R. v. Clark, 2019 ONCJ 995

CITATION: R. v. Clark , 2019 ONCJ 995 DATE: May 3, 2019 Information No. 2811-998-18-25063-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. GRAHAM PETER CLARK REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE P.C. WEST on May 3, 2019, at OSHAWA, Ontario APPEARANCES : P. Murray Counsel for the Crown S. Wickramasinghe Counsel for Graham Clark FRIDAY, MAY 3, 2019 REASONS FOR SENTENCE WEST, J. (Orally): THE COURT: I will indicate this to you sir, the difficulty with engaging in this kind of conduct is that children are vulnerable.

And unfortunately, in today's world, the Internet is something where adults, predators are on the prowl for vulnerable children. And I can tell you, as a judge that does not want to see child pornography, but unfortunately I have had to review some child pornography, the amount that is on the Internet of that type of material is an indication of just how many predators are out there. Some of those predators are

parents. Some of those predators are family members. They take photographs, they engaged in sexual activity, and then they post all these things. Everything is posted now. Children, unfortunately, in public school and in high school are sharing intimate pictures of themselves with friends. And I know that you read the newspaper, everyone does, or receives the news; you have seen those cases in the news where the bullying that takes place in public schools and in high schools where photographs are taken or provided and then they are shared, or then they are used to punish, try to punish somebody.

And once something like that gets on the Internet, then unfortunately it is there forever. It literally is there forever. You cannot take it back. I tell you, the more I learn about cellphones, the more I learn about computers in the criminal cases that I sit on now, in the last five years, it is shocking what your computer and what your cellphone retains, and what it knows about you. It follows you everywhere you go, your cellphone. It will do GPS and locations.

If you have your location app, Google, for example, if you have location services activated, it follows you everywhere you go, as long as your phone is on, as long as your phone is operable, and as long as it has battery. And you can retrieve all of that information from your phone. I am saying this to you, this is an offence. I think you understand this now. It's called an inchoate or preparatory offence. Another example of this is conspiracy. Where two or more people gather together and talk about committing a crime. That is a crime. Even though they may never commit the crime.

If they agree to commit the crime, that is the crime. And some conspiracies can be very, very serious. This is one of those kinds of inchoate preparatory offences where it does not matter whether it moves to fruition, to completion, it is just the intention. It is just the conversation; that is all that take place. If that conversation can lead to a conclusion that you know or you are willfully blind as to the age of the person you are communicating with, then you are guilty of this offence.

And I guarantee you, if you get into this kind of behaviour, there will be things that are said in those texts or those emails that will ultimately come back to haunt because they prove, beyond a reasonable doubt for a judge, for a trier of fact, that in fact, a person believes that the person they are talking to is an adult who is going to give them a child, make an agreement or an arrangement, or is a 14-year old or 13-year old or 15-year old girl or boy. And I can tell you, it is not just police officers that are engaged in this kind of response.

This is something that police officers do to try to prevent these individuals from having contact with vulnerable children. But there are numerous cases; I have one right now in front of me that very likely is going to be a guilty plea, where there are over 20 young people throughout the United States and Canada that this individual had them share images of themselves. And getting to the point where they were trying to arrange meetings. So very, very, very serious offences.

And Parliament has recognized how serious this type of conduct is because I can tell you, back in 2005 and 2006, the maximum sentence for this offence was five years. In 2012, it was increased to 10 years, doubled. It is now 14 years, if the Crown goes by indictment. And our Court of Appeal, I am sure Mr.

