) ) HER MAJESTY THE QUEEN ) J. Funke ) for the Crown - v. -, 2019 MBPC 9

2019 MBPC 9 THE PROVINCIAL COURT OF MANITOBA SWAN RIVER CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. Funke ) for the Crown - and - ) ) D. S. ) A. Beddome Accused. ) for the Accused ) ) Judgment Delivered: ) February 13, 2019 SLOUGH, P.J. RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the victim, or witness(es)(see

section 486.4 of the Criminal Code ). INTRODUCTION [ 1 ] In September 2016, members of the R.C.M.P., Integrated Child Exploitation unit, began to receive reports from their American counterparts of images of child pornography uploaded from computers in the Swan River area. The R.C.M.P. launched an investigation and on January 28, 2017, executed a search warrant at the accused’s residence and place of employment.

Interviews with A.L., the accused’s twelve-year-old stepdaughter, a search of computers and cameras associated with the accused and finally a warned statement taken from the accused revealed that D.S. had been sexually abusing his stepdaughter since she was nine-years-old. The accused had also created images of this abuse and uploaded these images onto the Internet. In addition, the accused possessed thousands of images of other children and adults performing sexual acts. Ultimately, the accused entered guilty pleas to of the following charges: 1. Sexual interference 2. Make child pornography 3.

Distribute child pornography 4. Possess child pornography [ 2 ] All these offences occurring between September 1, 2013 and January 28, 2017. [ 3 ] This decision deals with the appropriate sentence for these odious crimes. FACTS [ 4 ] As indicated, the police investigation obtained evidence of these crimes from three sources: the victim, cameras and computers in the accused’s possession and finally from the accused in a warned statement.

This evidence revealed that as early as July 2015, when the victim was nine-years-old, the accused started sexually abusing her in the home that they shared with the victim’s mother. The abuse consisted of fellatio, the accused having the victim rub his penis, the touching of the victim’s breasts and vagina and the insertion of objects into her vagina. This abuse occurred on a frequent basis for more than three years.

[ 5 ] The accused took numerous photographs of the victim performing sexual acts, including oral sex and ejaculation on the face and chest of the victim. D.S. took videos depicting the victim’s breasts, vagina, and face. He uploaded some of these videos and images onto a site where other individuals with similar interests could gain access to this material. Twenty-nine images of the victim were placed on this site. The images include the victim inserting a purple object into her vagina.

Not only was the victim’s face visible in these images, the accused identified her by name or alternatively with a demeaning nickname. [ 6 ] The police discovered thousands of pornographic images of the sexual abuse of other children. The police describe these images as primarily of young girls ranging in ages from approximately newborn to sixteen years of age. The vast majority of the content consists of extreme posing, anal intercourse, vaginal intercourse, fellatio, cunnilingus, masturbation, ejaculation, bondage, the use of sex toys, and the digital penetration of both the vagina and anus of children.

D.S.’s stepdaughter was featured in 178 of these images. Videos were also part of the collection including children performing sexual acts with adult males. [ 7 ] The R.C.M.P. obtained copies of online conversations between D.S. and another individual. In that conversation, there is an animated discussion of the accused’s sexual activities with the victim. The accused shared pornographic images of the victim with this other party. [ 8 ] Police discovered images of the victim in other individual’s collections of child pornography. These images depict the victim performing sexual acts with the accused.

Her face is visible and she is named. IMPACT ON THE VICTIM [ 9 ] As the Crown pointed out, one of the most disturbing aspects of the videos is that A.L. can be heard responding to the accused as if his activities were normal. In this regard, the victim does not exhibit fear, she does not exhibit outward signs of duress; in other words D.S. groomed her to the point where she was a fully engaged participant, role-playing along with the accused in the production of these videos.

The offender’s conduct destroyed any sense of normalcy in this child who was under his care. [ 10 ] The Crown filed a Victim Impact Statement consisting of a therapist’s impressions of the impact on the victim. The therapist described A.L. as being, to some extent, cognitively delayed. The therapist found it difficult for the victim to engage; describing her as: “peripherally engaged in conversation about the sexual abuse she experienced from her stepfather, expressing not knowing why she didn’t do more to stop it, and why her mom still has a connection with her stepfather after he hurt her.

