COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Monahan and Osborne JJ.A.
BETWEEN
His Majesty the King
Respondent
and
J.C.
Appellant
Mark C. Halfyard, for the appellant
Baaba Forson, for the respondent
Heard: April 14, 2026
On appeal from sentence imposed by Justice Leslie A. P. Chapin of the Ontario Court of Justice, on November 27, 2024.
I. OVERVIEW
1Following a guilty plea, the appellant was sentenced to a one-year custodial sentence to be followed by three years’ probation for possession of child sexual abuse and exploitation material (“CSAEM”). The CSAEM consisted of 2,665 images (of which 1,521 were unique) and 126 videos (of which 125 were unique) on two laptops. The images and videos depicted a high degree of depraved acts of sexual violence against children, some of whom were toddlers.
2On appeal, the appellant seeks a conditional sentence of 18 months. He argues that the sentencing judge erred in four ways: (1) by failing to apply the principles in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, in finding a conditional sentence to be inappropriate in his case; (2) by relying on the fact that “these were offences against children” as an aggravating factor; (3) by incorrectly assessing the impact of his mental health on his offending conduct and the collateral consequences of incarceration; and (4) by finding that his attempts to manipulate the phallometric testing was an aggravating factor and increased his risk to reoffend.
3Significant deference is afforded to sentencing judges in fashioning an appropriate sentence. An appellate court may intervene only if the sentence was demonstrably unfit or the sentencing judge made an error of law or error in principle that had an impact on the sentence. As I explain below, the sentencing judge correctly identified and applied the relevant sentencing principles for possession of CSEAM, and her factual findings were open to her on the record. I see no basis for appellate intervention and would dismiss the appeal.
II. BACKGROUND
A. Police locate CSEAM on the appellant’s laptops
4On March 29, 2022, the police executed a search warrant at the appellant’s home to search for CSEAM on electronic devices. They found CSEAM on two laptops which the appellant admitted were within his sole control, following which he was arrested and charged.
5The CSEAM consisted of images and/or videos depicting female children, some alone, some with other female children and some with male or female adults. The children are shown nude or in various forms of undress, engaged in touching other nude children or adults, providing or receiving oral sex from other children or adults, or engaged in intercourse with other children or adults. In one of the videos, an adult male is holding a female toddler’s legs up while penetrating her anus with his erect penis. The child is crying and whimpering as he penetrates her.
B. Evidence at the sentencing hearing
6At the defence’s request, the appellant was assessed by a forensic psychiatrist, Dr. Mark Pearce, who conducted two video-based interviews with the appellant in May and June 2023. Dr. Pearce also reviewed a variety of other materials detailing the appellant’s medical history, and reviewed a videotaped interview that the police conducted with the appellant at the time of his arrest. Dr. Pearce filed an expert report and testified at the sentencing hearing.
7Dr. Pearce reported that beginning in late 2019 the appellant began experiencing bouts of psychosis. He was involuntarily admitted to CAMH in February 2020 for about two weeks and was medicated with an antipsychotic. The medication initially helped to address the psychosis. However, in mid-2021, the appellant stopped taking his medication and had a second bout of psychosis toward the end of 2021.
8In his interviews with Dr. Pearce, the appellant denied ever searching for CSEAM or purposefully downloading such material. The appellant told Dr. Pearce that he did not think it was possible he had a sexual interest in children and that he had never masturbated to thoughts of children. The appellant denied any familiarity with certain acronyms associated with CSEAM. The appellant did not believe that he required treatment for any sexual problems.
9When asked to explain the large collection of CSEAM on his two computers, the appellant told Dr. Pearce that “I think that was my psychosis”. When asked to elaborate, the appellant said “I guess I must have searched and there must have been other results and I must have clicked on it out of curiosity, to see what it was. My memory is not that good from that time period”. Dr. Pearce found this explanation to be vague.
10Dr. Pearce also described the results of the appellant’s phallometric testing, which is a procedure that assesses a person’s pattern of sexual response to different categories of sexual stimuli. Responses are recorded in terms of changes in penile volume during the presentation of the stimulus. The appellant’s testing was rendered invalid due to response suppression. Dr. Pearce explained that the appellant was preventing his penis from getting aroused during the testing by contracting his muscles around the base of the penis. His highest response with respect to an erection was to neutral stimuli like forests and trees.
11In the fall of 2022, following his arrest, the appellant’s mental health worsened significantly. He was involuntarily admitted to Toronto General Hospital on November 10, 2022 and was discharged on December 20, 2022. Three days later he made a very serious suicide attempt by overdosing on medication, and was found unconscious outside a restaurant by bystanders. He required admission to hospital where he remained until February 13, 2023.
12In his expert report, Dr. Pearce found that the appellant was not particularly forthcoming in denying a sexual interest in children and in claiming that he did not procure the CSEAM purposefully. Dr. Pearce noted the inconsistency between the appellant's claims in this regard as compared with his initial statement to the police. Dr. Pearce also found it relevant that the CSEAM was found on two computers. However, since the appellant’s phallometric test results were rendered invalid, they were not helpful in confirming the presence of a paraphilic disorder. While Dr. Pearce noted that in matters like this he would “usually diagnose the paraphilic disorder”, in this case he was unable to conclude that the appellant met the criteria on the information available to him.
