2017 ONCJ 501, 2017 ONCJ 501

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or

(2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. D.B. , 2017 ONCJ 501 DATE: 27 July 2017 COURT FILE No.: Ottawa 16-RA19518 BETWEEN: HER MAJESTY THE QUEEN — AND — D.B.

Before Justice Robert Wadden Plea Entered December 2, 2016; Submissions June 22, 2017 Reasons for Sentence released July 20, 2017 Hart Shouldice ....................................................................................... counsel for the Crown Paul Lewandowski .......................................................................... counsel for the defendant WADDEN J.: [ 1 ] D.B. pleaded guilty to offences on two separate informations, involving counts of sexual assault and sexual touching against four young children and counts of possessing and making available child pornography.

The Crown seeks a total sentence of 13 years jail, less presentence custody, with ancillary orders. The defence seeks a total sentence of under 5 years, which, taking into account presentence custody, would involve a further term of two years less a day, plus probation. The issues before me involve a determination of appropriate sentences for the sexual offences and the child pornography offences, and an appropriate overall sentence.

As well, the defence raises the issue of the proper credit to be given for presentence custody, suggesting that credit should be given on a 2:1 basis, as the sexual assault offences, though not the presentence custody, occurred when the law allowed for such credit. The Sexual Assault Offences [ 2 ] The facts underlying these offences are set out in an Agreed Statement of Facts and in a Sexual Behaviours Assessment Report filed with the court. Mr. D.B. has admitted all of the facts. [ 3 ] The first sexual offence occurred in 1977, when Mr. D.B. was 16 years old. He assaulted his four year-old cousin A.B. by

performing oral sex on her multiple times while he was babysitting her. On one occasion he rubbed his penis between her legs to the point of ejaculation. [ 4 ] The next offences occurred between 1990-1994, when Mr. D.B., in his late 20’s to early 30’s, sexually assaulted his nephew J.S., a six year old boy. He began by grooming him with pornographic videos and masturbating in front of him, progressing to rubbing J.S.’s penis, then performing oral sex on him and having him reciprocate. Over the years the acts involved mutual masturbation and having J.S. performing oral sex on him approximately 3 or 4 times.

On one occasion Mr. D.B. rubbed his penis between J.S.’ legs and ejaculated. [ 5 ] In 1999 Mr. D.B. sexually assaulted his five year-old neice V.B. by putting his hand down her pants and touching her vagina. Her sisters were present and witnessed the assault. [ 6 ] In 2001 Mr. D.B. sexually assaulted his 1 ½ year-old son, R.B., by masturbating him and performing oral sex on him. [ 7 ] Some of these offences had been reported in the past but not pursued. In November 1999 V.B. reported the abuse to the police, but there is no indication charges were laid. In May 2003 Mr.

D.B.’ ex-wife reported the abuse against their son R.B.. Mr. D.B. denied it at the time. In September 2015 Mr. J.S. reported the abuse to the police. An investigation was commenced which led to the arrest of Mr. D.B. on these charges in 2016. Mr. D.B. admitted to all these offences when interviewed by the police in 2016. The Child Pornography Offences [ 8 ] While the police were investigating the sexual offences in early 2016, a separate investigation into child pornography led to a search of Mr. D.B.’ home.

When police entered the residence to execute a search warrant they seized his computer, which was ultimately found to contain over 500,000 images and 25,000 videos of child pornography. The pictures depicted children ranging from infants to early teens, both boys and girls, being anally and vaginally penetrated by men and women with penis, finger, tongue and other objects, children being masturbated by adult men and women and children being bound. The number of images is an approximation, as the collection was so large that hundreds of thousands of images were not categorized.

It is agreed that it is among the largest of collections. Mr. D.B. pleaded guilty to possession of the child pornography and to a count of making available a child pornography video. Victim Impact Statements [ 9 ] In relation to the sexual offences, A.B., V.B. and J.B., and R.B. filed Victim Impact Statements. They each described, to varying degrees, the lingering effects of the abuse by Mr. D.B.. They show there has been ongoing psychological harm caused by his actions. A.B. has lived her whole life with a distrust of family, causing her to feel alienated.

