R. V. HOUSTON QB08175 Date of Judgment: April 22, 2008 Number of Pages: 12 QUEEN'S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 174 Date: 2008 04 22 Docket: 1/07 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and SIMON M. HOUSTON Counsel: Michael A. Segu for Her Majesty The Queen William H. Roe, Q.C. for Simon M. Houston SENTENCE LAING C.J.Q.B. April 22, 2008 [1] Mr. Houston pled guilty at the opening of trial to one count ofdistributing child pornography, in the form of written works, between the 12th ofJune and the 8th of August, 2005, contrary to s. 163.1(3) of the Criminal Code ofCanada. [2] In the time in question Mr. Houston was active on pedophile website dedicated to man-girl relationships. The Crown evidence is that he had 1,200 postings on the website in this period, which included 11 stories that are the subject of the charge, and described sexual activity between adults and either infants or preteen girls. The moderator of the website encouraged stories, and Mr. Houston also urged others to submit stories. In one posting on the website on June 18, 2005 he wrote: am getting pissed off with the apathy in this ... group. Ya post pictures galore, but NOT once have any of you ever told juicy story, voyeuristic situation, or perhaps sexual encounter with preteen girl. Just put down you were 11 when it happened, instead of 35 or 23. But let's get some entertaining stories here, guys.!! Is something wrong with your memories or writing abilities. Shyness should NOT stop with your memories or writing abilities. Shyness should NOT stop you from at least couple of short sex stories. use "FIRST LAY" or "SUBTEEN GIRL'S BIKINI BOTTOMS MISSING" as model stories. Make one up like did with the Finnish girl at the Russian nudist colony. Are your lives that fucking boring, that you cannot tell one single damned funny story about the little Missy's ya met in your whole shitten life??? [3] Most of the stories express the narrator's pleasure with the opportunity to be exposed to nude infant and/or preteen female bodies, extol their genitalia, and result in the narrator performing some form of oral sex on them. Several involve the narrator and preteens masturbating. Three stories describe the main adult character having vaginal and anal sexual intercourse with infants. In the stories the infants or young girls are sometimes portrayed as the aggressors, and always portrayed as acquiescing or enjoying the activity. [4] On July 29, 2005, Mr. Houston posted, "I am more of voyeur than actively sexual with girls." On August 4, 2005 with respect to his Tara-Kristen stories he posted: Most of my "little girl" stories are part true and part "phoney!" The sexual parts are "wishful fulfillment fantasies" of what wish had done with those two girls when had them under my roof. [5] Mr. Houston claims he did not know such stories were unlawful in Canada. The website he was accessing had section called "ask cop". On August 3, 2005 he posted: In Canada, the Criminal Code noew [sic] protects the rights of writers, and artists who write sex stories concerning preteen girls (or boys). The Robin Sharpe case in BC was decided in favor of the defendant for just thuis [sic] reason: artistic expression. On August 4, 2005 another user of the website pointed out the provisions of s. 163.1 of the Criminal Code, pointed out that the Supreme Court of Canada in the Sharpe [2001 SCC (CanLII), [2001] S.C.R. 45] case had upheld most of the law, and drew attention to the fact in December 2005 Parliament had, through amendments to the Criminal Code, limited the definition of artistic merit. Of the 11 stories submitted in evidence two were posted by Mr. Houston on August and one on August 8. He was not deterred by his new found knowledge, if indeed it was new found. [6] Mr. Houston maintains, and there is no evidence to the contrary, that he has never acted out his fantasies, and has never touched young girl in sexual manner. He has no criminal record. At the same time Mr. Houston maintained in one statement to police that pedophilia should be accepted in today's culture. He laments the fact that his type of stories are criminal in Canada which he claims not to be the case in some other countries. He advised the probation officer he feels he is being punished because he cannot express his point of view. He is not repentant, and completely lacks insight into the harm to children that results from child pornography. [7] Mr. Houston is 55 years old and has always been single. He has an advanced bachelor of arts degree which he achieved in 1975. He has never developed career but has worked at different jobs, including as private tutor of children. His last paid employment was in 2007 in retail sales. Since then he has been living with, and looking after, his ailing 83-year-old mother on an acreage site near North Battleford. [8] The probation officer wrote in the pre-sentence report: While Simon was employed