Court of Appeal for Ontario
Date: 2026-02-18 Docket: COA-25-CR-0376
Sossin, Copeland and Gomery JJ.A.
Parties
Between:
His Majesty the King — Appellant
and
Matthew Elias — Respondent
Counsel
Akshay Aurora, for the appellant
Stephen Hebscher and Mikaela Thompson, for the respondent
Heard: November 17, 2025
On appeal from the sentence imposed by Justice Clayton Conlan of the Superior Court of Justice, on February 19, 2025, with reasons reported at 2025 ONSC 1092.
Gomery J.A.:
[1] Following a guilty plea, Matthew Elias was convicted of possessing child pornography. [^1] The sentencing judge imposed a conditional sentence of two years less one day, to be followed by three years of probation, and various ancillary orders.
[2] I agree with the Crown that the sentencing judge erred in principle by failing to recognize aggravating factors and failing to prioritize denunciation and deterrence as sentencing objectives. Applying the analysis mandated in R. v. Pike, 2024 ONCA 608, 171 O.R. (3d) 241, even when the respondent's fresh evidence is taken into account, a 30 month custodial sentence was required in addition to the ancillary orders made by the sentencing judge.
[3] As in Pike, however, I conclude that incarcerating Mr. Elias at this point would not serve the interests of justice. For that reason, I would grant leave to appeal the sentence but dismiss the appeal.
Facts giving rise to the sentencing decision
[4] In March 2021, a pornographic video was uploaded and shared in a chat on a messenger application by "todd_davis99". The video featured a prepubescent girl exposing her anus, then masturbating, placing her finger inside her vagina, and licking it. The video was provided to the police. After discovering that the IP (Internet Protocol) address used to upload the video was associated with the house where Mr. Elias lived with his parents, the police obtained and executed a search warrant of the Elias' home.
[5] Several USB drives, computer devices, and other electronic devices were found in Mr. Elias' bedroom. Among them, two USB devices and a micro-SD card (an electronic storage device) collectively contained 22,746 images and 741 videos of child sexual abuse and exploitation material. The sentencing judge observed that describing their contents as disturbing "would be a gross understatement." The material included:
[N]umerous videos of the sexual abuse, rape and torture of young children under the age of 8 years old; numerous videos of female children under the age of 8 years old who are masturbating; numerous videos of children as young as 3 years old; numerous videos of very young female children being anally and vaginally penetrated by adult males; numerous videos of very young female children performing fellatio on adult males; numerous videos of very young female children posing nude for the camera; numerous images and videos of female children posing provocatively for the camera and engaging in sexual activity with other children....
[6] The material seized also included "other videos that appear to have been taken by [Mr.] Elias, covertly filmed in public areas, with the focus being on the buttocks of the unsuspecting victims."
[7] On August 23, 2024, Mr. Elias pled guilty to possession of child pornography contrary to s. 163.1(4) of the Criminal Code. [^2] He was convicted based on his guilty plea, an agreed statement of facts, and a representative sample of the images and videos seized by police.
The sentencing judge's decision
[8] The sentencing judge imposed a conditional sentence of two years less a day, followed by three years of probation, as well as various ancillary orders.
[9] At the sentencing hearing, the defence called Mr. Elias' father and Dr. Julian Gojer, a forensic psychiatrist who had examined Mr. Elias, to testify. Other evidence included a pre-sentence report; Dr. Gojer's written report; and a report from Coco Johnson, a registered social worker who began counseling Mr. Elias after his arrest.
[10] After reviewing the agreed facts and describing the images and videos seized by the police, the sentencing judge reviewed Mr. Elias' personal circumstances at length. Mr. Elias was an unmarried, 37-year-old man. He had always lived with his parents and had never had a romantic relationship with anyone. He had completed high school and had been employed for years but had been laid off. He played hockey recreationally. The sentencing judge noted Mr. Elias had a long history of mental health issues, including depression, low self-esteem, loneliness and suicidal ideation. He also abused alcohol and marijuana.
[11] The sentencing judge accepted Dr. Gojer's evidence that Mr. Elias has a pedophilic disorder that, left untreated, would give rise to a moderate risk that he would re-offend. He also noted, however, that Dr. Gojer believed that Mr. Elias would likely comply with therapy and treatment. The author of the pre-sentence report also believed that he was a suitable candidate for community supervision. Mr. Elias had no criminal record and had complied with bail conditions for approximately 40 months.
