R. v. S.P., 2018 ONCJ 621

CITATION: R. v. S.P. , 2018 ONCJ 621 Information No. 17-5397, 17-8868 17-10229, 18-731 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. S.P. - R E A S O N S O N S E N T E N C E - ********** BEFORE THE HONOURABLE JUSTICE S.N. LATIMER, on AUGUST 02, 2018 at KITCHENER, Ontario ********** CHARGES: s.151 C.C. – Sexual interference s.152 C.C. – Invitation to sexual touching X2 s.163.1(2) C.C. – Making child pornography X4 s.163.1(3) C.C. – Making child pornography avail.X4 **********

APPEARANCES : L. Elliott Counsel for the Crown S. Harvey Counsel for S.P. - R E A S O N S O N S E N T E N C I N G – LATIMER, J. (Prov. ) Orally: These are my Reasons for Sentence in the matter of S.P. Introduction : Mr. S.P. has pleaded guilty to 11 Criminal Code offences. These charges can be grouped as follows: Four counts of making child pornography, Four counts of making child pornography available, Two counts of invitation to sexual touching, One count of sexual interference. The Crown has elected to proceed by indictment. By any standard, the admitted facts in this case are grave and substantial.

This reality is perhaps best demonstrated by the respective sentence positions advocated for by the parties. The defence recommends 6 to 8 years in custody; the Crown 8 to 10. Despite S.P.’s lack of a prior adult record, all parties agree a lengthy penitentiary sentence is in order. Facts : An online investigation into child abuse file-sharing led the police to S.P.’s door. On four discreet occasions in 2017, S.P. uploaded either a video or an image that met the Canadian Criminal Code definition of child pornography, or a URL linking to such material.

His conduct was committed via an online chat-room called, “Chat-Step.” The site’s internal monitoring software identified the images being transmitted and referred the matter to law enforcement. Ultimately an investigative process led to the police executing a search warrant on August 1 st , 2017 at S.P.’s apartment in Waterloo. Various digital devices were seized and subsequently examined. In total across all devices, S.P. possessed 1,868 images of child pornography and 95 videos.

Many of these images were duplicated across the various devices such that the total amount of images possessed was 3,358, and 98 videos. I was shown a representative sample of this material during these proceedings. It was difficult to watch. On the Oliver Scale, it appears many of these images reached the Fourth Category, involving penetrative sexual activity between children and adults, including anal

intercourse. Many of these abused children are very young between the ages of 2 and 5 and in some cases, infants. One particular video depicts an adult male removing an infants diaper and attempting forcible anal penetration. See R. v. Oliver, [2002] EWCA Crim 2766 . The forensic analysis of the seized devices also uncovered media relating to S.P.’s children and other children who were at times in his care. Five such children were identified and, as part of his plea, S.P. acknowledges creating the images and videos involving these children that were found in his possession and that constitute child porno​graphy.

In keeping with the non-identification orders made in this case, I will refer to the children by their initials only. A.L. was S.P.’s 7-year- old step-son. S.P. filmed him bathing and I was shown this film as part of the representative sample of the material in S.P.’s possession. The camera appears to have been placed on the floor and aimed towards the bathtub. The video is just shy of 3 minutes long and, at various points, focuses on A.L.’s penis and anal region. At one point, S.P. rearranges the camera angle.

This particular video was found on an SD card that also contained other images taken, seemingly surreptitiously, of children at splash pads, parks and other areas in Waterloo Region. To be clear, these images were not, in and of themselves, child pornography, but in the circumstances, reasonably created an investigative concern. S.P.’s girlfriend at the time was the mother of two young daughters, A.M. and I.M. These girls were three years and one-year-old, respectively. A series of 155 images and one video involving these girls was forensically discovered. I was shown the video during the sentencing process.

It involves the defendant sitting on the toilet with his pants and underwear around his ankles; his bare legs and penis are visible. Both girls are present and are encouraged to touch the defendant’s penis. A.M. brings a container of liquid and applies some to the penis. S.P. then takes her hand and essentially forces her to masturbate his penis. Child abuse images of S.P.’s biological daughter, P.K., which had been previously deleted, were also discovered during the forensic analysis of his digital devices. She was three years old at the time. Specifically, three images and three video files.

