R. v. Suomu, 2018 MBPC 3

Citation: 2018 MBPC 3 R. v. Suomu – January 11, 2018 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Sheila Doe, ) ) for the Crown - and – ) ) Steve Suomu ) Daniel Manning, ) ) for the Accused ) Judgment delivered: ) January 11, 2018 HEINRICHS, P.J. INTRODUCTION [ 1 ] Last June, I found Steve Suomu guilty of possessing child pornography between February 20, 2015 and July 21, 2016. He had pleaded not guilty, and the focus of the trial was with respect to the search that resulted in the seizure of the child pornography.

Then, on November 27, I sentenced him to two years less one day, plus three years probation. I also made a number of ancillary orders. [ 2 ] One of the orders which the Crown requested was an order of restitution for “Vicky”. That the Crown would be seeking this was mentioned in the Agreed Statement of Facts dated June 29, 2017. “Vicky” – which is not her real name – is an identified victim whose video of her being sexually abused by her father when she was a child was part of the child pornography collection found on Steve Suomu’s laptop computer when it was seized by the WPS.

THE CRIMINAL CODE PROVISIONS WITH RESPECT TO RESTITUTION [ 3 ]

Section 737 of the Criminal Code states that the Court is required to consider restitution when sentencing an offender and that steps are to be taken, by inquiring of the prosecutor – or on its own motion – whether the victims are “seeking restitution for their losses and damages, the amount of which must be readily ascertainable”. If the Court declines to make a restitution order when it is asked for, reasons are to be given for not doing so. [ 4 ]

Section 738 of the Criminal Code sets out five different situations in which restitution can be ordered. It is subsection (

b) which is applicable in this particular case. It reads as follows: (

b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable; [ 5 ]

Section 737 also gives the Court the option of seeking an adjournment to establish the victims’ losses and damages. In this particular case, I did ask for more information, and the Crown did provide some further information and documentation. VICKY’S VICTIM IMPACT STATEMENT [ 6 ] Most restitution orders are made when there is a clearly identifiable loss and dollar amount attached to it. This is a more complicated claim for restitution, and so some background about what the damages are in this particular case will be helpful.

The best way to get a picture of what the damages to “Vicky” were - and are – is to hear from her directly. Here are some excerpts from her victim impact statement: “I live everyday with the horrible knowledge that many people somewhere are watching the most terrifying moments of my life, and taking grotesque pleasure in them. I am a victim of the worst kind of exploitation: child porn.

Unlike other forms of exploitation, this one is never-ending. Every day people are trading and sharing videos of me as a little girl being raped in the most sadistic ways. They don’t know me, but they’ve seen every part of me. They are being entertained by my shame and pain. The world came crashing down the day that I learned that pictures of me being sexually abused had been circulated on the Internet. Since then, little has changed except my understanding that the distribution of these pictures grows bigger and bigger by the day – and there is nothing I can do about it.

The enormity of this has added to my grief and pain, and has given me paranoia. I wonder if the people I know have seen these images. I wonder if men I pass in the grocery store have seen them. I feel totally out of control. They are trading around my trauma like treats at a party – it feels like I am being raped all over again by every one of them. . . . . While the abuse from my biological father was awful, as time goes on, that is farther and farther away from me. He’s in jail and can never hurt me, and that is over.

The men that download my picture are all around me for all I know, and it will keep going on forever. I have no control over it at all. This is frightening beyond belief. I still have nightmares that come from knowing that pictures of me are spread around on the Internet by people with perverted interests in my pain. I have panic attacks and flashbacks. I can’t sleep a lot of nights – no matter how early I go to bed, how early I wake up in the morning – even if I have barely slept for days and I am exhausted, sleep doesn’t come easy for me.

I take afternoon naps just to function, but something about the nighttime puts my mind on alert, and after all these years and going to different counsellors, I still haven’t learned the trick to let my mind rest. . . . . . I’ve struggled on and off with this, which I now know is called “Disassociating”. A few years ago, I felt I was under such stress that I started zoning out or disassociating a few time a week and having the personality issues so bad that my friends were really concerned about me. . . . . .

