2023 MBPC 41, 2023 MBPC 41

2023 MBPC 41 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE B E T W E E N: ) ) HIS MAJESTY THE KING, ) S. Levkov - and – ) ) ) for the Crown E.T., ) ) ) A. Beddome ) ) ) ) for the young person ) Reasons for Sentence: ) August 17, 2023 BAYLY, P.J. RESTRICTION ON PUBLICATION: By court order under subsection 110(1) of the Youth Criminal Justice Act prohibits the publication of any information that may identify the young person having been dealt with under this Act.

Introduction [ 1 ] On September 15, 2022, the young person, E.T., appeared before a Youth Court Judge and plead guilty to the offence of distributing child pornography between June 16, 2020 and October 15, 2021. The young person was 16 and 17 years old at the time of the incident and is 19 years old now. A contested sentencing hearing occurred on May 31, 2023 at which time the Court heard evidence, received exhibits and listened to argument. The matter was then adjourned for the Court to determine what type of youth sentence should be imposed under the Youth Criminal Justice Act (“ YCJA ”).

Circumstances of the Offence [ 2 ] On February 18, 2021, the Integrated Child Exploitation Unit, a specialized unit of the RCMP, received an investigational package regarding a “Kik” user “JoJo6927.” “Kik” is a mobile messaging application. [ 3 ] The information that “Kik” provided law enforcement was that “JoJo6927” had uploaded child pornography to their forum and had posted links to a TOR site on the dark web involving child pornography; both having occurred between June 16-18, 2020.

[ 4 ] The information provided also linked “JoJo6927” with the email and IP address used to access their server. The IP address was issued by Bell MTS and originated from Roblin, Manitoba. A production order granted on May 21, 2021, through which Bell MTS confirmed that the IP address originated from the offender’s residence in Roblin, Manitoba. [ 5 ] On October 8, 2021 a search warrant for the residence was granted and then executed on October 15, 2021. The offender was arrested inside the residence and his electronics were seized.

The offender provided a warned statement admitting to accessing child pornography. Image/Video Analysis [ 6 ] An image and video analysis of the electronics seized confirmed that at the time of his arrest, the young person was in possession of 1105 unique child sex abuse images and 29 unique child sex abuse videos. The Court viewed a representative sample of the both the images and videos. [ 7 ] The images and videos depicted terrible crimes being committed against vulnerable children. What I observed was both disturbing and heartbreaking.

The exhibit depicted children being forced to participate in sexually suggestive posing, self masturbation and both penetrative and non-penetrative sex acts involving adult men. The age range for the children depicted in the images were from 6 months to 16 years old. [ 8 ] In addition to the images and videos, the youth was in possession of a 170-page PDF document titled “How to Practice Child Love.” [ 9 ] Having viewed this material firsthand, I find as fact that the creation, possession and distribution of child pornography is a “violent offence” within the meaning of sections 2 and 39(1)(

a) of the Youth Criminal Justice Act . I am also satisfied that a custodial sentence is an available sentence for this youthful offender. Community Victim Impact [ 10 ] The Court was provided with two victim impact statements, the first was a statement from a mother of one of the children depicted in the Crown’s representative sample. The second was a community impact statement prepared by the Canadian Centre for Child Protection. [ 11 ] Both statements satisfy me that the creation and distribution of child sexual abuse material has a lasting impact on the victims and their families.

It is clear, that both the victims and their families struggle with the realization that there is a permanent audio, video and photographic record of the child’s sexual abuse. The psychological harm caused by this knowledge is as devastating as any physical blow. There is often no way for a victim to know who might have a copy of it, or how to prevent others from viewing it. In that way, the abuse continues, for as long as there are people who want to see the child being sexually abused.

The online exploitation of their sexual abuse exists in perpetuity and is limitless given the internet. [ 12 ] The statements also described some lasting impacts experienced by victims of child pornography; some members of this group experience post traumatic stress disorder; some develop social anxiety; and some have difficulty encountering strangers because of a fear that they might have seen their sexual abuse online. Some victims never want to have their picture taken for any purpose, even including participating in a group picture.

