COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Wilson and Rahman JJ.A.
BETWEEN
His Majesty the King
Appellant (C69484)/
Respondent (C69984)
and
S.W.
Respondent (C69484)/
Appellant (C69984)
Stacey D. Young, for the appellant (C69484)/ respondent (C69984)
Paul J.I. Alexander, for the respondent (C69484)/ appellant (C69984)
Heard: September 10, 2025
On appeal from the sentence imposed by Justice M. McLeod of the Ontario Court of Justice, on April 28, 2021.
I. Introduction
1S.W.2 pleaded guilty to 14 charges, three counts of sexual interference, one count of sexual assault, one count of possession, four counts of making CSAEM, and five counts of making CSAEM available.3 The sentencing judge designated him a dangerous offender and sentenced him to a determinate global sentence equivalent to 17 years. S.W. appeals his dangerous offender designation and both S.W. and the Crown appeal the length of the determinate sentence.
2As part of his dangerous offender designation appeal, S.W. submits that his trial counsel was ineffective because he conceded S.W.’s dangerous offender designation (the “concession”) without instructions, and made this concession based on his misunderstanding of the requirements for a dangerous offender designation (the “IAC claim”).
3S.W. further submits that the sentencing judge’s dangerous offender finding was unreasonable and not supported by the evidence. He argues that the expert evidence advanced at trial did not support a finding that he had a high likelihood of reoffending. S.W. also argues that the sentencing judge erred by reversing the burden of proof by requiring him to show that his dangerousness was not intractable.
4The Crown submits that S.W. has not made out the factual component of his IAC claim or shown that trial counsel’s conduct led to a miscarriage of justice. The Crown further contends that the dangerous offender designation was not only supported by the evidence, but inevitable. Finally, on its appeal, the Crown submits that the sentencing judge erred in principle in imposing the 17-year determinate sentence. The Crown submits that the appropriate sentence for S.W.’s crimes should be in the range of 25 years.
5For the reasons that follow, I would dismiss S.W.’s appeal and allow the Crown’s sentence appeal.
6S.W. has not established his IAC claim. Although trial counsel did briefly display a limited misunderstanding of the law on dangerous offender designations, this misunderstanding did not affect the propriety of the concession, nor the advice trial counsel provided to S.W. about the concession. Moreover, S.W.’s claim that he did not instruct trial counsel to make the concession is not credible.
7Further, the dangerous offender designation was a reasonable finding based on the record before the sentencing judge and the sentencing judge did not reverse the burden of proof in making that designation.
8I accept the Crown’s submission that the sentencing judge erred in principle by not considering the seriousness of S.W.’s conduct as administrator of the CSAEM website, by improperly capping the sentence that he could impose based on this court’s decision in R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, and by not imposing mandatory consecutive sentences for some of the CSAEM offences. The first two of these errors impacted the sentence and permit this court to consider the sentence afresh. On this basis, I would increase S.W.’s sentence to a global sentence equivalent to 25 years’ imprisonment.
II. background
9S.W. admitted to sexually abusing his two children, M.W. and A.W., and his nephew, D.W. He also admitted to photographing the genital area of D.G., the infant daughter of a friend. In addition to making CSAEM involving all four named victims above, S.W. was one of the administrators of a dark web website4 called Baby Heart (“BH” or the “website”). The website had a large international membership with a large volume of CSAEM, including forums dedicated to made-to-order CSAEM.
10I will briefly set out the nature of S.W.’s physical sexual abuse against each of the named victims, followed by a description of his participation in the global victimization of these victims and the scores of victims who were unknown to him.
11The crimes described below are horrific. I describe them only to the extent necessary to have a full appreciation of the gravity of S.W.’s conduct: see J.S., at para. 4.
1. Physical Sexual Abuse Against the Named Victims
a. M.W.
12S.W. abused his son, M.W., when M.W. was between the ages of seven and thirteen. S.W. subjected M.W. to penile and digital penetration, masturbation, and oral sex. Police recovered 27 pictures of M.W. depicting acts of penetration, S.W. performing oral sex on M.W., and M.W. performing oral sex on S.W. M.W. was ten years old in these photos. S.W. had five other images of M.W. naked saved on his devices at the time of his arrest.
13M.W. knew that S.W. was taking photos of him. He recalled S.W. taking photos of his penis with a sign on his chest. He also recalled seeing pictures of himself over the years, including when he was seven or eight years old. When M.W. asked S.W. what he was doing with the pictures, S.W. showed him a website. S.W. asked M.W. if he wanted to talk about the abuse or see what he was doing with the photos. M.W. did not.
14S.W. initially denied any penetrative sexual acts against M.W. but later admitted to doing so after the police found photos depicting penetration, as mentioned above.
b. A.W.
15S.W. began sexually abusing his daughter, A.W., from the age of six. Police recovered 92 images of A.W. at six and eight years old, including photos depicting vaginal and anal penetration by S.W. and vaginal penetration with a sexual aid. Several of the photos have visible signs dedicating the images to other members of BH.
16S.W. also caused A.W. to witness his abuse of her brother and her cousin, D.W. A.W. recalled seeing S.W. naked and holding M.W.’s penis when she was seven years old. She further recalled S.W. taking pictures of D.W. with a sign while S.W. was changing him.
17A.W. also saw BH open on S.W.’s computer. She remembered seeing pictures of children’s “private parts” including her own and her brother’s, a picture of D.W., whom she recognized by his hair because his face had been scratched out, and chats using the words “vagina” and “penis”.
c. D.W.
18S.W. babysat his nephew, D.W., on three occasions when D.W. was three years old. The police recovered 213 images and 5 videos depicting a broad range of physical sexual abuse including masturbation, oral sex, anal penetration, use of sexual aids and bondage.
d. D.G.
19D.G. was the infant daughter of S.W.’s friend, whom S.W. babysat. S.W. removed D.G.’s diaper and took photos of her when she was between 18 and 24 months old. Police recovered five photos of D.G., three of which were of her exposed genital area. S.W. said that he took photos of D.G. to further increase his status in the BH community.
2. S.W.’s CSAEM Offences
a. BH
20S.W. came to the police’s attention because of his involvement in BH, a large international enterprise designed for viewing and distributing CSEAM, particularly material involving infants. As of March 2018, it had over 30,500 members and its chat forum included conversations in 17 languages.
21Members of BH were very security conscious and would have people removed from the website if they were careless with information that might reveal people’s identities or their locations. The members would also gather information about CSAEM-related arrests and share ideas about how to thwart and evade detection by police. BH had formal rules against the production of CSAEM, or disclosing whether a member was abusing a child, in its main area. However, there were subgroups known as forums, which did not have such prohibitions. One of these forums was known as the “Producers Zone”. This forum was exclusive, with a membership of 15 individuals. To gain access to this forum, members had to produce new, made-to-order CSAEM for validation by an administrator. Made-to-order CSAEM required new images or videos with signs depicting the user’s nickname on BH.
b. S.W.’s involvement in BH
22S.W. joined BH in November 2015. His profile said that he was attracted to children between 0-5 years of age, regardless of gender. He stated that his preference was for “hard core” with fetishes involving ejaculate on penises and feet. The “signature” he used for his BH account included close-up images of A.W. and D.W.’s genitals with what appeared to be ejaculate. This signature appeared in every post that S.W. made on the website.