V.B. lives with a fear of men and difficulty trusting anyone. R.B. also described difficulty with trust and lingering feelings of discomfort and insecurity. Pre-Sentence Report and ROH Report [ 10 ] Substantial material about Mr. D.B. was filed on the sentence hearing. A thorough Pre-Sentence Report was prepared. In addition, Dr. Paul Federoff of the Royal Ottawa Mental Health Centre assessed Mr. D.B. and prepared a report. Both provided extensive information about Mr. D.B.. [ 11 ] Mr. D.B. is 55 years old and before his arrest he was last working as an OC Transpo bus driver.

Interviews with his ex-wife indicated that there had been accusations of Mr. D.B. committing sexual acts against children in the past, but he had denied them and they didn’t proceed further, and she had dismissed rumours she had heard within the family. The couple separated in 2003, apparently around the time Mr. D.B. was charged with assault against her and accusations were made by her that he abused R.B.. Mr. D.B. was prohibited from contact with his wife and children, the CAS became involved and he was sent for a Sexual Behaviors assessment.

Apparently he attributed this, at the time, to “crazy accusations” being made against him. [ 12 ] When interviewed for the Pre-Sentence Report, Mr. D.B. admitted to a long-standing sexual attraction to children. He admitted to having taken up employment as a school bus driver to be close to children, due to his attraction to them, although he never acted on it in that context. He took up a nudist lifestyle, initially for sexual interest, which eventually sparked his interest in child pornography. The Pre-Sentence Report author notes that in interviews Mr.

D.B. claimed to have suffered sexual abuse as a child, although this is not substantiated by those who knew him well, and he had not disclosed it in a Pre-Sentence Report in 2004. There are indications in the report that, even on his own admission, he has been manipulative in the past with respect to denial of sexual offences. Family members and victims who were interviewed are cautious about his sincerity in seeking treatment, noting that he did not seek it in the past when he was accused of, but denied, these acts. [ 13 ] During interviews with Dr. Federoff, Mr.

D.B. admitted to attending nudist clubs to see children naked. He admitted to the use of internet pornography 4 or 5 times per month, for 5 to 6 hours per month, and chat lines for about 10 hours per month. At another point he indicated he viewed pornography for 2 hours per day, with 80% of the time being on illegal pornography. He told Dr. Federoff that he used the pornography to satisfy his urges toward children. In relation to his assessment and treatment at the Sexual Behaviors Clinic in 2003, he admitted that he had not been forthcoming and had denied any sexual offences or pedophilic urges at that time.

In the current assessment, Dr. Federoff conducted a full Sexual Behaviours Clinic Assessment and found that Mr. D.B.’ sexual interest in children was confirmed by phallometric testing, with sexual arousal to both boys and girls and to incest themes. Dr. Federoff diagnosed Mr. D.B. with pedophilia. He was of the view that Mr. D.B. showed insight into his pedophilia and expressed a desire to take treatment. Dr. Federoff’s opinion is that Mr. D.B.’ current risk of reoffending is low to moderate.

Criminal Record [14] Mr. D.B. has only one entry on his criminal record, a finding of guilt for spousal assault in 2004, for which he received aconditional discharge. According to the Pre-Sentence report, Mr. D.B. committed the assault in 2003 after his wife called him a childmolester. The incident appears to be closely related to the accusations and denials made around that time. Defence Materials [15] Many letters of support were filed on behalf of Mr. D.B.. Those who have known him socially and at work speak well ofhim and indicate they would continue to support him once he is released back into the community.

His wife writes that he has thepossibility of employment as a truck driver once released from custody. Mr. D.B. himself wrote a letter of apology, which he read incourt, expressing his remorse at the pain and suffering he caused to his victims. Statutory Considerations on Sentencing [16] The applicable principles of sentencing are set out in s. 718 of the Criminal Code – denunciation of unlawful conduct and theharm done to victims, deterrence of the offender and others from committing offences, rehabilitation and promotion of a sense ofresponsibility and acknowledgement of the harm done to victims.