What is concerning about these conversations is that A.L. appears very confused and to have very little understanding of the consequences of what happened to her, for example having no apparent awareness or concerns about the distribution of the images of her.” (Page 1 Victim Impact Statement) IMPACT ON THE COMMUNITY [ 11 ] The Crown submitted a Community Impact Statement prepared by the Canadian Centre for Child Protection. The Canadian Centre for Child Protection receives and processes reports of child pornography.

In an effort to educate the public and, in my case, judges about the extent and damage caused by child pornography it produced a Community Impact Statement. The entire document is valuable, but I want to highlight two sections of that document dealing with the impact on victims of distributing child pornography on the Internet. At page 5 the document describes: “Permanence and persistence of child sexual abuse imagery It is the reality of present technology the most images/videos, once created, are permanent in nature as they are typically stored electronically or converted to electronic format.

As such, there is currently no way for a victim whose child sexual abuse has been recorded to be certain that an image/video has been contained and permanently deleted. Once the image or video goes online, or is sent to even one person, there may be no way for anyone to conclusively identify all individuals who might have seen or stored their own copy of it, where in the world those individuals may be located, or for victims to be able to retrieve the image/video or prevent it from being seen or stored by others.

Thus, survivors within this community face potential new victimization and corresponding impacts, every day. (Page 5).” D.S. uploaded images and videos of the victim showing her face. He also named her. The Community Impact Statement demonstrates that once someone’s face and name become known, people with the same deviant interests as D.S. will seek them out and cause them further distress and harm. As the report states: “Fear of recognition is not an unfounded fear. A significant number of respondents to the survivors survey reported being identified by a person who had viewed their imagery.

Some experience further trauma as a result, such as being specifically targeted, propositioned or abused again. As one victim of popularly traded series stated in her victim impact statement (filed in several Manitoba cases to date) : “I am justified in my paranoia – some of these perverts have contacted me. I have received emails suggesting making porn with these strangers. One has stocked me and another created a slideshow of me on YouTube. As I go on with my life, the effects of these crimes

still hurt me, and I hope the court and everyone involved will understand this and how serious it is.” (Page 11). [ 12 ] (Given the depressing nature of this case, although not directly relevant, I think it is worthwhile to reference some good news found in the Community Impact Statement.) Since 2008, the Canadian Centre for Child protection has been tracking public reports of child pornography. During that time, the number of public reports has gone from 7846 to 43,016.

In 2013, the Canadian Centre for Child Protection started issuing notices of the presence of child pornography to websites and requesting removal. In 2013, there were 413 notices; by 2016, there were 935 notices. In 2017, the Canadian Centre for Child Protection launched Project Arachnid, a computer program that detects child pornography on websites. This program has already processed millions of pages of content containing known child sexual abuse material. In the first six months of 2018, Project Arachnid issued 480,600 notices for the removal of child abuse material.

The report states that “The vast majority of providers have been complying with the request to remove content within 24 hours and many are responding even more quickly than that” (Page 14.) PRE-SENTENCE REPORT [ 13 ] The Crown filed a lengthy and detailed Pre-Sentence report. Overall, the report could best be described as positive. At page 3 of the report, D.S. describes his behaviour towards the victim as “despicable, inexcusable and appalling”. The accused indicated that before he met A.L. and her mother, he had undergone counselling to try to curb his sexual interest in young children.

He completed the counselling but when he started living with A.L. and her mother, he took advantage of the opportunity to abuse the victim. The accused told the probation officer that the abuse went on for several years and at the same time, he was connecting with men over the Internet to discuss and share their experiences with underage girls. The accused stated he reached out to this community to see how many men were also having “relationships” with their children/stepchildren.

The accused revealed this ultimately led to him sharing child pornography images of the victim. [ 14 ] Most of his family have disowned him. Somewhat surprisingly, the mother of the victim is the person with whom he has the most positive contact. The victim’s mother recently gave birth to D.S.’s child. [ 15 ] In her assessment, the probation officer states: “D.S. accepted responsibility for his actions and presented some level of victim empathy towards his stepdaughter.

D.S. was honest about his sexual attraction to pre-pubescent/pubescent girls, acknowledging he had been accessing child pornography featuring this age group for quite some time.