13Nevertheless, Dr. Pearce believed that “mood symptoms contributed to some extent at least, to his offending behaviour”. He also concluded that the appellant “suffers from a serious psychotic disorder and was unmedicated and probably somewhat symptomatic at the time of the offences”. In Dr. Pearce’s opinion, the appellant was at a low to moderate risk of reoffending.
14In his evidence at the sentencing hearing, Dr. Pearce was asked to elaborate on the statement in his report that the appellant was “probably somewhat symptomatic at the time of the offences”. Dr. Pearce clarified that he did not mean that the appellant was probably psychotic at the time of the offences, but that he was likely experiencing “mood symptoms”. Although both the appellant and his mother claimed that the appellant was “really, really sick” around the time of the offences in March 2022, Dr. Pearce found that the appellant was “quite vague about how he was sick or what symptoms he was having”. Dr. Pearce also stated that he reviewed the videotape of the appellant’s police interview, which was almost contemporaneous with his arrest, and “in the police interview I didn’t find [the appellant] to be terribly ill… he seemed maybe… a bit off, but I didn’t think he was psychotic in any way”.
15Later in his evidence, Dr. Pearce stated, “I thought there was probably some underlying symptoms there of his illness and they may have contributed, you know … to his downloading the child pornography”. But when asked to describe those symptoms, Dr. Pearce stated, “he might have been having more symptoms or fewer symptoms… I don’t really know to be honest”. Dr. Pearce stated that the appellant was probably experiencing “some low, low symptom level” but that he “can’t be certain of it”. Dr. Pearce also agreed that it was possible that the appellant’s downloading of CSEAM may well have had nothing to do with his mental state.
16The sentencing judge also considered an email from the appellant’s treating psychiatrist, Dr. Paul Posner. Dr. Posner indicated that the appellant is likely to experience a “catastrophic reaction” when confronted by “circumstances that he cannot avoid”. Dr. Posner was of the view that “there is every reason to think that if [the appellant] were to learn that he was to be incarcerated, a catastrophic response would ensue” and that “the likelihood of deliberate self-harm would be significantly elevated”. Dr. Posner noted that if imprisonment occurs, “a special psychiatric medical setting will offset the risk of self-harm and is recommended”.
C. The sentencing judge’s reasons
17In her detailed reasons, the sentencing judge reviewed the graphic and abusive nature of the CSEAM found on the appellant’s laptops. She also described in some detail the appellant’s circumstances, particularly the psychiatric evidence from Dr. Pearce and Dr. Posner.
18In terms of the relevant principles governing sentencing for offences involving CSEAM, the sentencing judge noted the recent direction from the Supreme Court in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, that sentences for sexual violence perpetrated against children need to increase. As Friesen emphasizes, sexual violence against children can cause serious emotional and psychological harm that may often be more pervasive and permanent in its effect than any physical harm. Friesen mandates that principles of denunciation and deterrence must be the primary considerations in sentencing offenders who commit sexual offences against children, including the offence of possession of CSEAM.
19The sentencing judge identified the aggravating factors as including the fact that these were offences against children and that the large collection of photographs and videos had a high degree of depravity and violence. The sentencing judge was also concerned by the fact that the appellant attempted to foil the phallometric testing and showed limited insight into his crime, which in her view increased his risk to reoffend.
20The mitigating factors were the guilty plea, the fact that the appellant has no criminal record, and that the appellant appeared to be otherwise of good behaviour.
21The sentencing judge carefully considered the appellant’s argument that he should receive a conditional sentence. She noted that the cases in which a conditional sentence had been imposed post-Friesen involved one or more of the following factors: the collections of CSEAM were much smaller; the offender’s mental health was found to have played a significant role in the offending; the offender was of advanced age and had medical conditions that could not be adequately addressed in a correctional facility; and/or the offender had significant insight into their behaviour and had attended therapy.
22The sentencing judge found that these circumstances were not present in the appellant’s case. The sentencing judge was concerned by the appellant’s lack of insight into his offending behaviour. She noted that he continues to be in denial with respect to the extent of his crime, as demonstrated by his claim that he was unaware of the extent of the CSEAM on his computers, a claim the sentencing judge rejected. The appellant’s attempt to thwart the phallometric testing combined with his difficulties in complying with his medication meant he was at increased risk for reoffending. Although the appellant does suffer from mental health issues, in the sentencing judge’s view, “those issues were not operative at the material time”. Further, although Dr. Posner opined that the appellant would not do well in prison, the sentencing judge concluded, “correctional institutions do have medical wings for people with mental health issues and I do not have any evidence that the appropriate treatment would not be available for [the appellant]”. Considered as a whole, the appellant’s situation was not “exceptional” and thus a conditional sentence was not appropriate.
