R. v. Morrisseau, 2012 ONCJ 259

COURT FILE No.: 110262, 110384, 110199 Citation: R. v. Morrisseau , 2012 ONCJ 259 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ERIC MORRISSEAU Before Justice A. T. McKay Heard on March 20, 2012 Reasons for Sentence released on April 27, 2012 R. Young ................................................................................................................... for the Crown R.

Sinding ....................................................................................... for the accused Eric Morrisseau MCKAY J.: CIRCUMSTANCES OF THE OFFENCES [ 1 ] This matter involves a sentencing decision related to a number of criminal charges for which the accused pleaded guilty. The accused came to the attention of the police while they were monitoring possible child pornography offences online. On February 10, 2011, the police program E-Phex made a direct connection with an IP address being used by the accused.

Four of the files being made available by the accused were downloaded by the police program. When officers viewed the files, three of them clearly, in the view of the police, fit the definition of child pornography. One depicted an adult male engaged in sexual activity with a female who appeared to be under the age of eight years. A second one depicted a prepubescent female lying nude on a bed with her legs tied with yellow rope. The female appeared to be under the age of ten years. A third file depicted a prepubescent female and the image focussed on her vaginal area.

The female appeared to be under the age of eight years. [ 2 ] Police continued the investigation and between February 10, 2011 and March 18, 2011, observed the accused accessing child pornography via peer to peer networks. On February 10, 2011, the accused had 277 files suspected of being child pornography. On March 18, 2011, police again accessed a computer folder belonging to the accused which contained 359 suspected child pornography files. On March 18, 2011, the police viewed ten of the images, and confirmed them to be child pornography.

The ten files depicted young prepubescent females and young prepubescent males. The young males and females were engaged in explicit sexual acts with adult men and women. Some of the images depicted the young females tied up with rope and duct tape, with adult males engaging in sexual intercourse with these young girls. Some of the children depicted in the images were believed to be under the age of four years old. [ 3 ] On April 15, 2011, the police applied for and were granted a warrant to search the residence of the accused. On April 19, 2011, police officers from various agencies executed the search warrant.

After the police entered the residence, the accused admitted to having child pornography located in his bedroom. When police entered the bedroom, they observed printed pictures of young females. In addition, a scrapbook was located which had pictures of young girls. Those images fit the definition of child pornography in the Criminal Code . When the accused was confronted regarding that material, he admitted to having child pornography on his computer, an external hard drive, and compact discs.

The accused was subsequently arrested. [ 4 ] Cursory searches of the computer and an external hard drive belonging to the accused were conducted and resulted in the discovery of a large amount of child pornography. Some samples of the images revealed adult males engaged in sexual activity with young prepubescent females, some of whom appeared to be under the age of five years old. Scrapbooks seized from the bedroom of the accused contained large numbers of pictures of young prepubescent female children in various poses nude.

Many of the images involved young prepubescent female children engaging in sexual acts with adult males. In some of the pictures, the accused had made notations describing what he liked about the pictures and what he would like to do. A detailed search of the laptop computer and external hard drives belonging to the accused ultimately revealed a grand total of 17,360 child pornography files. The accused was charged with numerous charges under

Section 163 of the Criminal Code related to the possession of child pornography, and to making child pornography available. [ 5 ] While executing the search warrant, the police also found photographs of young prepubescent females. Further investigation revealed that the accused had stolen photographs of three female children of a woman he knows who lives in the same

community. The accused was charged with possession of stolen property in connection with those photographs. [ 6 ] As the materials seized pursuant to the search warrant were reviewed in detail, numerous writings made by the accused were examined. Those writings contained indications that the accused had committed sexual offences involving his niece. The investigation subsequently revealed that the accused frequently babysat his niece, who was born in April of 2007. When questioned, the accused admitted photographing his niece, but denied ever touching her.

The accused did indicate that he had fondled / rubbed himself while his niece was in his company. [ 7 ] On June 29, 2011, the police officer in charge of the investigation received a telephone call from the child sexual exploitation unit of the OPP, advising that the unit had located, in the material seized, video recordings of the accused and his niece as well as a journal which appeared to chronicle sexual offences perpetrated by the accused on his niece.

Various video clips depict the accused apparently masturbating over the top of his clothing with his niece in his presence and at times climbing on top of him. Some video depicts the accused then placing his niece between his legs. Another video depicts the accused touching his niece on the buttocks, and then placing his hand between her legs and masturbating himself underneath his clothing.

