R. v. Hems, 2019 ONCJ 779

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2019-10-28

Central East Region

Between:

Her Majesty the Queen

— AND —

Adam Hems

Before: Justice J. Bliss

Plea entered: April 2, 2019

Reasons for Sentence released: October 28, 2019

Counsel:

• K. Staats — counsel for the Respondent/Crown
• D. Reeve — counsel for the Applicant/Defendant

BLISS J.:

Overview

1In December 2017, Adam Hems was playing an online video game, ROBLOX, and began communicating with another player, J.R.. ROBLOX is meant for young children. J.R. was 11 years old. Adam Hems was 21. Initially they talked via an Xbox 1 console. Their conversation then moved from the online game to Xbox live messenger and from there they would text each other directly through cell phones. Between December 29, 2017 and January 7, 2018, the conversation went from J.R. telling him about her puppy to Mr. Hems asking her if she was "wet down there for [him]", telling her that he is "jacking off and laying in [his] bed missing her". On January 7th, unbeknownst to Mr. Hems, J.R.'s family found the text messages. J.R.'s father continued the conversation posing as his daughter and asked Mr. Hems to send a picture of himself. Adam Hems sent two, the second of which was of his penis which he followed up by asking if "[she thought she] could fit it inside [her]", whether she was "wet down there", and asking to "see [her] tiny pussy". J.R's father terminated the communication and contacted police. On March 5, 2018, Adam Hems was arrested. His computer and cell phone were seized. His cell phone was encrypted and not able to be accessed but forensic examination of his computer found images and videos of child pornography.

2Mr. Hems pled guilty to communicating between December 1, 2017 and January 7, 2018 with a person who is, or he believes is, under the age of 16 years for the purpose of committing an offence under s.152 of the Criminal Code, contrary to s.172.1(1)(b) of the Criminal Code; this is also known as child luring. Section 152 is invitation to sexual touching where, for a sexual purpose a person invites, counsels or incites any person under 16 years to touch themselves or any other person. Mr. Hems also pled guilty to possessing child pornography between December 1, 2017 and March 5, 2018. Those images were not of J.R. and unrelated to his conduct with her.

3The Crown elected to proceed by summary conviction. Under the Criminal Code regime each offence attracts a mandatory minimum sentence of 6 months imprisonment. While the mandatory sentence for possession of child pornography was found by the Court of Appeal to be unconstitutional in R. v. John 2018 ONCA 702, the prosecution submits, nonetheless, that a six month sentence should be imposed for that charge and the mandatory minimum six month sentence should be served consecutively for the child luring offence. The defence submits that the mandatory minimum sentence under s.172.1(2)(b) violates Mr. Hems s.12 Charter right not to be subject to any cruel and unusual treatment or punishment and seeks a non-custodial sentence. The question of whether the mandated sentence of imprisonment amounts to cruel and unusual punishment is very much rooted in Adam Hems' particular circumstances which the defence describes as a "22 year old male suffering from complex developmental delays and cognitive difficulties with a long history of requiring external supports and resources in order to manage at home or in the community".

Facts

4On January 8, 2018, J.R.'s father contacted the Nottawasaga OPP to report that his 11 year old daughter had been communicating with a male believed to be in his 20s. The male was Adam Hems. The conversations and pictures sent to his daughter were of a sexual nature and sexually explicit. Adam Hems started communicating with J.R. in the beginning of December 2017 through an online video game they were both playing. The game itself is meant for young children. Mr. Hems' communication with J.R. progressed from the game through an Xbox console to Xbox live messenger and to them texting each other directly through their cell phones. On the very first day of their texting, J.R. told Mr. Hems that she was in grade 6.

5On January 7th, when J.R.'s family discovered the sexually explicit text messages, J.R.'s father posed as his daughter and continued the communication with Mr. Hems. Upon being asked to send a picture of himself, Mr. Hems obliged by sending first a picture of himself bare chested and then one of his penis and followed them up with sexually explicit comments.

6Between December 29, 2017 and January 10, 2018 there were 374 text messages sent between the victim and Adam Hems' cell phone. The text messages were filed as an exhibit. One of the issues was whether the communications was evidence of "grooming". The prosecution submits that Mr. Hems was grooming J.R. to engage in sexual activity while the defence disagrees. My conclusion about whether Mr. Hems was grooming J.R. comes from a review of those messages and whether the progression of the texts was designed to build a relationship and a connection of trust to manipulate or exploit J.R. to engage in a sexually explicit exchange with him.

7Shortly after the texts began on December 29th, Mr Hems let J.R. know "My night could be better but for now it's really get because I get to talk to you so im happy". When J.R. tells him about her puppy, he responds "cute" and then "I bet your cute too". He goes on to tell her "you are so beautiful", and when she thanks him he writes "that's probably soo creepy lol because im soo much older lol well your very welcome"

8He asks to see "pics of her", and when she refers to a dress she wore to a dance tells her "Omg well I bet you looked amazing in it". Later he asks her, "what do you have on?".

9J.R. tells Mr. Hems "I am a 6th grader and u suck at spelling". His response is to tell her "I think your amazing" and he signs off with "Night sweet dreams Beautiful I'll miss you talk to you in the morning hugs kisses". Her response "xoxo" leads him to write "Wish I was there with you lol" and "Lol kisses wish I could hold you". This is still the first day of them texting over their phones. J.R. asks what would appear to be a rather innocent question, "So what r u doing" which Mr. Hems responds with "Making tea then shower naked then getting dressed" and "Why wish you were here?" When she comments how much sleep she can get, he tells her "Yes sleep my beautiful babygirl"

10Mr. Hems continues: "What you wearing this morning?" When later on she tells him that she is going to take a shower because she can't sleep, he tells her that "[he is] still in [his] underwear Wish I was there". He then asks her "will you take me some pics or no lol I know" and when she says "no" he continues: "oh not just a little bit of you from the shower okay how about later?" When she resists and tells him she is tired of taking pictures of herself he turns to flattery. "But you are soo pretty and I like seeing pics of you" and insists "How about this one pic of you from when you taking your shower and that's it for today? And you still look soo Beautiful". "Please can I see a pic of all of you when your in the shower". J.R. relents, but when she tells Mr. Hems that she would send him a photograph but just of her face and hair, his response is "What why only face and hair?". J.R. tells him she doesn't like taking full pictures unless it's a sport so Mr. Hems offers that he "thought it would be because she would be naked" He carries on, "So wait you will be naked?". When J.R. tells him she is getting in the shower he persists: "Can you take me a pic when you get out."

11Mr. Hems continues. He asks her if she likes him, and when she tells him she does, he tells her he likes her too. The text messages become more sexually explicit. He writes "You make me happy and hard lol". When he asks her what she is doing and she tells him she is playing with her puppy, he responds with "your playing with yourself awe". It continues, "I love your pictures you so beautiful and plus I like you lol", "Would you like to see any of me?", and "What would you like too see babygirl".

12When she tells him she is tired, he asks "you want to sleep on me I'll hold you". He flatters her with talk that he misses her and refers to her as beautiful and sexy and cute. Later he asks if she missed him, and when she tells him that she did he writes "I missed you too". Their texts continue over the next few days though nowhere near the amount of the first day. On January 1, 2018 one of his texts was "Babe I was wondering could I see more pics of you baby" On January 2nd, he asks "…did you miss me sexy" and when she responds that she did, he writes "I missed you too I wish I could hold you and kiss you". J.R. does not respond that day or the next. On January 4th Mr. Hems resumes texting her with "Hey sexy wyd (presumably what are you doing) you wet down there for me". She responds "Yes? What else that mean I mean wyd". Mr. Hems' reply to this grade 6 girl was "I'm jacking off and laying in my bed missing you".

13There are no exchanges on January 5th so on January 6th, Mr. Hems texts J.R. "Your babe needs you", but when she tells him she has to go to bed, he pleads with her, writing "But babe please I need you I need my babygirl". When she asks what is wrong he repeats, "I need your love I miss you and I want to see my sexy girl". She rebuffs him with a short "night". He writes "I'm hard and I need your love. Please" and when she asks him what is wrong, he texts "I'm hard and I need your female love". He is only placated when she tells him that she loves him and he tells her he loves her too. That ended the direct communication between Adam Hems and J.R. because on January 7, 2018, J.R.'s family discover the texts, and her father then posed as her to continue the communication.