23Taking into account the aggravating and mitigating factors, along with Friesen’s direction that sentences for sexual offences against children must increase, the sentencing judge found that a custodial sentence of 12 months followed by 3 years of probation was fit. She also recommended that the appellant serve his time at the Ontario Correctional Institute, which has specific programming for sexual offenders.
III. GROUNDS OF APPEAL
24The appellant argues that the sentencing judge erred in the following respects:
(i) By failing to apply the principles in Proulx and, instead, proceeding on the incorrect assumption that a conditional sentence in cases involving sexual offences against children is only available where an offender is in an “exceptional situation”;
(ii) By considering the fact that these were “offences against children” as an aggravating factor;
(iii) By finding that his mental health was not causally connected to his offending and by discounting the evidence that incarceration would exacerbate his mental health challenges; and
(iv) By finding that his attempts to manipulate the phallometric testing was aggravating, or that it increased his risk of reoffending.
25The appellant argues that in light of these errors, the sentencing judge’s decision is owed no deference, and this court should instead impose a conditional sentence of 18 months.
IV. DISCUSSION
A. Relevant sentencing principles for possession of CSEAM
26In R. v. Pike, 2024 ONCA 608, 173 O.R. (3d) 241, Tulloch C.J.O. provided a comprehensive analysis of the principles governing sentencing for the offence of possession of CSEAM, in light of the Supreme Court’s decision in Friesen. I highlight a number of the principles identified in Pike that are particularly relevant in this case.
27First, people who possess and view CSEAM that depicts real children “violate children’s dignity by perpetuating the exploitation originating from the production of the images and infringing their right not to have the permanent record of their abuse and exploitation viewed by adults”. People who possess CSEAM involving actual children “make the challenging path of recovery for children much steeper by transforming the initial exploitation and violence of the production into a continuing violation”. People who possess such material “cause ongoing psychological harm to children that can extend long into adulthood”. See Pike, at paras. 147, 149, 150, 169.
28Second, people who possess CSEAM perpetuate pernicious messages that attack children’s humanity and equality. By falsely depicting children seeming to participate in their own exploitation, it erases children’s vulnerability and wrongfully suggests that they can consent, or that their exploitation is not a real crime. It sexualizes children’s inequality and vulnerability by portraying them as property for adults to collect, exploit, and exchange, and “sends the dangerous message that the wants of adults trump the needs of children”. See Pike, at paras. 154-55.
29Parliament has responded to society’s increasing awareness of the gravity of the offence of possession of CSEAM by directing courts to punish it more severely and impose sentences that prioritize denunciation and deterrence. This means that courts must place children, and the wrongs and harms the people who possess CSEAM inflict on them, at the centre of the sentencing process. While courts can give significant weight to the personal circumstances and mitigating factors of people who possess CSEAM, and to sentencing objectives such as rehabilitation, “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”. See Pike, at paras. 158-60.
30Courts must also reject myths that minimize the degree of responsibility of those who possess CSEAM and the wrongfulness and harmfulness of their conduct. These myths include “that the conduct of those possessing child pornography is harmless and victimless, accidental and passive, caused by medical and psychiatric conditions, or an isolated occurrence”. The reality is that people who possess CSEAM callously, deliberately, and repeatedly exploit real children. See Pike, at para. 161.
31Finally, in determining whether a conditional sentence is appropriate for possession of CSEAM, courts must consider “not only personal circumstances and mitigating factors of people who possess child pornography, but also the severe wrongs and harms that they cause, their moral blameworthiness, and Parliament’s prioritization of deterrence and denunciation”. Proper consideration of these factors will ordinarily result in a custodial sentence. This does not mean that there is a presumption against conditional sentences for possession of CSEAM since, as Proulx holds, courts cannot create presumptions that conditional sentences are inappropriate for specific offences. Nevertheless, given developments in our understanding of the inherent wrongfulness of such conduct, “these post-Proulx changes require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors, to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago”. See Pike, at paras. 179-81.
B. The sentencing judge did not err in declining to impose a conditional sentence
32The appellant argues that the sentencing judge erred in failing to apply the principles in Proulx in determining whether to impose a conditional sentence. He also objects in particular to the sentencing judge’s reference to a conditional sentence as only being appropriate where an offender is in an “exceptional situation”.
33I see no error in the sentencing judge’s finding that a conditional sentence would not be appropriate in the appellant’s case. As Pike makes clear, although the principles in Proulx remain applicable, their application must be recalibrated so as to take account of our contemporary understanding of the gravity of offences involving sexual violence against children.
34The sentencing judge carefully considered the circumstances in cases post-Friesen where a conditional sentence had been imposed, and found that the appellant’s circumstances were distinguishable. In particular, the sentencing judge had concerns about the appellant’s risk of reoffending, noting his difficulties complying with his medication, his limited insight into his offending conduct, and his denial about the extent of his crime. Further, as I will discuss in relation to the third ground of appeal considered below, she also gave appropriate consideration to the mitigating factors, including the evidence pertaining to the appellant’s mental health issues and the impact that incarceration would have on him.