Some cannot enjoy social media or being in public places. [ 13 ] I am satisfied that the young person’s crime, the distribution of another child’s misery, abuse and neglect has caused and will continue to cause serious psychological harm to those victims for the rest of their lives. The young person’s crime has a significant impact on the victims and our larger community. Circumstances of the Offender [ 14 ] In terms of the young person’s personal circumstances, I have reviewed a Presentence Report (PSR) as well as a Forensic Assessment.

At the time of sentencing, the young person was 19 years old, he was arrested when he was 17 years old, and the Information refers to a time beginning when he was 16 years old. The young person admitted to accessing child pornography for a period of three years prior to his arrest, beginning when he was 14.

[ 15 ] He told the authors of the PSR, the Forensic Assessment and his lawyer that his interest in the ‘dark web’ was initially born out of social isolation and boredom. He downloaded the TOR web browser which is readily available on any smart phone with the intent to explore his interest in horror and computer hacking.

At some point early on, he found a directory with a search engine that peaked his 14-year-old interest and that turned out to be his first exposure to child pornography. [ 16 ] The young person told the author of the PSR that he started viewing the child sexual abuse images when he was just a child.

He described the experience in the following way saying that he did so “with morbid disgust and intrigue, but over time I kept looking at pictures and videos and getting in deeper; I got sucked into a rabbit hole; I couldn’t stop looking at it; I was fascinated; I wouldn’t say I was addicted; I couldn’t stop looking online; I got depressed.” [ 17 ] The youth said that he preferred viewing images and video depicting same aged teenaged girls.

He also indicated that “I regret looking at them; it’s not good to take people’s suffering for granted, especially for nefarious purposes.” [ 18 ] The youth acknowledged that he sometimes masturbated to the images of girls that were his age and admits to exchanging images with other users online. The youth told the PSR and Forensic Assessment authors that he is open to counselling and that “I want to get help”. Background [ 19 ] The youth was born in Dauphin, the youngest of 4 siblings.

His biological father was psychologically abusive to his mom, who confirmed this when she was interviewed by the PSR writer. [ 20 ] In terms of his behaviour in high school, the PSR described the youth as having no disciplinary problems. He has no history of drug or alcohol abuse and no negative peer groups and is not involved in any organized sports or clubs. He was described as a kid who kept to himself.

He said that he “felt picked on by teachers and students.” He has been diagnosed with ADHD, anxiety and depression and is prescribed medications, indicating “I take six pills per day”. [ 21 ] He was assessed by the PSR author as being a low risk to reoffend and he was described as an individual who takes responsibility and expresses regret for his offending. He was also described as someone who wants to gain insight into his offending behaviour.

The PSR concluded that the youth could be safely managed in the community. [ 22 ] After the PSR was completed, the Crown forwarded additional material to the author asking that it be discussed with the youth. In my view, the additional material did not disturb or change any of the original recommendations. [ 23 ] Dr. Brian Chase, a Child and Adolescent Psychiatrist completed a Court ordered forensic assessment of the young person. The assessment confirms that the youth had been diagnosed with ADHD and an anxiety disorder. [ 24 ] The youth told Dr.

Chase that he has never been intoxicated, has never been in a serious relationship, has no experience with physical or sexual intimacy and has never himself experienced any sexual or physical assaults. [ 25 ] He says that he went through a difficult period in middle school while his biological parents were divorcing and that when he moved to Roblin from Winnipeg he was bullied by his peers. [ 26 ] The youth told Dr.

Chase that his offending was attributable to curiosity getting the best of him; that he began compulsively collecting and thought the child sexual abuse material seemed more genuine than the adult pornography he came across. [ 27 ] Despite this, Dr. Chase concluded that the youth seems to hold pro-social views with regard to the child pornography identifying it as wrong. The youth was described as having never displayed inappropriate sexual behaviours and as never having been sanctioned for inappropriate sexual acts.

[ 28 ] The assessment observed that because of his social anxiety the youth has an almost exclusively online social life. [ 29 ] The Forensic observed that the youth identified as having no interest in and no sexual arousal to prepubescent children. Dr. Chase noted that risk assessments are complicated by the fact that his offending occurred when he was aged 14-16. He ultimately concludes that the youth is a low risk for contact sexual offending and a moderate risk accessing child pornography in the future.