14On January 7th, J.R's father writes to Mr. Hems that he had deleted his picture and asks for another one. Mr. Hems sends him a photo that appears to show himself naked. That leads to the comment, "U look naked" and Mr. Hems confirms he is. When J.R's father writes that "my dad has a beard to", Mr. Hems responds, "does he have a big dick like me' which leads to the exchange where J.R's father texts "I don't know I haven't seen it". Adam Hems then sends a photograph of his exposed penis with the messages "well here it is, tell me what you think", "You like babygirl", "you think you could fit it inside you", "Well do you like it", "Are you wet down there?" and then "Please can I see your tiny pussy?"

15Following police investigation, Adam Hems was arrested on March 5, 2018. When interviewed the next day, Mr. Hems admitted to communicating with J.R. and exchanging picture images with her. Mr. Hems' cell phone and computer were seized by police. The cell phone was encrypted and police were unable to analyze it. Forensic analysis of his computer, however, found 2 images and 17 videos of child pornography.

16A report describing a representative sample of the child pornography found was admitted on consent. One 40 second video was in a file folder titled "Preteen 9-13" and depicted a nude female between 13 and 16 years of age engaged in vaginal intercourse with an apparent adult male. Another that was 9 seconds long in the same file folder was of a 12 year old girl in underwear and t-shirt masturbating and exposing her vagina. A third video 3 minutes and 35 seconds in length was of a female between 8 and 10 years old that starts with her fully clothed and dancing in a sexualized manner but then proceeds to expose her chest and vagina and then digitally manipulate her vagina with her hands and expose her buttocks to the camera.

17After five days in custody, Adam Hems was released on a surety bail with conditions requiring him to reside with his surety, his mother, not communicate with the victim's family, not be in the company or communicate with any youth under the age of 16 years unless in the presence of his mother or father, and not possess any cell phone or possess or use any computer, or any other device that has access to the internet or other digital network.

The Defendant's Personal Circumstances

18Following his guilty pleas, a Pre-Sentence Report was prepared. An affidavit from Mr. Hems' mother, Deborah Hems, was also filed along with supporting documentation setting out the challenges Adam Hems has and presents.

19According to the PSR, Mr. Hems, now 23 years old, grew up with his two parents and half-sister from his mother's first marriage. From a very early age there were issues with his behaviour which ultimately led to the Children's Aid Society becoming involved. According to Mr. Hems, he would regularly hit his mother and sister and he spent most of his time from age 7 to 18 in residential schools. His sister remains protective and supportive of him, while his mother is an advocate for her son to get him treatment which, according to her, she has "tried to find only to be denied by the system".

20Deborah Hems advised that she witnessed her son, as a child, have behavioural issues and outbursts of anger which led to a diagnoses of ADD, ADHD, ODD, Tourette's, bipolar disorder and five severe learning challenges in the area of executive function. He was identified as "intellectually delayed" and, at 7 years old, was transferred to a day treatment centre for school, and mental health and behavioural support. At age 8, he began living full-time in a residential school, and then another residential school from age 12 to 15 returning home on weekends.

21At age 16, Adam Hems attended the Griffin Centre residential program until he aged out of the system at 18 years old. The Discharge Summary reported that he would often not attend classes for weeks at a time and assessed him at the "Borderline Range and, in fact, capable of earning credits". The notes referred to expectations at school being raised, but he refused to do the work claiming it was too easy and he could do more. Since that time, Mr. Hems' mother reports that her attempts to access services for him have been unsuccessful.

22On the employment front, Mr. Hems expressed to the writer that he has difficulty working due to his anxiety. He apparently had a job at Canada's Wonderland a few years ago but according to the Sexual Offending Risk/Needs Assessment (SORNA) completed by the Griffin Centre, there were concerns about his employment as a groundskeeper in the water park area as patrons in swimming attire could pose an "increased risk for sexually inappropriate behaviour on Adam's part". This led to the family requesting he be reassigned, but he only lasted a few months as he and his family decided it best he quit as he was not dealing well with the crowds and anxiety of learning a new skill.

23Mr. Hems is currently single. His last relationship was two years ago with a girl who was 18 years old at the time. That relationship lasted a few months. Prior to that he had dated another girl a year younger than him when both were living at a group home.

24There are a number of concerning comments Mr. Hems made to the Probation Officer with respect to his insight and appreciation of the gravity of his offending. When asked his thoughts of the child luring offence, he stated that "he wished it didn't happen and he could go back to playing video games". He lacked insight into why he sent sexual messages to a child and described it as "something to do as he was bored". The writer noted that he acknowledged responsibility for the offence but did not seem to understand the gravity of his actions. He voiced frustration about his bail restrictions and its impact on the fact he could no longer play video games and talk to his friends. He complained that his phone, computer, and video access had been taken away, but the victim was now "living her life". He viewed his court involvement as "stupid" and his actions "bad, but not this bad". He admitted that he knew the girl he was talking to was underage, but did not plan on meeting her in person since she was out of the country".

25When asked to comment on his thoughts regarding his possession of child pornography, he indicated that he often accessed pornography sites. He expressed that while he does not purposely or specifically seek out child pornography, it did not bother him to view explicit images of children. He stated that "he will watch any porn". As he put it, "it doesn't matter how old they are, I just wanted to jack off and be done". He did voice remorse when he stated he should have deleted it off his phone but, as with the child luring offence, he feels "jipped" and "just wants to talk to his friends and play the new games coming out". He denied any sexual attraction to minors.

26His mother was surprised at the offences that she did not think he had "that much creativity". His sister was not surprised by the age of the victim and characterized her brother as functioning at a much younger level. She felt that he has shown remorse and knows what he did was wrong, but believed the victim liked him. She described her brother as lonely and may not "see the difference between adults and kids".

27Mr. Hems has exhibited sexually aggressive behaviour since he was 8 years old. Deborah Hems disclosed to Griffin Centre staff that he would grab her and his sister's breasts and when he was 8 years old told her that he wanted to have sex. Since then, she has expressed concerns with her son's sexual conduct and its potential to pose an issue with the law.

28The CAMH report from 2015 confirmed his diagnosis with Tourette's disorder, OCD, Oppositional Defiant Disorder, ADHD, learning disability and possible bipolar disorder. It noted him as being quite non-adherent to his medications. It detailed concerns about his moods, risk of sexual offence, and his addiction to pornography. It also noted him having inappropriately touched his mother and sister and his awareness that it is inappropriate for him to have a sexual interest in his 27 year old sister. There were three reported incidents of sexually inappropriate conduct commented on. The conduct included inappropriate touching and an email that threatened consequences if the female recipient did not have sex with him.

29Adam Hems' risk of reoffending sexually is a concern. In a psychiatric report from June 24, 2004, Dr. Susan Dundas noted how this 8 year old boy was demonstrating sexualized behaviour and seems to be significantly unconscious about his behavior and how it affects other people.

30In a report from the Griffin Centre from July 22, 2014, Mr. Hems' long standing issues with unwanted touching of a sexual nature towards his mother and sister as well as his struggle with respecting personal space of female staff was explored. The primary worker attempted to work with Mr. Hems on several occasions but he avoided the subject and refused to meet with the worker. His refusal to engage in discussing this topic seemed to be a common complaint with staff. It was reported that both his mother and sister were agreeable with engage in therapeutic family sessions, but despite attempts to set up appointments they did not follow through. The report noted an incident on May 26, 2014 when he was caught videotaping his sister changing. When confronted, he initially denied it before admitting it was intentional, and then expressed suicidal ideation. The Griffin Centre service team recommended the family report his behaviour to police so that he would have to engage in counselling sessions that were non-negotiable. His mother declined to do so and indicated she would consult with a doctor if needed. It was in this report that Mr. Hems' service team expressed concerns about him working at Canada's Wonderland given the risk of being around individuals in swim attire and suggested that he seek a transfer. Both mother and son initially disagreed with this recommendation but then advised that he was in the process of being transferred to another part of the facility.

31This material, which the defence filed, certainly supports the defendant's considerable behavioural challenges, but the reports also noted that throughout his treatment at the Griffin Centre, assessing his inappropriate sexual touching and boundary issues have been a huge struggle. "The service team tried on numerous occasions to address this issue with Adam and his family, but neither appeared to be ready to do so during the course of treatment." Examples were provided: "When Adam sent a text message to an individual requesting she have sex with him and threatening to hurt her if she did not comply, Deborah had a difficult time believing that Adam actually did it. He had sexually touched his sister while she was sleeping in the summer of 2013 but his mother struggled with creating a safety plan to protect her daughter and hold Adam accountable although they did ultimately agree to complete a SORNA assessment to look at his potential risk for committing sexual assaults in the future and give specific treatment recommendations to address this worrisome issue".