35Considered in the context of her reasons as a whole, I see no error in principle in the sentencing judge’s statement that an offender must be in an “exceptional situation” before a conditional sentence could be found to be appropriate. Consistent with Pike, the sentencing judge’s focus throughout her analysis was quite properly on the appellant’s moral blameworthiness, and the factors she took into account in her analysis were relevant and open to her on the record.
36The appellant’s argument that he ought to have received a conditional sentence in substance invites this court to prioritize his personal circumstances, including his mental health and the negative impact a custodial sentence would have on him, over the harm to the children victimized by his offence. As Pike emphasizes, and as this court recently reaffirmed in R. v. Elias, 2026 ONCA 112, at paras. 39-45, to accept the appellant’s invitation would amount to an error in principle. To employ the terminology in Pike, at para. 181, as I will explain when I consider the third ground of appeal below, in the appellant’s case there are no “compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors” that would justify a conditional sentence. I read the sentencing judge’s reference to the appellant not being in an “exceptional situation” as simply a shorthand way of expressing this finding. I would therefore dismiss this ground of appeal.
C. The sentencing judge did not err in considering the fact that these were “offences against children” as an aggravating factor
37The appellant argues that the sentencing judge erred in stating that an aggravating factor was the fact that these were “offences against children”, which is an element of the offence and as such would apply to all offences involving child pornography. The appellant points out that R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 83, holds that it is an error of law to treat an element of an offence as an aggravating factor.
38I see no error in the sentencing judge’s reference to the fact that the offence was one involving children. I interpret the sentencing judge as simply pointing out that the CSEAM in this case depicted real children as opposed to computer generated images or fictional characters. This understanding of the sentencing judge’s statement is supported by the fact that earlier in her reasons when considering the “effect on the victim”, she cited Friesen, at para. 48, for the principle that online images of children “repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time”.
39As discussed above, Pike, at para. 169,affirmed that CSEAM depicting real children, as opposed to computer generated images, is a relevant consideration in determining the harm caused by the material. I therefore see no error in the sentencing judge’s finding that an aggravating factor was that these were offences against children.
D. The sentencing judge did not err in assessing the impact of the appellant’s mental health on his criminal conduct or his incarceration
40The appellant argues that the sentencing judge erred in her statement that “[a]lthough it is clear that [the appellant] does suffer from mental health issues, those issues were not operative at the material time”. He argues that Dr. Pearce opined in his report that the appellant’s “mood symptoms” likely contributed to his offending behaviour “to some extent at least”, and that Dr. Pearce never resiled from that statement in his evidence at the sentencing hearing. The appellant argues that there was no basis for the sentencing judge’s refusal to accept Dr. Pearce’s opinion in this regard.
41I make two preliminary observations regarding this ground of appeal.
42First, while Dr. Pearce opined in his report that the appellant’s “mood symptoms” contributed “to some extent at least, to his offending behaviour”, Dr. Pearce also testified that the appellant was not psychotic at the time and his symptoms would have been at a “low, low level”. Dr. Pearce does not explain how these relatively minor symptoms actually contributed to the appellant’s offending behaviour so as to reduce his moral blameworthiness.
43Second, in his evidence at the sentencing hearing, Dr. Pearce was even more equivocal in drawing a connection between the appellant’s mental health and his offending behaviour. Over the course of his cross-examination, Dr. Pearce repeated a number of times that he found the appellant’s claim that his offending behaviour was affected by his mental state to be “vague”. Dr. Pearce also agreed that he had no way of knowing what the appellant’s mental state was in January 2022, and that it is entirely possible that there was no connection between his mental state and his accessing the CSEAM. He further agreed that there were no medical records to support a conclusion one way or the other as to his mental state at that time.
44The sentencing judge understood and gave careful consideration to Dr. Pearce’s evidence. Given the equivocal nature of that evidence, it was open to the sentencing judge to conclude that while it was possible that there was a causal link between the appellant’s mental health and his offending conduct, it was also possible that there was no causal link. The sentencing judge simply made one of the two factual conclusions available to her on the evidence – that there was no causal link.
45The appellant does not argue that the sentencing judge erred in her understanding of the applicable legal principles. Therefore, her finding that the appellant’s mental health issues were not operative at the material time is entitled to deference, and I see no basis for appellate intervention.
46The appellant also argues that the sentencing judge erred in discounting Dr. Posner’s opinion that if the appellant were to learn that he was to be incarcerated, “a catastrophic response would ensue”. Dr. Posner’s concern arose from the appellant’s pattern of behaviour when confronted by “circumstances that he cannot avoid” and the fact that some months after his arrest, the appellant attempted suicide.
47As this court recognized recently, “[s]entencing must be proportionate, but it must also be humane”: R. v. Kulatheeswaran, 2026 ONCA 128, at para. 32. Given Dr. Posner’s familiarity with the appellant’s mental health issues, his concerns about the impact on the appellant of his learning that he would be incarcerated must obviously be taken very seriously.