Wickramasinghe indicated to you from my judgment, how originally in 2006, Justice Rosenberg in our Court of Appeal, one of my favourite judges, said that the range of sentence for this type of offence was 12 months to 24 months, and then Justice Moldaver, who is now in the Supreme Court of Canada, when he was in the Court of Appeal for Ontario, he indicated that maybe we should be looking at three to five years because of the increase in the maximum sentence where the Crown proceeds by indictment. And then the mandatory minimums came in. Initially for a

summary conviction, it was 90 days. Now it is up to six months. Initially the indictable was six months, now it is up to a year. And I can tell you, it is only going to get to be more serious. As this becomes more prevalent, it shocks me as a judge that there are as many cases of luring as there are in our system. And that is why Parliament, who draft our laws, have decided that this is a very, very serious offence, and we need to protect children. I have a sense based on what I read in your reports from your psychiatrist.

I have a sense by your guilty plea, by your acceptance of responsibility, right from a very, very early point that you are serious about never having something like this happen again. I have no problem as I indicated to you at the outset, with the joint submission. So there will be a six-month jail sentence; that is the mandatory minimum sentence. And I am going to place you on three years' probation that will follow that jail sentence. I am sure, as you have been told, you will serve two-thirds of that sentence. Something to be aware of, I believe you are working right now, right? GRAHAM CLARK: Yes.

THE COURT: Sorry? GRAHAM CLARK: I had to, like, quit the job so I could come to the sentencing. THE COURT: I understand. I do not know if you would qualify, but something for you to give some consideration to. You can make application at the jail for what is called a Temporary Absence Program and things of that nature. So again, something for you to investigate.

If your employer is prepared to continue to employ you and you have a job to go to, you would end up, if you were allowed into the program, they would put a bracelet on you, and you have to re-confirm it every 60 days, and you would likely be on it for the

entire length, if you got released on it, for the sentence. But something for you to consider, or at the most, if you stay out of trouble, you will serve four months, two-thirds. So three years probation. Terms of probation will be as follows: keep the peace and be of good behaviour; that is a statutory condition. It means what it says. Do not commit any other criminal offences. I will tell you, if you commit another criminal offence, it does not matter what it is, while you are on this probation order for the three years, you will be charged with breaching a probation order.

And I can tell you, that type of offence, depending on the nature of the breach, could lead to a jail sentence. It is serious to breach a court order. This is a reporting probation. You will report in person to a probation officer within five working days of your release from custody, and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision. Your reporting requirement will end when you have satisfied your probation officer that you have completed all of your counselling.

And as I indicated when we were talking about this at the outset, this is probably a situation where you want to make available to your probation officer, once you start probation, the reports that your counsel has provided to me. That will be helpful, I think, to the probation officer. You will live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance. I do want to say this. I am going to do, Madam Clerk, a 10-year SOIRA order, and I will say this now because it relates to your residence.

One of the things that you are required to do every year, as I understand it, is re-confirm your address. If you move during the year, this is with the police, you have to do it with your probation officer as well while you are on probation, but for the 10 years of that SOIRA order, you must, every year, notify the police, that is number one. If you move during the year, if you move more than once. It does not matter how many times, every time you move, you must notify. This will all be explained to you based on the order.

Very serious offence not to report any changes of address or comply with whatever you have to comply with with respect to the SOIRA order. You will attend and actively participate in all assessment, counselling and rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer. Counsel have any suggestions as to what areas I should be putting here, what I should be saying? MR. MURRAY: One thing arose, and again, his alcohol consumption is very minimal, but I did note through, I think, the pre-sentence report, the very straightforward comments of Dr.

Rootenberg, the fairly regular consumption of marijuana in relation to that, which is still somewhat of a non-inhibitor in those circumstances. THE COURT: It can be. MR. MURRAY: So I don't know if that is a particular issue with respect to some aspects of substance abuse. I recognize the circumstances, the legality of it at this juncture, but I was personally struck by the comments, what I viewed was daily usage or otherwise. And I don't know if the proper term would be; he's been treated by Dr.

Neary on the issues of sexual preferences, I guess, in that circumstance, and whether that phraseology is more appropriate, but I'll leave it to Your Honour. THE COURT: What I would like to put it under is psychiatric or psychological issues. MR. MURRAY: Thank you. THE COURT: If there is no objection, that is what I would have ticked off. MR. MURRAY: Thank you, sir. MR. WICKRAMASINGHE: He's indicating he has no problem with it. THE COURT: Right, because I know there was some reference to depression and anxiety, things of that nature.

