretrial custody will be subtracted from counts 2 and 3.

43There is no dispute that the following ancillary orders should be made: a DNA order; a SOIRA order for 20 years; a s. 161 order, with terms and conditions to be decided; and a forfeiture order. The specifics of these orders are to be subject to discussions between counsel and further submissions to me if necessary.