48That said, and without in any way minimizing or discounting Dr. Posner’s concerns, I would point out that cases in which incarceration has been found to be inappropriate due to the offender’s mental or physical conditions were those in which the offender’s conditions could not be adequately treated in the correctional institution: see e.g., Kulatheeswaran, at para. 31; see generally R. v. Seed, 2025 ONCA 698, at paras. 5-10. That does not appear to be the case here since, as Dr. Posner himself recognizes, measures can be put in place at the correctional institution to address the risks he identified.
49On balance, therefore, I see no reviewable error in the sentencing judge’s assessment of the appellant’s mental health issues and would dismiss this ground of appeal.
E. The sentencing judge did not err in finding that the appellant’s attempts to obstruct the phallometric testing was an aggravating factor or that it increased his level of risk to reoffend
50The appellant argues that the sentencing judge erred by finding that his attempts to frustrate the phallometric testing was an aggravating factor and that it increased his risk to reoffend. The appellant points out that Dr. Pearce had already taken this factor into account in finding that the appellant’s risk level was “low to medium”.
51Pike, at para. 166, recognizes that an offender’s future risk to children is an aggravating factor in sentencing for possession of CSEAM. It was therefore open to the sentencing judge to find that although the appellant was not diagnosed with pedophilia, his obstruction of efforts to make this determination was relevant to his risk to reoffend. Moreover, even if Dr. Pearce took the appellant’s obstruction of the phallometric testing into account in assessing his risk of reoffending, the sentencing judge was not bound by Dr. Pearce’s opinion and could make her own findings about the appellant’s future risk in determining the appropriate sentence.
V. DISPOSITION
52For the above reasons, I would dismiss the appeal.
“P.J. Monahan J.A.”
“I agree. P.J. Osborne J.A.”
I. OVERVIEW
53CSAEM is undoubtedly a scourge. It is profoundly harmful to children. The crime of possession amplifies and encourages the harms inflicted by the creation of CSAEM. Moreover, possessing such material results in distinct and extreme violations of the dignity and privacy of victims. Deterrence and denunciation are undoubtedly the primary sentencing objectives at work in cases of this nature. And, yes, conditional sentences are and must remain rare. Nothing in my reasons should be interpreted otherwise.
54At the same time, sentencing those with serious mental health challenges can be a complex and difficult exercise. It calls for understanding and it demands nuance. This is particularly true where an accused’s mental health played a role in their offending conduct or where their mental health informs how to best protect the public on a go-forward basis.
55Here, the appellant’s mental health was a significant issue before the sentencing judge. My colleagues conclude that there is no error in the sentencing judge’s treatment of the evidence related to the appellant’s mental health.
56With respect, I disagree. In my view, the sentencing judge erred in principle in her treatment of the mental health evidence. No deference is owed to her finding that the appellant’s “mental health issues … were not operative at the material time” or her failure to heed the warning from the appellant’s psychiatrist that incarcerating the appellant could have catastrophic consequences.
57Looking at the matter afresh, I would substitute a conditional sentence of two years less a day, followed by three years’ probation.
II. THE FACTS
A. The appellant’s offending conduct
58There is no dispute that the appellant’s offending conduct was serious. On March 29, 2022, the police executed a search warrant at his home and seized two computers that the appellant used. Removing duplicates, the computers contained a total of 1,521 CSAEM photos and 125 CSAEM videos. As the sentencing judge found, the collection involved “a high degree of depravity and violence.” There is no need for me to repeat what my colleagues have recounted. I agree with their characterization of this vile material.
59Although there was no specific time period alleged for when the appellant downloaded the CSAEM, there seemed to be agreement at the sentencing hearing that it occurred within a few months of the search – in other words, leading into and during early 2022.
B. The appellant’s serious chronic mental illness
60At the time of the search, the 44-year-old appellant lived with his mother and father. He had no criminal record.
61The appellant lives with a chronic psychotic disorder, with his most likely diagnosis being schizoaffective disorder, bipolar type. This illness combines symptoms of psychosis and mood symptoms, involving both mania and major depression.
62The appellant’s first onset of psychosis was in late 2019, more than two years before his arrest.
63In February 2020, he was involuntarily admitted to the Centre for Addiction and Mental Health (“CAMH”). At that time, he was exhibiting strong signs of psychosis, including striking himself in the head to get rid of what he perceived to be “heavy metals”. He was discharged home after his condition improved, although his thinking was still disorganized.
64The appellant achieved some stability while taking his medication, but he stopped doing so in mid-2021 and stopped seeing his treating psychiatrist, Dr. Paul Posner, in August of that year. Accordingly, there are no medical records for the period of mid-August 2021 until after the appellant’s arrest in March of 2022.
65It is somewhere in that period of time, while he remained without psychiatric treatment and without medication, that the appellant downloaded the CSAEM that he would later plead guilty to having in his possession.
66Following his arrest, the appellant started seeing Dr. Posner again but, by that time, his mental health was in clear decline. By the fall of 2022, he was “considerably worse” and had to be urgently brought to CAMH, where he was placed in physical restraints and given intramuscular anti-psychotics. He was admitted to the psychiatric intensive care unit at Toronto General Hospital. His mother had to step in as his substitute decision maker. His hospitalization lasted for over 40 days.
