R. v. R-B., 2023 MBPC 52

CITATION: R. v. R-B., E. 2023 MBPC 52 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) E. Dunsmore ) ) for the Crown - and – ) ) ) E. R-B. ) ) M. Zurbuchen for the Accused ) ) ) Judgment delivered: ) November 3, 2023 Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. HARVIE, P.J. INTRODUCTION [ 1 ] The accused E. R-B. has entered guilty pleas to the charges of Possessing Child Pornography contrary to Criminal Code

section 163.1 between September 1, 2018 and August 19, 2020 and the offence of Making Child Pornography (“Make Pornography”) contrary to

section 163.1 between April 13, 2019 and August 1, 2019. At issue is the appropriate sentence. Crown counsel seeks a sentence of 9 months custody and supervision. Defence counsel seeks a community-based disposition. [ 2 ] The sentencing in this matter requires the Court to balance a number of competing factors, including the seriousness of the offences, the sentencing provisions of the Youth Criminal Justice Act (“the YCJA ”) and the medical and background information on the accused.

BRIEF OVERVIEW OF THE FACTS [ 3 ] As a result of a search of the various electronic equipment owned by the accused, police located 182 images of child pornography and 132 videos of child pornography. The images and videos depict female children ranging in age from 2-10 years old. The images recovered are graphic and disturbing and reflect a wide range of abusive behaviour. [ 4 ] With respect to the offence of Making Pornography, the accused admits to attending to the home of a friend on several occasions between April and August of 2019, on occasion staying the night.

On four occasions, the accused recorded videos where he is touching the friend’s younger sister who was between 8 and 9 years old. Videos depict him touching her while she sleeps including attempting to pull down her pyjama bottoms and filming her buttocks and anal and vaginal areas. Police located other images of the complainant where she is fully dressed but not looking at the camera. [ 5 ] The accused was arrested and was granted judicial interim release on multiple conditions. He has been on release without difficulty. He was 17 years of age at the time of the incidents.

He has no previous criminal involvement. THE SERIOUSNESS OF THE OFFENCE [ 6 ] While defence counsel does not challenge the seriousness of these offences, it is important to comment at the outset that the facts underlying both charges are serious, with the facts underlying the Make Pornography offence being particularly concerning. [ 7 ] During the sentencing, the Court was shown the images in question, and Victim Impact Statements were received from the mother of the Make Pornography victim and from “Henley”, a victim of child pornography, provided through the Canadian Center for Child Protection.

It is clear that these offences have both a physical and psychological impact on the complainants that are significant and long lasting. “Henley” outlined episodes of anxiety and panic attacks, an ongoing inability to trust others, interruptions at work due to the affects of Post-Traumatic Stress Disorder (“PTSD”), amongst other things. The Make Pornography victim’s mother outlined feelings of anger, sadness and disbelief, and described the very significant impact on the victim, stating “My daughter is no longer the same girl

she was before this happened.” [ 8 ] The case law in this area reflects an increased awareness of the very real impact of offences of this nature. I do not intend to review all of the authorities provided by counsel. Since the Supreme Court decision in R. v. Sharpe, 2001 SCC 2 , Courts have regularly recognized the harm caused by child pornography.

McLachlan CJ noted (at para 34): Parliament’s main purpose in passing the child pornography law was to prevent harm to children by banning the production, distribution and possession of child pornography, and by sending a message to Canadians “that children need to be protected from the harmful effects of child sexual abuse and exploitation and are not appropriate sexual partners”. [ 9 ] The Court went on to comment on the “strong link” between the production of child pornography and the harm caused to children, describing the harm as “devastating”. [ 10 ] More recently, in R. v.

Friesen , 2020 SCC 9 , the Supreme Court recognized the “unprecedented access” to child pornography allowed by the internet, urging Courts to impose sentences in cases involving child victims that reflect the seriousness of the offences and society’s condemnation of this behaviour. When crafting an appropriate disposition sentencing, Judges must be mindful of the terrible impact of these offences on the victims. BACKGROUND OF THE ACCUSED [ 11 ] The Pre-Sentence Report (“PSR”) details some of the difficulties in the background and upbringing of the accused.

The PSR outlines difficulties in his relationship with both parents, confirming that he has had little interaction with his father and had resided largely with his mother during his early years. Because of financial challenges, the accused and his mother lived with family friends or her parents for a number of years.

The accused advised that his father had “legal troubles” due to drug possession and trafficking and that his father passed away due to a drug overdose in the fall of 2022. [ 12 ] Due to difficulties in his relationship with his mother, the accused began living fulltime with his grandparents when he was fourteen years old and he identifies his grandparents as his main supports. While he previously had a significant family support network prior to these offences, that support is described as being “disjointed” with some family members now distancing themselves from the accused.