The images display P.K.’s legs splayed open and the defendant touching her vagina. The videos, one of which I was shown during this proceeding, display P.K. nude and sitting on the lap of her equally naked father. In one video, she is touch​ing his penis with her hand and at one point, her vagina comes in direct contact with his penis. In another, her vaginal area and buttocks are pressed against his penis while he masturbates. Finally in the last video, P.K. is in a swimsuit while her father masturbates in front of her. She is holding a Lego toy in her hand.

The fifth child is A.S., a ten-year-old neighbour of the defendant. During the course of the inves​tigation as the forensic analysis began to reveal abuse images of identifiable children, S.P. candidly spoke to the investigating officer and advised that he had also recorded a video of A.S. changing into her swimsuit before she went to a local splash-pad. The video itself was never located, but images of a clothed A.S. - apparently taken surreptitiously through a window - were discovered.

It is an agreed fact that while S.P. was sharing other child-abuse images online, there is no evidence that he shared any images involving these five particular named children. Additional Information : A Pre-Sentence Report was made available for this sentence hearing. It contains reference to prior youth findings of guilt. The Crown, not unreason​ably, does not place significant emphasis on it. It also documents S.P.’s troubled and sometimes difficult childhood. He suffered abuse at the hands of adults including those who were supposed to care for him.

He is historically disconnected from his family and, more recently, has become further isolated. He is remorseful and saddened by his actions and is open to treatment options that will be made available to him in the penitentiary system. When it was his opportunity to address me during his sentencing, he was visibly emotional and described himself committing, “monstrous, des​picable acts that he wishes he could take back.” Present in court during this proceeding were P.K., I.M. and A.M.’s mothers. A.M. and I.M.’s mother presented a Victim Impact

Statement on her own behalf, and on behalf of her young daughters. I was grateful for her attendance, for everyone’s attendance, and herdecision to provide me insight into the harm caused by S.P.’s conduct. Her reality is every parent’s worse fear: that your children wereharmed and violated and you were unable to protect them. She writes, “I am going to be tormented by the guilt that I could not protectmy girls,” and describes the understandable trust issues that have followed.

She further writes in relation to her daughters, “One thingthat is hard to measure and that’s how are they going to be affected in the future? They were so young, you really can’t say with acertainty how they will be for the rest of their lives.” This statement echoes the concern articulated by our Court of Appeal in a decision called R. v.

Woodward (2011), 2011 ONCA 610 , 276 CCC (3rd) 86, paragraph 76 where the Court said: “I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of thesentence hearing should be focused on the harm caused to the children by the offender’s conduct, and the life-altering consequences thatcan and often do flow from it.

While the effects of a conviction on the offender and the offender’s prospects for rehabilitation willalways warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society, forsociety’s well being and the well being of our children, must take precedence.” I am unfortunately required to note an issue that arose with regard to the Victim Impact Statement. It was not prepared in Form 34.2 asmandated by Section 722(4) of the Criminal Code. The recent amendments to this

section of the Code do not remove the Crown’sobligation to ensure that the information they seek to present to the Court is admissible and consistent with the law surrounding impact statements. See R. v. P.B. (2015), 2015 NSPC 34 , 325 CCC (3rd) 300, (N.S.P.C.), and R.v. Gabriel (1999), (ON SC), 137 CCC (3rd) 1 (Ont. S.C.J.). In P.B., Justice Derrick writing prior to her elevation to the Nova Scotia Court of Appeal, discussed many of the issues that regrettablyalso arose in this particular case. See for example, pages 311 to 322 of her judgment.

The prescribed form is drafted to ensure that focusis placed on information that is admissible, pursuant to s.722 - that is the harm and the loss caused by an offender’s actions. Thisstatement is directed towards the sentencing judge, not the offender, and is not to, “express criticism of the offender or makerecommendations or comments about the severity of the sentence.” See P.B. at 311. Without getting into specifics, significant por​tions of the impact statement presented in this case contained inflammatory statements thatare not admissible pursuant to the provision. Ms.