67Shortly after his release from hospital, the appellant attempted to commit suicide. He was admitted to the Toronto Western Hospital intensive care unit and transferred to Toronto General Hospital. He was again hospitalized for over 40 days. His most recent hospitalization was from January 27 to February 9, 2024.
68Suffice to say that the appellant has suffered from a serious chronic mental illness since 2019.
1. Psychiatric assessment – Dr. Pearce
69Dr. Mark Pearce, a forensic psychiatrist at CAMH, was retained to conduct a psychiatric assessment, which included exploring if the appellant was not criminally responsible (“NCR”) at the time that he offended. Dr. Pearce focussed on the time period from January 17 to March 29, 2022, which is what he understood to be the offending period.
70In forming his opinion, which is set out in an October 2023 report, Dr. Pearce drew upon numerous sources, including his interviews with the appellant, Crown disclosure, all prior psychiatric records, the video of the appellant’s police statement at the time of his arrest, and his mother’s account of his mental state during the relevant time period.
71As set out in the report, the appellant’s mother informed Dr. Pearce that during the relevant time, after the appellant stopped taking his medication, he went “slowly downhill” and became “increasingly manic and unwell.” He was spending a lot of money, was paranoid that people were watching him, and did not think he was unwell or in need of treatment.
72Dr. Pearce explained in his report that, once extant, schizoaffective disorder is a life-long illness. It causes symptoms of psychosis, characterized by the presence of hallucinations, delusions, grossly disorganized thought and behaviour, or some combination thereof. With schizoaffective disorder, bipolar type, the symptoms of psychosis are combined with symptoms of mania or major depression. Symptoms of mania may include “euphoria or irritability, combined with the grandiose sense of one’s self, agitation, a decrease[d] need for sleep and increased energy, pressured speech and a flight of ideas, distractibility, over talkativeness, and poor judgment.” Symptoms of mania may lead to promiscuity, excessive spending and substance abuse.
73Non-compliance with psychiatric treatment, including a lack of medication compliance, can adversely impact the course of the disorder. Indeed, the “mainstay of psychiatric treatment for individuals suffering from a schizoaffective disorder is treatment with antipsychotic pharmacotherapy.” Mood-stabilizing medication is also frequently added to prevent episodes of mania and depression.
74Dr. Pearce opined that even though the appellant was not NCR at the time of his offending conduct, there likely was a link between the appellant’s illness and his downloading the CSAEM. Dr. Pearce’s report stated the appellant “suffers from a serious psychotic disorder and was unmedicated and probably somewhat symptomatic at the time of the offences.” It also stated that “mood symptoms contributed to some extent at least, to [the appellant’s] offending behaviour.”
75In the course of his treatment recommendations, Dr. Pearce again noted the likely link between the appellant’s illness and the downloading of the CSAEM:
[I]n this atypical case, a chronic psychotic disorder is present and the allegations were likely linked to untreated symptoms. [The appellant] stands to benefit from further treatment for his condition over the long-term, and mental health diversion may help ensure that he continues to make gains. The aforenoted treatment recommendations may also reduce his risk of re-offence. [Emphasis added.]
76As noted in my colleagues’ reasons, Dr. Pearce was cross-examined at the sentencing proceeding. We see the effect of that cross-examination differently.
77Under cross-examination, Dr. Pearce quite fairly acknowledged that he could not be “certain” about the appellant’s condition during the relevant period, given that the offending occurred while he was untreated. Even so, based on the available information, Dr. Pearce’s medical opinion was that there likely was a link between the appellant’s offending and his unmedicated mental health condition: “I do think his illness relates to some extent or at least a little bit to the offending”.
78Dr. Pearce went on to explain how various symptoms associated with the appellant’s illness – such as increased libido, confusion and disorganization in his thought processes, delusional beliefs, and nihilism – could possibly help explain why the appellant downloaded the CSAEM. The Crown asked Dr. Pearce whether he agreed that the appellant’s conduct could “have nothing to do with his mental state”, based on “the limited information … at the material time”. Quite appropriately, Dr. Pearce responded that this was “possible”.
2. Treating psychiatrist – Dr. Posner
79The sentencing judge also had the benefit of information from Dr. Posner, who has been the appellant’s treating psychiatrist since his first period of psychosis. Accordingly, Dr. Posner had come to understand the appellant and his mental health challenges over a multi-year trajectory.
80Although the appellant seemed somewhat stable at the time of sentencing, Dr. Posner emphasized that the appellant may well have a “catastrophic response” if incarcerated:
At present there is every reason to think that if he were to learn that he was to be incarcerated, a catastrophic response would ensue. Based on limited history, the likelihood of deliberate self-harm would be significantly elevated. He would not cope well with potentially belligerent fellow inmates in a confined prison setting. If imprisonment occurs, a special psychiatric medical setting will offset the risk of self-harm and is recommended. [Emphasis added.]
C. The sentencing proceeding
81The Crown took the position that the appellant should be sentenced to two years in custody and three years’ probation. The defence asked for a two-year-less-a-day conditional sentence order (“CSO”), combined with conditions of house arrest and ankle monitoring, followed by three years’ probation.