as tutor in Saskatoon, he wrote an assessment on his eight (8) year old student describing her sexual aggressiveness and behavior. This was given to the parent by Simon and the "authorities" became involved. There was no legal involvement, but as result, Simon voluntarily entered Sex Offender Treatment Program in Saskatoon. Mr. Jerry Turta, Probation Officer with that program, verified his short participation in the program. He indicated Simon was very disruptive attempting to contaminate the entire group. He was asked to leave after the third (3) sessions. This writers experience with interviewing Simon, as well as facilitating Sex Offender Programs would suggest he is not an appropriate candidate for programming. Simon now states he knows his behavior was wrong, and it will not be repeated. However, he continues to watch adult pornography, seeking out the youngest looking female to fulfil his needs. Simon has no explanation for his behavior, except the attraction has always been there. Simon is prepared to participate in psycho forensic psychiatric/psychological evolution which may/may not be beneficial in attempting to understand/treat this behavior. Mr. Houston's sister, who is mental health nurse in Calgary, in letter to the court disputes the probation officer's finding that Mr. Houston is not amenable to sex offender programming. Mr. Houston's sister offers the opinion he was in the wrong group, which she states consisted of three aboriginal men considered "deniers" and who were reluctant to say anything at all. She concludes "clearly this was not an appropriate group for Simon, who feel would benefit from one- to-one sessions with therapist or psychiatrist." [9] Mr. Houston did not own computer at the time he engaged in this activity. He had enrolled at the University of Saskatchewan in 2005 in Latin course. He used the University of Saskatchewan computers to engage in the above described activity. Ironically, it was his attempt to assist authorities that brought him to the attention of the Saskatoon Police Service in this matter. He had reported to cyber-net that he thought he had seen picture of missing girl on the man-girl website he was accessing. His electronic trail in providing this information led to his arrest. When he was arrested on September 16, 2005 he provided sworn statement to police officers and admitted his activity. [10] Mr. Houston states he has not accessed the internet since he was arrested. He stated he does not own computer, he has never owned computer, and he does not intend to again access the internet. [11] The position of the Crown is that Mr. Houston's writings are hard core child pornography, which he relished distributing, and encouraged others to distribute. He submitted recent cases such as R. v. Warn, 2007 ONCJ 417 (CanLII); R. v. Treleaven, 2006 ABPC 99 (CanLII), 400 A.R. 201; R. v. Shelton, 2006 ABCA 190 (CanLII), 209 C.C.C. (3rd) 527; and R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 (Sup. Ct. J.), which point out the menace posed by the distribution of child pornography through the internet, and which emphasize denunciation and deterrence of others to engage in such activity as the dominant principles of sentencing which he submits can only be met by term of incarceration. He points out that on November 1, 2005 Parliament amended the Criminal Code to provide one year minimum sentence for the distribution of child pornography, which became law approximately six weeks after Mr. Houston was charged in this matter. He notes that other judges have taken this amendment into account when sentencing on charges that arose shortly before the amendment came into force, and submits Parliament's wishes in this respect should be taken into account in this case as well. He submits an appropriate sentence would be two years less day imprisonment. [12] Defence counsel submitted number of reasons why conditional sentence should be imposed on Mr. Houston. Defence counsel's starting point is that written pornography of the type that Mr. Houston produced does not cause actual harm to children in its production, and for this reason should be viewed on lower scale than hard core images of children who have been sexually abused and harmed by production of the images. He submits that part of Mr. Houston's motivation in producing the stories was to provide discussion, and that he admitted in his postings that the sexual acts in his stories were fantasies and made it clear that he was not personally engaged in such activity. He submits that Mr. Houston's foray into distributing child pornography was situational, by reason of his access to computers at the University of Saskatchewan, which access he did not have, nor seek out previously. He submits Mr. Houston has learned his lesson and he should be taken at his word when he says he will not attempt access in the future. He also points out that Mr. Houston attempted to be helpful in locating