23Within a week of joining BH, he posted six made-to-order images of D.W. to gain entry into the Producers Zone. Five of the images show D.W.’s genitals along with a handwritten note with S.W.’s nickname and the nickname of the forum administrator for whom he had created these made-to-order images.
24S.W. took steps to hide his identity, including removing metadata from media, obscuring fingerprints and the faces of victims, and removing the backgrounds in images.
25S.W. eventually took on a more active role in BH. He became a board administrator by February 2016. This role included determining who had access to CSAEM and what type of material they had access to. He could add and remove members of user groups, edit users’ ranks, add or remove forum permissions, including for the Producers Zone, and create new forums.
26At the time of his arrest, S.W. was the main administrator and a server administrator of BH. By his own admission, S.W. was well known in the BH community. Moreover, at the time of his arrest, S.W. was preparing to launch another CSAEM trading website.
c. S.W.’s Possession of CSAEM
27When S.W. was arrested, he was found to be in possession of a large volume of CSAEM. The police seized a methodically organized collection of 11,024 images and 121 videos constituting CSAEM from S.W.’s devices.
28This included a USB drive which contained passwords, programs, and files for the administration of BH. It also contained a collection of 814 images and 14 videos from 60 different producers of a wide range of CSAEM. There was a folder within this collection labeled with S.W.’s BH nickname, which contained the CSAEM that he had created of the named victims, a total of 313 images and 5 videos.5
29After he was arrested, S.W. provided an inculpatory statement to police. He also helped investigators access BH to investigate other BH users.
3. The Sentencing Proceedings
30S.W. pleaded guilty to a total of 14 counts on December 10, 2018. Those counts comprised:
three counts of sexual interference and one count of sexual assault against the four named victims (collectively, the “physical sexual abuse”);
one count of possession of CSAEM related to the material he had on his devices when arrested;
four counts of making CSAEM, one related to each of the named victims; and
five counts of making CSAEM available, with four counts relating to the named victims, and one count for his role as an administrator of BH.
31After S.W. entered his guilty pleas, the Crown successfully applied for an assessment order under s. 752.1 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”), the first step in the dangerous offender process. Dr. Wilkie conducted the assessment and prepared a report on October 8, 2019. Dr. Klassen prepared a psychiatric assessment on August 20, 2020 for the defence.
32S.W.’s sentencing proceeded in two phases. In the first phase (the “designation phase”), the parties addressed the dangerous offender designation and whether S.W.’s sentence should be determinate or indeterminate. The court heard from the two expert witnesses as well as a witness from Corrections Canada. In this first phase, the sentencing judge declared S.W. to be a dangerous offender and ruled that the sentence should be a determinate one. Then, in the second phase (the “sentencing phase”), the parties addressed the length of sentence to be imposed.6
a. Expert evidence
33Dr. Wilkie diagnosed S.W. with the following: borderline personality disorder; paraphilic disorders (pedophilic disorder, non-exclusive); sexual sadism disorder; and substance use disorder. She noted that these diagnoses are individually considered difficult to treat and that the combination of these diagnoses rendered the prognosis for successful treatment below average compared with other offenders. Dr. Wilkie relied on four actuarial risk-assessment tools in her assessment of S.W. The Psychopathy Checklist-Revised (PCL-R) showed a low degree of psychopathic traits, although Dr. Wilkie cautioned that the test by itself was not predictive of future general and violent recidivism. On the Violence Risk Appraisal Guide (VRAG) and the Sexual Offender Risk Appraisal Guide (SORAG), S.W. scored in the moderate risk category. Finally, the STATIC-99-R test, an actuarial instrument used to identify those at risk for future sexual offending, placed S.W. at an average, or moderate level of risk. Overall, with respect to recidivism, Dr. Wilkie concluded that S.W. presented with a low risk of future violent offending and a moderate risk of sexual reoffending from a clinical and actuarial perspective.
34Dr. Wilkie observed that S.W. lacked insight into the “severity and deviancy of his past behaviors” and appeared to make light of his offences.
35Dr. Klassen agreed with Dr. Wilkie that it was very clear that S.W. met the criteria for a paraphilic disorder. Dr. Klassen disagreed with Dr. Wilkie’s borderline personality disorder diagnosis and found it unclear whether S.W. met the criteria for a substance use disorder or a sexual sadism disorder. Like Dr. Wilkie, Dr. Klassen concluded that S.W. posed a moderate risk of sexual recidivism.
b. The sentencing judge’s reasons
36Because the interpretation of the sentencing judge’s reasons on both phases of S.W.’s sentencing are very much in issue on appeal, I will summarize both very briefly.
37In the designation phase, the sentencing judge found that S.W. met all three statutory pathways to be declared a dangerous offender. Namely, he found that S.W. committed serious personal injury offences demonstrating: a pattern of repetitive behaviour and a failure to restrain himself from actions likely to cause injury or inflict serious psychological damages (s. 753(1)(a)(i) of the Code); a pattern of persistent aggressive behaviour and a substantial degree of indifference for the foreseeable consequences to others (s. 753(1)(a)(ii) of the Code); and a failure to control his sexual impulses, creating a likelihood that he will cause injury, pain, or other evil to others in the future through such failure (s. 753(1)(b) of the Code).
38The sentencing judge also found that S.W.’s offending conduct was intractable “to the point that he would be unable to overcome, resist or surmount the impulse to commit similar offences in the future.”
39The sentencing judge later concluded that an indeterminate sentence was not necessary because S.W.’s behaviour could be adequately managed in the community to protect the public from the risk that he will reoffend in a violent or sexual way.
40In the sentencing phase, the sentencing judge fixed S.W.’s determinate sentence at 17 years. In his reasons for sentence, the sentencing judge observed that S.W. “represents the kind of offender who must be separated from society in punitive conditions for as long as is required and permitted in law.” He described S.W. as being “one of the worst offenders convicted of the worst offences”. In fixing S.W.’s determinate sentence, the sentencing judge used this court’s decision in J.S. as a comparator, observing that J.S. involved “a similar range of offences” to those committed by S.W. He ultimately fixed S.W.’s global sentence at 17 years, one year less than in J.S., to give credit for S.W.’s guilty plea.
III. Analysis
1. S.W.’s Dangerous Offender Appeal
a. The IAC claim
41S.W.’s IAC claim is based on three related aspects of his trial counsel’s conduct. First, S.W. argues that the concession was based on trial counsel’s misunderstanding that the Crown did not need to prove intractability at the designation stage. Second, S.W. alleges that trial counsel did not get his instructions before making the concession. Finally, S.W. says that trial counsel’s misapprehension of the law caused him to make an unreasonable concession.
i. The proceedings and trial counsel’s concession
42S.W.’s sentencing proceedings took place over two and a half years, in large part because of COVID-19 delays. S.W.’s trial counsel represented S.W. from his guilty plea in December 2018 to the end of sentencing.