[12] The sentencing judge found that Mr. Elias' father was very ill and that he depended heavily on his son for activities of daily living. By the time the sentencing hearing took place, Mr. Elias was estranged from his two siblings. He had no relationship with any family member except his father. His mother had been deeply distressed by the criminal prosecution, and Mr. Elias blamed himself for her death from cancer in early 2024.
[13] Finally, the sentencing judge found that Mr. Elias was "deeply remorseful and regretful for his actions". He quoted at length from a letter that Mr. Elias wrote to the court about the collateral impact of his arrest and potential incarceration, and in which he apologized to the children victimized by his offence.
[14] The sentencing judge then reviewed the legal principles, particularly the guidance in Pike. He found that there were four aggravating factors in this case:
(i) The "immense" size of the collection of images and videos in Mr. Elias' possession;
(ii) The "significant" degree of depravity that infused the collection;
(iii) Mr. Elias' voyeuristic tendencies, exemplified by the videos he took of buttocks of children secretly filmed in public places; and
(iv) Mr. Elias' moderate risk to re-offend, although his risk was based on the assumption that he would remain untreated for his pedophilic disorder, an assumption that the sentencing judge found "very unlikely to materialize".
[15] The sentencing judge found the following mitigating factors:
(i) Mr. Elias' guilty plea;
(ii) His lack of any criminal record;
(iii) The genuine remorse and regret that Mr. Elias had demonstrated;
(iv) The rehabilitative steps that he had taken since his arrest; and
(v) The "suitability of [Mr. Elias] to ongoing therapy and treatment and his commitment to that."
[16] The Crown sought a three year prison sentence. The defence sought a conditional sentence. Notwithstanding the guidance in Pike that possession of CSAEM will ordinarily result in a custodial sentence, the sentencing judge concluded that a conditional sentence was appropriate based on "a truly unique set of circumstances":
A seriously mentally ill man with no criminal history has pleaded guilty to having amassed a very dense and extremely grotesque collection of child pornography and has now endured severe collateral consequences for his criminal actions, yet he has also been the lifeline for his ill father, and he has taken the road towards rehabilitation, and he is seen by all independent professionals who have dealt with him to be a good candidate for continuing to do so in the community.
[17] In addition to the conditional sentence and probation order, the sentencing judge ordered Mr. Elias to be registered as a sex offender for 20 years. [^3] He also imposed lifetime orders under s. 161(1) (a), (b), (c) and (d) of the Criminal Code, exceeding the terms proposed by the Crown. Among other things, these orders prohibit Mr. Elias from ever having any contact or communicating by any means with a person under the age of 16, unless the person is his child, nephew or niece and the contact takes place under the direct supervision of Mr. Elias' father or one of Mr. Elias' siblings.
Sentencing principles for possession of CSAEM
[18] The proliferation and easy availability of child sexual abuse and exploitation material is "a pervasive social problem that affects the global community and its children": R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 22. A person who possesses such material is sexually abusing children. As canvassed at length by Tulloch C.J.O. in Pike, at paras. 143-157, possession of child sexual abuse and exploitation material harms children by treating them as "voiceless, absent" objects, and by invading their privacy. Collecting this material increases the market for its production: Pike, at para. 151. The children depicted in child sexual abuse and exploitation material suffer emotional harm during its creation, and they are re-victimized each time the images are viewed: Pike, at para. 149. The sharing of this material endlessly perpetuates the sexual abuse, normalizes it, and may incite the commission of other sexual offences against children: Pike, at paras. 151-152, 157. Chief Justice Tulloch's description of the harms caused by the possession of child sexual abuse and exploitation material was endorsed by the Supreme Court in Quebec (Attorney General) v. Senneville, 2025 SCC 33, at para. 31.
[19] In sentencing offenders for the sexual abuse of children, including possession of CSAEM, courts must prioritize denunciation and deterrence: s. 718.01 of the Criminal Code; Inksetter, at para. 16; and Pike, at para. 159. The court's focus must be on the children abused in the making, distribution, and viewing of these materials: Pike, at para. 160. In particular, courts must recognize and give effect to (1) the inherent wrongfulness of the offences; (2) the potential harm to children that flows from the offences; and (3) the actual harm that children suffer as a result of the offences: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 76.