32The 2014 SORNA report concluded that Mr. Hems was then a high risk to reoffend sexually. When questioned about his sexually offending behaviour towards his sister he felt his family was overreacting and that he did not think there was anything wrong with what he did as he did not physically hurt his sister. The report went on that "it is important to note that there has been a lot of pressure on Adam to not be open about his issues related to inappropriate sexual behaviour as his family has struggled to put this issue "on the table" in an open, honest way, which might have also impacted his ability to participate fully".

33The report also raised with the defendant the laws surrounding consent. It is significant that it noted that "he knows the law that people are not allowed to have sex with individuals under 16 years old and that people would get charged." His responses also suggested then of his possible sexual interest in pre-pubescent females and that there were reported incidents of him touching his sister sexually despite being told not to.

34What flowed from that assessment were recommendations for treatment at CAMH's Sexual Behaviours Clinic and individual counselling. A referral to CAMH was made on September 2015 and another referral was made to the Mackenzie Health Program for Assessment and Treatment for Health Sexuality in 2017. He remains on both waitlists.

35The probation officer described Mr. Hems as a "concerning candidate" for a community based sentence. His lack of insight into his offending behaviour and absence of current treatment for sexual offending was seen to put him at risk of re-establishing patterns that re-enforce his sexually offending behaviours and attitudes. The supplementary material provided by Mr. Hems' mother reinforces that concern.

36The challenge to the mandatory term of imprisonment is not that Adam Hems does not present a high risk of sexually reoffending but that his "complex developmental delays and cognitive difficulties" makes a mandatory custodial sentence cruel and unusual because his hyper-sexualized behavior is not of his making, and he lacks the cognitive skills or capacity to manage his behaviour without external supports and resources, and those have either not yet been made available to him or denied.

Framework of Analysis

37There are two mandatory minimum sentences that the applicant must contend with. The challenge to the 6 month mandatory minimum sentence prescribed by the Criminal Code for possession of child pornography pursuant to s.163.1(4) was conceded by the Respondent given the Court of Appeal's decision in John (supra) which struck down the mandatory minimum sentence as unconstitutional. That leaves the s.12 challenge to the child luring offence.

38Section 12 of the Charter provides that "everyone has the right not to be subjected to any cruel and unusual treatment or punishment". It provides a "broad protection to Canadians against punishment which is so excessive as to outrage our society's sense of decency. The court's inquiry is focused not only on the purpose of the punishment, but also on its effect on the individual offender." (R. v. Morrissey 2000 SCC 39, at para. 26).

39As McLachlin C.J. explained in R. v. Ferguson 2008 SCC 6, at para 14, "the test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate. To be considered grossly disproportionate the sentence must be more than merely excessive. [It] must be 'so excessive as to outrage standards of decency' and disproportionate to the extent that Canadians 'would find the punishment abhorrent or intolerable'. R. v. Wiles, 2005 SCC 84, at para. 4 citing Smith at p. 1072 and Morrisey at para. 26".

40This standard is not an easy one to overcome. As Cory J. commented in Steele v. Mountain Institution, at para 80:

"It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter."

41Whether that grossly disproportionate test has been met involves an examination of all of the relevant contextual factors. In R. v. Smith, at 1073, Lamer J. set out some of the relevant factors including the "gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender." No single factor is paramount (Morrissey, supra, para 27).

42Included in the consideration is: "[T]he actual effect of the punishment on the individual, the penological goals and sentencing principles upon which the sentence is fashioned, the existence of valid alternatives to the punishment imposed, and a comparison of punishments imposed for other crimes in the same jurisdiction. None of these factors will be 'in themselves decisive to a determination of gross disproportionality'" (Morrissey, supra, para 28, referring to Goltz, at p. 500).

43The inquiry into whether a sentence is grossly disproportionate involves two steps:

First, a court must determine what would constitute a proportionate sentence for the offence according to the principles of sentencing in the Code. Second, a court must ask whether the mandatory punishment is grossly disproportionate compared to the fit sentence for either the claimant or for a reasonable hypothetical offender. (R. v. Nur 2015 SCC 15, at paras. 46, 77)

The Appropriate Sentence for the Defendant/Applicant

44The prosecution submits that Mr. Hems should receive the six month term of imprisonment mandated by the Criminal Code for the offence of child luring. I note that the prosecution submits that a consecutive six month sentence for the child pornography offence should be imposed and that even if a s.12 violation is found, that a conditional sentence is not appropriate in this case. In his written argument, the applicant submitted that an appropriate sentence for Mr. Hems is a non-custodial disposition in the form of a conditional sentence, suspended sentence with probation or a conditional discharge. In oral argument, a suspended sentence or even discharge was not pressed and with good reason. The applicant submits that a six month sentence should be imposed with respect to each charge, but that the sentences should be served concurrently and by way of a conditional sentence order. It is fact of mandatory imprisonment and the unavailability of a conditional sentence for the child luring offence that, the applicant argues, amounts to cruel and unusual punishment.

45I propose to deal with matters in the following manner: First, I will deal with issue of whether the sentences should be served concurrently or consecutively; second, I will deal with the appropriate sentence for Mr. Hems' possession of child pornography; third, I will address the appropriate sentence for the child luring offence; fourth, I will address whether the sentence of imprisonment and unavailability of a conditional sentence because of the mandatory minimum sentence for child luring amounts to cruel and unusual punishment; and fifth, if it does, is a conditional sentence appropriate in his case.

Concurrent vs Consecutive Sentences

46The general rule is that if offences are sufficiently interrelated to form part of one single, continuous criminal transaction, a concurrent sentence is called for. Where there is no legal or factual nexus between offences, consecutive sentences should be imposed absent the total sentence being unduly long or harsh (s.718.2 (c)). (R. v. Chisholm).

47While it would be possible for concurrent sentences to be imposed, in this case there was no connection between the child luring and the applicant's possession of child pornography discovered on his arrest. There were no pornographic images or videos of J.R., and while the offence period for Mr. Hems' possession of the child pornography covered some of the same time period as his communications with J.R., his communication with J.R. ended on January 10, 2018 whereas the child pornography was discovered on his computer after his arrest on March 5, 2018. Unless the sentence is disproportionate to the offender's culpability and engages the principle of totality, the sentences for these distinct offences should be served consecutively.

Principles of Sentencing for Child Pornography

48Mr. Hems may wonder why he bears responsibility for the sexual abuse of children in these images and videos that he had no involvement in; after all, to paraphrase Mr. Hems, he didn't physically hurt anyone. McLachlin C.J. explained why in R. v. Sharpe 2001 SCC 2, at para 92:

Children are used and abused in the making of much of the child pornography caught by the law. Production of child pornography is fueled by the market for it, and the market in turn is fueled by those who seek to possess it…The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone.

49There is a ripple effect to the actions of people like Adam Hems who possess pornographic images of children:

The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors…instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another…[I]f the courts, through the imposition of appropriate sanctions, stifle the activities of prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place. (R. v. Stroempl, at para 8)

50If Mr. Hems had an inner voice that told him what he was doing was wrong, that failed to deter him, and so it becomes the court's role to provide an outer voice that denounces his conduct and imposes a sentence that deters him and others.

51In R. v. E.O., at para 7, Cronk J.A, spoke for the Court when she wrote:

Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole. For that reason, the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are general deterrence and denunciation. Further, the offence of possession of child pornography requires the imposition of sentences which denounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of the offence: see R. v. Sharpe (supra) and R. v. Stroempl (supra).

52In R. v. Nisbet 2011 ONCA 26, the Court of Appeal upheld a sentence of 6 months imprisonment following a guilty plea to possession of child pornography of 43 videos and 28 images showing children between the age of 4 and 14 engaged in various sex acts with other children and adult males, but in doing so, took the opportunity to express how possession of child pornography is an "abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence." "In our view", the Court wrote at the time, "a message must go out that this sort of conduct will not be tolerated."

