The St. Thomas sentence "is the best example of the worst-case scenario for law enforcement and victims — the benchmark for the worst of the worst has now been set."

Paul Gillespie, Paul Gillespie Consulting

Press Coverage

Child porn: Why don't the punishments fit the crime?

Globe and Mail
January 5, 2008

by Christie Blatchford

It was the week before Christmas when the sickening case of a St. Thomas, Ont., man who had sexually abused his four-year-old daughter live on the Internet burst into the news.

Almost as jarring as the nature of the man’s crime was the sentence he was given, 20 months in jail, which on top of time he’d served pre-trial (during which, poor lamb, he’d lost 130 pounds from the stress and twice was beaten up), added up to a whopping total of four years.

In the Byzantine business that is sentencing in Canada – a weighing of general case law and aggravating and mitigating factors peculiar to the specific case – the guiding principle remains that the worst sentence must be reserved for the worst offence and the worst offender. The result is that judges are often reluctant to impose the maximum, or anything approaching it, on the grounds that a more heinous case, or a more outrageous offender, may come along such that they or their fellows will need room to accommodate it.

Yet if the father, as a first-time offender, couldn’t be described as the worst offender by Canadian judicial standards – if only not by them – it is difficult to imagine a worse offence than this one.

During a real-time chat-room conversation with an undercover police officer, the 35-year-old man exposed the little girl’s genitals and even bragged that she was “my four-year-old.” He also admitted sexually assaulting her in the bathtub several months before that online chat. He also had a huge collection of child-porn images, including photos of children in bondage, and the size and nature of such collections are considered potentially aggravating factors. He pleaded guilty to seven offences, including two counts of sexual assault and making and distributing child pornography.

In Canada, sexual assault and child-porn offences all carry a 10-year maximum, peanuts compared to other jurisdictions where two men convicted of comparable offences in the same Project Wickerman sweep that caught the St. Thomas father are, in a British case, now serving an indefinite sentence and in a Michigan one, facing a term between 65 and 120 years.

But even so, the prosecuting Crown attorney in St. Thomas asked only for a five-year term, and the judge, while noting that the father’s expressions of remorse had “a hollow ring,” denounced the crimes as “gross” and “sickening” even as he settled upon only four years (talk about hollow).

The sentence may be appealed by the Ontario Attorney-General, but the truth is that the Canadian justice system persistently undervalues the nature of such crimes against the most vulnerable.

Even before the Internet completely altered the grim landscape – ushering in the galloping proliferation of real child victims and free and easy access to more and ever more awful pictures through file-sharing and firmly ending those quaint old days when pedophiles had had to sneak about to pass along, hand to hand, the same old pictures – sentences for more traditional child sexual abuse rarely reflected either the enormous damage that is always done or the fact that the crimes are more egregious when the abuser is in a position of trust with the child.

Instead of sentences increasing in those instances where the abuse occurred at the hands of a parent, teacher, priest or sports coach – in other words, where the betrayal is most grotesque and the harm also – the opposite often happened. As one of my friends, the former court reporter Tracy Nesdoly, always says ruefully, “If you’re going to rape somebody, keep it in the family.”

Paul Gillespie, a private consultant now the CEO of the Kids’ Internet Safety Alliance but until recently the head of the Toronto Police child-exploitation unit that consistently has done such ground-breaking work in this area, says the St. Thomas sentence “is the best example of the worst-case scenario for law enforcement and victims – the benchmark for the worst of the worst has now been set.”

But it is hardly the exception.

Such is the state of sentencing in child-porn cases in Canada that last February, when Ontario Superior Court Judge Anne Molloy smartly dispatched to jail for a year a 29-year-old man named Andy Kwok – despite the fact he was a first-time offender who had “only” possessed child porn – it was considered a real breakthrough.

Until then, the typical sentence for possessing child-porn was a conditional sentence, or house arrest. But as Judge Molloy noted, “Staying at home for a year or so, unless at work or at school, would not be seen by many deviant personalities as much of a deterrent when weighed against the strength of their urges to access child pornography.” It is this judge’s view that possession of child pornography is one of those offences, arguably rare, where the prospect of jail “can have a strong deterrent affect.”

Mr. Kwok’s collection, it should be noted, featured children, many of them babies, tied up and in obvious distress as they were violated. One of the images was of a young girl who was rescued in 2005 due to the efforts of Toronto Police.

In February last year, Ontario Court Judge Joseph Bovard sentenced another man, 32-year-old Jason Ewing, to jail for two years on one charge each of possession and distributing child pornography. Mr. Ewing had a vast, ghastly collection that featured “live pornographic abuse of babies and young girls” being raped by adult men and, in one case, by a large dog.

Clearly, Judge Bovard, like Judge Molloy, gets the horror.

Judge Bovard was referring to the willful blindness of Mr. Ewing’s relatives to the nature of his crimes when he said the following, but he could have been describing the low priority these crimes have in Canada: “This lack of appreciation for the moral corruption evidenced by Mr. Ewing in collecting these images is in itself shocking.”

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