His relationship with his mother remains strained, while his relationship with his grandparents continues to be a positive one. His grandfather has attended many of the Court appearances with the accused. [ 13 ] The accused has attended and graduated from high school. He has had very limited employment experiences, none of which have lasted a significant period. Because his bail conditions ban him from accessing the internet, his grandfather confirms that he has been assisting the accused in applying for jobs. He does not struggle with alcohol or drug use.

GLADUE FACTORS [ 14 ] The accused is attached to Berens River First Nation through his maternal grandmother. He has had little exposure to Indigenous culture and identifies his dominant culture as Scottish/Irish. MEDICAL ASSESSMENT [ 15 ] There are two aspects to the accused’s personal circumstances that are significant as it relates to his offending behaviour. The first was identified by Dr. Garry Fisher of the Manitoba Adolescent Treatment Center, who has diagnosed the accused as meeting the criteria for Autism Spectrum Disorder (“ASD”). Dr.

Fisher completed two assessments for the Court and testified during the sentencing hearing. [ 16 ] In his report of October, 2022, Dr. Fisher noted that E. R-B. describes longstanding difficulties surrounding his social relationships. He describes himself as being “an introvert”, indicating that he likes to stay home and prefers to not leave his house. He stated that he currently has no friends, does not have a girlfriend, and historically had difficulties in forming positive social relationships with peers throughout his school years.

He acknowledged patterns of difficulty surrounding social and emotional reciprocity. These difficulties are expressed through challenges in general conversation with peers, difficulties surrounding “reading” others in terms of their emotional state, and historical tendencies to become fixated or preoccupied with topics of interest to him (for example, some movies or video games) and when conversing with others.

He acknowledged that he talks about specific topics of interest to him excessively, causing others to become disinterested, bored, or potentially annoyed with him. [ 17 ] The second factor commented on by Dr. Fisher’s reports relates to the exposure to sexualized behaviour experienced by the accused when he was approximately 5 to 6 years old, including exposure to pornographic materials belonging to his parents. THE ROLE OF THE ASD DIAGNOSIS IN THE SENTENCING PROCESS [ 18 ] Counsel agree that the test articulated in R. v.

JMO , 2017 MBCA 59 is appropriate for a sentencing of this nature, where Mainella, JA suggested the following approach at (paragraph 73):

Ascertaining the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation is a tactful and considerate exercise. Sentencing judges must avoid committing one of two obvious errors in principle. The first is being indifferent to the question of whether an offender’s mental circumstances affected his or her degree of responsibility. The other error in principle is the reverse situation, namely, assuming an offender’s moral blameworthiness for an offence is reduced automatically because he or she has a mental illness or other cognitive limitation.

It is suggested that, when sentencing offenders with a mental illness or some other form of cognitive limitation, such as a form of FASD, sentencing judges keep separate and properly assess the following questions: 1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2. Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. See R. v. Ramsay , 2012 ABCA 257 (Alta. C.A.) at paras 19-39 ; R. v. Draper , 2010 MBCA 35 (Man. C.A.) at para 20 ; and Manitowabi at para 64. [ 19 ] Crown counsel acknowledges that the diagnosis of ASD meets the first step of the test and does not challenge Dr. Fisher’s expertise.

With respect to steps two and three, she does take issue and challenges the relationship or “nexus” between the ASD diagnosis and the criminal conduct. She also challenges whether the ASD diagnosis reduces the offender’s degree of responsibility, particularly as it relates to the Make Pornography offence. [ 20 ] Both counsel questioned Dr. Fisher about a potential link or nexus between the ASD diagnosis and this accused’s offending behaviour. In response, he firmly noted that the ASD diagnosis did not “cause” the accused to access pornography.

He did stand by his written assessment that “it appears that a blend of early exposure to sexualized material, on-going difficulties surrounding peer relationships and ease in terms of fitting in socially throughout his school years (likely as a function of his ASD) as well as evolution of inappropriate sexual patterns of arousal have contributed to this offending behaviour”. Dr. Fisher also expressed concerns about the lack of “protective factors” in the home. [ 21 ] Dr. Fisher was questioned at length and his evidence is very helpful.

He acknowledged that autism is a “spectrum” that can result in a range of impact from severe to less significant physical and emotional effect. In his evidence, he identified the accused as being at the “lower end of the spectrum”. Dr. Fisher was clear that the accused understands the difference between right and wrong. [ 22 ] I accept Dr. Fisher’s evidence that an ASD diagnosis certainly does not cause offending behavior such as possessing or making child pornography. In this case, I am taking into account Dr.