The subject presented as shameful regarding his behavior and the harm he caused the victim and his family, and appears genuinely motivated to participate in offence specific programming or treatment.” (Page 14) [ 16 ] In terms of D.S.’s risk to reoffend, tests performed on the accused placed him in the 19 th percentile of sexual offenders meaning that out of 100 sexual offenders 14 would have a lower score and 76 would be more likely to reoffend. Other tests found D.S. at medium risk to reoffend, generally.

POSITION OF THE PARTIES [ 17 ] The Crown in addition to a very thorough and detailed examination of the facts provided extensive case law from the Manitoba Court of Appeal supporting a range of sentences of 9 to 11 years. The Crown emphasized the statutory provisions of the Criminal Code deeming that the abuse of a child and the abuse of position of trust, both factors present in this case, are aggravating and require the sentencing court to impose a sentence emphasizing denunciation and deterrence.

The Crown pointed to the following aggravating factors: • A very young victim; the offenses starting when she was only nine years of age and continuing for over three years. • That the accused abused his position of trust as the victim’s stepfather. • The victim’s personality, as described in the victim impact statement, made her particularly vulnerable. • The sexual abuse was not only frequent but also involved serious abusive conduct including fellatio and penetration of the victim’s vagina. • The victim’s face is clearly visible in some of the videos and images posted by D.S. • The use of the victim’s name in sharing the images and videos online. • These photos and videos are broadly distributed around the world. [ 18 ] In terms of mitigating factors: • The Crown acknowledged that the accused entered guilty pleas to these charges, although the Crown did point out, that given the electronic evidence discovered by the police, the Crown’s case was strong. • The accused has no prior record.

• The accused cooperated with the police and provided a statement providing considerable incriminating evidence. [ 19 ] The Crown acknowledged that the court must consider totality in imposing the appropriate sentence. [ 20 ] On behalf of the accused, counsel referenced the fact that his client suffered some sexual abuse in his childhood. He emphasized D.S.’s steady employment history. Counsel emphasized that D.S. recognized his interest in pre-pubescent girls and sought counselling. Initially, the counselling was successful and he stopped accessing child pornography.

However, when the accused returned to Swan River his interest in pre-pubescent girls, which counsel describes as an addiction, returned leading to the serious crimes that are the subject of this case. Counsel maintains that some of the comments made by his client online with respect to performing sexual acts with the victim involved fantasy and that at no time did he participate in vaginal or anal intercourse with the victim. Counsel maintains that the chat rooms, involving other men with an interest in pre-pubescent girls, created a sense of normalcy with respect to D.S.’s conduct.

In that regard, I find these chat rooms are insidious and undoubtedly contributed to even more serious deviant behaviour by D.S. [ 21 ] Counsel for the accused pointed out: the accused never sought bail, never denied the offences, and is extraordinarily remorseful. On behalf of the accused, counsel urges the court not to lose sight of totality and to impose a sentence in the range of six years for all offences. [ 22 ] Counsel for D.S. referred the court to a decision of the Ontario Court of Appeal in R. v.

F. (D.G.) 2010 ONCA 27 , a case dealing with the sentencing of an accused with no prior criminal record who sexually abused his daughter, created videos of that abuse and distributed those videos. F. (D.G.) had an extensive collection of child pornography. In F. (D.

G.) the accused visited chat rooms where he bragged about sexually assaulting his daughter, distributed pornographic pictures of her, culminating in a conversation with an undercover police officer which ended with him sending live pornographic images of his daughter to the officer. (The accused was arrested the same day.) In overturning a four-year sentence the Ontario Court of Appeal (at paragraphs 21 and 22) made the following observations: “Over the last two decades, courts have been on a learning curve to understand both the extent and the effects creation and dissemination of child pornography over the Internet and to address the problem appropriately… Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution.

The victims are innocent children who become props in a perverted show played out for an ever-wider audience not only of voyeurs but of perpetrators.” [ 23 ] The Ontario Court of Appeal imposed a seven-year global sentence. However, I note the court felt constrained by the fact that the Crown, at the original sentencing sought a seven-year sentence, stating that in view of the Crown’s original position it would be inappropriate to impose a higher sentence. Where D. (F.