43After S.W.’s guilty plea, the Crown brought an application pursuant to s. 752.1 of the Code to have S.W. assessed. S.W.’s trial counsel opposed the Crown’s application. Trial counsel argued that the Crown could not show that there were reasonable grounds to support a dangerous offender designation because the Crown could not establish future dangerousness and that there was an insufficient basis to find that S.W.’s conduct was intractable.
44The sentencing judge granted the Crown’s application and ordered S.W. to be assessed.
45The parties ultimately appeared before the sentencing judge on January 20, 2021, for the beginning of the dangerous offender hearing. Crown counsel explained the Crown’s position as to why S.W. met the preconditions to be declared a dangerous offender. Crown counsel advised the sentencing judge that S.W. was conceding the dangerous offender designation and that the “real issue” to be decided was the penalty. Crown counsel then confirmed that her account was correct with trial counsel, who answered “so far”.
46As the proceedings progressed, the sentencing judge sought to clarify whether trial counsel was still conceding the dangerous offender designation. At this point, trial counsel said that he agreed “that S.W. could be declared a dangerous offender” but that he was arguing that the sentencing judge did not “need to declare [S.W.] a dangerous offender” because it was “sufficient just to put him on a long-term offender supervision order.” Crown counsel did not appear to have had any notice of this change in position and indicated that this “was not [her] understanding”.
47After more discussion about the nature of the concession, and exactly what issue had to be decided, trial counsel explained that he believed that, even if the dangerous offender designation criteria were met, the sentencing judge had residual discretion not to declare S.W. a dangerous offender. Trial counsel stated that he believed that the sentencing judge had three options in sentencing his client:
[TRIAL COUNSEL]: I’m asking for a long-term offender designation, not the dangerous offender. I concede that the pattern is the same for both but I think there’s a discretion in Your Honour’s decision whether or not to declare him a dangerous offender or simply a long-term offender.
THE COURT: Let me – are you arguing the same section as [Crown counsel] is arguing, just interpreted or put into different language?
[TRIAL COUNSEL]: There are three decisions [sic]Your Honour can make. Straight-up dangerous offender, straight-up long-term offender...
THE COURT: Yes.
[TRIAL COUNSEL]: ...or the hybrid, dangerous offender/ long-term offender. I’m arguing for the straight-up long-term offender. [Crown counsel], as I understand it, is arguing for straight-up dangerous offender. Whether or not you [choose] the hybrid is up in the air.
THE COURT: Okay. Okay. Does that clarify things, [Crown counsel], for you?
[CROWN COUNSEL]: Yes, I’ll have to assess whether there is other evidence I need to call because the material I filed with the Court last week was that [trial counsel] was agreeing that there were three different paths and the evidence before this Court was that all three paths were met.
THE COURT: Yes, yes, I got that. Yes. So, that’s the hybrid that [trial counsel] was referring to. [Trial counsel], I understand, is conceding that on the basis of the expert evidence as filed, there’s an evidentiary pathway to a finding of dangerous offender. Right, [trial counsel]?
[TRIAL COUNSEL]: Right. But there’s residual discretion in Your Honour’s decision.
THE COURT: Sure. [Emphasis added.]
48On January 21, 2021, after the defence’s expert, Dr. Klassen, finished testifying, trial counsel queried whether the parties would be arguing about the “mandatory” nature of the dangerous offender designation. The sentencing judge told trial counsel that he understood that trial counsel was “arguing that [S.W.] be found a long-term offender”, whereas Crown counsel was arguing that S.W. was “a straight dangerous offender”. He advised trial counsel that they were “in the [latter] category”, that trial counsel had “to sort that issue to the extent that it’s required to be sorted”, and that assuming he found S.W. to be a dangerous offender after hearing submissions, “then the issue will be dangerous offender determina[te] or dangerous offender indetermina[te]”. Trial counsel told the sentencing judge that his direction was “helpful”.
49The next day, January 22, 2021, trial counsel provided an update on his position. He clarified that he was conceding that S.W. “qualifies in a couple of ways as a dangerous offender” and that he would not be arguing for a long-term offender designation. Trial counsel explained that he came to this position after emails with Crown counsel and after reading the Code provisions again. He also said that he had explained this to S.W. who “understands and accepts it”.
50The parties then made submissions regarding the dangerous offender designation and, if he was so designated, whether S.W. should receive an indeterminate sentence.
ii. Fresh evidence on the IAC claim
51S.W. seeks to adduce fresh evidence in support of his IAC claim, including affidavits from trial counsel and S.W. and their cross-examination on those affidavits. The fresh evidence goes to the heart of S.W.’s IAC claim, and the Crown is not opposed to its admission. I would grant the application and admit the fresh evidence in these circumstances.
52Trial counsel stated in his affidavit that he believed that he had a mistaken belief about intractability because of what the sentencing judge said when ordering an assessment. However, when confronted in cross-examination with the fact that the sentencing judge did not refer to intractability in his assessment decision, trial counsel acknowledged his affidavit was incorrect. Later in cross-examination, trial counsel said that he did not recall what was going through his mind when he changed his position during the designation phase proceedings.
53Trial counsel also stated in his affidavit that he had discussed the concession with S.W. both before the designation phase proceedings started as well as during the proceedings, including on January 22, 2021, when he clarified the concession at the outset of the day’s proceedings. He maintained this position during cross-examination and vehemently disagreed that S.W. expressed any disagreement with the concession. Trial counsel further testified that it was his practice to write a protective memo any time a client disagreed with his advice. Since there was no evidence of such a memo, he could be certain that there had been no disagreement. Trial counsel also took the position that he would not have needed written instructions to concede the dangerous offender designation because it was not a decision that was up to S.W.
54S.W. said that the defence strategy had always been to oppose the dangerous offender designation. He claimed that trial counsel mentioned the concession for the first time before court on January 22, 2021, when trial counsel told him he had been emailing with Crown counsel and had conceded the designation. According to S.W., trial counsel told him that he had already made the concession and that he could not take it back. S.W. said that he trusted trial counsel and that he went along with the decision at the time. S.W. also said that, after the hearing, trial counsel expressed regret over the concession, telling him that he should have fought against the dangerous offender designation and “cross-examined” both experts more thoroughly.
55To succeed in his IAC claim, S.W. must establish all three of the following:
The factual component: the facts material to the IAC claim, proven on a balance of probabilities;
The performance component: the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and
The prejudice component: the ineffective assistance resulted in a miscarriage of justice: R. v. Kuang, 2026 ONCA 72, 457 C.C.C. (3d) 277, at para. 22; R. v. G.D.B. 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 25-29; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. 582, at para. 48.
56This court has frequently observed that an appellate court must exercise caution in assessing ineffective assistance of counsel claims. As this court said in R. v. Archer (2005), , 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 141:
Common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms. It must also be recognized that the confidential nature of the relationship between a lawyer and his client can make it easy for the client to make all kinds of unfounded allegations against his former lawyer.
iii. Trial counsel did not misunderstand the intractability requirement
57S.W. submits that trial counsel’s advice to him and his decision to make the concession was based on trial counsel’s misapprehension about the Crown’s need to prove intractability at the designation stage.
