R. v. Tyler Leach, 2018 ONCJ 950

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: December 12, 2018

Court File No.: Halton 18-380 & 18-473

Between:

Her Majesty the Queen

— and —

Tyler Leach

Before: Justice D. A. Harris

Heard on: July 12 and November 5, 2018

Reasons for Judgment released on: December 12, 2018

Counsel:

• Harutyun Apel — counsel for the Crown
• Dean Paquette — counsel for the defendant Tyler Leach

D.A. HARRIS J.:

INTRODUCTION

1Tyler Leach pled guilty to one count of possession of child pornography, two counts of sexual interference and two counts of making child pornography.

2Crown counsel had elected to proceed by indictment with respect to all charges.

3Mr. Leach is before me today to be sentenced.

4Crown counsel suggested that I should sentence him globally to imprisonment for 6 years.

5Counsel for Mr. Leach suggested that I impose a global sentence of imprisonment for three years.

6Both counsel agreed that I should make the following ancillary orders:

1. a DNA order;
2. an order compelling Mr. Leach to comply with the Sex Offender Information Registration Act for life;
3. a weapons prohibition pursuant to section 109 of the Criminal Code for life;
4. an order pursuant to s. 161 of the Criminal Code, limiting Mr. Leach's access to children under the age of 16 years, for life;
5. an order pursuant to section 743.21 of the Criminal Code prohibiting communication with his victims during the custodial portion of his sentence; and
6. a forfeiture order with respect to certain computers, smart phones, ipads and other storage devices.

7I find that a total sentence of imprisonment for five years and three months is the appropriate sentence here.

8My reasons for this are set out under the following subject headings:

1. The fundamental purpose and principles of sentencing;
2. The offences;
3. The impact on the victims;
4. The background of Mr. Leach; and
5. Analysis

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

9The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

10The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

11The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

12Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

13He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

14He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

15Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

16Section 718.01 of the Criminal Code provides that; "When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct".

17Section 718.2(a)(ii.1) provides that evidence that an offender, in committing an offence, abused a person under the age of 18 years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

18Section 718.2(a)(iii) provides that evidence that the offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

19The offences have had a significant impact on the victims, considering their ages and other personal circumstances. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.

20Section 718.2(c) provides that where consecutive sentences are imposed the combined sentence should not be unduly long or harsh.

21The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. I must review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.

22In doing this, I should first fix appropriate individual sentences to arrive at a total sentence and then adjust the total sentence to ensure that it does not exceed what is just and appropriate.

23With respect to consecutive sentences, section 718.3(4)(b)(i) provides that, "The court that sentences an accused shall consider directing … (b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively including when (i) the offences do not arise out of the same event or series of events".

24There is a broad discretion to impose consecutive sentences if separate legal interests are implicated in the various offences.

25I must consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

26I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

27The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

28This principle is of less importance however in cases like this, but I still must take it into account.

29The Supreme Court also noted in Gladue that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. A sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.

30The Ontario Court of Appeal has provided considerable direction with respect to sentencing adults who have sexually abused young victims.

31In R. v. D.D. and R. v. Woodward, the Ontario Court of Appeal "discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children". The facts in those cases, as well as the sentence imposed are very different than in this case. I take from those cases however the following considerations and principles which I find to be relevant here:

1. Our children are our most valued and our most vulnerable assets.
2. We as a society owe it to our children to protect them from the harm caused by sexual predators.
3. Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.
4. Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
5. Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; and (iii) children who have been sexually abused are prone to become abusers themselves when they reach adulthood.
6. Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

32The fundamental message that the Court of Appeal has sought to convey is that:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!

33It is universally accepted that simple possession of child pornography is a serious offence. By its very definition, child pornography is created by recording the sexual abuse and sexual exploitation of children. These children are victimized for the first time when the pornography is created. They are re-victimized time and time again whenever someone views those images.

34This is occurring more frequently than in the past. The advent of digital cameras and the development of the Internet have made more child pornography available to more people, all at the push of a few buttons or keys on their computers, and this is all available in the comfort and safety of the offender's own home.

35With greater sophistication on the part of law enforcement officials, more of these offenders are being apprehended and, hence, the number of child pornography cases coming before the courts is increasing at a horrendous rate.

36Justice Molloy of the Ontario Superior Court of Justice stated in R. v. Kwok, [2007] O.J. No. 457 that:

Collectors of child pornography seek to distance themselves from the direct physical and emotional harm caused to children. However, the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for its malignant growth right along with its creators.