G.) also differs from D.S.’s situation is that, as I understand the facts, there was not the duration of the abuse D.S. inflicted on his stepdaughter. ANALYSIS [ 24 ] The sentencing recommendations by the Crown and D.S.’s counsel diverge significantly, ranging between 6 to 11 years. For the reasons that follow, I will impose a sentence close to the upper end of the range suggested by counsel. I intend to deal with the appropriate sentence for each of the offences and then assess totality in order to arrive at the appropriate sentence.

SEXUAL INTERFERENCE [ 25 ] The accused sexually abused his stepdaughter for over three years. She was nine years old when the abuse started. The abuse included fellatio, the touching of her breasts and vagina, penetration of her vagina with a sex toy, and having the victim touch his penis until he ejaculated. These episodes occurred on a frequent basis in the family home. These activities amount to a gross breach of trust with respect to both his daughter and common-law partner. In R. v.

Sidwell 2015 MBCA 56 (paragraph 49 and 53 ) Justice Steel stated: “I conclude that regardless of whether the charge in this case is one of sexual interference or sexual assault, the jurisprudence indicates that the starting point is 4 to 5 years for the major sexual assault of a child when in a position of trust, assuming that the accused is a mature person with no criminal record and prior good character….” It is impossible to list all the aggravating and mitigating factors the courts might consider.

However, when weighing the nature of the sexual violation in a particular case, courts have looked to the following factors, among others: • The relative ages of the child and the accused; • The nature of the position of trust between the child and the accused; • The exact nature of the conduct involved; • The length of time the relationship existed and the frequency of the incidents;

• Whether the sexual violations were accompanied by physical violence, threats of physical violence, or other forms of extortion or psychological manipulation; and • The impact on the child.” [ 26 ] Applying these factors to this case, I note the accused was in his mid-30s and the victim nine-years-old when the abuse started. D.S. was the victim’s stepfather. The sexual acts involved a gross violation of the victim. The abuse was frequent, spanning years in duration.

There is no suggestion of violence or threats, but rather through psychological manipulation, D.S. groomed the victim to the point where she accepted these acts as normal. As set out in the Victim Impact Statement, the victim is deeply hurt and feels betrayed by both her stepfather and her mother. It is difficult to imagine that the victim will ever recover from the damage done to her by the accused. In that regard, I find Justice Mainella’s comments in R. v. R.

J. 2017 MBCA (at paragraph 11) compelling: “The harsh and grim reality of child sexual abuse is that the sentence of the victim is always longer than that of the perpetrator. The consequences of the accused’s crime will affect his victims for the rest of their lives, well after the accused has completed any punishment that the courts can mete out.” Considering all these factors, particularly the duration of the abuse, I find that the appropriate sentence on the charge of sexual interference is one of six years. MAKING CHILD PORNOGRAPHY [ 27 ] In R. v.

Basov 2015 MBCA (at paragraph 5) the Manitoba Court of Appeal adopted a classification system for child pornography, developed in decisions from the United Kingdom: “that system classifies content of pornographic images into five levels: (

i) erotic posing with no sexual activity; (ii) sexual activity between children or solo masturbation by a child; (iii) non-penetrative sexual activity between adults and children; (iv) penetrative sexual activity between children and adults; and (

v) sadism or bestiality.” [ 28 ] The facts, as presented by the Crown, establish that other than the most serious level of child pornography, namely sadism or bestiality, the images D.S. created of the victim include penetrative sexual activity between the complainant and the accused. Accordingly, this is a serious offence, warranting the imposition of a sentence of two years consecutive. POSSESSING CHILD PORNOGRAPHY [ 29 ] As previously indicated the accused had a substantial collection of the sexual abuse of other children. The images involve children ranging in age from newborn to 16 years.

The images consisted of extreme posing, anal intercourse, vaginal intercourse, fellatio, cunnilingus, masturbation, ejaculation, bondage, and digital penetration. Images of his stepdaughter were also found in this collection. Given the severity of the acts portrayed and the size of the collection, I find that a sentence of 18 months consecutive is appropriate. DISTRIBUTING CHILD PORNOGRAPHY [ 30 ] I find that this crime is very serious. The accused posted images and videos on sites that allowed others to upload these images into their collections of child pornography.

These images can never be fully recovered or destroyed. To make matters worse, the accused uploaded images that show his stepdaughter’s face, and named her. Such cruel and heartless conduct warrants a lengthy sentence. As referenced in Justice Mainella’s comments, the victim will always have this hanging over her, even after the accused is finished his sentence. In my view, the appropriate sentence for this offence is three years consecutive. [ 31 ] These sentences total 12.5 years. They take into account the fact that the accused has: no prior record, good work history, and appears to be remorseful.