58I cannot agree. Any misunderstanding trial counsel had about the law was about whether the sentencing judge retained discretion not to designate S.W. as a dangerous offender even if he met all of the requirements for a dangerous offender designation.
59Trial counsel’s evidence for this appeal about why he changed his position during the designation phase proceedings was less than consistent. Trial counsel suggested he was mistaken about intractability in his affidavit for this appeal. However, in cross examination, trial counsel said, several times, that he did not know why he changed his position during the designation phase proceedings. I am mindful of the length of time that had passed between the designation phase proceedings and trial counsel’s evidence for this appeal. Trial counsel swore this affidavit four years after the designation phase proceedings, without the benefit of his entire file, as some of his electronic files had been lost, and over a year after he stopped practicing criminal law. It is apparent that he had little recollection of what he had been thinking at the time of the designation phase proceedings by the time he was required to give evidence for this appeal.
60In these circumstances, what trial counsel said on the record before the sentencing judge provides the most reliable evidence of what he was thinking as the designation phase proceedings unfolded. The transcripts of these proceedings do not support the allegation that trial counsel was mistaken about intractability at the designation stage. Rather, the transcripts illustrate trial counsel’s misunderstanding that the sentencing judge retained discretion to declare S.W. a long-term offender instead of a dangerous offender, even if the dangerous offender criteria were satisfied.
61On both January 21 and 22, 2021, trial counsel referred to his mistaken belief that the sentencing judge had “discretion” to designate S.W. a long-term offender. This limited misunderstanding did not concern whether S.W. met the dangerous offender criteria. Indeed, trial counsel confirmed Crown counsel’s statement that S.W. met the three statutory pathways on the first day of proceedings. He later agreed there was an evidentiary pathway to a dangerous offender designation, and confirmed the concession again on January 22, 2021, when he said he was no longer seeking a long-term offender designation. Nothing in his exchanges with the court suggests that he misunderstood the Crown’s obligation to prove intractability at the designation stage. His misunderstanding was only about what the sentencing judge could do after the statutory requirements were met.
62Further, trial counsel’s misunderstanding about the sentencing judge’s discretion was resolved when he confirmed the concession on January 22, 2021. He did so after the sentencing judge’s “helpful” clarification the previous day, given in response to his query about the “mandatory nature” of a dangerous offender designation. To the extent that the concession was previously unclear, this restatement made it apparent that trial counsel was conceding the dangerous offender designation – after his misunderstanding about the judge’s discretion had been resolved.
63Finally, there is also positive evidence that trial counsel was aware that the Crown had to prove intractability. The factum that he and his co-counsel filed opposing the Crown’s application for an assessment order makes clear that he knew that intractability was a requirement at the designation stage. Further, during his oral submissions opposing the assessment, defence counsel argued that the Crown would not be able to prove intractability because S.W. had never been treated or arrested before.7
64While his knowledge of the intractability requirement may have been incorrect by the time he was cross-examined on his affidavit for this appeal, this is of no moment given his clear submissions during the designation phase proceedings, the length of time between the proceedings and his evidence for this appeal, and the fact that he no longer practised criminal law.
65Accordingly, it is clear that any misunderstanding that trial counsel had about the dangerous offender designation during the designation phase proceedings was about the sentencing judge’s discretion, not the intractability requirement. Consequently, S.W. has not made out the factual component of this portion of his IAC claim.
iv. Trial counsel had S.W.’s agreement to concede the designation
66S.W. and trial counsel present very different version of events when it comes to S.W.’s agreement to the concession. S.W. asks this court to prefer his evidence, highlighting the inconsistencies in trial counsel’s affidavit and his answers in cross-examination.
67I do not accept S.W.’s claim that trial counsel conceded the dangerous offender designation without his agreement.
68First, trial counsel stated, on the record and in S.W.’s presence, that he had consulted with S.W. and that S.W. understood and agreed with the concession. S.W. did not say anything to correct this statement on the record at the time or at any point afterwards. S.W. had interrupted proceedings before to correct a minor factual mistake. I find that he would have similarly spoken up upon hearing trial counsel say that he agreed with the concession if he did not.
69Second, S.W.’s assertion that he only learned of the concession on January 22, 2021 is not consistent with the record. In both his affidavit for this appeal and during cross-examination on that affidavit, S.W. maintained that he only learned of the concession on January 22, 2021 when he met with trial counsel before court. He testified that trial counsel told him this after his emails with Crown counsel. This is not entirely consistent with what happened before the sentencing judge on January 20 and January 22, 2021. On January 20, 2021, in S.W.’s presence, trial counsel agreed that he was conceding that “the Crown would be able to satisfy the Court about th[e] three [statutory] paths and so the real issue before the Court is the question of what the penalty should be” (emphasis added). Trial counsel’s comments on January 22, 2021 confirmed the same concession he made on January 20, 2021. Trial counsel simply added the clarification that he was no longer seeking a long-term offender designation, because his email exchange with Crown counsel corrected his mistake about the sentencing judge’s discretion.
70I also find that trial counsel’s failure to get written instructions on the concession does not undercut trial counsel’s position. It certainly would have been preferrable had trial counsel received written instructions from S.W. to concede the dangerous offender designation. This court has recently repeated the importance of obtaining written instructions from clients to prevent the very kind of dispute here: Kuang, at paras. 36-38. However, S.W.’s sentencing proceedings were taking place virtually, at the height of the COVID-19 pandemic. The regular operation of the courts had been affected, and in-person visits at detention centres were not possible. Trial counsel cannot be faulted for failing to get written instructions from S.W. to make the concession in these circumstances.
71S.W. has also not made out the factual portion of this aspect of his IAC claim.
v. The concession was not unreasonable
72Finally, because trial counsel did not misunderstand the Crown’s obligation to prove intractability at the designation stage, it follows that he did not unreasonably concede the dangerous offender designation based on this misapprehension. Additionally, as I will explain below, the dangerous offender designation was reasonable and supported by the evidence. Therefore, it follows that I do not find that the concession was unreasonable.
vi. S.W. has not established the factual component of his IAC claim
73S.W.’s IAC claim fails because he has not established the factual component of his claims on a balance of probabilities. I am not satisfied that trial counsel’s concession was based on a misapprehension about intractability at the designation stage, made without instructions, or unreasonable in the circumstances. Because I am not satisfied that S.W. has made out the factual component of his claims, I need not consider the prejudice or performance components.
b. The dangerous offender finding
74S.W. submits that the sentencing judge reversed the burden of proof in finding intractability. He further submits that the sentencing judge relied solely on the offences as proof of intractability. Finally, he submits that the dangerous offender designation was unreasonable and not supported by the evidence.
75While appellate review of a dangerous offender designation is “somewhat more robust” than appellate review of sentences generally, errors of law remain reviewable on a correctness standard while errors of fact, such as a finding of dangerousness, are reviewable on a reasonableness standard: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 81; R. v. Ahmed, 2023 ONCA 676, 168 O.R. (3d) 522, at para. 99. Absent a material error of law, a dangerous offender designation is a question of fact and appellate intervention is only warranted if the designation is unreasonable: Boutilier, at para. 85; R. v. Currie, , [1997] 2 S.C.R. 260, at paras. 17 and 33.