The videos all show the accused and his niece wearing the same clothing, and the facts agreed to by the accused indicate that all of those incidents took place on the same date. [ 8 ] One further incident is admitted by the accused. During an interview with a staff psychiatrist at the Centre for Addiction and Mental Health, the accused admitted that on one occasion he had his niece touch his penis. As a result of this information, Mr. Morrisseau was also charged with one count of Sexual Interference pursuant to

Section 151 of the Criminal Code involving the touching of his niece. In addition, he was charged with one count of Invitation to Sexual Touching involving his niece contrary to

Section 152 of the Criminal Code. RESOLUTION OF THE CHARGES [ 9 ] On March 20, 2012, Mr. Morrisseau entered guilty pleas to certain offences as part of a resolution between the defence and crown. The child pornography charges were resolved by Mr. Morrisseau entering a guilty plea to one count of possession of child pornography contrary to

Section 163.1(4) of the Criminal Code . In addition, he entered a guilty plea to one count of making child pornography available pursuant to

Section 163.1(3) of the Criminal Code. The crown proceeded by indictment with respect to both of those charges. In addition, Mr. Morrisseau entered a guilty plea to the charge of possession of stolen property related to the photographs of the three children which were taken from a community member. The crown proceeded summarily on that charge. Finally, Mr. Morrisseau entered guilty pleas to the sexual interference and the invitation to sexual touching charges under Sections 151 and 152 of the Criminal Code. The crown proceeded by indictment with respect to both of those offences. Mr.

Morrisseau admitted the facts outlined above. POSITION OF THE PARTIES [ 10 ] The sentencing in this matter was delayed for a number of reasons, including the preparation and filing of both a pre- sentence report and a psychiatric report. Well in advance of the sentencing, the defence and crown reached an agreement to enter into a joint submission that the court impose a sentence of two years less a day in custody with respect to the child pornography charges.

The pleas on the charges of possession of stolen property, sexual interference and invitation to sexual touching were entered on the date set for sentencing on the child pornography charges. The parties did not reach a joint submission with respect to those charges. With respect to the offences under

Section 151 and 152 of the Criminal Code , the defence suggests that the appropriate range for sentence would be an additional 12 to 18 months in custody, less credit for time served on a one to one basis. Mr. Morrisseau has been in custody since April 19, 2011, a period of approximately one year. [ 11 ] The crown takes the position that, given all of the circumstances, the appropriate sentence on the remaining charges would be a consecutive jail sentence in the range of four to seven years. CIRCUMSTANCES OF MR. MORRISSEAU [ 12 ] The accused is 37 years of age.

He is single and at the time of the offence lived with his parents, who reside on the Couchiching First Nation, which is adjacent to the town of Fort Frances. The accused is the youngest of four sons. Much of the background of the accused is set out in a pre-sentence report filed as an exhibit in these proceedings. The accused has no previous record. The accused has lived with his parents since 1996. His parents have a long term stable marriage. He pays modest rent to his parents and his bedroom has always been his own private space. The accused graduated from high school in June of 1993.

He attended two semesters at college prior to dropping out. Approximately two years later, he took educational upgrading at a college. He had been working prior to his arrest as a labourer at a local business for the previous eight years.

Shortly after his arrest, the Couchiching First Nation passed a Band Council resolution banning the accused from entering the First Nation territory, and declaring him a threat to the safety and security of the Band’s members. [ 13 ] In the pre-sentence report, the accused reports consumption of alcohol approximately three times a month in the summer and once per month in the winter.

He does not report any drug addiction problems. [ 14 ] A report authored by Doctor Mark Peirce, staff psychiatrist at the Law and Mental Health Program at the Centre for Addiction and Mental Health, was also filed as an exhibit on the sentencing proceeding. That report notes that there is no family history of major mental illness, substance abuse, criminality or suicide. The accused is medically healthy. The report indicated that the accused describes a long standing issue with self esteem. In addition, the self report indicates the absence of any serious romantic relationships in the past.

In the report, the accused admits a sexual attraction to young children.

[ 15 ] The report concluded that Mr. Morrisseau did not suffer from any major mental illness. There did not appear to be an issue with alcohol or drugs related to the accused. There was also no suggestion regarding personality disorder. However, the report concluded that “The accused clearly meets criteria for numerous paraphilias; it is common for individuals with one paraphilic interest to in fact have multiple paraphilic interests. In this case, this gentleman meets criteria for a diagnosis of pedophilia, urophilia (a paraphilia not otherwise specified), zoophilia, fetishism, as well as partialism.

His interactions with the victim in this matter were clearly reflective of his paraphilic preferences. The quantity of pornography located on his computer is also representative of same. In conclusion Mr. Morrisseau likely meets criteria for a diagnosis of dysthymia. He has not abused alcohol or illicit drugs. He does not appear to suffer from a personality disorder. Finally, he suffers from multiple paraphilias.” [ 16 ] The psychiatric report further addresses the issue of risk assessment. The report indicates “The aforenoted instruments suggest that Mr.