Elliot when asked by the Court, readily agreed with the Court’s conclusion. Providing and reading out a Victim Impact Statement in court, in the presence of the public, in stressful circumstances, is inarguably acourageous act. Ms. M.’s important contribution to this proceeding was imperiled by the State’s failure to ensure that she was providedthe proper form, and the Crown’s failure to ensure that her statement was edited prior to being provided to the Court. This approachrisked inadmissibility and risked silencing her voice in this proceeding.

I wish to make clear, at the risk of repetition, that my criticism isnot of Ms. M. personally, whose input is important and valued during this proceeding. The Crown’s office should be on notice thatfuture impact statements, absent exceptional circum​stances, are expected to be contained on the prescribed form and should be reviewedby the assigned Crown Counsel prior to submission to court. Applicable Sentencing Principles: S.P.’s admitted criminality is complex. One aspect relates to the possession and distribution of child pornography over the Internet.

Another involves the creation of similar images, and the abuse of children entrusted to his protection, who are involved in creation ofthose images. I propose to review these relevant principles relating to child pornography and the sexual abuse of children and then returnto the present case to apply the law to S.P.’s circumstances. Child Pornography: I recently reviewed my understanding of these principles in R. v. Chislette, 2018 ONCJ 218, and do not see the need to exhaustibly repeathere what I said there.

The Ontario Court of Appeal has recently and repeatedly stressed the importance of deterrence and denunciationin sentences that engage, “an abhorrent crime that victimizes the most vulnerable members of our society.” See R. v. Nisbet, 2011 ONCA 26.

Rehabilitation while still relevant, achieves secondary prominence. More recently, in R. v. Inksetter, 2018 ONCA 474, released in Mayof this year, the Court stated the following in paragraph 22 with regard to the gravity of the crime of possession of child pornography: “Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2, [2001] 1 SCR 45, the Supreme Court described how possession of child pornography harms children. As Fraser, C.J.A. wrotein R. v.

Andrukonis, 2012 ABCA 148 at paragraph 29, “Possession of child pornography is itself, child sexual abuse. Children depictedin pornographic images are re-victimized each time the images are viewed. In amassing, viewing and making available his vast andterrible collection to others, the respondent participated in the abuse of thousands of children.” Twenty-three years ago, in 1995, the Court of Appeal’s judgment in R. v.

Jewell (1995), (ON CA), 100 CCC (3rd) 270at 277, foresaw the coming problem of child sexual abuse in the digital age. “The conduct underlying these convictions discloses a sub-culture that is unsettling and repugnant. These appeals confront the Courtwith the pressing issue of how to deal with offenders such as the Appellants who prey on young persons, boys, in this case, for no otherpurpose than there own sexual gratification.

The Court must be responsive to emerging concerns that pornography, particularly childpornography, has become an area of criminality that increasingly menaces our young people and threatens our values as a society.

Because pornography now can be so easily prepared and disseminated through relatively inexpensive means, such as the hand-held videocamera used in the case under appeal, it has emerged as a very real problem in our society.” Child Sexual Abuse: The Criminal Code instructs me that the ages of the child victims here, and S.P. relationship to them, are facts that I must pay closeattention to during this sentencing, and are properly to be considered aggravating factors. See Sections 718.2(a), (ii.1) and (iii) of theCode.

By his conduct, S.P. violated a trust and responsibility he owed to all of these children, most profoundly his own tender-agedchildren. In clear and direct language, the Court of Appeal has plainly stated the appropriate analytical lens through which to view the criminal sexual abuse of a child. See R. v. D.D., (ON CA), [2002] OJ No. 1061, 163 CCC (3rd) 471, paragraphs 34to 36: “Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs, must know that theywill pay a heavy price.

In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in718(a), (

b) and (

c) of the Criminal Code commonly referred to as denunciation, general and specific deterrence and the need to separateoffenders from society, must take precedence over the other recognized objectives of sentencing. We as a society owe it to our children to protect them from the harm caused by offenders like the Appellant. Our children are at once ourmost valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselvesagainst pre​dators like the Appellant and as such, they make easy prey.

People like the Appellant know this only too well and they exploitit to achieve their selfish ends, heedless of the dire consequences that can and often do follow. In this respect, while there may have been a time, years ago, when offenders like the Appellant could take refuge in the fact that littlewas known about the nature or extent of the damage caused by sexual abuse, that time has long passed. Today, that excuse no longerholds sway.