37She goes on to say in that the existence of this ready and eager consumer base could only be seen as an incitement to, "[those] ... depraved individuals who ... obviously get some kind of extra "kick" out of photographing and videotaping these atrocities and having other people look at them."

38She suggests that one way to deter would-be pornographers would be, "... by deterring those who are interested in acquiring the pornography."

39In light of all this it should come as no surprise that courts have consistently held that the primary focus for sentencing in cases of simply possessing child pornography must be denunciation and general deterrence.

40Molloy J. further reviewed relevant factors to be taken into account during sentencing in child pornography cases.

41She found the following to be aggravating factors:

(i) a criminal record for similar or related offences;

(ii) whether there was also production or distribution of the pornography;

(iii) the size of the pornography collection;

(iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted);

(v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and

(vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to free downloads from the internet.

42Generally recognized mitigating factors include:

(i) the youthful age of the offender;

(ii) the otherwise good character of the offender;

(iii) the extent to which the offender has shown insight into his problem;

(iv) whether he has demonstrated genuine remorse;

(v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment;

(vi) the existence of a guilty plea; and

(vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or his community).

43I am satisfied that this is an extensive, but not exhaustive list of the appropriate factors that I should consider in this case.

44The maximum sentence for possession of child pornography is imprisonment for 10 years when Crown counsel proceeds by indictment.

45The maximum sentence for sexual interference is imprisonment for 14 years when Crown counsel proceeds by indictment.

46The maximum sentence for making child pornography is imprisonment for 14 years when Crown counsel proceeds by indictment.

47Mandatory minimum sentences have been struck down with respect to these offences.

48This is of little benefit to Mr. Leach. In all of the cases striking down mandatory minimums, the Ontario Court of Appeal has done so on the basis of reasonable hypotheticals. None of these reasonable hypotheticals is similar to this case in any way.

49With respect to the charge of possession of child pornography I note certain comments by the Ontario Court of Appeal in the recent decision R. v. John.

50Pardu J.A. wrote:

The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter, 2018 ONCA 474, at para. 16. In another recent decision, R. v. J.S., 2018 ONCA 675, this court upheld a sentence of 18 years for sexual abuse of young children, making child pornography depicting that abuse, and distribution of that material.

51She also wrote that:

… the size and nature of the appellant's collection is a seriously aggravating factor. The appellant had possession of 89 unique videos and 50 unique images of child pornography. He actively sought out these images and videos. His collection included images of children as young as four years old, and some perhaps as young as two or three years old, subjected to anal and vaginal penetration with sex toys and adult penises. This is terrible abuse of young children. In R. v. Lynch-Staunton, 2012 ONSC 218, at para. 57, Ratushny J. pointed out that:

[i]t is to be understood by those trolling the Internet for child pornography that these pictures are acts of violence against children, that viewing and possessing them perpetuates the original violence, that viewing and possessing them encourages new child victims, and that as a consequence, jail terms will result.

52Before I can apply the above principles however I must examine the offences here, the impact that they had on the victims and the background of Mr. Leach.

THE OFFENCES

53In October of 2017 the Halton Regional Police Service Internet Child Exploitation (ICE) unit became aware of suspected child pornography files in Twitter and Dropbox accounts which turned out to belong to Mr. Leach. These files were viewed by the ICE unit and found to be consistent with the Criminal Code definition of child pornography.

54On January 11, 2018 a Criminal Code search warrant was executed at his home in Oakville.

55Numerous electronic devices were seized and transported to the Technical Crimes Unit to be imaged and analyzed. One of the devices belonging to Tyler Leach had numerous child pornography images and videos. The children in the images are mostly boys ranging in age from approximately 18 months to 14 years old. Included in these images are some of the images range from close ups of the children's genitals, to fellatio and anal intercourse, some of which include bondage.

56Further investigation determined that the accused was close friends with a female work colleague named BC. The two had been friends for four to five years. As their relationship evolved she trusted Mr. Leach and he became a regular babysitter for her two boys, JVC and NVC, now ages seven and nine. Mr. Leach normally stayed with the two boys at their residence overnight when she was working nights.

57Analysis of the electronic devices seized from Mr. Leach turned up a series of images of JVC. The photos were of the boy sleeping with no clothes on, the focus of the majority of the photos were of his genital area. One of the photos is a close up of the boy's buttocks with an adult man's hand parting the buttocks to expose the anal area.