It seems crazy, but it took me a long time to recognize what was going on and get myself to start working on my coping skills again. Getting through college was a struggle because of my PTSD, and I had to quit and take a break on two different occasions due to my paranoia and anxiety. I was worried that my fellow students may have seen the videos and because the dissociating made it difficult to attend class regularly. . . . . . My health suffers because of the stress and the lack of sleep – and I get sick a lot.

The constant sleep deprivation is dangerous for me because I have seizure disorder, and the lack of sleep makes me more vulnerable to having seizures. . . . . . Counselling work with various counsellors has helped many of the aspects of my PTSD, but it continues to be a journey to heal because it’s a really complicated and ongoing trauma. It’s not an issue that most counsellors have even been trained to take on. It’s overwhelming all of these pieces that need healing and it’s sure to be an ongoing process.

Trying to overcome this has already caused me to seek out multiple counsellors who use various techniques as well as countless hours of my own research into whatever might help me. “ WHAT EXPENSES HAS “VICKY” INCURRED? [ 7 ] At my request, some reports, documents and court decisions from the United States were filed. 1. Dr. Sharon Cooper works in developmental and forensic pediatrics. She met with “Vicky” in 2015 and reviewed her medical records. She prepared a letter and report in November 2016, for “Vicky’s lawyer in Seattle, Washington. A copy of that letter and report will be filed and marked as Exhibit #S5.

Her 91 page Curriculum Vitae will be marked as Exhibit #S6. 2. Dr. Randall L. Green is a clinical psychologist in Salem, Oregon. He has met “Vicky” and prepared a report for her lawyer as well. His April 2014 report, together with his Curriculum Vitae will be marked as Exhibit #S7. 3. Dr. Merrill Cohen, a vocational consultant, met with “Vicky” in 2009 and prepared a vocational report in 2010; that report has

been followed up on and updated in April 2014. It will be marked as Exhibit #S8. His Curriculum Vitae will be marked as Exhibit #S9. 4. Dr. Stan Smith, of Smith Economics Group, prepared a calculation of future losses of wage and employee benefits and reduction in value of life – or loss of enjoyment of life for “Vicky”. That report will be marked as Exhibit #S10 and his Curriculum Vitae will be marked as Exhibit #S11. [ 8 ] These reports include estimates of possible medical expenses and therapeutic treatment – in the millions of dollars.

Some of the medical expenses, in particular, would appear to be related to medical issues “Vicky” may have had and treatment she may have needed even if she had not been the victim of child pornography. However, it is also evident from the experts reports that “Vicky’s need for past and ongoing treatment is also clearly linked to her being a victim of child pornography.

And as we have seen from her victim impact statement, there has been - and will be - ongoing victimization, and there is a need for more counselling and treatment. [ 9 ] The vocational, educational needs and loss of employment income and benefits are outlined in the reports as well, but it is not clear that they linked to the “commission of this offence” or that the “amount is readily ascertainable”. [ 10 ] As well, the reduction in value of life or loss of enjoyment of life does not appear to be an amount “readily ascertainable” as “pecuniary damages incurred as a result of the harm”.

THE LAW AND CASES IN THE UNITED STATES [ 11 ] The Mandatory Restitution for Sexual Exploitation of Children Act , 18 U.S.C. 2250 sets out a compensation law which goes far beyond what our Criminal Code provides for with respect to restitution. It includes the following provisions: 1. It is mandatory. 2. The defendant – or person being sentenced – is to pay the full amount of the victim’s losses – as determined by the court. 3.

It is to include costs incurred by the victim for: a.) Medical services related to physical, psychiatric or psychological care; b.) Physical and occupational therapy or rehabilitation; c.) Necessary transportation, temporary housing and childcare expenses; d.) Lost income; e.) Attorney’s fees – as well as other costs incurred; and f.) Any other loss suffered by the victim as a proximate result of the offense. 4. The court must order it even if there is an inability to pay. 5.

