R. v. Smith, 2014 ONCJ 543

Information No. 13-281 Citation: R. v. Smith , 2014 ONCJ 543 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. CALLUM J. SMITH R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on October 7, 2014, at ORANGEVILLE, Ontario IMPORTANT: INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE OF CANADA , BY ORDER OF JUSTICE OF THE PEACE D. FLORENCE ON MARCH 6, 2013

APPEARANCES: L. Marcon Counsel for the Crown R. Allman Counsel for C. Smith R E A S O N S F O R S E N T E N C E PUGSLEY, J. (Orally): Callum Smith is before me for sentencing on two counts: Child luring, contrary to paragraph 172.1(1) (

b) of the Criminal Code and making sexually explicit material available to a child, contrary to paragraph 171.1(1)(

b) of the Code . The Crown has elected to proceed by way of

summary conviction procedure and Mr. Smith has pled guilty. Both of these sections have minimum sentences of imprisonment. The defendant seeks imprisonment at the minimum sentence provided by law. The Crown seeks a higher reformatory term of six months incarceration. Both positions are supported by case law provided by counsel. The facts, briefly, are facts that might chill the heart of parents everywhere. In 2012, when he was 25, the defendant met the complainant online in a chat room. The chat room was one dedicated to teenagers. She was 13 years of age at the time. The defendant pretended to be 19.

Their chat moved to webcam conversations and then to acts including masturbation and a nude photograph of the complainant. The complainant lived in the United States’ Southwest. On Thanksgiving weekend of 2012, her mother discovered the messaging, and a cross-border investigation led to the arrest of the defendant in March of 2013. He was released on strict terms of Bail including house arrest. In April of 2014, he entered pleas of guilt as set out earlier. A Pre Sentence Report and a psychological report were prepared and filed. Also received was a victim impact statement.

That statement, prepared by the complainant’s mother on behalf of the complainant, details the impact of the defendant’s acts upon the complainant. As that statement indicates, the defendant stole the young complainant’s innocence from her. In both the Pre Sentence Report and the assessment, the defendant somewhat downplays the facts of his actions indicating that, although he lied about his own age, he believed that the complainant was 16 years of age, in spite of the fact that he took no steps at all to ascertain the complainant’s age.

By his plea he has accepted that the complainant was indeed 13 years of age, and that he was and has been found guilty of these two offences. Both counsel filed helpful case law as earlier indicated setting out the result in other sentencings for these offences. Taken together, the range of sentence underlines the role that individual facts and the individual offender plays in the finding of a fit sentence pursuant to

Section 718 and following of the Criminal Code . The case law generally underlines, however, that considerable weight must be given to the principles of deterrence and denunciation in the weighing of

Section 718 and following. It is not hard to understand why. The seeming anonymity of the internet, coupled with its near universal use by young people, makes it a fertile field for the pursuit, grooming, luring and exploitation of the young by adult criminals for sexual purposes. Unlike cases where the police take on the persona online of a young person open to victimization, here the complainant was a real 13 year old girl, exploited by a 25 year old man masquerading as a teenager. The victim was a real person and was truly victimized.

In 2012, the law was changed to underline the repugnance of society at such criminal behaviour. Minimum sentences of imprisonment were made mandatory by Parliament. Children deserve to live their lives on and offline as children, free from sexual exploitation by anyone. Clearly the message has to be stated loud and clear to this defendant and to other like-minded individuals that society finds such behaviour directed as here against children abhorrent, and that a sentence of jail is unavoidable when caught.

Section 718 and following of the Code set out other sentencing factors applicable here, notably rehabilitation. These factors play a secondary or diminished role here, where Parliament has already determined the necessity of separating the defendant from society. The primary way to address the defendant’s rehabilitation lies after he has served a sentence by way of a lengthy period of probation.

Aggravating features of this sentencing include the age of the complainant, the difference in their ages, the fact that the defendant lied about his age and habituated a chat room intended for teenagers, that the complainant was somewhat groomed by the defendant and that actual, physical acts were undertaken on webcam and an image captured of the complainant. In mitigation, the defendant has no criminal record. He is a youthful first offender. He has pled guilty, accepting his responsibility for these grave criminal acts.

His guilty plea has removed the necessity of the complainant and her family having to relive the trauma of these offences in trial. The defendant has also lived under substantial house arrest terms for 1½ years without any indication of a breach. Not surprisingly, given the geographical distance and the complainant’s status as a schoolgirl living at home, the defendant took no steps to try to physically meet with the complainant. Further, no webcam images were shared by this defendant with anyone else.