58Videos were also located on the device. The videos suggest that the images referred to above were stills taken from the videos.

59In one video Mr. Leach's hand can be seen masturbating the penis of JVC while he is sleeping. The videos show the accused's hand masturbating the victim's penis. The audio of the video suggests that Mr. Leach may be masturbating himself.

60Another video shows JVC, sitting on a chair with no clothes on. The video zooms in closely on his penis and scrotum. It appears that Mr. Leach is checking to see if JVC has any pubic hair. His voice can be heard on the audio "any fuzz? Oh yeah.. a little bit".

61Another video shows JVC being filmed in the shower. The voice of Mr. Leach can be heard throughout the video speaking to the boy, walking him through shampooing his hair and cleaning his body. The video focuses in on his penis at many points. At one point Mr. Leach asks the boy if he cleaned his "butt". When he replies yes Mr. Leach asks him to turn around and spread his cheeks so he can check. The boy proceeds to do so.

62Other videos show Mr. Leach's hand pulling down the underwear of a sleeping NC, and masturbating his penis. The videos also show his hand pulling down NC's underwear from behind and spreading his buttocks to expose his anus. The audio of the video suggests Mr. Leach may be masturbating himself.

63In one video, shows Mr. Leach take NC's hand while he is sleeping and place it on his penis. Mr. Leach then proceeds to gyrate his hips back and forth to simulate the boy masturbating his penis. The video also shows Mr. Leach ejaculating near NC as he is sleeping.

64Numerous videos were also located of NC while he is awake in various stages of undress where the camera is clearly focusing on his genitals and anal area. NC appears to be unaware that he is being filmed.

65The accused also had a best friend who has been identified as KMN. The two had been best friends since school and often spent time together. She has a son named BMN who is three years old. Mr. Leach is very much involved in their lives. He had offered to babysit for BMN but up to the time of his arrest he had never been alone with BMN.

66A video was located on the device taken from Mr. Leach showing BN being filmed while his mother was changing his diaper. The main focus of the video is the child's genital area, and at one point the camera zooms in on his penis. The video appears to have been taken surreptitiously while standing behind the mother. This happened at a hotel in Niagara Falls together while on a day trip.

67An image was located on the device showing BN standing in a bath tub with no clothing on facing the camera while his mother is bathing him. The image appears to have been taken surreptitiously while standing behind her.

IMPACT ON THE VICTIMS

68I was given four Victim Impact Statements. These were prepared by BC, the father of JVC and NVC, his current spouse and by KMN.

69They all expressed shock at the depths of the betrayal by Mr. Leach. They are angry at him.

70They expressed deep concern about the impact that this might have on their children. So far, it is intangible but they realize that this could change in the future. The boys are in therapy.

71They fear for the boys' future safety.

72They feel guilt that they failed to protect the boys from the abuse.

73They are having trouble trusting anyone now.

74They do not know when if ever they might get over this.

BACKGROUND OF MR. LEACH

75I have been given a Pre-sentence Report which provided me with the following information.

76Mr. Leach is now 34 years old.

77He is an only child who was born in Toronto and was raised there for the first 17 years of his life. His parents separated at an early age due to his mother's cocaine and heroin use. His father remarried within a few years and Mr. Leach continued to see his mother sporadically. The time he spent with his mother was toxic as he witnessed her injecting drugs and associating with drug users and he witnessed physical altercations.

78His father had him attend a psychiatrist approximately every two weeks in grade three and four to address his relationship with his mother. Although he witnessed different forms of abuse when staying with his mother, he was never the victim of any physical or sexual abuse himself.

79His father worked for over 30 years for a railroad company and had a very sporadic schedule. Mr. Leach spent periods of time with his grandparents while his father worked. His maternal grandmother was more of a mother to him than his actual mother. When his father remarried Mr. Leach developed a satisfactory relationship with his step-mother. His father and step-mother continue to be married and their relationship produced two half-siblings.

80The family moved to London when he was 17 years old for his father's employment. After failing to complete a year of college in London, Mr. Leach moved in with his aunt in Brampton. He explained he had a little more space from his direct family by living in Brampton and it was a better time for him to be away from his immediate family as he was starting to come out with his sexual attraction to men. However, his aunt struggled with alcoholism and domestic violence was present in her relationship with her partner. Ultimately Mr. Leach moved back to his father and step-mother's home in London. He reported that both his father and step-mother were supportive of the subject and his sexual attraction to adult men.