According to s. 718.2, abuse of a person under the age of eighteenyears is an aggravating factor on sentence and s. 718.01 states that “when a court imposes a sentence for an offence that involved theabuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence ofsuch conduct.” Case Law on Sexual Offences Against Children [17] The leading sentencing authority for sexual offences against children is R. v. D.D. (2002), (ON CA), 58O.R.(3d) 788.

The Court of Appeal stated that “when adult offenders, in a position of trust, sexually abuse innocent young children on aregular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.” Theoffender in that case bore some similarities to Mr. D.B. – he was a truck driver with a minor criminal record. He was convicted ofrepeated offences of “all manner of sexual activity” against four victims over a seven year period. The acts ranged from masturbationand oral sex to anal intercourse. He used violence to ensure compliance.

He did not plead guilty but was convicted after trial. The factsand circumstances are more aggravating than those of Mr. D.B.. The Court held that the sentence of 9 years was within the appropriaterange, and indeed at the low end of the range. [18] The Court of Appeal reiterated these principles in R. v. Woodward, 2011 ONCA 610, in which a sentence of five years wasupheld for sexual abuse, including intercourse, against a 12 year-old child.

The Court held that “Adult predators who seduce and violateyoung children must face the prospect of a significant penitentiary term. … when trial judges are sentencing adult sexual predators whohave exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’sconduct and the life-altering consequences that can and often do flow from it. … the objectives of denunciation, deterrence, and theneed to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence.” [19] In R. v.

C.C., 2012 ONSC 3509, O’Marra J. followed R. v. D.D. and R. v. Woodward in imposing a sentence of five years onan offender who abused his stepdaughter over a period of four years, including digital penetration. Like Mr. D.B., C.C. was a respectedmember of the community. He had no criminal record and a long history of volunteering.

O’Marra J. held, though, that “his goodworks do not make for an exceptional circumstance such as to derogate from the primary sentencing objectives of denunciation anddeterrence or reduce the sentence within the appropriate range.” [20] These principles, and the range of sentence, have been reiterated by the Court of Appeal in cases as recent as R. v. R.O., 2015ONCA 814, in which a seven year sentence for prolonged sexual abuse of a stepdaughter, including intercourse, was upheld on appeal. [21] Among the authorities cited by the defence, R. v. P.(M.), [1996] O.J. No. 5476 (Gen. Div.), was decided before R. v.

D.D.and falls well below the appropriate range as now set out by the Court of Appeal. Similarly, the 12 month sentence in R. v. Sabbe,[2011] O.J. No 2655 (S.C.J.), although decided more recently, would appear to be an outlier and not in accordance with the range set bythe Ontario Court of Appeal. Although I was urged to measure Mr. D.B.’ offences, and the appropriate sentence, against R. v. Stuckless(1998), (ON CA), 41 O.R.(3d) 103, I note that decision preceded R. v. D.D. and the sentence was found by the R. v.D.D. court to be at the lower end of the appropriate range.

Case Law on Possession of and Making Available ChildPornography [22] In cases that have considered the offences of child pornography, contrary to ss. 163.1(4) and (3) of the Code, it appears thatthe range of sentence for possessing a collection of child pornography is a term of incarceration in the range of upper reformatory to mid-single digit penitentiary. In the recent decision of R. v. Carlos, 2016 ONCA 920, the Court of Appeal upheld a sentence of three yearsfor a first offender, with a low risk to reoffend, found guilty of possession and making available 38 videos. In R. v. Tweedle, 2016

ONCA 983 , also recently released, the Court of Appeal upheld a 20 month sentence for these offences, in circumstances where there were 29 videos and 431 pictures and repeated instances of sharing. [ 23 ] A case in which the quantity of images was similar to Mr. D.B.’ was R. v. Dean, [2010] O.J.

No. 5305 (SCJ) , in which Ratushny J. imposed a sentence of three years on an offender who pled guilty to possession of a child pornography collection comprising over 288,000 pictures and 1,000 videos. [ 24 ] The gravity of the offence of possession of child pornography was well stated by Ratushny J. in the unreported decision of R. v. Philion , in which she said that these offences “are inherently violent and extremely serious and harmful without [the offender] having committed any actual physical sexual assaults against children. Child pornography offences are enormously harmful.