[20] In Pike, this court clarified some of the aggravating factors that should be considered in sentencing an offender for possession of child sexual abuse and exploitation materials. I will return to these factors later in these reasons.
[21] Courts cannot minimize the harms caused by the offender by focusing unduly on their personal circumstances and giving priority to the sentencing objectives of rehabilitation and deterrence. The latter includes both specific and general deterrence; as a result, deterrence may weigh in favour of incarceration even if there is no significant risk that the offender will reoffend. Sentencing objectives such as rehabilitation may be given significant weight, but not priority or equivalency to deterrence and denunciation: R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at paras. 47-48, 53; Friesen, at paras. 101-104.
The sentencing judge erred in principle by failing to recognize aggravating factors
[22] A sentencing judge has a wide latitude in determining a fit sentence: R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 162. This court may intervene only if the sentencing judge made an error of law or an error in principle that had an impact on the sentence, or imposed a sentence that was demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.
[23] In this case, the sentencing judge erred in principle by failing to recognize significant aggravating factors, and this had an impact on the sentence imposed.
[24] First, although he recognized that the size and depravity of Mr. Elias' collection were relevant to sentencing, the sentencing judge failed to identify the nature of the collection and the number of children victimized as distinct and further aggravating factors.
[25] In considering the gravity of the offence of possession of CSAEM, a court must consider whether the contents of a collection depict real children: Pike, at para. 169. Here, the images and videos described on the record featured real children and toddlers as opposed to drawings or computer-generated avatars. Mr. Elias agreed that these images and videos were representative of the collection. His possession of recordings depicting the abuse of real children increases his moral blameworthiness.
[26] The number of child sexual abuse victims depicted in an offender's collection is also a distinct aggravating factor. Offenders who victimize more children should expect to receive "significantly higher sentences": Friesen, at para. 133, cited in Pike, at para. 167. Given the size of Mr. Elias' collection, thousands of children were victimized in its creation, and re-victimized by the sharing and re-viewing of their abuse. This is an even more aggravating factor than the size of the collection: Pike, at para. 167.
[27] Second, the sentencing judge failed to recognize the duration of time during which Mr. Elias collected the CSAEM and the frequency of his engagement with it as aggravating factors. Evidence that an offender has amassed a collection over time and that they interact with it regularly increases their moral blameworthiness because it shows "their conduct is entrenched and increase[es] the number of times they victimize the depicted children": Pike, at para. 170.
[28] The sentencing judge's reasoning on this issue was as follows:
Respectfully, I disagree with the Crown that this Court can reasonably find as aggravating factors that it took Elias "several years" to compile his collection of child pornography and/or that he viewed the child pornography "very frequently"...
There is nothing in the agreed statement of facts that would support either one of those alleged aggravating factors.
At its highest, the evidence as a whole suggests that Elias watched the child pornography approximately once per week and first stumbled upon online child pornography sometime after he started using a specific computer application in 2017 (page 3 of Dr. Gojer's report marked Exhibit 4).
These alleged aggravating factors not being agreed to by the offender, Elias is entitled to proof of them beyond a reasonable doubt. R. v. Richardson. I find that the evidence falls short of that standard of proof in this case, on these two points.
[29] In my view, the sentencing judge's rejection of these two aggravating factors reflects a misapprehension of the evidence.
[30] Mr. Elias disclosed to Dr. Gojer that he first saw child sexual abuse and exploitation material in 2016 or 2017; that he began watching and downloading it from then on; that he was sexually aroused by it; that he viewed it weekly; and that he would masturbate while viewing both adult and child pornography, including the violent sexual abuse of children. Dr. Gojer was retained by the defence, and the defence relied heavily on his findings, which were premised on accurate reporting by Mr. Elias. In closing submissions, defence counsel explicitly relied on Mr. Elias' admission to Dr. Gojer about his use of the CSAEM in his collection: defence counsel asserted that Mr. Elias "was honest" with Dr. Gojer "that he would basically self-gratiate [sic] himself with" the videos and "how often that would take place".
[31] There was no suggestion during the sentencing hearing that Mr. Elias' admissions to Dr. Gojer were unreliable or should be treated as inadmissible hearsay. On the contrary, the sentencing judge accepted Dr. Gojer's evidence about Mr. Elias' personal circumstances, which was based on Mr. Elias' statements to Dr. Gojer and to his therapist.
[32] The huge size of the collection and its presence on three different devices, acknowledged in the agreed statement of facts, are features consistent with these admissions.
