R. v. Pitts, 2016 NSCA 31

Nova Scotia Court of Appeal Citation: R. v. Pitts , 2016 NSCA 31 Date: 20160428 Docket: CAC 439939 Registry: Halifax Between: Jason Troy Pitts Appellant v. Her Majesty the Queen Respondent Restriction on Publication: 486 Criminal Code Judge: Van den Eynden, J.A. Motion Heard: March 24, 2016, in Halifax, Nova Scotia in Chambers Held: Motion dismissed Counsel: Jason Troy Pitts, appellant in person James Gumpert, Q.C., for the respondent Edward Gores, Q.C. for the Attorney General (Nova Scotia) Order restricting publication – sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with stepdaughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

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

i) to (iii).

Decision: Introduction [ 1 ] Mr. Pitts brought two motions forward – a release pending appeal under section 679(4) of the Criminal Code and an application for state-funded counsel under

section 684 of the Criminal Code . Both motions were opposed. [ 2 ] As Mr. Pitts’ appeal is against sentence only, he must obtain leave to appeal as a prerequisite to his application for release. Leave was granted; however, I denied his request for release and state-funded counsel with reasons to follow. These are my reasons. Background [ 3 ] Mr. Pitts pleaded guilty to eleven sex crimes involving the sexual exploitation of children. Eight charges of conspiracy to commit sexual assault on a child contrary to section 465(1)(c); one charge of making child pornography contrary to

section 163.1(2)(a); one charge of possessing child pornography contrary to

section 163.1(4)(a); and one charge of accessing child pornography contrary to

section 163.1(4.1) of the Criminal Code . For these offences, Mr. Pitts was sentenced to a total of seven years’ imprisonment. His defence counsel had argued for a custodial sentence in the range of 3.5 years. [ 4 ] The sentencing judge summarized the underlying facts of the eleven charges in his sentencing decision ( R. v. Pitts , 2015 NSPC 61 , unreported). Primarily for the purpose of his release application, I set out that

summary: [8] In this case, Mr. Pitts was found to have collected child pornography. He has been found to have accessed child pornography, and he has been found to have made child pornography. I will just briefly describe and summarize what Mr. Pitts was doing. [9] Mr. Pitts, as Mr. Singleton indicated, is a pedophile. He has been accessing child pornography for many years and finds sexual gratification in the images or sexualized images of young children, pre-pubescent children.

In this instance, the police were investigating him as a result of a wider investigation of internet child pornography, and when they investigated his computer devices, they found that he was involved in an online chat streaming or web streaming organization, I will put it that way, wherein he was communicating with individuals, in this case, in the Philippines. [10] He has made contact with a number of individuals and his preference for young children became known, and, in fact, in some instances, he was approached by those at the other end of the internet stream to participate in these types of activities.

What he was doing was having these children perform certain sexual acts between the children and other adults, females, or between the young children themselves. [11] He developed a “relationship” and I put that in quotation marks, with one particular woman – I’ll refer to her as JS - and she had an eight to 11-year-old perhaps, a young pre-pubescent child, who she referred to her as her daughter. Whether, in fact, it was her daughter, I don’t think a lot turns on that. But Mr. Pitts viewed her in that regard, although I think he acknowledged to the police and to Dr.

Connors, at least, that he may have been being duped in that regard. But be that as it may, he spoke to this young girl, through the internet, on that basis. [12] He opined about bringing JS and the young girl back to Canada. He referred to himself as “Daddy” at some times. He spoke to JS and to the child about sleeping with this girl and performing sexual acts short of sexual intercourse. He, in fact, paid JS to have her perform certain sexual acts with this girl, including variations of oral sex and exposure of her genitalia to Mr.

Pitts, who, obviously, was viewing this for his own sexual gratification. [13] There were a number of these “live shows,” if I can use that expression. The Crown indicated five or six, and in two of these incidents, Mr. Pitts recorded these somehow on his computer and had them available for further viewing. That, of course, is the basis of the making of the child pornography charge which he has pled guilty to. [14] The conversations in which Mr. Pitts was discussing various sexual performances are the subject of the conspiracy charges, wherein Mr.

Pitts was agreeing with the adult females on the other end of the line to have these children available to perform various sexual acts wherein these children were abused sexually. These are the conspiracy charges which Mr. Pitts has pled guilty to. [15] Mr. Pitts had a collection of child pornography separate and apart from these live shows – a couple of hundred of those, and there were a number of videos, as well.