53In R. v. Inksetter 2018 ONCA 474, the Court observed that:

16 By enacting s. 718.01 of the Criminal Code, Parliament made clear that denunciation and general deterrence must be primary considerations for any offence involving the abuse of a child. Further, this Court has repeatedly stated that denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography: R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d) 241, at paras. 21-22, 30; R. v. Nisbet, 2011 ONCA 26, [2011] O.J. No. 101, at para. 3; R. v. E.O., [2003] O.J. No. 563, at para. 7; R. v. Stroempl, [1995] O.J. No. 2772, at para. 9.

17 The courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 6

54In R. v. Kwok, at para. 7, Molloy J. set out a non-exhaustive list of generally accepted mitigating and aggravating factors to consider when sentencing in child pornography cases. Aggravating factors may include: (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 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; and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.

55Mitigating 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.

56Mr. Hems' collection of child pornography was relatively small, but included videos of girls exposing themselves and at least one in which a child between 13 and 16 years of age was forced to engage in sexual intercourse. While he has not been diagnosed as a pedophile, his highly sexualized behavior has been a concern since he was 8 years old and has included voyeuristic conduct targeting his sister, sexually touching his sister when she was sleeping and highly vulnerable, and email communication with a female requesting sex and threatening her if she did not comply. Mr. Hems has exhibited significant behavioural challenges from a very young age. He lacks insight into his offending and is ambivalent whether his voyeuristic sexual interests are satisfied by watching a child engaged in sexual activity or adult pornography. As he put it, he just wants to "jack off". It is questionable whether Mr. Hems' has the cognitive skills to temper his behavior, but he certainly understands that this conduct has consequences even if those consequences are as basic as losing his access to the internet and online video games.

57In s.718 of the Criminal Code, Parliament has set out what the objectives of any sentence are: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) deter the offender and other persons from committing offences; (c) separate offenders from society, where necessary; (d) assist in rehabilitating offenders; and (f) promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

58Where the offending involves the abuse of a child, ss.718.01 and 718.2 of the Criminal Code dictate that primary consideration be given to the objectives of denunciation and deterrence of such conduct. Of significance to Mr. Hems is that s.718.1 requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

59Mr. Hems' possession of child pornography is an offence in which a custodial sentence is necessary to fulfil the principles of denunciation and deterrence. It is also a sentence that should be served consecutively to the sentence to be imposed for child luring. Adam Hems had a relatively small collection of child pornography images and videos, the nature of his collection was toward the lower end of the spectrum, he is young and had no prior involvement with the criminal justice system. That he exhibited highly sexualized behavior at a very young age; certainly before one would think of a child as having a sexual drive and did not engage in intervention to help him quell or control those urges, was not totally in his control. He was a teenager with cognitive challenges and little insight and when he refused to engage in treatment or counselling, he was seemingly supported by his family in that decision. This reduces his moral blameworthiness despite the offence itself being morally repugnant. While Mr. Hems still lacks insight into his offending and need for treatment, he attended for assessments at CAMH and Mackenzie Health Centre and is on their waitlists for programs to address his sexual behavior.

60In R. v. Schulz 2018 ONCA 598, the appellant, who was assessed as a low risk for sexual recidivism, was sentenced to 45 days imprisonment to be served intermittently followed by three years probation on his plea to possessing 45 unique images and 155 videos of child pornography. While denunciation and deterrence call for a term of imprisonment, in Mr. Hems' case I find that it need not be what other offenders in a similar position might receive as other offenders do not share the particular makeup that Mr. Hems has been burdened with. Considering his guilty plea, lack of a prior record, cognitive challenges, age, and number and nature of his collection, and circumstances that are unique to the offender and the offence, the appropriate sentence is one of 60 days imprisonment. Whether that could be served by way of a conditional sentence will addressed later on in these reasons.

S.12 and the Mandatory Minimum Sentence for Child Luring

61The Crown submits that the mandatory minimum sentence of six months imprisonment for child luring, to be served consecutively to the sentence for possession of child pornography, should be imposed in Mr. Hems' case. The defence does not disagree that a six month term of imprisonment is appropriate but argues that it should be served by way of conditional sentence order, and the fact that such a sentence is not available under s.172.1(2)(b) violates Mr. Hems' rights under s.12 of the Charter.

62Accepting that a six month sentence is appropriate for Mr. Hems, I must then ask whether the mandatory punishment, which disentitles him to a conditional sentence is grossly disproportionate compared to the fit sentence for either the claimant or for a reasonable hypothetical offender: see R. v. Nur 2015 SCC 15, at paras. 46 and 77.

63The applicant asks me to follow the reasoning of the Court of Appeal in R. v. Morrison [2017] O.J. No. 582 (C.A.) that led the Court to uphold the trial decision declaring the 1 year mandatory minimum sentence under s.172.1(2)(a) to be of no force or effect, and the comments of the majority and dissent at the Supreme Court of Canada 2019 SCC 15 when Morrison came before that Court for consideration.

64The applicant seeks to compare Adam Hems to Mr. Morrison and highlight some of the observations of the Court of Appeal that the appellant in that case did not embark on a systemic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault that would merit a substantial sentence of imprisonment well above the four months he received. There was never any face-to-face encounter and, as the trial judge found significant, there was no indication Mr. Morrison intended to commit a physical sexual offence in relation to an underage child. (Morrison, supra (C.A.), para 131). While I accept that Mr. Hems did not intend to commit a physical sexual assault upon J.R., his communication had all the hallmarks of grooming to persuade her to engage in sexual activity.

65While the majority of the Supreme Court of Canada in Morrison declined to rule on the mandatory minimum sentence issue, Moldaver J. for the majority provided some sense of the issues at play for another day, in contrast to Karakatsanis J.'s dissenting opinion which did not hesitate to wade in on the issue and conclude that s.172.1(2)(a), the 1 year mandatory minimum sentence when the Crown proceeds by indictment, violates s.12 of the Charter. The comments from both sides offer some guidance on a challenge to s.172.1(2)(b). From Moldaver J.:

…Several features of s. 172.1 suggest that the mandatory minimum under subs. (2)(a) is, at the very least, constitutionally suspect. Subsection 172.1(2) "casts its net over a wide range of potential conduct", making it potentially vulnerable to constitutional challenge given the range of reasonably foreseeable applications of the mandatory minimum: Nur, at para. 82; Lloyd, at para. 35. The mandatory minimum attaches to any offence committed under s. 172.1(1), and these offences vary in a number of respects. They include child luring in the context of communications with a person who is, or who the accused believes is, of various ages -- less than 18 years old under s. 172.1(1)(a), less than 16 under s. 172.1(1)(b), and less than 14 under s. 172.1(1)(c). Moreover, s. 172.1's scope encompasses situations potentially ranging from a single text message sent by a 21-year-old young adult to a 15-year-old adolescent, to those involving numerous conversations taking place over weeks or months between a middle-aged mature adult and a 13-year-old child. (para 146)

Subsection 172.1(1) also criminalizes communications sent for the purpose of facilitating a wide array of designated secondary offences. These include, among others, sexual interference with a person under 16 (s. 151), sexual exploitation (s. 153(1)), incest (s. 155), bestiality in the presence of a person under 16 (s. 160(3)), exposure of genitals to a person under 16 (s. 173(2)), aggravated sexual assault (s. 273), and abduction (ss. 280 and 281). The secondary offences vary in terms of their gravity, as evidenced by the fact that Parliament has assigned markedly different sentencing ranges to different offences within this list. For example, a conviction for aggravated sexual assault against a person under 16 carries with it a mandatory minimum of five years' imprisonment and a maximum penalty of lifetime imprisonment (s. 273(2)(a.2)). By contrast, a conviction for exposure of genitals to a person under 16 carries with it a mandatory minimum of 90 days' imprisonment and a maximum of two years' imprisonment where the Crown proceeds by way of indictment (s. 173(2)(a)) and a mandatory minimum of 30 days' imprisonment and a maximum of six months' imprisonment where the Crown proceeds summarily (s. 173(2)(b)) -- these two mandatory minimums are in fact less strict than those established under s. 172.1(2). And certain designated secondary offences carry no mandatory minimum at all. (para 147)

As this brief overview demonstrates, there is considerable variation in terms of the conduct and circumstances that may be caught by s. 172.1(1). Yet, despite this variation, Parliament has not included a "safety valve" in the provision that would allow judges to exempt outlier cases where a significantly lower sentence might be appropriate, making the mandatory minimum provision vulnerable to constitutional challenge: see Lloyd, at para. 36. (para 148)