Although the words of the defendant to the author of the Pre Sentence Report and the assessor downplay the facts of the offence, the defendant does appear very amenable to further counselling, assessment and treatment. The assessment by Dr. Sheridan concludes that the defendant is at a moderately high risk to further sexual offending if not treated. In the PSR and assessment there lies a modest degree of expressed remorse over and above the pleas themselves. I also agree that the defendant does present as lonely, shy and somewhat naïve, with considerable social struggles.

He has now recognized the support that he has in the community. A conviction under

Section 172.1 of the Criminal Code upon a

summary conviction election, as here, is a super

summary offence bearing a mandatory minimum sentence of 90 days and a maximum sentence of 18 months in the reformatory. A conviction under

Section 171.1 of the Code upon a

summary conviction election as here, bears a mandatory minimum sentence of 30 days in jail and a maximum sentence of 6 months in jail. In my view, the facts here, balancing the mitigating and aggravating features, are not such that the minimum sentences provided by law are adequate to denounce these acts and deter this defendant and others from like acts. I must, however, also give effect to a consideration of the very restrictive bail terms under which this defendant has lived since March of 2013.

While the Crown position of six months incarceration is a reasonable and defensible one here, in my view a proper sentence on these facts for this offender is as follows: I will ask you to stand up now, please, Mr. Smith. On a

Section 172.1 count, you are sentenced to four months incarceration. On the

Section 171.1 count, you are sentenced as well, to four months incarceration, to be served concurrently, for a total sentence of four months in jail. After serving your sentence you will also be placed on terms of probation for three years. Those terms are as follows: You will keep the peace and be of good behaviour. You’ll return to court as required by the Court. You will report in person to a

probation officer forthwith upon your release from custody. You will not associate directly or indirectly with M.T. You will not be within 500 metres of any place of residence, education, employment of M.T., or any other place you know her to be. You will not be alone in the company of any person under the age of 18. You will not be employed in a position of trust or authority, or in a position where you are responsible for anyone under the age of 18. You will not volunteer your service or time to any agency, community group and so on, where children under the age of 18 may be present.

You will not possess or access adult pornography. You will not possess or access any images of children who are depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner.

You will not use or possess any device capable of recording or storing data in a digital format, including but not limited to computers, hand-held devices, personal digital assistants, cellular telephones, digital cameras, digital video cameras, unless the possession or use of such a device is required for the purposes of your employment or education, and the possession or use of such a device is required at the place of employment or education only, or you obtain the written permission of the probation officer for the proposed possession of the device in these circumstances for the purpose of employment or education only.

You will not possess any device capable of accessing the internet or composing, transmitting or receiving electronic mail (e- mail), unless the possession or use of such a device is required for the purpose of employment or education and the possession or use of such a device is required at the place of employment or education only, or you obtain the written permission of the probation officer for the proposed possession of the device in these circumstances for purposes of employment or education only.

Even where written permission is obtained by you from the probation officer to possess any electronic device for the purposes stipulated therein, you shall not be permitted to have an electronic mail (e-mail) account without the prior written approval of your probation officer.

Where approval for an e-mail account is granted, the offender may be permitted to have only one e-mail account which the offender shall not change or use to create any other e-mail accounts, and you shall provide to the probation officer sufficient reliable, verifiable information regarding the electronic mail account to permit the police to monitor your use of e-mail services. In addition, you must provide the police with accurate, up-to-date information regarding your internet service provider account, (ISP account).

This information includes, but is not limited to, the name of the internet service provider and the offender’s account number and billing address. You will not use any electronic device to communicate with any person under the age of 18. You will not use any electronic device to access internet chat rooms or social networking sites including Facebook. You will only use an electronic device in a common area under the supervision of an adult family member who is aware of the nature of this offence and on a device that is password protected and can only be unlocked by an adult other than you.

You will attend for such counselling, assessment and treatment as may be directed by your probation officer and cooperate in the information going back to your probation officer so they know how you’re doing with that counselling, assessment and treatment. There is a specific recommendation in the PSR with respect to the CAMH clinic. I’m not going to specify that. There is a report that has been provided that post-dated this Pre Sentence Report and that may assist your probation officer in choosing where you should go. You will simply go where they tell you to take that counselling, assessment or treatment.