He was accessing the internet for those and he was possessing those, and that is the basis of the charge of possession of child pornography and of accessing child pornography. [16] In terms of the gravity of the offence, which is one of the important aspects of this process which I am required to consider, I can only describe this as being horrendous in its impact. There’s really no limit to the negative superlatives that can be used to describe what one can only conclude is depravity. And I am very aware of the risk of attaching too many sensational words to this, for the reasons that Mr.

Singleton had correctly pointed out. One cannot be over-sensational in describing how horrendous and negative these images are. Quite frankly, the live shows that Mr. Pitts was participating in, and directing, are, quite frankly, at the high end of the scale of child pornography. He is not viewing images that were created by somebody else; he is directly responsible for the abuse of these children, because he was conspiring and agreeing to have these children abused. [ 5 ] Mr. Pitts underwent a Forensic Sexual Behavior Pre-sentence Assessment. The Assessment addressed the risk Mr.

Pitts posed to the public as well as rehabilitation potential and options. The assessor concluded Mr. Pitts’ risk for recidivism appears high,

decreasing to moderate to high with a period of incarceration. Also, Mr. Pitts has a prior criminal record for sexual interference of a person under 16 years contrary to

section 151 of the Criminal Code . Motion for Release Leave to appeal [ 6 ] Section 679(1) (

b) of the Criminal Code provides: A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; [ 7 ] Civil Procedure Rule 91.24 provides: 91.24

(1) An appellant who appeals against sentence only, is in custody, and wishes to be released pending appeal must make a motion to a judge of the Court of Appeal for leave to appeal, which motion may be heard together with a motion for an order for release under

section 679 of the Code and be determined before or at the same time as the motion for release is determined. [ 8 ] To grant leave, I must be satisfied the grounds of appeal raise an arguable issue. (See R. v. Johnston , 2014 NSCA 78 .) I am satisfied they do. [ 9 ] The determination of an “arguable issue” also arose in Mr. Pitts’ motion to extend the time for filing his Notice of Appeal. Mr. Pitts was successful in his motion. Justice Bourgeois heard his motion in chambers. She determined Mr. Pitts had raised an arguable issue as it relates to the appropriateness of the sentence imposed.

I adopt the reasoning and articulation of the “arguable issue” finding by Justice Bourgeois in her decision respecting Mr. Pitts’ motion to extend the time for filing his Notice of Appeal. (See R. v. Pitts , 2015 NSCA 85 .) Release under section 679(4) [ 10 ] Section 679(4) of the Criminal Code provides: In the case of an appeal referred to in paragraph (1)(b), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by a judge of the court of appeal if the appellant establishes that (

a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (

b) he will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest. [ 11 ] Mr. Pitts has the onus of establishing, on a balance of probabilities, all three conditions under section 679(4) . (See R. v. Smith , 2005 NSCA 45 and R. v. Shaw, 2007 NSCA 91 .) [ 12 ] The Crown expressed no concern with Mr. Pitts surrendering into custody and concedes section 679(4) (b). [ 13 ] Is it in the public interest to release Mr. Pitts pending his appeal against sentence? The public interest component under section 679(4) (

c) requires a balancing of interests while being particularly mindful of the unique circumstances of each case. The conflicting principles of reviewability for error and enforceability of a judgment must be balanced in the public interest. (See R. v. Barry , 2004 NSCA 126 ; and Shaw ). [ 14 ] The Crown has expressed concern for the protection of the public, particularly vulnerable children, if Mr. Pitts is released. I share those concerns. The offences to which Mr. Pitts pleaded guilty are serious.

Based on his Forensic Sexual Behaviour Pre-sentence Assessment, his risk for sexual recidivism appears high, only decreasing to moderate to high, with a period of incarceration. The assessor had this to say in summarizing the risk Mr. Pitts poses: Despite his time in treatment, Mr. Pitts appears to have used the same cognitive distortions to disinhibit his actions in the index matters as he did when he committed his first sexual offenses, actions that were motivated by his primary sexual preference for children (i.e., paedophilia, which he is avoidant of acknowledging).

Further, all of the criminogenic variables that were in place at the time of the last sexual offense remain in place at this time, with small changes. In fact, the height of Mr. Pitts’ offending in the index matters was when he had perhaps the best life adjustment to date, clearly showing that while his deficits are important to the context of his offending, they are not central to his risk for reoffense. Risk for sexual recidivism appears high at this time, decreasing to moderate-high with a period of incarceration. Mr.

Pitts stated that he is willing to engage in the more intensive treatment offered in federal programming, and it might be that a further improvement in risk management can be achieved post-intensive treatment. However, given that Mr. Pitts has already reoffended after specialized treatment in the past, and that he has shown approach-explicit aspects to his offending, it is not clear that these benefits will be realized. On the other hand, sexual preferences are not expected to change, and even if Mr.