81He has been in a relationship with his partner, TB, for most of the past six years. TB has been supportive of him as he has been going through court and addressing his struggles with sexual deviancy.

82Mr. Leach completed his primary school years and his high school education while residing in Toronto. He attended college in London for a broadcasting program but did not finish the program and attributed this to a lack of interest in some of the courses he was enrolled in.

83The majority of his employment has been through rail companies. He worked from 2004 to 2011 for a large Canadian railway company until he left for a position as a locomotive engineer for a passenger train operation. He was earning approximately $125,000 a year from this position and during his last two years with this company he was working as a rules instructor. As a result of the charges before the court he was fired from this company.

84Upon completion of his jail sentence, he is interested in returning to work on a train or maybe returning to school.

85He has never used any illegal drugs and has never abused any legal or prescription medication.

86During his Pre-Sentence Report interviews he presented as genuinely open and honest about his life and his offending behaviour. He did not participate in any rationalization or minimization and took full-responsibility for his actions. He acknowledged that he is sexually aroused by pre-pubescent and pubescent boys. He explained that his first sexual encounters began at the age of 12 with a same age male friend and described a relationship that involved them trying everything except anal intercourse.

87In regards to his attraction to pre-pubescent and pubescent boys he explained that he started to explore these areas on the internet in his early twenties. He described his behaviour as an addiction and through his idle time he began to spend more and more time on the internet viewing images and videos. He viewed images online after his partner had gone to bed and stated, "I trapped myself into a world on the internet that was thrilling" as he never thought he would get caught.

88Furthermore he stated "the pinnacle of getting off' was masturbating to the two boys in person, as oppose to looking at pictures. He explained that at the time of the offence (sexual interference x 2) it made him feel less guilty about his actions due to the two boys being asleep and subsequently not having any memory of his actions. However he reported that he felt guilt after he committed all of the offences before the court and' knew what he was doing was wrong.

89Additionally he recognized that he should have sought help and never did.

90In regards to the victims and the parents of the victims he reported "I am deeply ashamed" and "I'll never forgive myself." The mother of one of his victims was his best friend for several years and he stated, "I threw away 20 years of friendship" and he talked about the trust he violated.

91He has met with and talked over the phone with a psychologist for a total of eight hours of counselling since he was charged with the index offences. He stated "I am finally getting the help I need that I was too stupid to get." Furthermore he has the support of family and his partner to get the help he needs and he reported he will take all the help he can get. The subject recognizes that his behaviour was out of control that it was getting worse and stated, "I need to learn to control it" in regards to his sexual deviancy.

92The Pre-sentence Report writer attempted contact with the psychologist and this was met with negative results.

93Mr. Leach reported that as a result' of the charges before the court he has lost all of his friends.

ANALYSIS

94Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

95Everyone agrees that Mr. Leach is going to jail. The question is for how long.

96Whatever sentence I impose, at least one side and maybe both will be disappointed.

97The victims and their families and friends may believe that the sentence is too lenient, while Mr. Leach and his family and friends may think that the punishment goes too far.

98Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

99General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.

100I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Leach and yet, at the same time, one that is responsive to his unique circumstances.

101I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

102The aggravating factors can be found in the offences themselves.

103Mr. Leach violated the trust that BC and KMN placed in him. Each of them had known him for years and considered him to be a very close friend. He convinced BC to place her sons in his care.

104Then he sexually abused both of them.

105Further he video-recorded this abuse.

106Separate and apart from this, he video-recorded the boys while they were naked. He did this for a sexual purpose. He groomed both boys over time to the degree that they cooperated with him in this.

107He surreptitiously video-recorded BMN when he was naked. He did this for a sexual purpose.

108All of this occurred over time and on a repeated basis.

109The final aggravating factor with respect to these offences is that the impact on the parents of the children has been traumatic. I have no idea when, if ever, they will get over this.

110The long-term impact on the boys has yet to be determined.

111On top of this Mr. Leach was in possession of child pornography that includes videos of adult males penetrating young boys anally with their penises. The look of resignation on the faces of some of these boys will remain with me for a very long time to come.

112The size and nature of this collection of child pornography is comparable to that in R. v. John, supra.

113There are also a number of mitigating factors in this case.

114Mr. Leach is a young man.

115He pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for the victims to testify. They were spared the ordeal of revisiting their victimization in a public courtroom.

116He has repeatedly expressed remorse for what he has done.

117He had no prior criminal record.