[33] The omission in the agreed statement of facts of a reference to the date when Mr. Elias began collecting the images and videos and how frequently he viewed them is not determinative. The aggravating factors are proved based on Mr. Elias' admissions to third parties, the reliability of which were not in question.
[34] Finally, Mr. Elias' engagement in the child pornography subculture is an aggravating factor that the sentencing judge should have considered.
[35] Mr. Elias was not a passive viewer of child sexual abuse and exploitation material. His IP address was flagged to the police after he uploaded a pornographic video featuring a prepubescent girl to his account and shared it in a Kik chat using an alias. He told Dr. Gojer that he "collected videos that others sent him." He did not dispute that he, in turn, sent CSAEM to "someone he met online." As the sentencing judge noted, Mr. Elias' collection included images that he himself had taken, surreptitiously, of the buttocks of girls.
[36] As observed in Pike, at para. 170, citing R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241, at para. 25, active participation in the child pornography subculture is aggravating. By "reinforcing the offending behaviour of people who possess child pornography and encouraging them to graduate to even more serious offending, it increases the risk to children": Pike, at para. 170. This risk was actualized when Mr. Elias began generating his own images and sending material to others.
[37] The sentencing judge's failure to consider these additional significant aggravating factors necessarily had an impact both on his determination that a sentence under two years was appropriate and that a conditional sentence was proportionate and fit.
The sentencing judge erred in principle by failing to prioritize denunciation and deterrence
[38] As Tulloch C.J.O. explained in para. 160 of Pike:
Courts can give significant weight to the personal circumstances and mitigating factors of people who possess child pornography, and to sentencing objectives such as rehabilitation. But it is all too easy for those considerations, which focus on the people being sentenced, to overshadow the wrongs and harms they inflict because their victims are all too often invisible.... That is why courts can neither prioritize other objectives to the same degree as or higher than denunciation and deterrence, nor use the personal circumstances and mitigating factors of people who possess child pornography to avoid grappling with the wrongs and harms they cause. [Citations omitted.]
[39] Although the sentencing judge acknowledged that denunciation and deterrence were primary sentencing goals, he did not give them priority. He instead focused on the offender and his circumstances. This was an error in principle.
[40] The sentencing judge's reasons are not child-centered. They do not give primary consideration to the children victimized by Mr. Elias' offence and the nature of the harm they suffered. After a brief description of some of the images and videos in Mr. Elias' collection, the reasons shift in focus to a lengthy review of Mr. Elias' personal circumstances, his mental health, the collateral consequences of his criminal charge and conviction, his rehabilitative potential, and the negative impacts of a custodial sentence on him and his father.
[41] Mr. Elias' victims and the harms caused by his offence are mentioned only in the context of his statements to a therapist and to the court. They are given no weight except as evidence of Mr. Elias' remorse and insight, and hence his rehabilitative potential. This approach recasts aggravating features of this case into mitigating features.
[42] The sentencing judge furthermore de-emphasized Mr. Elias' moral culpability by emphasizing Mr. Elias' passivity and de-emphasizing the extent of the offence. He accepted that Mr. Elias had "stumbled upon" CSAEM inadvertently in 2017. He described Mr. Elias as a "terribly sad, dejected, and ashamed" person with alcohol and substance abuse issues, whose depression, low self-esteem, loneliness, body-image disorder, and pedophilic disorder were "the significant causal factors underlying the commission of this offence."
[43] The danger of minimizing the active role played by a possessor of CSAEM in wrongdoing was again highlighted in Pike, at para. 164. Chief Justice Tulloch cautioned that:
Possession [of child pornography] is deliberate, not accidental or passive. This crime is "'committed specifically by choice[s]'" to break down the legal barriers against sexually exploiting children by acquiring and maintaining the material and expanding their collection. Courts thus should not recast people who possess child pornography as victims of its easy availability. Likewise, while courts can consider mental illnesses that contribute to people's decisions to possess child pornography, they should not assume that psychiatric conditions like pedophilia compel those people to possess child pornography. Both forms of minimization wrongly excuse people who possess child pornography from responsibility for their choices and undermine Parliament's prioritization of deterrence and denunciation. [Citations omitted.]