Morrisseau is at low to moderate risk of further sexual re-offence. The absence of a substance use disorder, personality disorder and a prior legal history are variables that speak to a lower risk of re-offence. However, his overt paraphilic diagnoses elevate this risk. Thus I would conclude that this gentleman is at moderate risk of a sexual re-offence.” ANALYSIS [ 17 ]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing: “718. The fundamental purpose of sentencing is 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; (

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 acknowledgement of the harm done to victims and to the community.” [ 18 ] The Criminal Code sets out certain other applicable sentencing provisions: “718.01 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. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the forgoing, … (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,… shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) and offender shall not be deprived of liberty, if less restrictive sanc- tions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particu- lar attention to the circumstances of aboriginal offenders.” [ 19 ] Further guidance on

section 718.2(

e) have been provided by the appellate courts, including the Supreme Court of Canada

in R. v. Gladue (SCC), [1999] 1 S.C.R. 688. [20] Mr. Morrisseau is a first time offender. He is of aboriginal heritage, and accordingly the court must use the appropriatemethodology for assessing a fit sentence for Mr. Morrisseau. Mr. Morrisseau was cooperative to the extent that he entered guilty pleasto these charges. He also voluntarily underwent a psychiatric assessment and filed the results of that assessment with the court. [21]

Section 718.01 of the Criminal Code requires that the court give primary consideration to the objectives of denunciationand deterrence for these offences. In addition, the court must consider the fact that Mr. Morrisseau was in a position of trust over thevictim. That being said, the court cannot lose sight of other of other relevant sentencing principles, including the need for a sentencewhich encourages rehabilitation. The sentence must be proportionate and similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances.

The totality principle requires a sentencing judge who orders an offender to serveconsecutive sentences for multiple offences to ensure that the accumulative sentence does not exceed the overall culpability of theoffender. [22] I will begin by reviewing the joint submission which was entered into with respect to the child pornography charges. Mr.Morrisseau had a very large collection of child pornography. He made a portion of that collection available for others to view. Counselreached agreement that they would jointly recommend a sentence of two years less a day with respect to those two offences.

While acourt always retains the right to impose any sentence that it sees fit, there is very clear case law indicating that a court must be veryjudicious in rejecting joint submissions. In essence, cases have repeatedly held that a joint submission should not be rejected unless thecourt can articulate specific reasons as to why a joint submission is unfit, contrary to the public interest, and therefore would bring theadministration of justice into disrepute.

In this situation, experienced counsel for the crown and defence reviewed all of thecircumstances of this case, and arrived at a joint submission of two years less a day imprisonment for the child pornography offences. This court is unable to articulate specific reasons as to why such a sentence would be unfit and contrary to the public interest to the extentthat it would bring the administration of justice into disrepute.

Accordingly, the court is bound to accept the joint submission withrespect to those charges. [23] With respect to the remaining charges, as indicated, the parties agree that a consecutive jail sentence is appropriate. Theysimply disagree on the length of such a sentence. The commission of sexual offences against a child, who was four at the time of thearrest, carried out while in a position of trust, is a crime which results in a sense of shock and outrage. For that reason, the CriminalCode emphasises principles of deterrence and denunciation for such offences.

In addition, there is a need, in this case, to separate Mr.Morrisseau from society for a period of time. A sexual crime against a child is a crime of violence, and one that is unacceptable in anycommunity. The position of the parties recognizes that the only sanction that is reasonable in the circumstances is imprisonment. [24] Mr. Morrisseau, who knew that he had a sexual attraction to children, put himself into a position to babysit his niece on aregular basis. He intentionally put himself into a position of trust. He also kept a journal of sexual fantasies regarding his niece.

It iswithin the context of that background that he committed the offences under

section 151 and 152 of the Code. Every society must protectits vulnerable members. It is difficult to imagine someone more vulnerable and less able to protect herself than the victim in this case.Adult sexual offenders who prey on children to satisfy their sexual desires need to know that they will pay a heavy price for theirconduct. [25] In recognition of the mitigating factors in this case, including the lack of a criminal record and the plea of guilt, the courtcannot accede to the range of sentence suggested by the crown, given principles such as totality and the need to rehabilitate Mr.Morrisseau.

The court is not aware of any case of sexual touching of this nature in which a sentence in the range suggested by the crownwas imposed. In the court’s view, an appropriate sentence for the sexual interference charge, in all of the circumstances, is a period oftwo and a half years in custody consecutive to the child pornography sentence. However, Mr. Morrisseau shall be given credit for timeserved in pre-trial custody on a one to one basis. Therefore, that sentence will be reduced by 363 days. The sentence on the invitation tosexual touching charge will be the same sentence, to run concurrently.

With respect to the possession of stolen property charge, thesentence will be 30 days in custody, to be served concurrently. ANCILLARY ORDERS [26] The crown made application for the court to issue certain ancillary orders. The offences under sections 151, 152, and163.1 are all primary DNA offences. Mr. Morrisseau shall provide a sample of his DNA to the police within the next 14 days. Thecrown proceeded by way of indictment on the charges under

section 151 and 152. A sexual offence against a child is a violent assault. Accordingly,

section 109 of the Criminal Code requires that the court impose a 10 year prohibition against Mr. Morrisseau possessing afirearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosivesubstances. In addition,

section 490.13(

b) of the Criminal Code requires that, Mr. Morrisseau comply with the Sex Offender InformationRegistry Act for a period of 20 years. Finally, there will be an order under

section 161 of the Criminal Code which prohibits Mr.Morrisseau, for a period of 20 years, from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonablybe expected to be present, or a daycare centre, school ground, playground or community centre; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming orbeing a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;or (

c) using a computer system within the meaning of subsection 342.1(2) for the

purpose of communicating with a person under the age of 16 years. Released: April 27, 2012 Signed: “Justice A. T. McKay”