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Mandatory Minimum Punishment for Child Pornography Ruled Cruel and Unusual
Cory Wilson is a criminal lawyer, serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge and Turner Valley.
Cory Wilson recently had the mandatory minimum punishment of one-year imprisonment ruled grossly disproportionate for his very low-functioning client charged with child pornography offences. This successful result required the use of a highly-specialized expert called by defence to testify in trial as to the client’s cognitive functioning.
The case citation is available here and reproduced below.
Sentence
[1] The mandatory minimum one-year sentence for the offence of making child pornography available is grossly disproportionate to Ms. Gerbrandt’s moral culpability and would constitute cruel and unusual punishment, contrary to section 12 of the Charter.
[2] Therefore, for the offences of possession of child pornography and making child pornography available, the passing of sentence is suspended and Ms. Gerbrandt is placed on probation for three years.
Introduction
[3] The issue in this sentencing is whether Ms. Gerbrandt’s moral blameworthiness is so reduced by her cognitive deficits as to avoid the lengthy imprisonment that is otherwise demanded by the paramount sentencing principles of denunciation and deterrence in child pornography cases.
[4] Child pornography is a pernicious form of child abuse. In Andrukonis, Chief Justice Fraser articulated its seriousness at para 29:
. . . child pornography constitutes a clear and present danger to children round the world . . . . Its very existence is inherently harmful to children and to society . . . .. We reject the proposition that because the possession of child pornography involves use of technology to view the sexual abuse of children elsewhere in the world, it is somehow much less culpable than abetting the sexual abuse of the same children in person. The reality is that the children captured for life in the child pornography have been abused somewhere. Therefore, the fact that child pornography allows perpetrators to take in the sexual abuse of children virtually through the Internet does not change its essential character. The unvarnished truth is this: possession of child pornography is itself child sexual abuse. To fail to recognize that this is so improperly diminishes the gravity of this offence.
[5] Parliament has recognized the gravity of child pornography offences by increasing the maximum sentences applicable and by first introducing, and later increasing, mandatory minimum sentences.
[6] Superior courts have ruled unconstitutional the mandatory minimum one-year sentence for possession of child pornography; Ms. Gerbrandt challenges the constitutionality of the one-year mandatory minimum sentence for the more serious offence of making child pornography available. The basis of her challenge rests on the grossly disproportionate effect of imprisoning a person with her significant cognitive deficits.
[7] The Crown position is that: a fit sentence for Ms. Gerbrandt is 3 years’ imprisonment (one year for the possession offence, 2 years consecutive for making available); and, her intellectual challenges are insufficient to reduce her moral blameworthiness to such an extent as to avoid imprisonment. In particular, Crown Counsel points to Ms. Gerbrandt’s sophisticated computer knowledge and asserts that Ms. Gerbrandt knew exactly what she was doing, that it was wrong and the legal consequences of her actions.
[8] The Defence argument is that Ms. Gerbrandt’s moral blameworthiness is greatly reduced as a result of her extremely low level of intellectual functioning. The argument is based on the opinion of forensic psychiatrist Dr. Cynthia Baxter, a preeminent expert, with special expertise in the treatment of high risk sex offenders; her opinion was elucidated in an expert’s report and in viva voce testimony.
Authorities Considered
[9] In reaching my decision, I have considered the following: A Preventable Death, Sapers, 2008; R v Andrukonis 2012 ABCA 148; R v Arcand 2010 ABCA 363; R v Ayorech 2012 ABCA 82; R v Belcourt 2010 ABCA 319; R v Blackplume 2019 ABPC 273; R v Boodhoo 2018 ONSC 7207; R v Brittain, unreported, December 4, 2018, 151535455Q1 (AQB); R v DCH 2020 ABQB 510; R v Enns, unreported, August 24, 2018, 150095784Q2 (AQB); R v Esposito 2020 ABQB 165; R v Ford 2017 ABQB 322; R v Friesen 2020 SCC 9; R v McPhee 2020 ABPC 106; R v Lynch-Staunton 2012 ONSC 218; R v Nur 2015 SCC 15; R v Priest 1996 CanLII 1381 (ON CA), [1996] OJ No 3369 (CA); R v Ramsay 2012 ABCA 257; R v. Schroeder 2012 ABPC 241; R v Schultz 2008 ABQB 679; R v Scofield 2019 BCCA 3; R v Secreti, unreported, February 18, 2010; R v Sharma 2020 ONCA 478; R v Sharpe 2001 SCC 2; R v Shevchenko 2018 ABCA 31; R v Smith 1987 CanLII 64 (SCC), [1987] 1 SCR 1045; R v Swaby 2017 BCSC 2020; R v Tettersell 2012 ABCA 57; R v Torwick 2010 ABPC 233; R v Watts 2016 ABPC 679; R v Wesslen 2015 ABCA 74.