The horrific consequences of child sexual abuse are only too well known.” Crown and defence counsel have helpfully provided me with related sentencing judgments, in aid of their respective positions onsentence. I reviewed all of these cases, and they assist me in developing an appropriate range of sentence. No two cases are alike, butmany cases share similar circumstances and features. I would refer to a few of the cases provided and referred to in these judgments. In R. v.

T.L., 2018 ONCJ 107, Justice Gage of the Ontario Court imposed a 13-year, 3-month sentence on an offender who pleaded guiltyto sexually abusing his 7-year-old stepdaughter. T.L. filmed the abuse and subsequently shared it over the internet. The abuse involvedanal and vaginal penetration, and over 3,000 images and 250 videos involving his stepdaughter were located on his digital devices. Allof these images and videos met the statutory definition of child pornography. Justice Gage’s Reasons provide a cogent and persuasivereview of the relevant legal principles engaged in this area.

In R. v. D.G.F., 2010 ONCA 27, 250 CCC (3rd) 291, the Ontario Court of Appeal increased a sentence to seven years for the abuse of theoffender’s four-year-old daughter over an extended period of time, culminating in a live-streamed event over the internet where hedigitally molested his daughter. An extensive amount of child pornography was also seized from his residence. The Court’s languagestrongly suggest they felt restrained to seven years based on the position originally taken at trial by the Crown. In R. v.

L.M., 2008 SCC 31 , [2008] 2 SCR 163, 231 CCC (3rd) 300, the Supreme Court of Canada restored a 15-year sentencethat had been imposed at trial on a father who abused his daughter while she was between the ages of two and four in circumstances thatwere described as “nightmarish.” His conduct was repeated, invasive and was filmed and distributed over the internet to other like-minded individuals. In some instances, he profited from the distribution. L.M. had a prior record as a youth for similar conduct and hadpreviously been made subject to an 810.1 order.

He was also found to be in possession of 5,300 images of child pornography and 540videos. He was also made subject to a 10-year long-term supervision order. Some of his convictions were registered following a trial. In R. v. Piche, 2015 ONCJ 529, Justice Dean of the Ontario Court imposed a nine-year sentence for an offender who videotaped hisabuse of three teenaged boys over lengthy periods of time. It was estimated one boy was assaulted over 300 times. The assaultsprincipally involved fondling and did not involve acts of anal penetration.

Piche had no prior criminal record and pleaded guilty at anearly opportunity. Additionally, he possessed 4,511 images of child pornography and 682 videos. Finally, in R. v. J.S., 2014 ONCJ 249, Justice George, at the time sitting on the Ontario Court, imposed an approximate six-year sentencefor a first offender following a plea involving sexual interference and counseling the creation of child pornography. During an onlineexchange with an American resident, J.S. requested that certain sexual acts be perpetrated on children and provided to him via e-mail.

Asearch warrant on his residence revealed the possession of an unspecified but – it seemed to me less than 400 - images and videos ofchild pornography. J.S. also molested both of his children. Analysis: I consider the following features of the present case particularly relevant to the determination of an appropriate sentence: 1. On the mitigating side of the ledger, S.P.’s plea of guilt is an expression of remorse and deserving of significant consideration.

Whatever the strength of the Crown’s case may have been, his plea provides finality to the proceedings and hopefully a degree of closureto the affected parties. 2. I further accept S.P. has the capacity to accept and benefit from treatment, and is beginning to accept the depth of the problem that heobviously suffers from. 3. S.P. cooperated with the police once the investigation reached a certain point, identifying a victim that, as it turns out, the police werenot able to identify on their own. His conduct further demonstrates that he is a viable candidate for treatment and rehabilitation. 4.

I note that S.P. has expressly waived, through his counsel, any reliance on Gladue principles in this sentencing. As noted by theGladue letter-writer, attempts to document his potential indigenous background have not been possible on the available evidence. 5. I am aware of S.P.’s 2001 finding of guilt in youth court for a sexual offence. 6. I note and adopt the sentencing principles I reviewed earlier in this judgment. The predom​inant, although not exclusive,considerations that must drive this proceeding are deterrence and denunciation. 7.