Fisher’s evidence that this accused was not diagnosed during his childhood or teenage years, something not uncommon with this type of diagnosis. With this accused, the interplay between the social isolation, difficulty with personal relationships, struggles in school, and limited friendships resulted in the accused feeling more comfortable “on- line rather than the real world”. I accept that this combination of circumstances, coupled with the early inappropriate exposure to sexualized material, contributed to the offending behavior, particularly as it relates to the possession charge.

I am satisfied that there is a nexus between the diagnosis and the offence. [ 23 ] Crown counsel questions whether there is a link between the Make Pornography charge and the ASD diagnosis. Further, she expresses significant public safety concerns, given the comments made by the accused to the police where he demonstrated an awareness of his attraction to “younger girls”. Despite being aware of these urges, she argues that the accused acted upon them by photographing the complainant. Dr. Fisher’s evidence in this respect is more general.

However, I am satisfied that there is some link between the offending behaviour and the ASD diagnosis. In his evidence, Dr. Fisher declined to quantify the degree to which the moral culpability of the accused was impacted by the ASD diagnosis, but did agree that there was a connection, albeit a more limited one, that had to be considered along with other factors. [ 24 ] The accused has done well since his arrest and Dr. Fisher was of the view that he presents a moderate risk to reoffend and is someone who could be supervised in the community.

He identified the availability of supports and counselling through probation services that would otherwise be difficult or costly to access for individuals not subject to a court order. [ 25 ] Dr. Fisher’s conclusion is similar to that reached by the author of the PSR, who opined that the accused is a medium risk to reoffend and one who is a suitable candidate for community supervision. THE SENTECING PROVISIONS OF THE YCJA [ 26 ] It is not my intention to repeat all of the YCJA sentencing provisions.

Suffice it to say that the provisions recognize objectives which are significantly different than those for adults. While the presumption in the YCJA may be for non-custodial sentences, that is not to say that custody is prohibited, assuming the offence falls within a designation that authorizes custody. Where a sentencing Judge concludes that the young person can only be held accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, a custodial sentence must be imposed.

SENTENCING CONSIDERATIONS [ 27 ] There are a number of aggravating factors to be weighed. There is no doubt that the offences are extremely serious. Crown

counsel strenuously and fairly argues that the Court cannot lose sight of the ongoing impact that the very existence of the pornographic images has on the victims. In this case, it is further aggravating that the victim who was the subject of the photographs taken by the accused was a family friend, and that his actions amounted to a breach of the family’s trust. And while I agree that the Make Pornography images amounted to an escalation in his offending behavior, I am also mindful that the time frame of that charge ends many months before the end date of the possession offence.

While the behaviour escalated, it also ended. [ 28 ] It is an aggravating fact that the accused understood that his actions were wrong. Crown counsel points to the comments made by the accused to the police about being attracted to “younger girls” and that he avoided employment with young girls to minimize the chance of something happening. She also points out that the accused has not yet accessed counselling to address this behaviour, a matter of considerable concern given that he did act on his impulses when videotaping the victim.

I am satisfied that the concerns in this regard are tempered somewhat by the practical availability of counselling and the economic constraints on the accused and his grandparents. [ 29 ] I am taking into account the following mitigation factors: • The guilty plea; • The expression of remorse and willingness to engage in treatment and programming; • His lack of a criminal record, his compliance with bail conditions and his lack of re-involvement; • The interplay between the ASD diagnosis, the inappropriate and early exposure to sexualized materials and the offending behaviour.

While I recognize that he is on the lower end of the ASD spectrum, it is the combination of factors which establish a nexus with the offending behaviour; • While it is not necessarily a mitigating factor, I am aware that while he took the images/photos and videos of the complainant, there is no evidence that he distributed them to anyone. [ 30 ] I must weigh the foregoing aggravating and mitigating facts in the light of the sentencing provisions of the YCJA . Taking all of the foregoing into account, I am satisfied that the accused can be safely monitored in the community.

The PSR author notes that the accused has expressed a willingness to engage in supervision and programming, that he has accepted responsibility for the offences and was forthcoming during the risk assessment and the interview.

I am satisfied that he can be held accountable, that his rehabilitation can be addressed and that the public can be protected by a lengthy probation order. [ 31 ] I am therefore imposing a concurrent sentence of two years of supervised probation to include the following conditions: • Keep the peace and be of good behaviour; • Report to the Provincial Director within 7 days of today’s date and thereafter as directed to do so; • Attend, participate and complete any assessments, counselling or programming as directed to do so by your youth worker; • Perform 150 hours of community service work at the time and place as directed by your youth worker to be completed within the first year of the order; • No contact or communication with the complainant in the Make Pornography charge; • Not to attend within 200 meters of the complainant’s place of residence, employment, schooling or worship; and • Not to own or possess any pornography of any type. [ 32 ] He is to provide a sample suitable for DNA analysis within the next 90 days. “Original signed by” Harvie, P.J.