Child pornography pictures depict young children who have been subjected to extreme physical, mental and emotional violence.” The images at issue in R. v. Dean were similar to those described in the case before me – pictures portraying a “wide range of depravity” involving children subjected to sexual abuse and degradation. Aggravating and Mitigating Factors [ 25 ] The aggravating factors are numerous and readily apparent. Mr. D.B. is a pedophile who sexually abused four children over a thirty-one year period.

The victims were all young and related to him, ranging in age from 6 years old to his one and half year old son. The assaults involved sexual touching, masturbation and oral sex. The harm he caused to the victims will follow them for the rest of their lives. [ 26 ] Separately, Mr. D.B. was in possession of an enormous collection of child pornography, and he, on one occasion, made an image available for sharing. The possession and sharing of these images perpetuates the harm of the sexual abuse shown in them. Each picture depicts an actual instance of sexual violence against a child. Mr.

D.B. had over half a million of them. [ 27 ] There are concerns in the lifestyle of Mr. D.B., in the work and recreation choices made by him. He chose to work as a school bus driver, which had him in the presence of young children. He chose to engage in nudist activities, where he would be in the presence of naked children. It is alarming that, according to his own account, his presence around nude children led to his interest in child pornography.

He carried on these activities – driving a school bus, doing nudist activities, possessing child pornography – after concerns had already come to light, and he had been assessed at the Sexual Behaviors Clinic, in 2003. [ 28 ] There are mitigating factors. Mr. D.B. has significant family and social supports in the community, and his prospect for treatment is good. According to Dr. Federoff, Mr. D.B. presents a low to moderate risk to reoffend. He was well employed throughout his life and he may have opportunities for work when eventually released.

Although he has a criminal record, it is limited. [ 29 ] I give significant weight to the guilty plea as a mitigating factor. When arrested in 2016 Mr. D.B. confessed to all offences. He has apologized in court and expressed remorse. This is offset somewhat by his past denials, which caused further harm to his victims. His admissions, and expression of remorse, may ring hollow with them. But his guilty plea means his victims did not need to testify in court and it took away the uncertainty of the outcome of this proceeding.

The victims themselves may not realize the significance of this but those who work in the criminal justice system can attest to how much further suffering this has saved them. To paraphrase Moldaver J.A. in R. v. D.D. , Mr. D.B.’ victims were not “required to re-live the horror of their ordeals and suffer the humiliation of cross-examination … .” Sentence [ 30 ] In considering the appropriate sentence I have to, among other things, consider that the offence against A.B. was committed while Mr. D.B. was a youth. The total sentence for Mr.

D.B. will include a concurrent period of youth probation in order that I may impose a legally available sentence for that offence. [ 31 ] The sentence for these offences is not to be imposed piecemeal, or artificially divided up. Determining a fit sentence for the crimes of Mr. D.B. involves more than adding the sum of the parts. He engaged in sexual abuse against children related to him, not constantly but on a recurring basis, over the course of 31 years. As the analysis in R. v.

D.D. and other authorities demonstrates, where an offender has committed sex crimes against multiple children over a period of years it is the totality of his acts upon which he will be sentenced. [ 32 ]

Section 718.2 of the Code directs that an offender must receive a sentence proportional to offenders similar to him who have committed similar acts. I must be guided by how Mr. D.B.’ crimes measure against those described in the leading authorities while recognizing that the circumstances of each case and each offender invariably differ. Many of the authorities cited involve offences against one victim, whereas Mr. D.B.’ crimes were against many children. [ 33 ] Mr. D.B.’ crimes are similar to those in R. v. D.D ., in that they involved four victims and abuse over a number of years. In Mr.

D.B.’ case, some of the sexual assaults were isolated incidents, but in the case of J.S. they were prolonged over a four year period. Mr. D.B.’ abuse did not extend to the point of intercourse, which distinguishes it from the degree of abuse in R. v. D.D. It is also notable that Mr. D.B. pleaded guilty, which is also distinct from the offender in R. v. D.D. Based on these distinctions Mr. D.B. would be deserving of a penalty somewhat less than the sentence D.D. received.