76Two things are important to bear in mind when reviewing the sentencing judge’s reasons. First, the sentencing judge’s reasons were delivered against the backdrop of S.W.’s concession. Given the concession, it is not surprising that the sentencing judge did not explain his findings in the same way that he would have had he been responding to particularized submissions made by an offender who was resisting the designation. Second, judges are presumed to know the law. Where there is any ambiguity in a judge’s reasons, they should be read in a manner consistent with this well-known presumption: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 79.
i. The sentencing judge did not reverse the burden of proof
77At the designation stage, once the other criteria in s. 753(1) of the Code are met, the burden of proof is on the Crown to prove, beyond a reasonable doubt, that the offender’s conduct is intractable. This means that the offender is “unable to surmount” his or her violent behaviour and involves an assessment of prospective risk: Boutilier, at paras. 27, 41; R. v. A.B., 2026 ONCA 361, at para. 44.
78S.W. relies on three passages in the sentencing judge’s reasons to support his submission that the sentencing judge erred in law by reversing the burden of proof in finding intractability.
79S.W. argues that the sentencing judge stated that the burden was on S.W. to show that his treatment prospects are so compelling that his behaviour or risk of reoffending is not intractable in the following passage:
Finally, with respect to evidence of treatability, [S.W.] is not to be designated if the relevant evidence shows that his treatment prospects are “so compelling” that it can be safely concluded beyond a reasonable doubt that he does not pose a high likelihood of harmful recidivism or violent behaviour which is intractable.
80S.W. argues that the sentencing judge again placed the onus on him to establish the possibility of managing his behaviour to a significant degree:
My understanding of the law governing the [d]angerous [o]ffender designation is that the possibility of managing [S.W.]’s pattern of repetitive behaviour in the future through some combination of treatment and restraint must be established to a significant degree. It must be more than what is described by the caselaw as a “hope”, where that term appears to mean optimistic possibility or probability. And it must be supported by persuasive expert evidence establishing that he can be treated within a definite time period.
81Third, S.W. argues that the following passage shows that the sentencing judge stated that the absence of proof of treatability must lead to a finding of intractability:
The actuarial tests and application of clinical judgement are imprecise means of risk assessment. But they are the best means available and the conclusions and opinions derived by the experts must be given appropriate weight. In this regard, the opinion that the subject is not likely to re-offend within a defined period of opportunity is not the same as the required opinion that the subject can be treated within a definite period to endure that he does not re-offend. In my view, the absence of an expert opinion on the point in question is, in my view, determinative of the issue of intractability for the purposes of the designation. [Emphasis added.]
82S.W. argues that these three passages, coupled with the fact that the sentencing judge never explicitly refers to the burden of proof, or specifies that the burden of proof is on the Crown, demonstrate a reversal of the burden of proof.
83While the Crown acknowledges that the first passage cited above displays a reversal of the burden of proof when read in isolation, it submits that the reasons as a whole do not support S.W.’s submission that the sentencing judge misapprehended the burden of proof in finding intractability.
84The sentencing judge’s reasons on the dangerous offender designation are not a model of clarity. However, the passages relied on by S.W., read in context, do not demonstrate a reversal of the burden of proof. The sentencing judge’s reasons as a whole show that he adverted to the requirements of intractability and S.W.’s likelihood of reoffending. He did not place the onus on S.W. to demonstrate that his behaviour was not intractable.
85First, the sentencing judge’s failure to specifically advert to the burden of proof on the Crown does not, on its own, raise a concern that he was not aware of it or that he did not properly apply it. Again, given S.W.’s concession, it is not surprising that the sentencing judge did not set out the burden of proof and explain his findings in the same fulsome way he would have had he been responding to submissions made on a contested application.
86Second, the passages S.W. relies on must be read in the context of the reasons as a whole and in light of the paragraphs from Boutilier that the sentencing judge was relying on.
87I accept that the first passage S.W. raises, read on its own, could be interpreted as reversing the burden of proof. However, the passage from Boutilier, reproduced below, that the sentencing judge appears to be mirroring contains a double negative. In Boutilier, at para. 45, Côté J. said the following about an offender’s treatment prospects and the requirement to prove intractability:
Thus, offenders will not be designated as dangerous if their treatment prospects are so compelling that the sentencing judge cannot conclude beyond a reasonable doubt that they present a high likelihood of harmful recidivism or that their violent pattern is intractable. [Emphasis added.]8
88It is possible that the sentencing judge simply misplaced the second negative when he followed Boutilier. Moving the “not” in the impugned passage of the sentencing judge’s reasons would be a correct articulation of the law directly mirroring the language of Boutilier:
Finally, with respect to evidence of treatability, [S.W.] is not to be designated if the relevant evidence shows that his treatment prospects are “so compelling” that it can[not] be safely concluded beyond a reasonable doubt that he does not pose a high likelihood of harmful recidivism or violent behaviour which is intractable.
89I am reinforced in this view because the second passage relied on by S.W. also appears to be a reference to Boutilier. In Boutilier, at para. 83, Côté J. observed that “[t]he [sentencing] judge found Mr. Boutilier’s conduct to be intractable because his prospect of overcoming his addictions, the source of his dangerousness, was nothing more than an ‘expression of hope’.” The sentencing judge’s reference to evidence amounting to more than a “hope”, or “possibility” or “probability”, viewed in this context, is not demonstrative of a reversal of the burden of proof.
90Finally, the sentencing judge’s reasons, before any of the impugned passages relied on by S.W., correctly identify the criteria that the Crown had to establish for a dangerous offender designation including “evidence establishing that [S.W.]’s conduct is intractable to the point that he would be unable to overcome, resist or surmount the impulse to commit similar offences in the future”.
91In the next paragraph of his reasons, the sentencing judge makes his finding that S.W.’s offending conduct is intractable, based on the “totality of the evidence”, including the psychological, psychiatric, social work, and presentence reports.
92Reading the reasons as a whole and in context, I am not satisfied that the sentencing judge reversed the burden of proof. I would not give effect to this ground of appeal.
ii. The sentencing judge did not use the offences as proof of intractability
93S.W. further submits that the sentencing judge erred in treating the predicate offences themselves as proof of intractability and future dangerousness. He argues that, if this approach were permissible, it would mean a dangerous offender designation would always automatically follow from similar convictions.
94I do not read the sentencing judge’s reasons as treating the offences alone as proof that S.W.’s conduct was intractable or of S.W.’s future dangerousness. Rather, a fair reading of the sentencing judge’s reasons shows that he considered both the predicate offences and the expert evidence in coming to his conclusion on intractability.
95The sentencing judge referred to his conclusion on intractability more than once in his reasons. In support of his submission, S.W. relies on passages where the sentencing judge only mentioned the predicate offences. However, elsewhere in his reasons, the sentencing judge made clear that he considered all the evidence in arriving at his conclusion on intractability. For example, he expressly referenced his consideration of S.W.’s “background, as described in the psychological, psychiatric, social work and pre-sentence reports”; “the pattern [of] repeated acts of serious sexual abuse of children, leading to a diagnosis of Paraphilic Disorder”; and “evidence as to the prospective aspects of [S.W.]’s dangerousness, including the psychiatric diagnoses, risk factors, probabilities of recidivism and future prospects for treatment”.