Moreover, the fact that child luring is a hybrid offence may present additional concerns from a s. 12 perspective. If the Crown proceeds by way of indictment, then the mandatory minimum is one year's imprisonment (s. 172.1(2)(a)). If, however, the Crown proceeds summarily, then the mandatory minimum is six months' imprisonment (s. 172.1(2)(b)). By creating a hybrid offence, Parliament has acknowledged that the offence can occur in circumstances where considerably lower sentences are appropriate. (para 149)

... Child luring is a serious offence that targets one of the most vulnerable groups within Canadian society -- our children. It requires a high level of mens rea and involves a high degree of moral blameworthiness. And while the offence may be committed in various ways and in a broad array of circumstances -- which is generally the case with most criminal offences -- the simple fact remains that in order to secure a conviction, the Crown must prove beyond a reasonable doubt that the accused intentionally communicated with a person who is, or who the accused believed to be, underage, with specific intent to facilitate the commission of a sexual offence or the offence of abduction against that person. Thus, it is at least arguable that a mandatory minimum sentence of one year's imprisonment is not grossly disproportionate in its reasonably foreseeable applications. (para 153)

66Justice Karakatsanis' words in her dissenting opinion are also worth repeating:

…s. 172.1(1) captures a wide variety of communications. The offence can be committed by individuals who use the Internet to target children for the purpose of physically exploiting them or, conversely, by individuals who have no intention of meeting their victims in person. Similarly, the duration of the communication may vary significantly. While, in some cases, the offender will have engaged in an extended dialogue with the victim in order to "groom" him or her, the offence can equally be made out through a short series of messages lasting only a few minutes. As my colleague points out, it can capture a single text sent by a 21-year-old adult to a 15-year-old adolescent or multiple conservations taking place over a long period between a mature adult and a 13-year-old child (Moldaver J.'s Reasons, at para. 146)… These factors may impact the level of harm caused by the offence, thereby informing what constitutes a fit and proportionate sentence (see s. 718 of the Criminal Code). (para 182)

The personal circumstances of the offender and the relationship between the offender and the victim may also vary significantly. Past cases demonstrate that child luring offences are sometimes committed by individuals who are close in age to their victims, by those who suffer from cognitive difficulties or mental illness, and by individuals who were themselves abused in the past (see e.g. R. v. Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70; R. v. S. (S.), 2014 ONCJ 184, 307 C.R.R. (2d) 147; R. v. Crant, 2017 ONCJ 192). These factors may diminish the moral blameworthiness associated with the offence (see s. 718.1 of the Criminal Code). (para 183)

Given the variety of circumstances captured by the offence, it is not surprising that the s. 172.1(1) jurisprudence demonstrates that the fit and proportionate sentence can be significantly less than the one-year mandatory minimum term of imprisonment required by the Criminal Code. Courts applying the Criminal Code's sentencing principles have determined that, in certain child luring cases, a fit and proportionate sanction included lesser penalties: a short period of institutional incarceration of 90 days or less (Alicandro, at paras. 2 and 49; R. v. Read, 2008 ONCJ 732 at para. 29; see also R. v. Dehesh, [2010] O.J. No. 2817 (S.C.J.), at para. 9; S. (S.), at para. 91); a conditional sentence (R. v. El-Jamel, 2010 ONCA 575, 261 C.C.C. (3d) 293, at paras. 2 and 20; R. v. Folino, 2005 ONCA 258, 77 O.R. (3d) 641, at para. 33; R. v. B. and S., 2014 BCPC 94, at para. 42; R. v. Danielson, 2013 ABPC 26, at para. 89); or even a conditional discharge (R. v. Pelletier, 2013 QCCQ 10486 at para. 73). Although some of these cases (Dehesh; S. (S.); Danielson) proceeded by way of summary conviction, they demonstrate that the offence can warrant such sentences. And, as the Nova Scotia Court of Appeal recently noted, in certain reasonably foreseeable cases, a suspended sentence would be appropriate (Hood, at para. 154). (para 184)

67The majority in Morrison, however, declined to rule on whether the mandatory minimum under s. 172.1(2)(a) infringes s. 12 of the Charter, and set aside the Court of Appeal's conclusion to the contrary.

68Between the time of the Court of Appeal's ruling in Morrison striking down s.172.1(2)(a) and the Supreme Court of Canada setting aside that ruling, Wakefield J. dealt with a s.12 challenge to s.172.1(2)(b) in R. v. Randall [2018] O.J. No. 3812 (C.J.). At the time, Wakefield J. observed that "the mandatory one-year minimum sentence for this offence when proceeded with by way of indictment was struck down, but only for indictable elections. The result is that an indictable election lacks any minimum sentence, while the summary election does have a minimum. In other words, the least egregious offender against whom the Crown elects by way of indictment can receive a lower sentence than the same offender on the same facts would receive if proceeded summarily." (Randall, supra, para 4).

69In dealing with whether the mandatory six month sentence would be grossly disproportionate for either Mr. Randall or a reasonable hypothetical offender, Wakefield J. wrote:

I have been provided a number of cases by both Crown and Defence in this application, which are part of the record. However, I agree with Mr. Shulman that the most evocative example is the real life sentencing facts found in R. v. S.S., 2014 ONCJ 184. (para 38)

In S.S., Justice Griffin received a guilty plea on the following facts: Mrs. A.C. on November 8, 2012, reported to the police that her 16 year old son was receiving messages from an older male, S.S., on his Facebook account. These messages included asking the young man to do something of a homosexual nature, such as provide photographs of the young man with his shorts and boxers off, have a shower with S.S., touch S.S., put on a condom. There would be inducements, such as letting the young man drive S.S.'s car, payment of money, provide $200 to buy new hockey skates. S.S. also advised the young man that a person named C.L. would pay money to perform sexual acts with him. The young man in question rebuffed S.S., but S.S. persisted in his messaging. The young man made it clear to S.S. that the sexual invitations were unwanted and S.S. apologized, but then renewed the unwanted invitations. There was never any sexual touching between the young man and S.S. S.S. was 20 years old at the time, with the young man being 16. The time period in question was from early October 2012 through November 12, 2012. (para 39)

70Wakefield J. concluded that the consequences of a minimum sentence to the hypothetical offenders are grossly disproportionate to an appropriate sentence, taking into account the seriousness of the offence which is very high, though inconsistent with the lack of minimum sentences in many of the offences this section is trying to prevent, and found that this minimum sentence breaches s. 12 of the Charter. (Randall, supra, para 51)

71In Nur, the Court held that "the reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are "remote" or "far-fetched" are excluded". The Court distinguished between what is foreseeable although "unlikely to arise" and what is "remote and far-fetched". (Nur, supra, para 68).

72When assessing the proportionality of a mandatory punishment under s. 12 of the Charter, the court must consider not only the punishment on its face, but also the "effects" of that punishment on the offender (R. v. Boudreault 2018 SCC 58, at para 39, 43-44) and includes the "collateral consequences" of the sentence given that such consequences are relevant to the offender's personal circumstances. (R. v. Pham 2013 SCC 15, at para 11)

73The applicant submits that in Adam Hems' particular circumstances before me, as with the "reasonable hypothetical" offender with developmental, including cognitive delays, the collateral consequences of a prison sentence include the individual not being able to cope with the lack of "support" in prison nor deal with the harsh realities of a prison environment.

74It is not far-fetched to imagine an individual who is socially isolated, because of cognitive challenges or intellectual impairments, who operates at a more child-like level, and whose use of the internet is his or her primary source of interaction with the world at large, engages in sexually explicit conversation with a teenager, albeit one under 16 years. His or her actions would be captured by the section and the mandatory custodial sentence that must follow.

75A sexually explicit message by such an individual to persuade their correspondent to engage in sexual activity, whether over a gaming site, or a social media app, or by text or email, would be captured by this section. That does not condone the activity, but does make the mandatory nature of the response, the imposition of a mandatory minimum six month term of imprisonment to be "so excessive as to outrage standards of decency" or "abhorrent or intolerable" to society when the offender, while intentionally engaged in such conduct is someone who is developmentally delayed with significant intellectual challenges but must nonetheless be put into custody to denounce and deter such conduct because a court has no discretion to consider lesser sentencing options that would similarly denounce and deter the conduct.