[44] The sentencing judge minimized Mr. Elias' moral culpability in this way, even though Mr. Elias amassed a collection of almost 23,000 images and 741 videos of child sexual abuse and exploitation over four to five years, during which time he viewed it and masturbated to it weekly, engaged with others in the CSAEM subculture, took videos of children in public, and shared child sexual abuse and exploitation material with others on the internet.
[45] This is not to suggest that an offender's personal circumstances are irrelevant or that mental health issues cannot be found to reduce an offender's moral culpability. As Friesen and Pike hammer home, however, the court must center its analysis on the harms flowing to the child victims of the offence and the moral culpability inherent in the possession of child sexual abuse and exploitation material.
[46] The sentencing judge's error in principle again had a significant impact on the sentence imposed. He did not consider the factors relevant to a determination of a fit and proportionate sentence. In the ordinary course, this would justify setting the sentence aside.
Mr. Elias' fresh evidence application
[47] Before determining a fit sentence given all relevant aggravating and mitigating factors, I must consider Mr. Elias' application to adduce fresh evidence.
[48] Mr. Elias seeks to introduce his affidavit sworn on September 24, 2025 stating that he began sex offender therapy post-sentencing with social worker Stephanie Swayne. He also seeks to introduce a letter from Ms. Swayne confirming that he attended five counselling sessions between August and September 2025 and attesting to his efforts to receive sex offender therapy.
[49] The admissibility of fresh evidence on appeal is governed by the test outlined in Palmer v. The Queen, [1980] 1 S.C.R. 759: see R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 22. In order to be admitted, the evidence must meet four criteria: (1) the fresh evidence must not have been capable of being adduced at trial through due diligence; (2) the evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) if believed, when taken with the other evidence, the evidence must be expected to have affected the result: R. v. Tynes, 2022 ONCA 866, 165 O.R. (3d) 321, at para. 44, leave to appeal refused, [2023] S.C.C.A. No. 471.
[50] The due diligence criterion is met. The evidence relates to events subsequent to the sentence and was not available at the time of sentence: Lévesque, at para. 32. The evidence is relevant insofar as it bears on the offender's rehabilitative efforts. The court has no reason to doubt the credibility of the sworn evidence in this case. Finally, the fresh evidence could reasonably be expected to have affected the sentence imposed. The sentencing judge referred to Dr. Gojer's evidence that what Mr. Elias needed, first and foremost, was sex offender therapy. Dr. Gojer testified that Ms. Johnson, who was providing therapy to Mr. Elias at the time of sentencing, was not qualified to give sex offender therapy. It follows that Mr. Elias' receipt of sex offender therapy was a live issue at sentencing.
[51] For these reasons, I would grant the fresh evidence application.
A 30 month custodial sentence was fit
[52] A sentence is demonstrably unfit if it is clearly unreasonable, clearly excessive or inadequate, or if it represents "a substantial and marked departure from the fundamental principle of proportionality": Lis, at paras. 43, 98.
[53] In the wake of Parliament's amendment of the Criminal Code to increase the maximum sentences for the sexual abuse of children, and the sentencing principles in Friesen and Pike, a successful indictment for possession of CSAEM almost always attracts a custodial sentence. The sentencing judge acknowledged this but concluded that unique features of this case, most notably Mr. Elias' personal circumstances and the collateral consequences of a carceral sentence, made a conditional sentence proportionate.
[54] I do not agree. Applying a child-centered approach and taking all relevant aggravating factors into account in this case, a 30 month custodial sentence was fit.
[55] This court has frequently observed that sentencing is not a cookie-cutter exercise, and the circumstances of each case must be considered in determining a fit sentence. Courts must also ensure, however, that Parliament's sentencing objectives are respected and that similar offences in similar circumstances receive similar sentences.
[56] As discussed above, the aggravating factors in this case are significant. Mr. Elias' offence damaged thousands of real children over a span of years. His collection featured depraved and disgusting acts that dehumanized his victims. Mr. Elias' active and frequent viewing of images and videos, his involvement in the CSAEM subculture, and his photographing of children in his own community increase his moral culpability.
[57] Post-Friesen, this court has consistently endorsed carceral sentences for possession of a large collection of child sexual abuse and exploitation material featuring real victims, despite mitigating factors and circumstances present in this case:
In Pike, a 77-year-old offender in possession of CSAEM including 89 images and 57 videos of real children, at low risk of reoffending, who was the caregiver to an elderly spouse, was sentenced to 3 years' incarceration.