missing child, which effort led to his arrest, and, states this shows good character and the fact he wants to be good citizen. He points to the factMr. Houston has abided by his release conditions over the past two and halfyears, has no previous criminal record, and is now serving the useful socialpurpose of looking after his ailing mother who lives on an isolated acreage andwho will also be punished if he is incarcerated. He refers to R. v. Cohen, 144 O.A.C. 340 (C.A.) and R. v. Kozun, 2007 MBCA 101 (C.A.) (CanLII) which upheld conditional sentences of 14 months and 18 months respectively for distribution of child pornography. Finally he notes that the pre-sentence report states "incarceration, in this instance would appear to be inappropriate". [13] In the pre-sentence report the probation officer noted the Saskatchewan Primary Risk Assessment to reoffend placed Mr. Houston in the medium risk category, which category recidivates at approximately 50 percent over three-year period, and that Mr. Houston was assessed at the 24th percentile, meaning 76 percent of the offenders were assessed as having more risk factors. The report identifies the major risk factors for Mr. Houston are "anti- social behavior, attitude, self management". It notes alcohol and drugs have never been factor in Mr. Houston's life. It states electronic monitoring would not be considered necessary and curfew would suffice. It concludes one-on-one counselling through mental health services would be reasonable term of any probation order. ANALYSIS AND DECISION [14] accept that the proliferation of child pornography has been greatly accelerated and become far more of societal problem in recent years with the arrival of the worldwide web. Pedophilia is not new condition but the material, which includes photographic images, videos, and written material, now available to persons who seek such material far exceeds anything that was historically available. The societal harm of such material is borne almost exclusively by infants and children, the most defenseless members of society, who are sexually and physically abused and bear all of the consequences of satisfying some adult's sexual desires or fantasies. As with any other product, if there are barriers put in place to restrict distribution of the product, this in turn should result in restriction of production and possession. The goal of the criminal law in this area is to discourage such distribution. For this reason denunciation and deterrence are the dominant principles of sentencing. [15] With respect to the defence submission that child pornography writings do not in their production actually harm children the way production of images do, and therefore should not be subject to the same denunciation, two comments can be made. In the absence of evidence to the contrary, it cannot be assumed that writings do not stimulate the demand for images which do directly harm children. Secondly, not all pedophiles are voyeurs only. Some will act on their desires. Anything that stimulates that desire places children at risk in the real world. [16] With respect to the circumstances of the offence, Mr. Houston, apartfrom extolling pedophilia, wrote hard core child pornography in several of hisstories, which on the scale of written child pornography places it in the upper halfof the scale. He directly encouraged others to produce similar stories, which is anaggravating factor in this offence. The fact that he disclosed his stories were largely fantasies is not mitigating factor that detracts from the effects such written pornography has, as set out above. Mr. Houston was a high profilecontributor to the website during the time he was active, and he remainsunrepentant, meaning he does not yet believe there is anything wrong with writingsuch stories, but simply agrees to stop doing so because the law requires it. [17] The range of sentence for distribution of child pornography prior to Parliament increasing the minimum sentence to one year imprisonment was three months-18 months, barring exceptional circumstances in the offence, or with respect to the offender, such as lengthy record. As noted in R. v. Shelton, supra, at para. 12, conditional sentences for distribution of child pornography were rare, particularly if the volume of material was significant. [18] Based on the circumstances of this offence, and the circumstancesof the offender, I conclude that a conditional sentence would not be a fit sentenceon the facts in this matter, although I agree Mr. Houston qualifies for the same tothe extent a fit sentence would not exceed two years, and I agree on the limitedinformation available that he would not endanger the community if one wereimposed. However, house arrest for an isolated individual such as Mr. Houstonwould not be much different from the life he presently leads, and would notrepresent sufficient denunciation. A conditional sentence also would not bestrong