76When the Court of Appeal struck down the six month mandatory minimum sentence for possession of child pornography in John (supra), the Court observed that "[t]he 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. (John, supra, para 41.) Unnecessary or not, I find that the mandatory sentencing regime is overbroad and grossly disproportionate for the reasonable hypothetical, and violates s.12 of the Charter.

77Where a legislative provision is found to be inconsistent with the Charter, the Crown may demonstrate that the claimed Charter infringement is nonetheless saved by s.1 of the Charter. In the case before me, the Crown acknowledged that it is difficult for the respondent to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s.12 is proportionate as between the deleterious and salutary effects of the law under s.1.

78To justify the constitutional violation, the Crown must show that the infringing mandatory minimum sentence is "rationally connected to the goals of denunciation, deterrence and retribution". (R. v. Oakes). The respondent submits that given the pressing need to protect children, the mandatory minimum sentence of six months in custody for internet luring on the facts of this case, is proportionate and saved by section 1. In my view, that does not answer, however, whether it is the mandatory nature of imprisonment, or the possibility or probability or even inevitability of imprisonment, or whether it is the ancillary orders such as the sex offender registration, that serves to denounce and deter individuals from engaging in child luring.

79The second step in the s. 1 analysis is to determine whether the mandatory minimum sentence provision is "reasonably tailored" to its objectives so that the s.12 Charter right is only minimally infringed. The respondent submits that the repeated expressions by the Courts of the seriousness of the offence and observations that conditional sentences are generally not appropriate for this offence committed against an actual child, that it is reasonably necessary and justified to impose a six month custodial sentence.

80On this point, McLachlin C.J. wrote in R. v. Lloyd 2016 SCC 13: "As this Court's decision in R. v. Nur [supra] illustrates, the reality is that mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence. One solution is for such laws to narrow their reach, so that they catch only conduct that merits the mandatory minimum sentence. Another option to preserve the constitutionality of offences that cast a wide net is to provide for residual judicial discretion to impose a fit and constitutional sentence in exceptional cases. This approach, widely adopted in other countries, provides a way of resolving the tension between Parliament's right to choose the appropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment."

81The final step in the s. 1 analysis looks to whether the deleterious impact of the constitutional infringement is proportionate to the salutary effect of the legislation. The Respondent submits that the weighing of the law on protected rights against the beneficial effect of the law in terms of greater public good that it is an important and pressing public good to protect young children from adult sexual predators on the internet by imposing exemplary penalties. No issue is taken with the goal of the legislation. The issue is whether the net has been cast too wide and captures individuals whose conduct needs to be sanctioned but the mandated sentencing regime leads to the potential for disproportionate application.

82I find that the violation of s.12 of the Charter by the mandatory minimum sentence in 172.1(2)(b) is not justified by s.1, and so I find I am free to impose a fit and appropriate sentence unencumbered by the mandatory minimum sentence, including consideration of whether a conditional sentence is appropriate in this case.

Sentencing for Child Luring

83Both Crown and defence agree that a six month term of imprisonment is appropriate. There are significant qualifications to the defence position, however, since it was posited on the basis that concurrent six month sentences should be imposed for child luring and possession of child pornography, and subject to his successful s.12 challenge, that a conditional sentence is appropriate.

84While denunciation and deterrence are the primary sentencing considerations, that does not preclude the imposition of a conditional sentence. Lamer C.J. wrote, in R. v. Proulx [2000] 1 S.C.J. No. 6, at para 100:

…a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2 (d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.

85Proulx spoke of denunciation through the sentencing process. "[A] sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values...As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass". Lamer C.J. went on to observe that "[i]ncarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances." (Proulx, supra, para 102)

86The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct. (Proulx, supra, para 106)

87Section 742.1 reads: Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (a) imposes a sentence of imprisonment of less than two years, and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.

88Before imposing a conditional sentence, four prerequisites must be met:

• the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
• the court must impose a term of imprisonment of less than two years;
• the safety of the community would not be endangered by the offender serving the sentence in the community; and
• a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

89It is the prerequisite of the safety of the community not being endangered by Mr. Hems serving his sentence in the community that presents the greatest hurdle for Mr. Hems and a conditional sentence. The focus of the analysis is on the risk posed by the individual offender while serving his sentence in the community. (Proulx, supra, para 68) If the sentencing judge is not satisfied that the safety of the community can be preserved, a conditional sentence must never be imposed. (Proulx, supra, para 63).

90The assessment of the danger to the community posed by the offender while serving his or her sentence in the community, must consider two factors: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. (Proulx, supra, para 69) The risk of re-offence should also be assessed in light of the conditions attached to the sentence. Where an offender might pose some risk of endangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence. (Proulx, supra, para 72)

91In R. v. Rafiq 2015 ONCA 768, the Court was asked to revisit the conditional sentence imposed on Mr. Rafiq following his guilty plea to one count of child luring. Amongst other things, the court distinguished the case before it from R. v. Folino and R. v. El-Jamel 2010 ONCA 575 because of the involvement of a real victim and not an undercover police officer posing as a child, but also acknowledged that the nature and duration of the offending was different.

92There can be little argument with the message expressed in Folino that "the offence of child luring must be dealt with seriously by the courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with Internet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded against predators who abuse the Internet to lure children into situations where they can be sexually exploited and abused. In most circumstances involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this offence. (Folino, supra, para 25)

93McMurtry C.J.O. found that Rafiq was one of those rare cases given the appellant's prior unblemished record, support of many members of his community, uncontradicted expert evidence that the risk of repeating this or any other socially acceptable behavior was negligible, that according to phallometric testing he does not suffer from pedophila or hebephilia, he has taken responsibility for his actions, is receiving ongoing psychological therapy and counselling, and a psychiatric assessment that indicated that "any period of incarceration might 'open him up to the risk of fatal dissociation culminating in possible suicide'" and fresh evidence that "any period of incarceration would be extremely harmful to Mr. Folino's mental state." (Rafiq, supra, para 26-30)

94In Adam Hems' case, there is no evidence before me of the possible harm of incarceration on him, but it is submitted that given his intellectual and cognitive limitations and challenges, incarceration will be particularly difficult for him.

95Adam Hems has exhibited highly sexualized behavior since he was 8 years old. Even then it was remarked that he seemed significantly unaware of his behavior. Throughout his time in residential facilities, concerns have been raised about his sexual conduct and risk of offending sexually. In a CAMH assessment he is also reported to have an addiction to pornography.

96Attempts made to explore Mr. Hems' long standing issues with unwanted sexual touching while in treatment failed as he would not discuss the topic and express suicidal thoughts if pressed. Family members were supportive of therapeutic family sessions, but did not pursue appointments. A recommendation to report non-consensual sexual conduct to police to force him to engage in counselling was rejected by his mother and instead the plan was to consult with a doctor if it was needed.

97When Mr. Hems was assessed to look at his potential risk for committing sexual offences in the future and give specific treatment recommendations to address "this worrisome issue", the report concluded that Mr. Hems was a high risk to reoffend sexually. His response to the inappropriate sexual behaviour towards his sister showed his lack of insight. His view was that his family was overreacting. He expressed that "there was not anything wrong with what he did as he did not physically hurt his sister". These reports of him touching his sister sexually were despite being told not to. That same report went on to observe that "it is important to note that there has been a lot of pressure on Adam to not be open about his issues related to inappropriate sexual behaviour as his family has struggled to put this issue "on the table" in an open, honest way, which might have also impacted his ability to participate fully".

98The report also commented on Mr. Hems' understanding of the laws surrounding consent and his acknowledgment that "he knows the law that people are not allowed to have sex with individuals under 16 years old and that people would get charged." His responses, however, also suggested a possible sexual interest in pre-pubescent females.

99What flowed from that assessment were recommendations for treatment at CAMH's Sexual Behaviours Clinic and individual counselling. A referral was made on September 2015 and another referral was made to the Mackenzie Health Program for Assessment and Treatment for Health Sexuality in 2017, and he remains on those waitlists.

100The author of the PSR described Mr. Hems as a "concerning candidate" for a community based sentence. His lack of insight into his offending behaviour along with the lack of current treatment for sexual offending was seen to put him at risk of re-offending. He lacks insight and appreciation of the gravity of his offending.

101The defence argues that Mr. Hems understands his conduct was wrong but does not understand the harm caused and that he needs to be taught boundaries and staying within them and that diminishes his moral blameworthiness. It is argued that Mr. Hems was not engaged in predatory or grooming behavior and that the consequences of a breach if he were to be subject to a conditional sentence are severe.