Positions of Counsel [ 30 ] The Crown seeks a nine month custody and supervision order followed by a two year period of supervised probation, as well as ancillary orders. [ 31 ] The Crown focused on the gravity of the offence, emphasizing the size and perverse nature of the youth’s collection. Also, the fact that offender’s crime has had a significant impact on his victims and that his behavior has directly contributed to their ongoing suffering. The Crown argues that the youth’s moral culpability is high.

The Crown characterised the offender’s role as being an active distributor and not that of a simple consumer.

The Crown identified the fact that the youth’s internet search history suggests that he actively sought out unsettling material to add to his collection and then advertised his collection for trade as being deeply aggravating. [ 32 ] Additionally, the Crown encouraged the Court to conclude that the youth is a pedophile and that he was in the ‘contemplative stage of contact offending’ offering as evidence, his possession of the “How to Practice Child Love” PDF. [ 33 ] The Crown argued that because of the prevalence of this particular type of crime in the community, a purely community-based sentence would not effectively deter the crime.

In the Crown’s view a period of custody is necessary and is the only disposition that can serve as a meaningful consequence. [ 34 ] Defence seeks a sentence of two years of supervised probation. While defence counsel agrees the offence is a serious one, he argues that the Crown’s assessment of his client’s moral culpability is deeply flawed. [ 35 ] In terms of moral culpability, defence points out that because the offender is being sentenced as a youth he benefits from the presumption of diminished moral blameworthiness.

This presumption is bolstered by both the PSR and Forensic Assessment both of which were positive and sympathetic. Additionally, he has no prior criminal record, no prior involvement with the youth justice system, has been assessed as a low risk to reoffend generally, a low risk to offend sexually and a moderate risk to view child pornography. Defence points out that he plead guilty to this offence and while on remand he has finished high school, entered the workforce, expressed genuine remorseful and empathy for his victims and demonstrates insight into the harm he has caused them.

Moreover, he is genuinely motivated to change and wants to undergo counselling. [ 36 ] Defence argues that the Crown’s suggestion that his client is a pedophile or is contemplating contact offences is outlandish and is contradicted by the forensic report that assessed him at a low risk for contact offending. In terms of the PDF, while the youth admits to possessing it, the Crown has not offered any evidence to prove that he read it or that he distributed that document in particular. Defence says that it is dangerous to attribute the words of the PDF’s author(

s) to the thoughts or motivations of the youth. [ 37 ] Defence argues that the Crown has forgotten that a youth sentence needs to be focused on rehabilitation, re-integration and restraint. Denunciation and deterrence for a youth are never primary sentencing objectives and if they even come into play, they need to support the primary objective of rehabilitation. [ 38 ] Defence characterized the youth as a socially isolated loner who suffers from ADHD, social anxiety and takes anti-depressant medications.

Custody would be devastating to him and is not necessary given his lack of record, his low risk to reoffend and given that the PSR says that he can be safely supervised in the community. Defence submits that the Court’s preference should be to rehabilitate the offender out of custody.

Decision [39] The purpose of a sentence imposed under the YCJA is to hold a young person accountable. The sentence must be ameaningful consequence and it must promote the young person’s rehabilitation. [40] The Supreme Court of Canada, through its decision in R. v. D.B., 2008 SCC 25 , [2008] 2 SCR 3 confirmed thatyoung people who commit crimes are to be treated separately and distinctly from adults. This does not mean that young people are notheld accountable for the offences they commit.

Rather it ensures that accountability is viewed from a different principled perspective,one that primarily focuses on their rehabilitation and reintegration. [41] Understood in that way, when approaching a youth sentence if rehabilitation is not paramount in the Court’s mind whencrafting a youth sentence, then there can be no meaningful consequence and there can be no accountability.

I recognize that the principleof rehabilitation is the linchpin to any youth sentence, as it ties together the notions of accountability and consequence. [42] I also recognize that secondary principles like denunciation and deterrence can also be considered, but if they are, they willalways be subordinate to the principle of rehabilitation and if they are to be considered they must, in some tangible way, also assist inreintegrating the youth back into the community.

This focus is what makes youth sentencing unique from adult sentencing. [43] The reason why young offenders benefit from a sentencing regime that is so different is because of their age. The SupremeCourt has recognized, unequivocally, that because of their age “young people have heightened vulnerability, less maturity and a reducedcapacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability.” Thispresumption is at the core of the entire youth sentence scheme, with its unique approach to punishment. (See R. v.