82The sentencing judge correctly summarized the parties’ positions. She also took into account and reviewed all of the authorities placed before her.
83She specifically noted three aggravating factors. First, the offences involved children. Second, the CSAEM collection was “large”. And third, the appellant obstructed efforts to determine if he was a pedophile. As to this last point, Dr. Pearce was questioned about the fact that the phallometric testing had not been successful. Dr. Pearce said that this might have been due to the appellant contracting the muscles at the base of his penis to thwart the test, although he was not sure that the appellant had done that on purpose.
84As for mitigating factors, the sentencing judge noted that the appellant had pled guilty and that he did not have a criminal record.
85The sentencing judge found that she could not give “much weight” to the fact that the appellant had “already suffered” as a mitigating factor “given that [the appellant had] been on bail”. Even so, the sentencing judge said that she would afford the appellant some mitigation for his time on bail “given his mental health issues.”
86Then the sentencing judge said: “I note that [the appellant] was not on medication at the time he was assessed as to whether or not he was not criminally responsible and he was found to be criminally responsible.” Although it is not entirely clear, I understand this to mean that the appellant was not on medication at the time that he committed the offences. When assessed by Dr. Pearce, the appellant had been back on medication for well over a year.
87The sentencing judge concluded by finding that although the appellant suffers from “mental health issues, those issues were not operative at the material time.” She also found that although his treating psychiatrist opined that the appellant “would not do well in prison”, there were medical wings in correction institutions for people with mental health issues and there was no evidence to suggest that “appropriate treatment would not be available” for the appellant.
88In the end, the sentencing judge imposed a term of 12 months’ imprisonment to be followed by three years’ probation.
III. ANALYSIS
A. Error in principle
89In my view, the motion judge erred in principle in her treatment of the mental health evidence.
90Respectfully, I disagree with my colleagues that deference is owed to the finding that the appellant’s “mental health issues … were not operative at the material time.” That finding, which is not explained at any point in the sentencing reasons, is difficult to square with: (a) the unchallenged record as to the appellant’s serious chronic mental illness, which was untreated at the time of the offence; and (b) the sentencing judge’s own finding that the appellant’s mental health status increases his risk of reoffending.
91It is true that Dr. Pearce faced factual limitations when forming his opinion. Dr. Pearce did not meet the appellant until more than a year after the appellant’s arrest, long after his medication regime had resumed. Nor did Dr. Pearce have the benefit of medical records for the offending period, precisely because the appellant had stopped seeing his psychiatrist and stopped taking his critically important medication. Therefore, as previously noted, Dr. Pearce relied on information from the appellant’s mother, the appellant and a police video taken at the time of the appellant’s arrest.
92In light of these factual limitations, Dr. Pearce was cautious in his opinion, although not, in my view, equivocal. This was an appellant with schizoaffective disorder, bipolar type. During the relevant period, the appellant was untreated and unmedicated. His mother described how his symptoms worsened. The appellant was in his mid-forties and had no prior record of any kind. Although the appellant did not meet the NCR threshold, Dr. Pearce opined that the appellant’s mental illness could likely help explain his atypical behaviour. Among other things, a person in a manic state may experience “increased libido, increased sexual interest and desire” and psychosis can lead to disorganized and confused thinking. Although Dr. Pearce did not accept the appellant’s and his mother’s explanation that the appellant did not know what he was doing when he downloaded the CSAEM, that did not mean that the appellant’s illness did not have some bearing on his conduct. In Dr. Pearce’s opinion, there was probably some link. Indeed, at least twice in Dr. Pearce’s report and twice during cross-examination, he repeated his opinion that there was at least some causal link between the appellant’s symptoms and his criminal conduct.
93Of course, it was open to the sentencing judge to reject that link. Instead, all she said was that the appellant’s mental health issues were not “operative” at the relevant time.
94Not only was that finding not explained but it was undermined by the sentencing judge’s finding that the appellant was at “risk of reoffending”, among other things because of “difficulties in complying with his medication.” That is the exact point. Without medication, the appellant is at risk of reoffending like he did the last time he was unmedicated.
95In my view, the sentencing judge failed to meaningfully engage with any of this in her reasons. And her reasons are internally inconsistent because they acknowledge that the appellant’s mental illness, if left untreated, would increase his risk of reoffending while discounting that the same illness contributed to his offending when he was last untreated. Accordingly, unlike my colleagues, I would decline to defer to her finding that the appellant’s “mental health issues … were not operative at the material time”.
96I also respectfully part ways from my colleagues on the sentencing judge’s treatment of Dr. Posner’s evidence.
97As the appellant’s treating psychiatrist, Dr. Posner warned that there was “every reason to think that if [the appellant] were to learn that he was to be incarcerated, a catastrophic response would ensue” (emphasis added). Dr. Posner explained that the risk of deliberate self-harm would be significantly elevated. That risk could be offset in a “psychiatric medical setting”. Dr. Posner also opined that the appellant “would not cope well with potentially belligerent fellow inmates in a prison setting.”