The court must order it even if the victim has – or is – entitled to receive compensation from insurance proceeds or any other source. [ 12 ] From the cases and information provided, that there have been a number of restitution orders made in favour of “Vicky” – apparently more than 460 such orders as of 2014, and the total dollar amount that has been ordered to date is apparently in the hundreds of thousands of dollars. The following are amounts ordered in some cases that were brought to my attention: 1. U.S.A. v.

Donald Steven Reynolds an August 22, 2014 decision from the United States District Court, Eastern District of Michigan, Southern Division, a restitution order to “Vicky” was made in the amount of $15,500. 2. U.S.A. v. Bryan Scott McIntosh , an October 22, 2014 decision from the United States District Court, Eastern District of Virginia, Newport News Division, a restitution order to “Vicky” was made in the amount of $14,500. 3. The McIntosh case also noted four earlier decisions where amounts of $2,191.74, $2,282.86, $5,448.75 and $6,525.00 were awarded in favour of “Vicky”.

CANADIAN CASES [ 13 ] The court received one reported decision in Canada where a restitution order was made in favour of “Vicky” in a possession of child pornography sentencing. In R. v. S. B ., a 2014 Ontario Court of Justice decision, Griffin, J. was asked to make a restitution order in favour of “Vicky”, and he did, ordering that the amount of $9,240.00 be paid. No significant analysis or explanation with respect to the granting of the restitution order is made in this decision.

Griffin, J. did, though, make reference to a December, 2009, United States District Court decision from Georgia, another case where “Vicky” was a named victim, and was ordered a similar amount in restitution. That decision would appear to be the U.S. v. McDaniel case which was appealed. On January 28, 2011, the U.S. Court of Appeals, 11 th Circuit affirmed the lower court decision to make a restitution order in favour of “Vicky” in the amount of $12,700. [ 14 ] The court also received copies of two restitution orders made by Hunter S.J. on July 11, 2016 in Belleville, Ontario.

They were orders made with respect to a Gary Gorr and a Nicholas White and were each in the sum of $5,000.00, and were not for a named victim, but in favour of the Canadian Child Protection Centre. These appear to be unreported decisions, and without a transcript, the reason for the amount and that they were payable to the C.C.P.C. is unknown. SHOULD A RESTITUTION ORDER BE MADE IN THIS CASE?

[ 15 ] The Manitoba Court of Appeal, in R. v. Siemens , a 1999 decision, and then again in R. v. Wuckert , a 2000 decision, set out six guiding principles with respect to when restitution orders should – or should not be made. Applicable to Steve Suomu are the principles that the means of the offender and the length of his sentence are to be considered.

In this case, I find that even with the amount of time he will be in custody and the fact that his employment as a school teacher has ended, Steve Suomu’s previous occupation as a music teacher and his plans to continue with that once out of custody are such that a restitution order that is not crushing could be made.

As well, the Crown has asked for a stand alone restitution order – and not that the restitution be payable as part of the probation order – so there is no further criminal charge looming if the amount is not paid pursuant to the order. [ 16 ] The Court of Appeal also set out that a restitution order need not be for the full amount and that difficulties in determining the amount of the victim’s loss will militate against the ordering of restitution. In this case, I have questioned how some of the pecuniary amounts being claimed for “Vicky” can fit under the restrictive wording of

section 738 (

b) of the Criminal Code . CONCLUSION [ 17 ] I am satisfied that “Vicky” has suffered bodily and psychological harm as a result of being a victim of child pornography. The harm in the past – and in the present as a result of the ongoing sharing of her images and videos on the worldwide web – has cost her financially in a significant way. The medical and psychological expenses directly related to her ongoing well being are pecuniary damages that are readily ascertainable. As a result, in considering all of the circumstances, I find that a reasonable stand alone restitution order is an order in the sum of $5,000.00, payable by Steve Suomu to “Vicky”. “ORIGINAL SIGNED BY:” HEINRICHS, P.J.