D.B. at paragraph41.) [44] The task of determining an appropriate sentence starts from the position that: (

a) the youth’s moral culpability is reduced by his age; (

b) needs to focus primarily on his rehabilitation; (

c) needs to reflect the aggravating and mitigating factors in this case; (

d) it must be the least restrictive sentence possible; (

e) and finally custody can only be considered as a last resort. [45] The Crown has argued for a custodial sentence taking the position that the youth’s moral culpability is very high because of: (

a) how long he collected the material in question; (

b) the concerning nature of his collection and of his bookmarked in web searches; (

c) the impact on the victims; (

d) that he admits to masturbating to some of the material ; and (

e) that he possessed a “how to” handbook on grooming and committing contact offences. The last two factors, the Crown argues, should lead the Court to conclude that the youth is a pedophile and that he represents aheightened risk to commit a contact offence against a child.

This is how the Crown sought to distinguish this matter from the weight ofjudicial precedent which clearly demonstrate that Youth Courts have in the past overwhelmingly imposed non-custodial sentences forsimilar situated youth offenders. [46] Having carefully considered the evidence and argument, I am not satisfied that the material before me demonstrates that theyouth is a pedophile. The forensic assessment does not suggest that he is a pedophile. The PSR does not suggest that he is a pedophile.

The offender himself does not admit to being a pedophile. As Dr. Chase observed, the youth’s possession of child pornography was complicated by the fact that he was a youth himself when he collected and viewed the child pornography. Many of the children, according to the image and video analysis, would have been the same age as the offender at the material time. The youth denied masturbating to pornography involving very young children, in fact he said that he found those images to be disturbing and depressing. The Crown has not provided me with a sufficient evidentiary basis to conclude that he is a pedophile.

To the contrary the evidence tendered by the Crown on this sentencing suggests the opposite: that he is a low risk for contact offending. [ 47 ] Similarly, I am not prepared to find that the possession of the “how to” manual demonstrates that the offender is a heightened risk to harm children. To be certain, the manual’s possession in the context of an adult sentencing would be very concerning. But, the offender is a youth. He did not admit to reading the manual nor did he admit to distributing it and the Crown has not proven either of those things.

In the absence of that proof, I agree with Defence that it would be dangerous and highly prejudicial to impute to this youth the motivations and intentions that could be imputed to an adult who possessed a similar such item. [ 48 ] Given that evidence adduced on this sentencing hearing did not establish that the youth is a pedophile or that he represents a heightened risk to offend against children, I cannot conclude that custody is the least restrictive sentence capable of achieving rehabilitation. [ 49 ] I am satisfied in the circumstances of this case that a non-custodial sentence with strict conditions and community work can properly balance the seriousness of the offence with his degree of responsibility.

I am also satisfied that such a sentence, by focusing on rehabilitation will hold the youth accountable and has the potential to achieve the long-term goal of protecting the public. [ 50 ] The sentence that I am imposing is a two-year period of supervised probation. The conditions of the probation order are as follows:

(1) You must report to probation services within two days of this decision and thereafter as directed by his probation officer.

(2) You must seek employment and/or attend school regularly.

(3) You must attend and participate and complete sex offender therapy specific to viewing child pornography.

(4) You must attend, participate and complete therapy relating to being a victim of bullying.

(5) You must not access or view child pornography or pornography in any form.

(6) You may not possess or use more than one cell phone and one computer and you must provide the serial number, a complete description of the device or devices to your probation officer.

(7) You must allow your probation officer or the police to access to your electronic devices and allow them to monitor and search devices in order to ensure that no pornography has been assessed on them.

(8) You must not to be with children under the age of 14 unless there is a responsible adult present.

(9) You must perform 125 hours of community service work within the two-year probation period.

(10) You must complete 100 of those community service hours within the first 12 months.

[ 51 ] The following ancillary orders are made: (

i) Pursuant to

section 51 there is a mandatory two-year weapons prohibition; (ii) Pursuant to subsection 487.051(1) DNA primary designated offence you must provide a sample of his DNA to the police within 60 days of today’s date; (iii) Pursuant to subsection 164(4) Court orders forfeiture of all materials seized. __” original signed” ______ BAYLY, P.J.