96The sentencing judge’s reliance on the predicate offences in his prospective assessment of S.W.’s future risk is consistent with the Supreme Court’s guidance in Boutilier, at para. 43, that, in assessing an offender’s prospective risk, “the sentencing judge must consider all retrospective and prospective evidence relating to the continuing nature of this risk, including future treatment prospects.” As this court observed in R. v. Groves, 2020 ONCA 86, at para. 6, the nature and duration of an offender’s prior conduct can provide powerful evidence of how the offender may act in the future, if given the opportunity.
97It is also clear from the sentencing judge’s reasons that the predicate offences were considered alongside other retrospective and prospective evidence including S.W.’s psychiatric diagnoses, probabilities of recidivism, and S.W.s future prospects for treatment. I therefore reject this submission.
iii. The dangerous offender finding was reasonable
98S.W. submits that the dangerous offender designation was unreasonable and unsupported on the record. Like his argument above, S.W. contends that the sentencing judge erred by ignoring the experts’ opinions on his moderate risk of recidivism for sexual offences and focusing exclusively on the crimes he committed in concluding that he posed a high likelihood to reoffend. S.W. further submits that there was no evidence before the sentencing judge that he posed a high risk of reoffending and no evidence that his conduct was intractable.
99I do not accept this submission. I have already concluded that the sentencing judge did not base his conclusion on intractability solely on the predicate offences. The sentencing judge’s decision is supported on the record.
100The sentencing judge was also not bound by the expert opinions: R. v. Lyons, , [1987] 2 S.C.R. 309, at para. 98; R. v. Allen, 2007 ONCA 421, 86 O.R. (3d) 376, at para. 30. He was entitled to draw his own conclusion about whether all the evidence supported a finding that S.W.’s conduct was intractable and that he posed a high risk of recidivism. He expressly noted that he considered the expert opinions in light of the totality of the evidence. Just because the experts opined that S.W. was a “moderate risk” clinically does not mean that S.W. did not pose a high likelihood to reoffend within the meaning of the Code: A.B., at para. 49. Indeed, the sentencing judge drew a distinction between the “psychiatric considerations” grounding the psychiatrists’ opinion and the broader “legal and social considerations” that the court must consider in making a “legal designation”.
101Further, the sentencing judge’s approach was reasonable in the circumstances. Dr. Wilkie acknowledged in her testimony that her actuarial assessment did not consider the CSAEM offences. The sentencing judge was obliged to consider S.W.’s likelihood of reoffending by committing those kinds of offences as well.
102More importantly, both experts diagnosed S.W. with pedophilic disorder non-exclusive, a paraphilic disorder. Dr. Wilkie acknowledged that paraphilias, underlying problematic/deviant sexual preferences, are not subject to burnout and do not change over time. Dr. Klassen noted that paraphilias emerge in adolescent years and are “generally sustained thereafter”. The sentencing judge’s reasons make clear that he considered the psychiatrists’ common diagnosis of paraphilic disorder in support of his conclusion on intractability.
103In short, the sentencing judge’s reasons adequately explain that while he considered the expert evidence, he came to his own conclusion on recidivism and intractability based on the totality of evidence before him. This conclusion is supported on the record and is not unreasonable.
104S.W. has not established any reversible errors in the sentencing judge’s decision to designate him a dangerous offender. S.W.’s appeal against the dangerous offender designation is dismissed.
2. The Crown’s Sentence Appeal
105The Crown submits that the sentencing judge committed three errors in principle in sentencing S.W. First, the Crown submits that the sentencing judge did not consider S.W.’s role as administrator of BH, which was a significant aggravating factor. Second, the Crown submits that the sentencing judge improperly used J.S. as a cap on the sentence he could impose on S.W. Third, the Crown alleges that the sentencing judge erred in not imposing consecutive sentences for some of the counts.
106Apart from the alleged legal errors, the Crown further submits that the 17-year sentence imposed on S.W. was demonstrably unfit because it did not reflect his moral blameworthiness and the gravity of the offences.
107As mentioned above, the Crown sought an indeterminate sentence before the sentencing judge. It does not seek an indeterminate sentence on appeal. Instead, the Crown asks this court to increase the length of S.W.’s global sentence to one equivalent to 25 years.
108I accept that the sentencing judge committed all three errors alleged by the Crown. The first two of these errors impacted the sentence imposed on S.W. and require appellate intervention. I would increase the 17-year global sentence imposed by the sentencing judge and impose a 25-year sentence of imprisonment. After accounting for five years of Summers and Duncan credit,9 S.W.’s net sentence is 20 years.
a. The sentencing judge’s errors in principle
i. S.W.’s role as administrator of BH
109I accept the Crown’s submission that the sentencing judge did not consider S.W.’s role as administrator of BH in determining the appropriate sentence for S.W.
110S.W.’s role as an administrator is not expressly mentioned in the sentencing judge’s reasons for sentence. However, the sentencing judge does refer to S.W.’s culpability for sexual offences against children and “his contribution to the evil of promoting such conduct”.
111I cannot accept S.W.’s argument that this implicit reference shows that the sentencing judge gave adequate effect to S.W.’s role as an administrator of BH. Nor can I accept that the sentencing judge was clearly aware of S.W. being an administrator because it was addressed in the Crown’s submissions and the sentencing judge had mentioned it in his finding of guilt two years earlier. This is not merely an issue, as S.W. puts it, of not addressing every element of Crown counsel’s submissions. Rather, the sentencing judge did not meaningfully address one of principal aggravating features of S.W.’s offences. As an administrator S.W. did more than “promote” sexual offences against children. He actively participated in the repeated victimization of scores of children whose abuse was depicted and shared on BH. The sentencing judge’s failure to meaningfully consider this aggravating feature and give proper effect to the scope of S.W.’s victimization of children was an error in principle.
ii. Use of J.S.
112Second, I accept that the sentencing judge effectively used J.S. as a cap on the maximum sentence he could impose on S.W.
113It is understandable that the sentencing judge considered J.S. as a comparator to the case before him. As the sentencing judge noted, J.S. involved similarly heinous facts and a similar range of offences to the present case. J.S. admitted to sexually abusing his three nieces, posting images and videos of this abuse to gain notoriety on a website devoted to distribution and trading of CSAEM material, including made-to-order CSAEM material, and the possession of an extensive CSAEM collection. J.S. was sentenced to 18 years’ imprisonment, which this court upheld. However, the sentencing judge erred in finding that he could not give S.W. a sentence that was more than that imposed in J.S.
114After observing that S.W.’s crimes were “equivalent” to those of J.S. in terms of the objectives of denunciation and retribution, the sentencing judge stated that S.W.’s sentence could not be harsher than that in J.S. merely because it had been committed more recently. The sentencing judge then explained that, in comparing S.W.’s case to J.S., he could not ignore S.W.’s guilty plea as a mitigating factor, a mitigating factor which the sentencing judge incorrectly said was not present in J.S.