Facts
[10] Ms. Gerbrandt became a target of an international task force investigation into distribution of child pornography on the peer-to-peer file sharing networks “e-Donkey” and “e-Mule.” A one-to-one connection with Ms. Gerbrandt’s computer through e-Donkey enabled police to download six files containing videos of child pornography directly from her computer; similarly, a one-to-one connection through e-Mule enabled a direct download of 42 video files of child pornography.
[11] Police executed a search warrant at Ms. Gerbrandt’s home. When the police entered the home to conduct the search, one of Ms. Gerbrandt’s computers was running a file sharing program and was in the process of uploading 15,768 files and downloading 3,173 files onto the computer. A number of the files had names that suggested they contained child pornography.
[12] Forensic examination of devices seized from Ms. Gerbrandt revealed:
One computer tower contained 4,321 images and 679 videos of child pornography;
At the time of execution of the search warrant, 47 child pornography files were being made available through upload to an unknown number of users;
Ms. Gerbrandt had used the internet to access web pages containing child pornography; her access to and interaction with the child pornography files was documented by use of bookmarks and jump lists;
Only one of two encrypted containers could be accessed, as its computer was open and running when the search warrant was executed; the code on the other encrypted container was never cracked.
[13] The images and videos discovered in Ms. Gerbrandt’s system were some of the worst imaginable, including exploitation of very young children and of fellatio, bondage, bestiality and penile penetration.
[14] Ms. Gerbrandt’s computer set-up was considerably more sophisticated than a typical home computer. In her home office, there were three computers set up together, she was using a server and a domain controller, and had custom set encryption on the two containers.
[15] Ms. Gerbrandt was cooperative with the police and gave a statement after her arrest in which she acknowledged her familiarity with and use of Peer-to-Peer file sharing. She said that she was a computer programmer and explained her reason for having and uploading child pornography as an act of vigilante activism, either to aid the police or to act in the face of police inaction.
Ms. Gerbrandt
[16] Now 39, Ms. Gerbrandt was 36 at the time of her offences. Born Douglas Edward, a biological male, she has, from as young as 5, had urges to be female and has now for at least four years presented as female, named Zoey. She was receiving feminizing hormone treatments until recently when the cost became prohibitive for her. She wishes in time to complete her transition to female. Ms. Gerbrandt’s parents and her wife, to whom she has been married for eight years, are supportive of her gender transition.
[17] Both Ms. Gerbrandt and her wife receive PDD (Persons with Developmental Disabilities) and AISH (Assured Income for the Severely Handicapped) support. Ms. Gerbrandt has a support worker for four hours, twice a week.
[18] As a very young baby, Ms. Gerbrandt was diagnosed with a medical condition of “failure to thrive;” extra feedings were prescribed at four months to stimulate necessary weight gain. Her motor skills, language and cognitive development were all significantly delayed and by 4 years old, she was exhibiting serious behavioural problems.
[19] A CT scan of 5 year old Ms. Gerbrandt’s head revealed a serious brain development problem, “agenesis of the corpus callosum.” Forensic psychiatrist Dr. Cynthia Baxter gave expert testimony at the sentencing hearing and described this condition as a failure of the bridge between the left brain and right brain to develop. The connection between the two halves of the brain forms early in a pregnancy, ordinarily, and develops throughout childhood until age 12.
[20] The failure of the right-brain/left-brain connection to develop leads to many disorders. An explanatory chart in Dr. Baxter’s expert report lists among the cognitive problems, these: difficulty with problem-solving and complex tasks; lack of ability in assessing risk; difficulty understanding abstract concepts; problems understanding slang or sarcasm; giving untrue information but believing it is true. Social and behavioural problems can include the following: social immaturity; lack of self-awareness; difficulty understanding social cues; hyperactivity; and obsessive or compulsive behaviour.