enough to deter others who might be inclined to engage in the activity ofdistributing child pornography. fit sentence in this matter requires period of incarceration. [19] I have taken into account the mitigating factors referred to bycounsel for the defence, such as the fact that Mr. Houston has no criminal record,and did plead guilty, albeit at the opening of trial, along with the other material Ihave referred to in the foregoing in arriving at what I consider to be theappropriate length of sentence. Mr. Houston, I sentence you to 15 monthsimprisonment, to be followed by a term of probation of three years, as well as theadditional orders I am about to make. [20] make the following orders provided for in the Criminal Code of Canada: (1) Pursuant to s. 490.012 of the Criminal Code, it is ordered you besubject to an order which will issue in Form 52 requiring you tocomply with the Sex Offender Information Registration Act, 2004,S.C. c. 10, for a period of 20 years, which is the mandatory timespecified in s. 490.012(1) for a person convicted of distributing childpornography. (2) Pursuant to s. 487.051 of the Criminal Code an order shall issue inForm 5.03 which authorizes the taking of samples from you forforensic DNA analysis. (3) consider it appropriate to make an order pursuant to s. 161(1) prohibiting you for period of 20 years from (a) attending public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or daycare centre, schoolground, playground or community centre; (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being volunteer in capacity, that involves being in position of trust or authority towards persons under the age of fourteen years; or (c) using computer system within the meaning of subsection 342.1(2) for the purpose of communicating with person under the age of fourteen years. [21] The terms of the three-year probation order are as follows: (1) Keep the peace and be of good behaviour. (2) Appear before the court when required to do so by the court. (3) Report to supervisor within two working days from the date of release from jail and thereafter continue to report as directed by the supervisor. (4) Remain in Saskatchewan unless written permission to go outside the province is provided by the court or the supervisor. (5) Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation. (6) That you not possess or use any computer equipment or communication device capable of accessing the internet. (7) That you not reside where such computer equipment or communication device is available. (8) That you attend sex offender treatment programming as directed to do so by the supervisor. It is strongly recommended in the evidence that Mr. Houston would benefit from one-on-one individual counselling by professional person appropriately trained in sex offender treatment. Every effort should be made to facilitate such program. (9) That you not communicate with any female person under the age of 18 years unless that person is in the company of an adult who is present during the communication. [22] The foregoing is the sentence imposed on you, Mr. Houston.
Accused pleaded guilty at opening of trial to one count of distributing child pornography in the form of written works. The accused was active on a pedophile website and posted 11 stories describing sexual activity between men and infants and pre-teen girls. HELD: Accused received 15 months imprisonment followed by 3 years of probation with addition orders including providing DNA samples and being added to the Sex Offender Registry. The Court accepted that the internet has led to the accelerated proliferation of child pornography, making it an increasing social problem. The social harm of such material is borne almost exclusively by infants and children, the most defenceless members of society. For this reason, denunciation and deterrence are the dominant sentencing principles. The defence submitted that the writings do not actually harm children in their making and, therefore, should not be subject to the same denunciation as pornographic images. The Court rejected this argument because it cannot be assumed that the writings do not stimulate the demand for images and since not all pedophiles are voyeurs only some will act on their desires and anything that stimulates this desire places children at risk in the real world. Aggravating factors in this case were 1) the fact that the accused extolled pedophilia and wrote hard core child pornography and encouraged others to the same. 2) The accused was a high profile contributor to the web site and he remains unrepentant Ã» he does not believe there is anything wrong with writing these stories and only stopped because the law requires it. A conditional sentence would not represent sufficient denunciation or deterrence. Mitigating factors in this case included a lack of criminal record, the guilty plea and the fact that the accused is looking after his elderly mother.