115The sentencing judge fixed S.W.’s sentence at 17 years. In coming to this conclusion, he stated that “[t]he sentence for [S.W.] should not exceed the sentence imposed on [J.S.] – and given that [S.W.] admitted responsibility and pled guilty, it should be somewhat less.”10
116I cannot accept S.W.’s submission that the sentencing judge’s treatment of J.S. was merely a proper application of the parity principle. The sentencing judge clearly treated J.S. as a sentence cap that he could not “exceed”, contrary to the Supreme Court’s guidance in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 111-13. Using 18 years as a ceiling artificially restricted the sentencing judge’s discretion to impose a sentence directly proportionate to the gravity of S.W.’s offences and his degree of responsibility as well as what is necessary to advance deterrence, denunciation and the protection of society.
117J.S. was also not an appropriate sole comparator. Although J.S.’ offending conduct resembled S.W.’s, it was not on the same scale. J.S. made available images and videos of the three children whom he physically abused. S.W. made and shared CSAEM of the four named victims and regulated, maintained and enforced rules for a global CSAEM website, causing the repeated victimization of countless more children than he victimized in person. S.W.’s role as an administrator of BH is a significant difference from J.S. that increases S.W.’s moral culpability. On its own, this was a reason not to treat the S.W.’s case as equivalent to J.S.
iii. Consecutive sentences
118Finally, I also accept that the sentencing judge erred in principle by not imposing consecutive sentences for some of S.W.’s offences.
119The sentencing judge imposed consecutive sentences for each of the physical sexual abuse offences against M.W. (3 years), A.W. (3 years), D.W. (3 years), and D.G., (1 year) and for one count of making CSAEM (2 years). The sentencing judge imposed concurrent sentences for the remaining CSAEM offences, namely three counts of making CSAEM (2 years concurrent), five counts of making CSAEM available (2 years concurrent), and one count of possession of CSAEM (1 year concurrent).
120The Crown submits that three of the remaining CSAEM offences were committed after s. 718.3(7) of the Code was in force and should have been consecutive. This subsection requires sentences of imprisonment for CSAEM offences to run consecutively to other sexual offences against children.11
121The Crown also argues that, regardless of s. 718.3(7), the sentences for most of the offences should have been imposed consecutively because of the different legal interests protected by the physical sexual abuse offences and the CSAEM offences and the particular harms they cause.
122I accept both of these submissions.
123However, what is less clear is whether this error meaningfully impacted the overall sentence. I say that because the sentencing judge followed the method for imposing consecutive sentences set out by this court in R. v. Jewell (1995), , 100 C.C.C. (3d) 270 (Ont. C.A.). Following that approach, the sentencing judge first determined the total sentence to be imposed based on the gravamen of the conduct giving rise to the offences and used that number as the ceiling, imposing sentences so as not to exceed that number. Having settled on 17 years as the appropriate global sentence, he then fixed the sentences among the offences accordingly.
124Some of the ultimate sentences should have been imposed as consecutive sentences, as a matter of law, because s. 718.3(7) required them to be consecutive. However, as van Rensburg J.A. observed in R. v. C.B., 2024 ONCA 160, at para. 44, applying s. 718.3(7) in this sentencing approach would very likely have resulted in simply reallocating the sentences among the offences rather than increasing the global sentence. Accordingly, I am not satisfied that this error, alone, impacted the ultimate sentence.
125The two errors in principle discussed above, namely the failure to recognize S.W.’s role in BH as an aggravating factor and using J.S. as a sentence cap did, however, impact S.W.’s sentence. It falls to this court to consider the sentence afresh.12
b. The appropriate sentence
126Unlike the sentencing judge, I will use the approach to sentencing set out in R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201. This approach first fixes the sentences for each offence and then adjusts the sentences to comply with the totality principle. The final adjustment of sentences may involve reducing the length of particular sentences or ordering that they be served concurrently rather than consecutively: C.B., at para. 43.
127Although the sentencing judge’s approach was not erroneous, the Bertrand Marchand approach has advantages: R. v. Polemidiotis, 2024 ONCA 905, 174 O.R. (3d) 359, at para. 82. As the court observed in Bertrand Marchand, at paras. 92-93, considering each offence individually “provides transparency”, “allows a judge to weigh the seriousness of each offence” and “ensures a separate consideration of the fit and appropriate punishment of each offence.” This approach is particularly advantageous in a case like this one, where the sentences will later be adjusted to give effect to the totality principle. Imposing a sentence for each offence first makes clear what the appropriate sentence is for that particular offence, before any potential reduction, to ensure that the ultimate sentence is not disproportionate.
i. Sentences for each offence
128I begin by considering the appropriate sentence for S.W.’s physical sexual abuse offences against the four named victims. At S.W.’s sentencing hearing, Crown counsel suggested that the physical sexual abuse offences against S.W.’s two children and his nephew deserved sentences of nine years each. These offences occurred in S.W.’s home and involved a grave abuse of a position of trust. S.W. exposed his two children to BH and he exposed his daughter to his sexual abuse of her brother and cousin. In light of this serious breach of trust, these crimes, on their own, warrant a significant sentence in the high single-digits, if not low double-digits range: Friesen, at para. 114; R. v. B.M., 2023 ONCA 224, 166 O.R. (3d) 721, at paras. 38-42; R. v. R.K., 2023 ONCA 653, 434 C.C.C. (3d) 423, at para. 63. I would fix the sentences for the physical sexual abuse offences he committed against his own children and his nephew at nine years each. The Crown suggested that the sexual assault offence against D.G. would be in the range of three to five years. While this offence was less physically intrusive than the other physical sexual abuse offences, it occurred while a friend’s infant child was in S.W.’s care and constitutes a serious breach of trust warranting a significant sentence. I would fix the sentence for the sexual assault offence against D.G. at four years.
129The CSAEM offences that S.W. was convicted of were all extremely serious.
130S.W. possessed a large quantity of CSAEM. As Crown counsel observed in her submissions before the sentencing judge, S.W.’s extensive and organized collection, on its own, is deserving of a sentence in the range of three to five years. Since S.W.’s sentencing hearing, this court has confirmed that the high end of the range for possession of CSAEM is five years: R. v. Pike, 2024 ONCA 608, 171 O.R. (3d) 241, at para. 176. Given the magnitude of meticulously organized CSAEM in S.W.’s possession, the appropriate sentence for the single count of possession is five years’ imprisonment.
131As mentioned, possession of CSAEM on its own is a grave offence, worthy of a significant penitentiary sentence. Those who make CSAEM and make that material available to a worldwide audience have an even higher degree of blameworthiness: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 27; J.S., at paras. 120, 122. S.W. pleaded guilty to four counts of making CSAEM. Each count related to one of the named victims of the physical sexual abuse offences. He also pleaded guilty to making CSAEM available relating to the four named victims. I would impose a three-year sentence of imprisonment for each of the making CSAEM and making available CSAEM offences relating to the four named victims.