I have also considered the fact that the accused cooperated with the police and entered guilty pleas to these charges, albeit, in the face of overwhelming evidence. TOTALITY [ 32 ] In R. v. G.J.M. 2015 M.B.C.A. at (paragraph 10) the Manitoba Court of Appeal provided guidance with respect to the principle of totality, stating: “The question of whether a combined sentence for multiple offences is unduly long or harsh, and therefore not proportionate, on a last look requires a sentencing judge to take into account and balance several factors that Green CJNL neatly summarized in R. v.

Hutchings 2012 NLCA 2 , 316 Nfld and PEIR 211 at (Para. 84): 1. the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual sentences involved;

2. the number and gravity of the offences involved; 3. the offender’s criminal record; 4. the impact of the combined sentence, the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing; 5. such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility.” [ 33 ] I believe my reasons have already dealt with the first two factors set out above. After considering these factors, I believe that a sentence totaling 12.5 years is too long.

All these offences are intertwined. All of them involve an aspect the sexual abuse of the D.S.’s stepdaughter. Not only did D.S. abuse her for a lengthy period of time, he took photographs of her performing sexual acts, uploaded these photographs onto websites where other pedophiles could view and acquire these photos and finally had an extensive collection of child pornography including photographs of the victim.

While these crimes warrant consecutive sentences, in my view, the combined duration of those sentences should be viewed globally and take into account the fact that they involve many common elements. [ 34 ] The other concern I have with respect to a 12.5-year sentence is that it is crushing. The conduct of the accused was appalling and despicable. Nevertheless, the accused had no prior criminal record.

Testing done by the probation officer with respect to the likelihood of the accused reoffending against children, the accused’s remorse as described by the probation officer and exhibited during the sentencing, hearing all suggest that D.S., with proper treatment can potentially be rehabilitated. I find support for this conclusion in D.S.’s conduct while incarcerated where he completed every counselling program available to him. [ 35 ] After considering all these factors, I believe that an overall sentence of 10 years is appropriate.

Accordingly, I sentence the accused to 12 months as opposed to 18 months on the charge of possession of child pornography. I sentence the accused to 12 months, instead of 24 months, on the charge of creating child pornography. Creating child pornography is particularly intertwined with the offence of distributing child pornography. I regard distributing child pornography as being extremely serious and that sentence will remain as a 3-year sentence.

Finally, with respect to the charge of sexual interference, while I believe that a sentence of six years is within the appropriate range, I am reducing that sentence by one year to five years, for a total overall sentence of 10 years, all sentences being consecutive to each other. [ 36 ] The accused has been in custody since his arrest, a total of 746 days. He is entitled to credit at 1.5, for a total of 1119 days.

This leaves him with a remaining sentence of six years and 341 days. [ 37 ] I impose 10-year weapons prohibition pursuant to s. 109 Criminal Code and a 20-year S.O.I.R.A. order pursuant to s. 490.013 of the Criminal Code . [ 38 ] The Crown has sought an order pursuant to

section 161 of the Criminal Code restricting the activities of D.S. once released from prison in order to protect children. In my view, the following conditions are appropriate: • D.S. will not attend within 2 km of any dwelling or other building where A.L. is residing, going to school, working or worshiping. • D.

S. will not seek or obtain employment or work as a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years. • Following his release from custody, D.S. will not use a computer system within the meaning of s. 342.1(2) Criminal Code for the purpose of communicating with a person under the age of 16 years, except for immediate family members. • Following his release from custody D.S. will not use the Internet or any similar communication service to:

a) Access any content that violates the law;

b) Directly or indirectly access any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service (e.g. Facebook, Twitter, Tinder, Instagram or any equivalent or similar service). • D.S. will not have any contact by any means with a person who is under the age of 16 years, unless he does so under the supervision of a childcare agency. [ 39 ] These conditions are to take effect immediately upon release from prison and continue for a period of 20 years. [ 40 ] I am ordering confiscation and destruction of all items seized by the police. [ 41 ] D.S. is to provide a DNA sample. __________________________ Slough, P.J.