98My colleagues see no error in the sentencing judge’s conclusion, based upon Dr. Posner’s opinion that, although the appellant “would not do well in prison”, there was no evidence to suggest that he would not be provided with “appropriate treatment” where he was incarcerated.
99Respectfully, I see a significant difference between what Dr. Posner perceived to be the problem – “a catastrophic response” – and what the sentencing judge characterized as “not doing well”. Although being incarcerated in a medical wing would, as Dr. Posner suggested, limit the appellant’s ability to harm himself, this did not resolve the problem arising from the appellant’s ability to cope in prison. Again, I see this as a failure to meaningfully grapple with the evidence relating to the appellant’s serious and complex mental health condition.
100Undoubtedly, the sentencing judge had a difficult task. The appellant was an atypical offender with a serious and complex mental illness.
101Although my colleagues suggest that the appellant’s argument that he should have received a conditional sentence is, in substance, inviting this court to “prioritize his personal circumstances, including his mental health and the negative impact a custodial sentence would have on him, over the harm to the children victimized by his offence”, I see matters differently.
102When an offender’s mental health status is linked to their offending conduct, this may well provide crucial context for how to best implement the primary objectives of deterrence and denunciation. It may also have the effect of diminishing the offender’s degree of moral blameworthiness. And, quite legitimately, other sentencing concerns may take on more prominence, concerns such as treatment and how to best ensure the protection of the public by avoiding repeat offending: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 38; R. v. Davies (2005), 199 C.C.C. (3d) 389 (Ont. C.A.), at paras. 29-31; R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at paras. 117-18, leave to appeal refused, [2014] S.C.C.A. No. 53; and R. v. Fabbro, 2021 ONCA 494, at paras. 20, 24-25.
103In addition, mental health challenges may justify the reduction of a sentence if there is evidence that incarceration would have a “serious negative effect on the offender”: Fabbro, at para. 25; R. v. Perry, 2025 ONCA 241, at para. 27. This is particularly true when a proportionate sentence can be achieved in a different way, while still meeting the overriding objectives of denunciation and deterrence: Fabbro, at para. 27.
104By erroneously suggesting that the appellant’s “mental health issues” were not “operative” at the relevant time, and by failing to grapple with Dr. Posner’s opinion about the catastrophic consequences that could flow from incarceration, the sentencing judge failed to apply these important sentencing principles. This had a material impact on the sentence imposed.
105Accordingly, I would resentence the appellant: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 27; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 43.
B. Appropriate sentence
106I started my reasons by noting the profound harm that results from CSAEM. I take no issue with how my colleagues characterize this offence or the need for sentences that reflect the harm done. The prioritization of deterrence and denunciation when it comes to these crimes does not mean, though, that we turn a blind eye to the offender, to the offender’s degree of moral culpability, or to the need to craft a sentence that makes sense in terms of public safety.
107The appellant is living with a serious and complex mental illness. His actions were harmful and reprehensible. Keeping both essential features of this case in mind, I accept, on a balance of probabilities, Dr. Pearce’s view that there is “likely” a link between the appellant’s untreated symptoms at the material time and his offending conduct. This causal connection has the effect of reducing the appellant’s moral culpability. I also accept the view of the appellant’s treating psychiatrist that “there is every reason to think” a custodial term could have catastrophic results.
108These conclusions must inform the determination of a proportionate sentence and, also, as sentence that will, in the long run, better promote the safety of the public.
109Sentencing offenders who live with serious and complex mental illness can be a challenging exercise. There will undoubtedly be times when an individual must serve a custodial term despite experiencing serious mental illness. On the other hand, a CSO remains a punitive sanction which can, in an appropriate case, “achieve the objectives of denunciation and deterrence”: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 100.
110In my view, a conditional sentence would have such an effect here.
111I defer to the sentencing judge’s findings on the aggravating factors, as they were not affected by the error on mental health: Friesen, at para. 28. In particular, I account for the large size of the appellant’s collection of CSAEM. The sentencing judge also properly noted Dr. Pearce’s opinion that the appellant interfered with the phallometric test, although he may not have done this “purposely”.
112At the same time, the appellant has continued to struggle with his mental health, which has led to more involuntary committals and an attempt on his life. He had no criminal record prior to this conviction, he pled guilty, his offending conduct was severe but atypical and somewhat short-lived, he has a supportive family and continues to live with his parents, and he has essentially been on bail pending trial and bail pending appeal for four years without incident.
113In the circumstances at work in this case, a custodial sentence would serve no genuine social interest. Indeed, based on the record, there is every reason to think that a custodial sentence would increase the likelihood of the appellant becoming highly symptomatic again, something that the sentencing judge recognized would increase the risk of reoffending. By contrast, Dr. Pearce’s psychiatrist assessment concluded that a CSO, accompanied by proper treatment, would best allow the appellant to keep making gains and thus reduce his risk of reoffending.
114I would set aside the sentence and impose a CSO of two years less a day, with ankle monitoring, followed by three years’ probation.
Released: June 4, 2026 “J.M.F.”
“Fairburn A.C.J.O.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.