[21] Ms. Gerbrandt required special supports throughout her schooling, which appears to have ended part way through Grade 11. She is said to read at a Grade 3 level. Her employment has been intermittent, most recently, for three years in a row, sorting bottles for recycling in the infield during the 10 days of the Calgary Stampede. She has also done some night time security work and runs a home computer repair and programming business. According to Dr. Baxter’s report, “A 1999 vocational assessment was reportedly not optimistic about [her] ability to achieve occupational stability.”
[22] Forensic psychologist Jacqueline Leland administered psychological tests to Ms. Gerbrandt, to add to the data base for Dr. Baxter’s assessment. Reporting the results of those tests as they relate to Ms. Gerbrandt’s cognitive functioning, Ms. Leland said, “M[s]. Gerbrandt’s intellectual potential and functioning falls in the Extremely Low range at the ˂0.1 percentile, indicating that [s]he scored below 99.9% of the normative sample.”
[23] Ms. Gerbrandt has a dated criminal record: she received a suspended sentence and a year of probation in 2004 for an arson offence; and was discharged conditionally in 1999 for an assault.
Ms. Gerbrandt’s Cognitive Deficits and Degree of Moral Blameworthiness
[24] Born without the bridge between her left and right brain, Ms. Gerbrandt’s life has been marked by many of the difficulties that flow from that condition: social problems, extremely low intellectual functioning, inability to maintain long term stable employment, etc.
[25] In her report, Dr. Baxter described Ms. Gerbrandt in these terms:
During the clinical interview, M[s]. Gerbrandt presented as a lower functioning, talkative individual . . . [Sh]e was verbose and tended to use a lot of words while communicating much less actual content. Direct answers to questions were rare. H[er] vocabulary was mixed in that [s]he often used advanced words, but then clearly didn’t understand the meaning of many words. [Sh]e came across as having a brittle interpersonal style, such that [s]he was sensitive and defensive – but at the same time [s]he took redirection well and was good-natured about clarification questions. (Ex S-3, p 8)
[26] In her live testimony, Dr. Baxter elaborated on the information contained in the report; her elaboration included:
Ms. Gerbrandt will have lifelong difficulties as her fundamental deficits are not going to change;
she is able to learn but there is a cap to her learning capacity, a cap that is much lower than that of higher functioning people;
she is adept at adaptive functioning or “counterfeit competence;”
there is a difference between intelligence and adaptive functioning;
low functioning individuals can be quite adept at computer technology;
and, Dr. Baxter has low functioning clients who have their own youtube channel.
[27] Crown Counsel contends that Ms. Gerbrandt’s cognitive deficits are not so severe as to reduce her moral blameworthiness to a level that supports a non-custodial sentence or one of less than the mandatory minimum of one year. In support of that contention, Crown Counsel introduced Ms. Gerbrandt’s police statement, the transcripts of her bail hearing and bail review, and a series of youtube videos from her youtube channel. The youtube videos and police statement video were played in court.
[28] After reading the bail transcripts and having seen the youtube and police statement videos, I have concluded that Ms. Gerbrandt is indeed extremely low functioning; I accept Dr. Baxter’s opinion in that regard, including her explanations about facility with computer technology and use of advanced language.
[29] The youtube videos show Ms. Gerbrandt to be verbose, repetitive and unsophisticated.
[30] In her first bail hearing, Ms. Gerbrandt said little, as she was represented by Duty Counsel. She represented herself at the Queen’s Bench bail review, brought by the Crown to seek additional conditions. In my opinion, Ms. Gerbrandt’s lengthiest representation at that hearing is clear evidence of her low functioning; I quote in part:
I – I object to it just because the cops did tell me, uh, about my section 4 rights, so I am underneath the order that they can come at any given time. I’m not – I’m not a person and by her I’m not in any means going to hide or do anything to my private information or do whatever. They can come and do whatever they need to do and then they can leave. I’m not here to make it hide and go seek for them to go and find me and go whatever. I’m here to give them whatever information they need and give them whatever computers or whatever I’m accessing at home.