132Administering a CSAEM website constitutes far more blameworthy conduct than possession of CSAEM. In his role running BH, S.W. victimized countless children. He helped encourage the production of new CSAEM while avoiding police detection. As this court said in R. v. Snowden, 2023 ONCA 768, 432 C.C.C. (3d) 52, at para. 103:
Sharing otherwise known or identified images and recordings is extremely serious in its own right; introducing new material, with new victims, into circulation marks an insidious expansion of the victim pool, thereby increasing the likelihood of inflicting severe psychological damage.
133The community impact statement filed by the Canadian Centre for Child Protection described the serious, lifelong harm caused by the production and sharing of CSAEM. Beyond the sexual abuse itself, victims of CSAEM described being affected by the permanence of the CSAEM, the inability to control its circulation and the worry of being recognized by someone who has seen the material. The unfortunate reality of the internet is that CSAEM will last forever, and the children depicted in that material face repeated victimization every time this material is accessed online.
134Given the gravity of the harm caused by the production and sharing of CSAEM, courts must impose exemplary sentences for those who help operate electronic victimization schemes. The message that these sentences send must be clear: those who traffic in the sexual abuse and exploitation of children will be punished severely. S.W.’s role as an administrator of BH was also not an impulsive nor momentary act, but one that required sustained deliberation and ongoing effort. This is a crime that is particularly amenable to general deterrence.
135An exemplary sentence is required in the circumstances. I accept the Crown’s position before the sentencing judge that the appropriate sentence for the making CSAEM available offence relating to S.W.’s administration of BH is nine years.
ii. Final adjustment of sentences
136As discussed earlier, the Code requires sentences on certain counts to be imposed consecutively. I also accept the Crown’s submission that it is appropriate to impose consecutive sentences for most of the offences, including the physical sexual abuse offences. I also acknowledge that the sentencing judge chose to impose consecutive sentences for the physical sexual abuse offences.
137However, in order to comply with the totality principle, rather than adjusting the length of the individual sentences, I would make the sentences for some offences not captured by s. 718.3(7) concurrent.
138The totality principle is codified in s. 718.2(c) of the Code. The provision states that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. The totality principle ensures that the cumulative sentence of all offences “does not exceed the overall culpability of the offender” and that “the focus is on the offender's actions, role in the offences and overall culpability, irrespective of the number of offences charged.”: R. v. M. (C.A.), , [1996] 1 S.C.R. 500, at para. 42; R. v. Ahmad, 2017 ONCA 76, 136 O.R. (3d) 403, at para. 93.
139Without taking into account totality, imposing most of the sentences consecutively would result in a cumulative sentence exceeding 50 years. In my view, the appropriate global sentence should not exceed 25 years. Consequently, the only sentences that I have imposed consecutively are those that must be consecutive under s. 718.3(7) of the Code.
140In deciding the appropriate global sentence, I have also considered S.W.’s argument, made on his sentence appeal, that his post-sentencing “strides towards rehabilitation” should impact the length of his sentence. While there is evidence that S.W. has completed certain programs since being sentenced, I am not satisfied that it should impact the length of the sentence. The principles of denunciation and deterrence remain paramount and are the primary drivers of the exemplary sentence that I have determined is appropriate. In the circumstances, the objective of rehabilitation cannot meaningfully impact the length of S.W.’s sentence.
141I would impose a global 25-year sentence of imprisonment. After accounting for five years of Summers and Duncan credit, S.W.’s net sentence is 20 years, as set out below:
Count
Offence
Dates
Sentence
4
Making CSAEM available
January 2014 to April 2018
Nine years less credit of five years, for a net sentence of four years
5
Possession of CSAEM
June 2014 to April 2018
Five years concurrent
6
Making CSAEM
January 2013 to August 2016
Three years concurrent
7
Making CSAEM
January 2013 to August 2016
Three years concurrent
8
Making CSAEM
January 2013 to August 2016
Three years concurrent
12
Sexual interference
January 2013 to August 2016
Nine years concurrent
13
Sexual interference
January 2013 to August 2016
Nine years concurrent
14
Sexual interference
January 2013 to August 2016
Nine years concurrent
15
Make CSAEM available
October 2017 to March 2018
Three years consecutive
16
Make CSAEM available
November 2015 to March 2018
Three years consecutive
23
Make CSAEM available
November 2015 to March 2018
Three years consecutive
24
Make CSAEM available
January 2014 to March 2016
Three years concurrent
25
Making CSAEM
October 2015 to July 2016
Three years consecutive
26
Sexual assault
October 2015 to July 2016
Four years consecutive
142There is no appeal taken from the imposition of the 10-year long-term supervision order, or any of the ancillary orders. Those orders remain in place.
3. S.W.’S Sentence Appeal
143S.W. also appeals against the 17-year determinate sentence. Given my decision to allow the Crown’s sentence appeal and increase the sentence, it is unnecessary for me to deal with S.W.’s sentence appeal.
144I would dismiss S.W.’s sentence appeal.
IV. Disposition
145I would dismiss S.W.’s appeal. I would allow the Crown’s sentence appeal, set aside the global sentence of 17 years and impose a global sentence of 25 years. After taking into account presentence custody, the net sentence to be imposed is 20 years. All other orders remain the same.
Released: July 21, 2026 “J.M.F.”
“M. Rahman J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. D.A. Wilson J.A.”
Footnotes
- This case is subject to a publication ban made pursuant to sections 486.4(1) and (3) of the Criminal Code, R.S.C., 1985, c. C-46.
- Because both S.W. and the Crown have appealed, I will refer to the parties as S.W. and the Crown respectively.
- 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. I have used that new term in these reasons.
- Websites on the “dark web” are not accessible using conventional “clearnet” browsers. BH was only accessible using a special browser (known as TOR browser). This TOR browser protects anonymity by masking the user’s device and network IP address.
- S.W. had five photos of M.W. in his folder on the USB. The police located elsewhere 27 pictures of M.W. which had been made available to other individuals over the internet.
- Typically, dangerous offender proceedings involve two stages— the designation stage and the sentencing stage. The designation stage concerns whether or not the offender should be designated a dangerous offender. The sentencing stage concerns whether the sentence should be indeterminate or determinate and, if the latter, the length of the sentence. However, neither party objected to the way the dangerous offender proceedings proceeded.
- I also note that trial counsel had appeared in the Supreme Court of Canada as counsel in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, the leading case on dangerous offender proceedings, only a year before S.W.’s guilty plea.
- I note that the French version of the judgment also contains a double negative.
- This was the credit determined by the sentencing judge. Neither party took issue with this assessment on appeal.
- The sentencing judge refers to J.S. as J.(S.).
- Subsection 718.3(7) came into force on July 17, 2015. The time periods for most of the offences to which S.W. pleaded guilty straddled that date. On appeal, the Crown’s position was that s. 718.3(7) required the sentences whose entire time period was after July 17, 2015 to be sentenced consecutively. My reasons should not be taken as holding that s. 718.3(7) is never applicable when the date range of an offence straddles the provision’s coming-into-force date.
- Because the sentence was impacted by the two legal errors, I do not address the Crown’s alternative submission that the sentence, absent errors in principle, was demonstrably unfit.