So I take the view sir, that those are what I call mental health issues that need to be dealt with by a doctor. You are seeing a doctor, you are seeing a psychiatrist, and you are seeing a therapist. So the reality is, if the doctor says you should take a particular medication, you should take the medication. The same as if you had a heart condition and your cardiologist told you if you do not take this medication, you could have a heart attack at any point or you could have a stroke.

So the reason you take the blood thinning medication and the reason you take the blood pressure medication is so that you do not have that happen to you. And so the same thing applies if you suffer from depression or anxiety or if you have an even more recognizable mental health issue, there are medications that can assist individuals in dealing with those so that they can live ordinary, productive lives. And that is the reality.

A lot of people think there is a stigma attached to mental health issues, but if you watch enough television, you are going to see all sort of celebrities come on during Mental Health Month, usually it is in May, and there will be lots of ads with very, very famous people coming on and indicating candidly that they suffer from depression, they suffer from mental health issues. And there is nothing wrong with going to a doctor, speaking to a doctor, and seeking help for this. There is just nothing wrong with it.

MR. WICKRAMASINGHE: Your Honour, if I can add just for my client's benefit, because of the - in the interest of continuing his psychotherapy with Dr. Neary, who he's had some success with.... THE COURT: There will be no difficulty with the probation officer. MR. WICKRAMASINGHE: Okay. THE COURT: I do not usually put.... MR. WICKRAMASINGHE: You don’t need to make a recommendation. THE COURT: I do not make a recommendation for the name. You are going to bring the report - you nodded when I indicated to you you should do that, so you will do that. And your probation officer will read the report.

They will see that there is a good relationship. They do not have to do anything, right? If they know another program, another agency that might be able to assist, they will talk to you about it. And you and your probation officer may decide, hey that is something I should check out; that might be helpful to me. View your probation officer as a professional, all right? I say this to many, many individuals that I sentence.

I am sure the jobs that you do - I can tell you, I know counsel who are in front of me right now, when they do a good job, they get a good result for their client, it works out, they go home and they celebrate; they have had a good day. Same thing for a probation officer. When they help somebody - anybody who is becoming a probation officer wants to help people. They want to assist people; so that is the reality. So if you are open and honest with that individual, they will do whatever they can to bend over backwards to assist you.

Do you have issues that you are not addressing with your psychiatrist that you want to talk about, your probation is a good person to speak to. And I always put in Madam Clerk, or any other reason that the probation officer deems appropriate. CLERK REGISTRAR: Yes, Your Honour. MR. WICKRAMASINGHE: Your Honour, just one question. He does reside or he was residing until today, with his partner in Kingston, and it's also where his psychotherapist resides. THE COURT: I understand. That is likely where you are going back? MR. WICKRAMASINGHE: Okay. That is.

THE COURT: And I will indicate - we will put it right on the probation order. There will be a request to transfer the probation to Kingston, Ontario. GRAHAM CLARK: Thank you. THE COURT: So that will be right in there. There is a form attached to the probation order that will say it is to be transferred to Kingston, Ontario. I saw that in the materials as well. You will sign any release of information forms as will enable your probation officer to monitor your attendance, completion of the assessments, counselling, rehabilitative programs. What is going to happen is you are already seeing two people.

If you are still seeing those two people when you ultimately get out of custody, then you will sign releases with your probation officer. They will be able to call and say, how is Mr. Clark doing? Is he seeing you or is he missing appointments? That kind of thing. You know that, so you are not going to miss, right? And you will provide proof of your attendance, completion, of any assessments, counselling, or rehabilitative programs as directed. Madam Clerk, there will be the following additional, and I will say them slowly so you can type as we go. CLERK REGISTRAR: Okay.