It is worth noting, however, that the Court felt that the nine years for D.D. was at the low end of the range for what he could have received. [ 34 ] Taking all the factors into account, including the number and age of Mr. D.B.’ victims, his relationship to them and his breach of trust, the degree of abuse he inflicted on them, falling short of intercourse, and the period of time over which this occurred, the appropriate sentence for Mr. D.B. on the sexual offences is six years in jail.

For the child pornography offences, given the size of the collection and the circumstances of his possession – that he was a pedophile who had committed sexual offences against children and

that the possession of the pornography was directly related to his sexual interest in children – he will be sentenced to three years consecutive. The total sentence is nine years jail, less presentence custody. Presentence Custody [ 35 ] Mr. D.B. has been in custody since his arrest on February 2, 2016, a period of 534 days. Defence counsel asks to have the credit applied on a 2:1 basis, as that was the practice at the time he committed the sexual offences. This is in spite of the fact that Mr. D.B. was not arrested at that time and all the time he has served in custody has been since 2016.

I see no merit to the defence argument. Credit for presentence custody is governed by s. 719 of the Code and the Supreme Court of Canada decision in R. v. Summers, 2014 SCC 26 . There is nothing in that decision, or s. 719, or any other authority, that would give enhanced credit for someone who has committed crimes in the past but had not been arrested for them. The argument might be viable if an offender had served a portion of the presentence custody in the past, but that is not the case for Mr. D.B.. Although the accusations may have been made in the past, he denied them and an investigation was not pursued.

He was not arrested until 2016, well after the enactment of the amendments to s. 719 and the release of the decision in R. v. Summers . His arrest and detention were directly linked to the raid on his home for the possession of child pornography. In allocating the sentence among the various crimes it would make sense to apply the presentence custody to the offences relating to the possession and making available of child pornography, a crime he was still committing at the time of his arrest. [ 36 ] In accordance with R. v. Summers , presentence custody will be calculated at a rate of 1.5:1.

The 534 days equates to credit for 801 days, or 2 years, 70 days. In order to reach a sentence of 3 years on the child pornography offences Mr. D.B. will be sentenced to serve a further 9 months, 20 days on the possession of child pornography. The offence of making available child pornography has a mandatory minimum sentence of one year. In the circumstances of this case, given there is one proven instance of sharing and taking into account the totality of the sentence, I will impose that sentence concurrently.

Conclusion – Sentence Imposed and Ancillary Orders [ 37 ] The sentence is 9 years jail less presentence custody, which as of today will leave 6 years, 9 months, 20 days, to be served, allocated as follows: • On the count of s. 163.1(4), Possession of Child Pornography – 3 years jail less presentence custody of 534 days, worth 801 days, for a remainder from today of 9 months, 20 days jail, and one year concurrent on s. 163.1(3), Make Available Child Pornography; • On the count of s. 271, Sexual Assault on J.S. - 6 years consecutive, and on s. 151, Sexual Touching on J.S., s. 151, Sexual Touching on V.B., s. 271, Sexual Assault on R.B. and s. 151, Sexual Touching on R.B. – 6 years on each count, concurrent; and • On the count of s. 149, Indecent Assault on A.B. – 3 years probation, under the Youth Criminal Justice Act , to run concurrent to the penitentiary term [ 38 ] The ancilliary orders sought by the Crown will be granted.

A sample of DNA will be taken for the DNA databank for each of the primary designated offences. Mr. D.B. will be subject to a SOIRA order for 20 years after the end of his sentence. He will be placed under a firearms prohibition for 10 years, pursuant to s. 109 of the Code .

He will be prohibited for life, in accordance with the terms set out in s. 161 of the Code , from attending a public park or a public swimming area where persons under 16 might be, from attending a daycare, schoolground or community centre, from seeking employment or working as a volunteer with persons under 16 or having contact with any person under the age of 16. Mr. D.B. is prohibited from contacting any of the named victims while incarcerated, pursuant to s. 743.21 of the Code .

There will be an order for forfeiture and destruction of the illegal material seized from the computers, on terms to be finalized with counsel. Released: July 20, 2017 Original Signed by Justice Robert Wadden