In R. v. Rule, 2023 ONCA 31, a 70-year-old first-time offender in possession of CSAEM including 22,429 images and 204 videos, who pled guilty, who had cancer and other serious health conditions, and who acted as his elderly mother's caregiver, was sentenced to 22 months' incarceration.
In R. v. Olivetti, 2022 ONCA 142, a 77-year-old offender possessing 11,000 images and 88 videos of CSAEM, who had a prior conviction for historical sexual offences against children, but who expressed remorse and pled guilty, received a sentence of 4 years' incarceration.
[58] Mr. Elias' personal circumstances do not merit a departure from these precedents. It is not unusual for a person convicted of possession of CSAEM to be diagnosed with a pedophilic disorder and other mental health disorders. Dr. Gojer did not testify that these conditions caused Mr. Elias to offend. They may have been circumstances that made him more vulnerable to committing the offence, but there is no evidence that they significantly reduce his moral culpability for his actions.
[59] The collateral consequences of incarceration should not be overstated. Pike and Rule involved offenders who acted as caretakers for elderly family members. Mr. Elias' father did not testify that he would not be able to get help if his son was incarcerated; he had taken no steps to explore any alternative plans. In conversations with his therapist, Mr. Elias acknowledged that he did not have a close relationship with his siblings prior to his arrest and conviction. Although Mr. Elias blamed himself for his mother's death, she died of cancer. Based on Dr. Gojer's evidence, Mr. Elias could obtain treatment to reduce the risk presented by his pedophilia while in a provincial or federal institution.
[60] The sentencing judge ordered s. 161 prohibitions far beyond what the Crown proposed, presumably to mitigate against the risk that Mr. Elias would reoffend if he spent time in proximity to minors. I nonetheless accept, based on the sentencing judge's evidentiary findings, that Mr. Elias is a good candidate for treatment and that, if he is treated, he is unlikely to reoffend. Based on the fresh evidence, Mr. Elias has sought treatment since he was sentenced. This limits the need for specific deterrence. It does nothing, however, to meet the objectives of general deterrence and denunciation.
[61] Given the aggravating factors, but taking into account Mr. Elias' rehabilitative prospects, his remorse, his guilty plea, and his lack of criminal record, I conclude that a 30 month custodial sentence, in addition to the ancillary orders imposed by the sentencing judge, is required to denounce Mr. Elias' offence and to deter others from committing similar offences.
Disposition
[62] Having found that a conditional sentence was unfit, I must consider whether Mr. Elias should now be resentenced and incarcerated. I conclude that he should not.
[63] Where an appellate court concludes that a sentence is unfit but allowing a Crown sentence appeal would end an ongoing conditional sentence and subsequent probation, the court may denounce the sentence imposed below as unfit but nevertheless dismiss the appeal: see, for example, in R. v. M.M., 2022 ONCA 441; R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641; R. v. C.P., 2024 ONCA 783; and Pike, at paras. 194-195. In each of these cases, the court found it significant that the offender had served most or all of his non-custodial sentence when this court rendered its decision. The timing of an offender's eligibility for parole has also been considered a relevant factor: see Pike, at para. 194; C.P., at para. 44; and M.M., at para. 20. Finally, in C.P., at para. 43 and R.S., at para. 42, the court considered that a penitentiary sentence would reduce the oversight and supervision of the offender in the community because a probationary period cannot attach to a custodial sentence over two years.
[64] Mr. Elias is now roughly halfway through his conditional sentence. Had he originally been sentenced to a 30 month carceral sentence, he would soon be eligible for parole. Furthermore, if he is resentenced to this custodial sentence, he would not be subject to an additional three years of community supervision in the form of probation at the end of his carceral term.
[65] In the circumstances, I would grant leave to appeal the sentence but dismiss the sentence appeal.
Released: February 18, 2026 "L.S."
"S. Gomery J.A."
"I agree. L. Sossin J.A."
"I agree. J. Copeland J.A."
Footnotes
[^1]: In October 2024, as a result of An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material), S.C. 2024, c. 23, the term "child pornography" was replaced with "child sexual abuse and exploitation material" (CSAEM) in the Criminal Code, R.S.C, 1985, c. C-46. I will use this new terminology in these reasons.
[^2]: Mr. Elias was also charged with distribution of child pornography contrary to s. 163.1(3). This count was withdrawn by the Crown following his guilty plea.
[^3]: Under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (SOIRA).