The offender abused four children and additionally filmed another, all under the age of 18. The number of victims and theirrespective ages, are independent aggravating factors. See 718.2(a), (ii.1) of the Code.

8 . The Impact Statement filed reveals a significant harm occasioned to A.M. and I.M.’s family. I readily accept that all of the other children who were abused are at risk of similar harms, as the Court of Appeal has identified in D.D. and Woodward. The crime of sexual assault is inherently a crime of violence in the insidious way in which it has the potential to cause significant emotion and psychological damage. It is an evil crime: See R. v. D.A.I. , 2012 SCC 5 at paragraph one. 9 . The nature of the other child pornography images possessed and distributed is a significant aggravating feature.

The children are exceedingly young, some infants, and made subject to highly intrusive methods of abuse, including vaginal and anal penetration. The quantity of images possessed by the defendant is also substantial, and similar in size to cases where 3 and 4-year sentences were imposed. See for example, R. v. Pelich, 2012 ONSC 4100 , and R. v. Bock, 2012 ONSC 3117 . 10 . The children who were abused and filmed by the defendant were very young, as young as one year, nine months. The offences involving his own children involved profound breaches of trust, and the fidelity owed to a child by a parent.

The conduct against the other children were similar violations of trust. 11 . A.M., I.M. and P.K. were separately used as masturbatory props in a sick, autobiographical re​cording made by the defendant. The fact these images and videos were not shared is the lack of an aggravating feature that is present in some of the other cases in this area like D.G.F. and L.M. I note as well that in some of the other cases, like L.M. , the abuse occurred over a lengthier period of time and involved penetrative acts. 12 . The principle of totality is relevant to this sentencing.

I note however, the Court’s comments on this point in D.G.F. at paragraph 27 : “Although the totality principle must always be considered when sentencing for multiple offences, a sentence imposed cannot thereby become inade​quate to properly recognize the overall gravity of this conduct that victimizes children in the most horrendous way.” In conclusion, the offender’s conduct was reprehensible, and a goal of the sentencing is to denunciate that conduct in the strongest terms.

The Court of Appeal in D.D. instructed trial judges in this regard at paragraph 46 of their judgment: “The Appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct is reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the Appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence. Families are often torn apart or rendered dysfunctional. Lives are irretrievably damaged and sometimes permanently destroyed.

Because of this, the message to such offenders must be clear; prey upon innocent children and you will pay a heavy price!” Balancing all the mitigating and aggravating features of this case as best I can, I have come to the conclusion that a global sentence of 9 years, 3 months is appropriate and necessary in the present circumstances. Such a sentence acknowledges the totality principle in the context of a case involving multiple victims, and multiple forms of criminality. In L.M.

Justice LeBel, speaking for the majority of the Supreme Court, addressed a similar point at paragraph 31 of that judgment: “The judge also correctly understood the close relationship between the offences, the overall situation they gave rise to, and the need to impose a global sentence suited to that situation. Viewed as a whole, the crime was complex. The offence of sexual assault was closely connected with three other offences of making, possessing and distributing child pornography that are subject to express sanctions under the Criminal Code .

Each aspect of the offender’s conduct could be considered only in light of all these charges, viewed as a whole.” Disposition : The offender has served as of today, 298 days in pre-trial custody. I will credit that on a 1.5 basis and round it up to 450 for ease of reference; that is 15 months. Nine years, 3 months works out to 111 months, reducing for pre-trial custody, the sentence going forward is 96 months. I would allocate it in the manner described on the appendix I am providing to counsel, Madam Clerk. I would welcome their review of my math.

Additionally, there will be the following ancillary orders; D.N.A., S.O.I.R.A. for life, a

Section 109 weapons prohibition for life in both categories, a 743.21 order which would prohibit contact while S.P. is in the penitentiary with the child victims referred to in this judgment. A

Section 161 order for 20 years, the terms of which I have referred to in the appendix document. Ms. Harvey, you’ll note under “C”, I’ve attempted to address Mr. Ritter’s submission about indirect contact. That is the sentence of the Court.

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