THE COURT: You are not to have contact with anyone under the age of 16 or anyone believed to be under the age of 16, unless in the presence of someone 18 years or older. CLERK REGISTRAR: Thank you. THE COURT: You are not to use the Internet to communicate with anyone under the age of 16 or believed to be under the age of 16. You are not to use the Internet to access Internet dating websites including Backpage and Leolist. And I will say this, I am not going to put it in because Craigslist is used for other things, but you putting ads on Craigslist as a dating website.... MR. WICKRAMASINGHE: So we canvassed that.

So Craigslist no longer has a personal ads.... THE COURT: They do not do that anymore? MR. WICKRAMASINGHE: They don't do that anymore. THE COURT: Okay. I did not realize that. MR. WICKRAMASINGHE: Some improvements.

THE COURT: I mean, it used to be Now Magazine; that is where it was before. I think some of that still goes on in Now Magazine in Toronto. The next is, you are not to attend a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, unless in the direct company of someone 18 years of age or older approved by your probation officer.

And you are not to seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. There will be a

Section 109 order, that is a weapons prohibition order, for a period of 10 years. The thing to remember about that, there are all sorts of things you could think of that are going to be weapons. I want you to understand, even the pen you have seen me write with, if you threaten somebody with a pen or threaten somebody, actually use a pen to injure somebody, it becomes a weapon. So anything can be a weapon; that is what you need to understand. It is the intention that you possess it. And this is a primary designated DNA offence, and under the

section of the Criminal Code that deals with that, I order that a bodily sample be taken from you, to be sent to the DNA Databank. And as I indicated to you before, it will not have any consequence to you other than if you commit further offences and leave behind some bodily substances or fluids, and they are found. It will identify those bodily substances or fluids as coming from you. And it will be a one in - I can tell you, they now say, apparently this is a new thing with the Centre of Forensic Science, is they do not put the actual number anymore.

Now they say one in a trillion because a trillion is such a big number; there is no point in talking about quadrillions. I think there are even bigger numbers than quadrillions. So stay out of trouble and you will not have any problems. I do not think there are any other orders you want me to make? MR. MURRAY: No sir. Thank you, on behalf of the Crown. I don't know if the other count on the information was still before the court. If it is, I'm asking for it to be marked withdrawn please. THE COURT: Yes, any remaining charges are withdrawn at the request of the Crown.

I want to commend counsel that they were able to put their minds together this afternoon and come to an agreement of the minds. I think that this was one of those appropriate cases for that to take place. I can indicate to you sir, you gave nothing up by abandoning your Charter Application as to the constitutionality. I have already determined that in my view, the minimum sentences are appropriate, even as it relates to

summary conviction matters where the minimum is six months. I think the offences are so serious, and what is being sought to prevent from happening, so needed and so serious that those minimum sentences will not offend right-thinking people in our community. I truly believe that. That was the decision that I came to as I completed the Parks Decision. And frankly, reading some of the judgments that have be coming out in the recent last couple of years as the sentences have been increased. I am not a believer, necessarily, in mandatory minimum sentences, but Parliament, I believe, has the right to do that.

I think that when most of those mandatory minimums came into being, it was a view that Crown Attorneys were not being trusted and judges were not being trusted to do what was appropriate. And the reality is, in my view, the proportionate, fit sentences for these types of offences are always going to be above these minimums or at the minimum. You could have received a sentence of 9 months or 12, for the conduct that you engaged in. Without your guilty plea, that would have been likely. And without the steps that you took, that would have been likely. You did all those things. Your counsel was able to convince Mr.

Murray that that was an appropriate sentence, the mandatory minimum, and that is the sentence that I am imposing. I do want you to hear all those things from me because I think that is part of the lesson to be learned. So Mr. Clark, I do not want to see you back here. I really do not want to see you back here. GRAHAM CLARK: Yes. THE COURT: But it is up to you sir. It is truly up to you. GRAHAM CLARK: Thank you. THE COURT: Good luck to you.

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