102The defence refers to R. v. Scofield [2019] B.C.J. No. 22 (C.A.) and R. v. Swaby 2018 B.C.J. No. 3603 (C.A.) where conditional sentences were imposed on individuals with cognitive deficits following successful s.12 challenges. In both cases, the appellate court was dealing with the fitness of the sentence for individuals who had, in one case committed two counts of sexual interference, and in the other, possession of child pornography.

103In Scofield, the judge found that Mr. Scofield's "cognitive disabilities and impaired executive decision-making brought his maturity and reasoning to that of a much younger person well within the five-year age exception in s. 150.1(2.1) and diminishe[d] his moral blameworthiness…Mr. Scofield was intellectually much younger than his chronological age, was intellectually challenged, had psychological and cognitive issues, and was mentally and emotionally immature. (Scofield, supra, para 52)

104The Court noted that "Mr. Scofield met all three DSM-IV-TR criteria for a diagnosis of mental retardation.., placed in the bottom 0.3rd percentile and has an IQ of 59. An assessment of his brain function indicated significant impairment in cognition, core academic skills, executive functioning, memory, communication, adaptive function, and attention and activity level. It also disclosed that he may have mild neurological abnormality in sensory and motor movement and incomplete brain development: para. 35." (Scofield, supra, para 53)

105The trial judge and reviewing court also had opinions from Mr. Scofield's family doctor that his "judgement, insight, ability to understand complex issues and social cues is very limited and the repercussions of some of his actions and behaviours are also not understood and believed he did not appreciate or understand a lot of what he was doing", and from a psychologist who opined that "Mr. Scofield's cognitive deficits influenced his behavior and were a causal factor to him committing the offences". (Scofield, supra, para 54-55)

106The Court in Scofield made reference to Swaby in determining the fitness of the conditional sentence. Mr. Swaby also had significant cognitive and intellectual impairments, as well as other mental health problems, including auditory hallucinations. Against that, his collection of child pornography was extensive and portrayed children, including very young children, in violent and horrific circumstances. Mr. Swaby understood what he was doing was wrong, but did not know "how wrong it was". This led both the sentencing and summary conviction appeal judge to conclude that he had a highly reduced level of moral culpability based on his personal circumstances, and that reduced level of culpability supported their findings that a fit and proportionate sentence would be a Conditional Sentence Order. (Swaby, supra, para 72-74)

107Mr. Hems similarly argues that his cognitive deficits reduce his moral culpability and are mitigating factors that support the imposition of a conditional sentence.

108It is argued that the risk to the community is abated by terms of any conditional sentence order which could prohibit access to the internet, the threat of "real jail" if there is a breach, and his demonstrated compliance with court orders by adhering to the restrictive terms of his bail. It is argued that if the means for him to reoffend are taken away, his access to the internet, then you take away his risk to the community.

109Adam Hems has a history of sexually inappropriate and aggressive behaviour. His mother has had concerns with his sexual conduct and its potential to pose an issue with the law. Those concerns have come to fruition. He has not been able to restrain his sexual conduct to consenting adults nor does he seem to care. Taking from his comments towards child pornography, that "it doesn't matter how old they are, I just [want] to jack off and be done", I find that the same attitude exists with respect to any communication he might engage in over the internet.

110The reality is that almost every means of communication is over the internet, and the only way to manage the risk he presents is to eliminate his access to the internet until he has engaged in treatment to manage his sexual urges. It is just not feasible to eliminate completely his access to smartphones or other computers. His offending in the case before me began through an Xbox console, moved to a live messenger app, and carried on through cell phones. His risk of sexually reoffending remains high. Despite his compliance with the terms of his bail I am not confident that he will continue to be able to remain away from essentially all means of modern day communication and as a result, his risk of sexual re-offending remains high. On that basis alone, a conditional sentence is not appropriate in this case.

111Even if I found that the safety of the community was not endangered by him serving his sentence in the community, I am of the view that this is not one of the rare cases in which a conditional sentence would be appropriate. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, be similar to sentences imposed on similar offenders for similar offences in similar circumstances but must also be tempered by restraint. One needs only to revisit Adam Hems' timeline and his own words to J.R. to understand why his conduct calls for a custodial sentence.

112In December 2017, Adam Hems began communicating with J.R. through an online video game. He initiated contact and continued texting her even when she told him she was in grade 6. His words to her had the classic pattern of grooming. He flatters her, tells her how beautiful and cute she is; all the insecurities that she might have are allayed by his words. He then tests the waters. When she tells him about a dress she wore to a dance, he flatters her with how amazing he imagines she looked in it, and then asks what she is wearing. When told that her she is wearing her bedtime wear, asks for a picture. He tells her how he misses her and sends her hugs and kisses and she responds in kind. He continues to attempt to push the boundaries. An innocent question she poses of what he is doing is met with him telling her he will be showering naked and a question whether she wishes she was with him. In the morning he asks her what she is wearing. When she tells him she is going to take a shower, he tells her he wishes he was with her then asks for a "shower pic". When she declines, he tells her how pretty she is, then persists and begs please just one picture. When she tells her she would only take a picture of her face and hair he wants to know why, wants to know if she will be naked in the shower, and wants a picture after she gets out. Later on he tells her that he likes her and when she tells him she likes him, Mr. Hems goes from alluding to sexual activity to actually sexually explicit comments that she is making him "hard". When she says she is playing with her puppy, he responds "your playing with yourself". He carries on. He tells her he wants to hold and kiss her and wants to know if "[she is] wet down there for [him]" then tells her "I'm jacking off and laying in my bed missing you". He tells her he needs her, that he needs her love, and when asked what is wrong tells her he is "hard" and "needs her female love". All of this escalated over a nine day period. Unbeknownst to him, J.R.'s father assumes her role and, on being invited to send a picture, to who Mr. Hems thinks is J.R., sends one with no shirt and then one of his penis and follows it up with what are quite frankly vile comments to this 11 year old girl, "think you can fit it inside you, are you wet down there and please can I see your tiny pussy".

113Despite his cognitive challenges, Adam Hems demonstrated an insight into J.R's insecurities, allayed them, flattered her, sought to manipulate her emotionally, and gradually prodded and probed to see how receptive she was to engage in sexually explicit exchanges with him. His actions were calculated and intended to slowly move the conversation to one that satisfied his sexual desires. Mr. Hems knows right from wrong. He acknowledged as such when confronted previously with his inappropriate sexual conduct.

114The Crown pointed out the observations of Feldman J.A. in R. v. P.M., [2002] O.J. No. 644 (C.A.). Her words bear repeating: "[Y]oung women entering their teenage years face a myriad of confusing feelings regarding their bodies, their emotions, and their sexuality. It is difficult enough to deal with these issues with a judgmental and often cruel peer group. To exploit a young teenager as this man did reveals a level of amorality that is of great concern." While Mr. Hems may not have the intellectual ability to appreciate, let alone understand the impact of his conduct on J.R., her victim impact statement makes it clear.

The Sentence for Adam Hems

115Mr. Hems, 21 years old at the time of the offence, is a youthful first offender. Incarceration should be a sanction of last resort. The defence argues that while chronologically he is an adult, his social and maturity age is that of someone much younger. "Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases: R. v. Ijam 2007 ONCA 597. Serious crimes provide an exception to the general rule. While all of the principles of sentences remain important, including rehabilitation, for serious crimes, the objectives of denunciation and general deterrence gain prominence.

116The defence stresses that in the particular circumstances of this offence, there was never any face to face encounter, nor any intention to meet, and that such a meeting would be impossible given the victim's age and Mr. Hem's inability to travel on his own. It is submitted that aside from his family, he has little in the way of social supports and he has exhibited sexualized behavior from a very early age that his family has sought to address but also has been hampered by access to resources. Against that is the concession that Mr. Hems has not embraced counselling or treatment, but notes that before these offences he was assessed and is on the waitlist for the Mackenzie Health Sciences program and the CAMH Sexual Behaviours Clinic and is on the waitlist for that too.