Currently at my residence I do need internet and that’s only because of I have an alarm system. I have PTSD. Uh, I have a lot of other symptoms and problems that force me to stay in my home. So even because of these charges and I understand that they want to apply these conditions, but even when this incident started I’ve been secluded and I’ve been staying in my home. So I do not leave my home, I don’t go outside my home. I don’t care about what – anything about what I do and that’s why I’m going for counselling, as well, and that’s why my worker is here to help me. I also do have support because she is an outreach support worker. She does monitor me as well at the home. She does come to my residence at my house. So she can see exactly what I do and what I don’t do at my residence at all times when she is there.
. . .
I’m not going to go to the library because I don’t leave my home. I don’t go anywhere because I don’t leave my home. I – I just don’t leave my home because of – due to those reasons. That’s why I do have a security on, that’s why I do have cameras because I, uh, that’s just who I am. That’s why I have a service dog because, uh, I’m – I’m afraid of those reasons. Because of this charge, basically I was an idiot. I could – I could frame this entire thing and cross out my charges, frame it up in my house and call this the most stupidest thing that I have ever done in history of mankind. Yes I’m a retard, I guess I would say, that I did these things and I’m sorry, but sorry doesn’t cut it. I know what I did was wrong. (Ex S-6, Tab 3, pp 13 – 14)
[31] My conclusion about Ms. Gerbrandt’s low cognitive functioning is also informed by the testimony of forensic examiner Allen Lafontaine who confirmed the following points:
Encryption is not the default but a custom setting; however, custom setting is often done with the use of a “wizard,” that leads the programmer step by step through the process;
use of e-Mule is akin to use of a search engine;
three linked computers in a home setting is sophisticated in the sense of being elaborate;
and, the open encrypted container could have been closed and secured easily by unplugging the computer.
[32] Crown Counsel argues that Ms. Gerbrandt’s thinking is linear and logical. I agree that her thinking does appear to be linear, and that the psychiatrists and psychologists have not found her to be delusional. Nonetheless, she appears to show distorted thinking in relation to both the 2004 arson offence and to her current offences.
[33] The arson involved Ms. Gerbrandt setting a carpet on fire while she was working as a night security guard. Dr. Hashman, in his fitness assessment report for the arson case said, at p 4: “ . . . [s]he activated a manual fire alarm to evacuate the building and contacted the authorities suggesting that [s]he may have wanted to portray that [her] actions were an act of heroism.” (Ex S-4, Tab 3)
[34] Ms. Gerbrandt maintained to the police and to Dr. Baxter that she was only ever acting in the role of a vigilante or activist to report child pornography to the police.
[35] In addition to assessing Ms. Gerbrandt to be a low risk to reoffend, Dr. Baxter concluded, at p 14:
Given M[s]. Gerbrandt’s cognitive limitations, [s]he would not be suitable for any of the usual sex offender programs. The provincial in-custody program (Rocky Mountain Program) and the sex offender program at FAOS are both group-based – and it seems unlikely that M[s]. Gerbrandt could manage a group program, even the developmentally-disabled group at FAOS (i.e. the Rebound group) would likely not be manageable for [her] with [her] interpersonal deficits. [S]he will likely require individual treatment, but it is unclear that even individual sessions will be of particular benefit and I think the prognosis for psychological change is guarded. Having said that, [s]he falls into the low-risk category for sex offences, so treatment is more to address general emotional and behavioural management, rather than necessary for risk management.
It should also be noted that any placement in custody . . . will be complicated by [her] current transgender transitioning from male to female and will require some careful consideration.
[36] In testimony, Dr. Baxter also said with virtual certainty that Ms. Gerbrandt would not receive any treatment in a federal institution as the programming is focussed on high and moderate risk offenders.
[37] Shevchenko is a recent decision in a line that includes Tremblay, Ramsey and Ayorech; it articulates the effect on moral blameworthiness of mental disorder. For the majority in Shevchenko, Justice Paperny said, at paras. 26, 27 and 28:
The factors of deterrence and denunciation play a lesser role in the sentencing of mentally ill offenders, even in circumstances where there is little prospect for cure and rehabilitation.