Pitts were to achieve better acknowledgement and management of this primary motivator in his sexual offenses, lifetime restrictions that would make the pursuit of paedophilic interests more difficult are strongly suggested. [ 15 ] Mr. Pitts’ release plan was vague and insufficient. He was unable to present any sureties. He did not offer any alternate supervisory plan other than he believed a few friends were willing to check in on him. Although he indicated he hoped to find employment where he would not be in contact with children, no concrete options were presented.

[ 16 ] Given the seriousness of the offences, his prior conviction, his lack of a sufficient release plan together with the potential level of risk Mr. Pitts presents to the public, particularly vulnerable children, it is not in the public interest to release Mr. Pitts. I find Mr. Pitts has failed to establish that his continued “detention is not necessary in the public interest”. [ 17 ] Given my finding under 679(4)(c), I need not address 679(4)(a). Motion for state-funded counsel -

Section 684 [ 18 ] Mr. Pitts made application to Nova Scotia Legal Aid (NSLA). After a merit assessment, NSLA declined to provide counsel. Mr. Pitts appealed to NSLA’s Appeal Committee. His appeal was dismissed. [ 19 ] Section 684(1) of the Criminal Code provides: 684

(1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance. [ 20 ] As required under section 684(1) of the Criminal Code , to determine Mr. Pitts’

section 684 motion, I must consider: (1) whether it is desirable in the interests of justice that he have legal assistance; and, (2) whether he has sufficient means to obtain counsel. [ 21 ] The first inquiry (“desirable in the interest of justice”) involves consideration of various factors, including: (

a) Are the grounds of appeal arguable? (See R. v. Martin , 2015 NSCA 82 ); (

b) The complexity of the appeal. Complexity can be gleaned from the grounds of appeal, the length and content of the record, the legal principles involved, and their application to the facts. (See R. v. Miller , 2015 NSCA 19 and cases cited therein.); (

c) Whether Mr. Pitts is able to effectively present his appeal without the assistance of counsel. The ability to do so can be gleaned from the ability to comprehend, communicate, and apply legal principles to the facts. (See Miller .); (

d) The capacity of the court to properly decide the appeal without the assistance of counsel. (See Martin ; Miller ); and (

e) The Crown’s duty to ensure the appellant is treated fairly. (See Martin ; Miller .); [ 22 ] For the same reasons identified under Mr. Pitts’ section 679(4) motion herein, I am satisfied he has met the arguable issue threshold respecting his grounds of appeal. However, for the following reasons, I find it is not in the interests of justice that Mr. Pitts be assigned legal counsel: 1. The underlying facts do not appear to be in dispute, and the record is neither complicated nor lengthy. In short, although this sentence appeal is a serious matter, this is not a complex appeal; 2. It appears Mr.

Pitts is able to comprehend the applicable legal principles and apply them. He demonstrated an ability to communicate well and clearly, both orally and in writing. Mr. Pitts’ ability to effectively communicate is supported by both his education and employment credentials. He was able to articulate the issues he raised in his Notice of Appeal and in his two motions before me. I also note he was successfully able to argue his extension of time motion before Justice Bourgeois without counsel; 3. The Court’s role is important. The appeal panel will be well-positioned to address the issues raised by Mr. Pitts.

The panel will have the benefit of and will have reviewed the record. Even if Mr. Pitts might not present his appeal as effectively or efficiently as if he had counsel, the panel will recognize whether the appeal has merit. (See Miller and Martin .) 4. The Crown’s role and obligations are important. As the Crown stated in its response to Mr. Pitts’ motion: The Crown will continue to assist the Court and will show conscientious regard for their role to see that the offender is treated fairly. Should Mr.

Pitts omit an important point or argument, the Crown will bring that to the Court’s attention.” The Crown’s obligation in this regard is affirmed in Miller and Martin ; and 5. Based on the above factors, there is nothing to suggest that Mr. Pitts cannot have a fair appeal hearing without the assistance of counsel. Sufficient financial means [ 23 ] It appears Mr. Pitts has limited assets and financial resources. The total of his cash and personal assets might be in the range of $7,000 to $8,000, according to Mr. Pitts. The Crown believes the available resources might be higher.

Although it might be arguable he has sufficient means, based on my finding respecting the “interests of justice” determination, I need not address this issue. Conclusion [ 24 ] Mr. Pitts’ motions for release under section 679(4) and state-funded counsel under

section 684 of the Criminal Code are dismissed.

Van den Eynden, J.A.