118He has otherwise led a very good life and been of good character.

119That of course is offset by the fact that this is the case in all breach of trust offences. It is only people of good character who are trusted in the first place.

120He has been bound by bail conditions with varying degrees of strictness since his release and has not offended further.

121He has strong support from friends and family.

122He has however lost many friends as well as his employment as a result of his offences.

123He had a very difficult if not dysfunctional childhood.

124He has begun working with a psychologist. Unfortunately, he has done that rather late. Further, I have received nothing from that psychologist or anyone else that could provide me with any sort of assessment of future risk posed by Mr. Leach.

125After considering all of the above, I am satisfied that the appropriate period of imprisonment with respect to the possession of child pornography charge is 9 months.

126With respect to the sexual interference offences, I am satisfied that either charge could have warranted a penitentiary sentence. In reaching that conclusion, I am treating the video-recording of the abuse as an extremely aggravating circumstance. I am satisfied that these offences should attract concurrent sentences and that taking totality into account, those sentences should be imprisonment for 42 months.

127That should however be consecutive to the sentence for possession of child pornography and consecutive to the make child pornography charge involving BN.

128These offences do not arise out of the same event or series of events and separate legal interests are implicated in them.

129The appropriate sentence with respect to the make child pornography charge involving BN is imprisonment for one year.

130Accordingly, the appropriate global sentence is imprisonment for five years and three months, less credit for pre-sentence custody.

131Both counsel agreed that I should make a lifetime order pursuant to section 161. In light of the absence of any sort of risk assessment, I agree with this completely.

132In drafting the terms of that order, I am mindful of recent comments by both the Supreme Court of Canada and the Ontario Court of Appeal about restrictions on Internet use in orders pursuant to section 161. These comments include the following.

133In modern life, at least some form of access to the Internet is simply unavoidable for innocent purposes such as accessing services and finding directions. In many homes the telephone operates using the Internet, rather than traditional telephone wires.

134Depriving an offender of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life.

135Internet is used for such commonplace activities as shopping, corresponding with friends and family, transacting business, finding employment, banking, reading the news, watching movies, attending classes and so on.

136Courts should avoid imposing orders that create overbroad or unreasonable restrictions on an individual's liberty.

SENTENCE

137For the above reasons, I sentence Mr. Leach as follows.

1. With respect to the charge of possession of child pornography, I sentence him to time served, being pre-sentence custody of 38 days, credited as 57 days, plus imprisonment for a further 213 days. My intention is that this should be the equivalent of imprisonment for nine months.

2. With respect to the first charge of sexual interference I sentence him to imprisonment for 42 months consecutive.

3. With respect to the second charge of sexual interference, I sentence him to imprisonment for 42 months, concurrent.

4. With respect to the first charge of making child pornography, I sentence him to imprisonment for one year concurrent.

5. With respect to the remaining charge of making child pornography, I sentence him to imprisonment for one year consecutive.

6. I also make the following ancillary orders.

7. These are primary designated offences and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. Leach of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

8. They are also designated offences pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to section 490.012 of the Criminal Code that Mr. Leach comply with the provisions of the Sex Offender Information Registration Act for life.

9. I also make a lifetime order pursuant to section 161 of the Criminal Code prohibiting Mr. Leach from:

(a) attending a public park or public swimming area where male persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre;

(a.1) being within 100 metres, of any dwelling-house where BVC, NC or BN ordinarily reside;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards male persons under the age of 16 years;

(c) having any contact – including communicating by any means – with a male person who is under the age of 16 years;

(d) using the Internet or other digital network, including email, MSN Messenger, any other messenger system or any chat rooms, or Skype or Whatsapp or Facebook or Twitter or Instagram or Snapchat or any other social network, for the purpose of communicating with a male person under the age of 16 years. When communicating with anyone by means of such a computer system or other device, he will take reasonable steps to ascertain the age of the person; further, when communicating with anyone by means of such a computer system or other device, he shall identify himself by his full real name, Tyler Leach, and shall not use any pseudonym, nickname or code name to identify himself.

10. Pursuant to section 109 of the Criminal Code, for the next 10 years Mr. Leach is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

11. I make an order pursuant to section 743.21 of the Criminal Code prohibiting any contact or communication by him with BC, BVC, NC, JV, DO, KMN or BN during the custodial portion of his sentence.

12. Finally, I have signed the forfeiture order.

13. Mr. Leach will have one year following his release from custody to pay the victim fine surcharges.