. . .
Even in circumstances where the evidence does not disclose that the mental illness was a direct cause of the offence or that it was carried out under periods of delusion, the presence of a mental illness can significantly mitigate sentence: Ayorech at para 10.
Put simply, an offender who has a significant mental illness is generally considered to have less moral blameworthiness than someone operating with an unimpaired view of the world. It is therefore imperative that a sentencing judge appreciate the extent and manifestation of the illness and link it to the degree of moral blameworthiness.
[38] Ms. Gerbrandt functions at a level lower than 99.9% of the population; although she acknowledges that she was wrong to commit her offences, her thinking about them is manifestly distorted. She is an offender whose moral blameworthiness is greatly reduced because of her cognitive deficits.
[39] Last year, I decided the Blackplume case: Ms. Blackplume is a dangerous offender who, like Ms. Gerbrandt, is extremely low functioning and transgendered. In Ms. Blackplume’s case, there were the added complexities of her sentencing requiring protection of the public, and of her being indigenous and a high risk to re-offend. But the issue in the cases was the same, whether the sentence sought by the Crown – in Ms. Blackplume’s case, an indeterminate sentence – was constitutionally invalid for being cruel and unusual punishment.
[40] In concluding that an indeterminate sentence for Ms. Blackplume did constitute cruel and unusual punishment, I reviewed the jurisprudence dealing with the treatment in custodial settings of mentally ill offenders and the findings of then Correctional Investigator of Canada Howard Sapers in A Preventable Death, his 2008 report on the death of Ashley Smith in detention. Mr. Sapers was highly critical of the correctional system’s treatment of offenders with mental health problems and made recommendations to ensure that provincial and federal correctional institutions provided safe and secure facilities for the dangerous yet vulnerable.
[41] Since the release of Mr. Sapers’ report, little has been done to address the treatment of offenders like Ms. Gerbrandt and Ms. Blackplume, not only considering their cognitive deficits, but also their status as transgendered offenders. Crown Counsel filed affidavits from each of the federal and provincial correctional authorities providing information on the housing and treatment of transgendered inmates. While the Alberta corrections system has done a commendable job of addressing the needs of vulnerable offenders, including housing the transgendered together and apart from male or female inmates, the federal system continues to adhere to a policy of housing offenders in transition from male to female in male institutions.
[42] Turning then to Ms. Gerbrandt, with the reduction of her moral blameworthiness to reflect her extremely low cognitive functioning, the paramount principles of denunciation and deterrence become less pressing and rehabilitative programming more prominent; however, because Ms. Gerbrandt is a low risk to reoffend, in Dr. Baxter’s expert opinion, neither the federal nor the provincial system is equipped to provide her with appropriate rehabilitative programming. This means that Ms. Gerbrandt, a vulnerable offender, would simply be warehoused for the length of a custodial sentence, whether federal or provincial.
Aggravating and Mitigating Factors
[43] The aggravating factors in this case are: the number of images and videos; the extreme vulnerability of the very young victims; and the depravity of the images, including acts of violence, bestiality and bondage.
[44] The mitigating factors are Ms. Gerbrandt’s guilty plea, reduced moral blameworthiness due to extremely low cognitive functioning, amenability to counselling and low risk to reoffend.
Conclusion
[45] I conclude that the warehousing of Ms. Gerbrandt that would be the inevitable result of a custodial sentence constitutes cruel and unusual punishment and she has therefore established a breach of her s. 12 Charter right; accordingly, the one year mandatory minimum sentence for making child pornography available is unconstitutional in its application to Ms. Gerbrandt.
[46] As a result of my finding, I do not need to consider the reasonable hypotheticals posited by Defence Counsel.
[47] Crown Counsel has most fairly declined to argue that the one year mandatory minimum I have found to be unconstitutional is saved by s. 1 of the Charter.
[48] Therefore, I suspend the passing of sentence and place Ms. Gerbrandt on probation for three years. I will stipulate the conditions of the probation order after hearing any further submissions from counsel.
Heard on the 12th day of March, 2020 and the 4th day of November, 2020 and the 6th day of November, 2020.
Dated at the City of Calgary, Alberta this 18th day of December, 2020.
Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no-obligation consultation.