117Mr. Hems is a youthful first offender. Despite entering guilty pleas and demonstrating an acceptance of responsibility, he has very limited insight into his offending as illustrated by his comments to the author of the PSR. I recognize, however, that that insight, or lack thereof, is very much a product of his cognitive and intellectual limitations and challenges which are well documented. Sadly, his highly sexualized behavior and high risk to offend sexually was identified very early on, but he has resisted, until late, therapeutic intervention to address his behavior which has targeted and made victims of both his mother and sister. He acknowledges the wrongfulness of his behavior, but minimizes the harm where his sexual outlet is not "physical" but more "voyeuristic". Without intervention, he is, in my view, a high risk to reoffend. His offending with J.R. was calculated and manipulative, something he has done in the past with an email to a female demanding she have sex with him and threaten her if she did not. Non-judicial intervention then had no effect.

118Mr. Hems' conduct in using the internet to lure a child to engage in sexually explicit conversation with him, and also possessing child pornography must be denounced and deterred. While I have talked of his cognitive challenges, they are not so impaired that a conditional sentence of imprisonment in the community is appropriate in his case. To paraphrase his mother's words, he showed his "creative capacity" beyond what she thought he was capable of. It was not a case of him engaging with an intellectual equal. J.R. was explicit at the beginning of his conversation of her age and he presented himself as someone much older.

119I have taken into account Mr. Hems' circumstances in concluding that a six month sentence for child luring is appropriate and that two months consecutive is appropriate for the offence of possession of child pornography. It is a sentence that is lower than what would be imposed on someone who does not share his challenges. It is my view that if the public were aware of Adam Hems' circumstances and the circumstances of his offending, that the sentence of imprisonment would not be seen as "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable". He continues to present as a high risk in the community. Even if there is the potential for the remnant of any sentence being served in the community, such a sanction does not attenuate the risk to the community nor does it provide an effective sanction to Mr. Hems for his conduct.

120There is still the issue of whether Mr. Hems should receive pre-sentence credit for the time he has spent on bail. Mr. Hems spent five days in custody before his release on a surety bail with conditions that included that he not be in the company or communicate with any youth under the age of 16 years unless in the presence of his parents, that he not possess any cell phone pager or personal digital assistant and he not possess or use any computers or any other device that has access to the internet or other digital network. The bail that was supervised by his mother was described as being in practice "virtual house arrest". I accept that Mr. Hems prime, if not sole, means of interacting with others was through the internet and particularly online video games. I also accept that the terms of his bail have been hard for him and he has acutely felt the restrictions, however reasonable they might be, that were placed upon him and he has complied with.

121In R. v. Downes, at para 33-34, the Court wrote that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest. In some cases, the terms of the house arrest may impinge very little on the offender's liberty. Some accused may be allowed to work as usual, take care of their family obligations as usual and in general, see little serious impact on their pre-bail way of life. For others, house arrest may be very difficult.

122While not subject to a term of house arrest by way of judicial order, but parental oversight, Mr. Hems deserves some credit for the 5 days of pre-sentence custody which is the equivalent of 7.5 days and the almost 20 months he has spent under the terms of his pre-sentence bail which included a complete prohibition on him being able to access the internet. I would give him pre-sentence credit of three months.

Conclusion

123Adam Hems is sentenced to six months imprisonment for child luring and two months consecutive for possession of child pornography. The eight month sentence will be reduced by three months as pre-sentence credit. That will leave five months to serve. Aside from a DNA order, SOIRA order for life, s.110 order, for 10 years, and forfeiture of all seized devices, Adam Hems will be placed on probation for 3 years.

124Mr. Hems will also be subject to a probation order for 3 years which, in addition to the statutory terms, will require that he:

• report within two working days of his release from custody and thereafter at such times as places as directed to report;
• have no contact or communication directly or indirectly with J.R.
• attend and actively participate in all assessment, counselling or rehabilitative programs to address issue surrounding his sexual behaviours as directed by the probation officer and complete them to the satisfaction of the probation officer and sign any releases to enable the probation officer to monitor compliance with such assessment or counselling or rehabilitative programs as directed, and provide proof of attendance and completion of any assessments, counselling or rehabilitative programs as directed.
• not possess a cell phone or other device that has access to the internet and any computer or any other digital network with that same access unless in the direct company and supervision of an adult over the age of 21 years.
• not use the internet to communicate with any person under the age of 16 years
• not use or possess any computer or telecommunications device that has any cleaning or scrubbing software installed or that can encrypt devices or saved files;
• upon request of the probation officer, provide forthwith all usernames and passwords or any other codes necessary to access and permit the inspection of any computer systems, electronic devices that have the capability to access the internet, as well as any peripherals, that are possessed or used by Adam Hems to allow for the random inspection of such devices to monitor compliance with the terms of this order.

S.161 Order

125I have wrestled with the terms of a s.161 order, and in particular s.161(1)(d), which restricts Mr. Hems' use of the internet to minimize his risk to children while carefully responding to his specific circumstances (R. v. K.R.J. 2016 SCC 31, at para. 44)

126In Schultz, supra, at para 45, the Court pointed out that "in Perron ([2015] QCCA 601 citation added), the Quebec Court of Appeal considered the reasonableness of a s. 161(1)(d) order in the context of convictions for sexual interference, invitation to sexual touching, and luring. Offences concerning child pornography were not involved. The s. 161(1)(d) order imposed by the sentencing court prohibited use of the Internet for five years except under the supervision of an adult who was aware of the offences committed: at para. 35. On appeal, the Crown submitted that instead of a total prohibition on internet use, the Court of Appeal should substitute a s. 161(1)(d) order that prohibited contact by means of the Internet with persons under the age of 18 years. The Court of Appeal agreed, and it modified the s. 161(1)(d) order to prohibit, for five years, use of the Internet to access illegal content, communicate with persons under the age of 18 years other than immediate family members, or access social media, such as Facebook."

127The Court went on in Schulz to observe:

In Brar, this court set aside as demonstrably unfit and unreasonable a s. 161(1)(d) order that consisted of a 20-year prohibition on Internet use except when "at employment" and on the ownership or use of "any mobile device with Internet capabilities." In its place, this court substituted a 20-year prohibition order along the lines of that imposed in Perron. (para 46)

Mr. Brar pleaded guilty to counts of sexual assault, prostitution of a person less than 18 years of age, and child luring. In substituting a less restrictive s. 161(1)(d) order, this court focused on several factors: (i) the initial order's restriction on the ownership of Internet capable devices fell outside the permitted ambit of a s. 161(1)(d) order; (ii) the order imposed would be particularly onerous on Mr. Brar's ability to secure employment given that it limited access to his place of employment, as well as in light of his occupational history as a computer science specialist and IT technician; (iii) modern life requires some form of access to the Internet for innocent purposes; and (iv) Mr. Brar did not pose many of the risks s. 161(1)(d) was designed to prevent, such as the possession or distribution of child pornography. (para 47)

128In contrast to Schulz, Mr. Hems' risk to children arose not just from his possession of child pornography but by the use of devices that accessed the internet to contact a child and engage in sexually explicit conversations with her.

129Because of his criminal conduct, Mr. Hems has lost the privilege of unfettered access to the internet. I appreciate that his disconnection from his friends even to play video games has been hard on him, however, his criminal conduct started through his communication over a video game played over the internet and then progressed through messenger apps. His connection to underage girls can happen in an instant and he is a danger to them. Against that I have to balance the reality of the central role that the internet plays in people's lives for lawful purposes. Mr. Hems' particular circumstances find him socially isolated with the internet as his primary source of interacting with others. There needs to be a balance, but any erring has to be on the side of the protection of the public; accordingly, Mr. Hems will be subject to the following provisions of s.161 of the Criminal Code prohibiting him for a period of 10 years from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre unless in the direct company of an adult over the age of 21 years;

(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 persons under the age of 16 years;

(c) having any contact, including communicating by any means, with any person who is under the age of 16 years except in the direct company of an immediate family member;

(d) using the Internet or other digital network, unless in accordance with the following conditions:

• not possess a cell phone or other device that has access to the internet and any computer or any other digital network with that same access unless in the direct company and supervision of an adult over the age of 21 years.
• not use the internet to communicate with any person under the age of 16 years
• not use or possess any computer or telecommunications device that has any cleaning or scrubbing software installed or that can encrypt saved files;
• upon request of the Ontario Provincial Police, provide the police forthwith with all usernames and passwords or any other codes necessary to access and permit the inspection of any computer systems, electronic devices that have the capability to access the internet, as well as any peripherals, that are possessed or used by Adam Hems to allow for the random inspection of such devices to monitor compliance with the terms of this order;

130I will make the recommendation that Mr. Hems serve his sentence in a facility that can accommodate his particular needs.