Those are the terms that were provided to me by way of submission. Are there any other terms suggested by counsel? MR. ALLMAN: Just with respect to the one, Your Honour. If I could, you indicated not to be in the, I think he’s not to be in the presence of anyone under the age of 18. THE COURT: Yes. MR. ALLMAN: Would you consider, except as is necessary and incidental to employment purposes? I mean, for instance, if he has a job at Tim Horton’s or something such as that, and he’s a server there, it’s possible, obviously, he’ll be in the presence of somebody who’s under that age.

In fact, it’s almost certainly going to occur. So that’s, that was the, I mean his, his employment prospects are, are, are very poor at this particular point in any, in any event. He’s gonna have to get whatever he can. THE COURT: In my view, Mr. Allman, the appropriate amendment to not be alone in the company of any person under the age of 18, will be except as permitted in writing by your probation officer. MR. ALLMAN: Thank you for that consideration. THE COURT: It seems to me quite unlikely that a probation officer will say you can’t serve at Tim Horton’s because young people may come in.

It’s something that will allow Mr. Smith to advocate that issue with his probation officer. MR. ALLMAN: Thank you. Thank you for that consideration on behalf of my client, sir. THE COURT: Do you understand those terms, sir? They largely parallel the Pre Sentence Report that you already received. CALLUM SMITH: Yes, Your Honour.

THE COURT: It’s a serious matter to breach this court order. If you’re found to have done so intentionally, you could go to jail. Do you understand that warning? CALLUM SMITH: Yes, Your Honour. THE COURT: If this order needs to be reviewed or changed, and three years is a very long time, then you can bring the matter back before the Court and ask the Court to consider changing the terms of the order. You can do that through your lawyer or your probation officer or by making the request yourself at the counter upstairs and a judge will consider changing the terms of the order.

In a few minutes you’ll get a copy of this order. It sets out your rights and your duties under this court order. Please make sure you understand those rights and those obligations. If you have any questions or concerns, take them up with your probation officer or Mr. Allman to clear those questions or concerns up. In addition, there is a requirement that I make a SOIRA order here. Because there are two subsection (

a) offences here, the order under

Section 490.013(2.1) of the Criminal Code requires that there be a registration on the SOIRA register for life. As Mr. Allman will advise you, there are limited ways of having yourself removed from that register some time after the passage of a considerable number of years. The intent of Mr. Smith is to reside in the Caledon area? MR. ALLMAN: It is. He’s gonna continue to reside with his parents upon release. THE COURT: Yes, I think, Madam Clerk, it’s part of the SOIRA order that there has to be an indication of where to report. That will be to the Caledon O.P.P. Detachment upon his first required reporting date.

Both sections are primary DNA offences so the defendant must provide a sample of his DNA to the national DNA databank. There was a request by the Crown for a forfeiture order of the seized computer equipment. I am satisfied under

Section 490.1 of the Criminal Code that the seized equipment is offence related property and a forfeiture order will issue. For that equipment, Madam Clerk, you may need to obtain the particulars of that from the Crown at their office. MS MARCON: I’ve pulled out the form, I can provide, I have three copies. THE COURT: Ms Marcon already has the orders. CLERK REGISTRAR: Thank you. THE COURT: Finally, the Crown sought, by way of submission, a

Section 161 order with respect to requiring that the defendant not be in any public place where children may be found. In my view, under these circumstances, such an order would be redundant. The defendant is on a lifetime SOIRA registry and he is on three years of probation with terms that go beyond what the 161 order is requiring, so in my view, on these circumstances - the Crown proceeded by

summary conviction procedure – a 161 order is not required. Anything else I haven’t canvassed besides the withdrawal of the other charges? MS MARCON: I don’t believe so, Your Honour. THE COURT: Any other charges will be withdrawn by the Crown, I assume? MS MARCON: Yes. THE COURT: All right. Thank you. This is, as they say in the greeting cards, the first day of the rest of your life. You got this out of the way. You stood up in front of your community as an adult and have taken responsibility for these events. That’s impressive to me. I hope you’re not back in the court again in this role, sir.

Please step into custody and good luck. There will be some paperwork for the defendant to sign before he’s transported today. WHEREUPON THIS MATTER CONCLUDES ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S ​ENTERED ON PAGE Reasons for Judgment 1

IMPORTANT: INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE OF CANADA , BY ORDER OF JUSTICE OF THE PEACE D. FLORENCE ON MARCH 6, 2013 Transcript Ordered: October 7, 2014 Transcript Completed: October 20, 2014 Ordering Party Notified: October 20, 2014