R. v. Dienaar, 2022 ONCJ 196

ONTARIO COURT OF JUSTICE

DATE: 2022 04 26 COURT FILE No.: BRAMPTON 3111-998-20-4049

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EDWARD DIENAAR

Before: Justice K.L. McLeod

Heard on: March 12, 2021, June 4, 2021, January 25, 2022, February 23, 2022 Oral Reasons for Judgment released on: April 26, 2022 Written Reasons released on: April 26, 2022

Counsel: Enoch Guimond, counsel for the Crown Brian Micner, counsel for the defendant Edward Dienaar

K.L. McLeod J.:

1Mr. Dienaar is a 63-year-old man who, today, is being sentenced on two offences under the Criminal Code. The first: a failure to comply with a condition of his Long-Term Supervision Order (“LTSO”) by not reporting to his supervisors that his domestic situation had changed; and the second: for possession of child pornography (“CP”).

2Mr. Dienaar was arrested on March 5th, 2020. He has remained in custody since. The matters were set down for trial for January 25th, 2021; I pre-tried this matter on January 14th, 2021, at which time Mr. Dienaar's counsel informed Crown counsel and myself that his client had changed his instructions and wished to enter pleas of guilt. The impending trial dates were vacated.

3Mr. Guimond for the Crown seeks a sentence of between 10-12 years in total for the two offences (a 3-year consecutive sentence for the breach included). He submits that after Duncan mitigation of 1 year for harsh conditions of presentence custody and 3 years Summers credit, the net sentence should be between 6 to 8 years.

4Mr. Micner, on behalf of Mr. Dienaar, seeks a net sentence of 1 year and suggests that any sentence for the breach should be concurrent.

5After Mr. Dienaar pleaded guilty to these two offences on March 12, 2021, Mr. Guimond, for the Crown, asked for a remand to seek the consent of the Attorney General to apply for another LTSO. That consent was received, and an application was brought on June 4th, 2021 for an assessment under Section 752.2(1) of the Criminal Code. At that time, having convicted Mr. Dienaar of a designated offence under Section 753.1(2)(a), I considered that since he had already been designated a long-term offender and received an 8-year supervision order for exactly the same offence in 2014, there were more than reasonable grounds to believe he might, yet again, be designated to a long term offender order under Section 753.1.

6The assessment was performed by Dr. Mark Pearce and his report dated September 12, 2021, was admitted into evidence. As a result of that assessment both counsel have jointly submitted that a further LTSO should be made; this time for the maximum period of ten years.

7Thus, in this judgment there are two issues for me to determine:

(1) What is the appropriate sentence for Mr. Dienaar for the two offences to which he has pleaded guilty?

(2) Is the proposed Long-Term Supervision Order appropriate and, if so, for what length? While both counsel appear to be agreed that a further ten-year LTSO should be imposed, I am obligated, following the decision of the Ontario Court of Appeal in R. v. Suganaqueb to consider whether the criteria for the designation have been met.

The Admitted Facts

Breach of LTSO

8On September 9, 2015, Mr. Dienaar entered into a LTSO for a period of 8 years, ending on September 28, 2023, for three convictions relating to both possession for the purpose of distribution and possession of CP and voyeurism.

9On March 4, 2020, Stacey McCluskey, a Federal Parole Officer recently assigned to Mr. Dienaar, received a phone call from Mr. Dienaar advising that he and his girlfriend, Jennifer Montgomery, were expecting their second child in August 2020. Ms. Montgomery was already approved to supervise Mr. Dienaar’s contact with his and Ms. Montgomery’s 1-year-old son. Mr. Dienaar did not inform Ms. McCluskey of this pregnancy during a meeting with her on March 3, 2020, because he wanted to wait for his previously assigned parole officer, with whom he had an established rapport, to return from leave which, Mr. Dienaar believed was imminent. Mr. Dienaar had notified the Children’s Aid Society of the pregnancy a month earlier and ultimately, on March 4, 2020, to Parole.

10As a result of this information a case conference was conducted by the Parole authorities at which time it was concluded that Mr. Dienaar had breached a standard condition of release namely to advise his parole supervisor of any change in his domestic situation.

Possession of Child Pornography

11On March 5, 2020, Mr. Dienaar was located and arrested at the Mission Thrift Store where he volunteered. A cell phone and USB drive were found on him.

12On March 9, 2020, Joanna Dykstra, an employee of the Mission Thrift Store, called Mr. Dienaar’s parole officer and advised that Mr. Dienaar had left a black backpack at the store (in a shared lunchroom for all staff) when he was arrested.

13While Mr. Dienaar was in custody, he and Ms. Montgomery had a conversation and spoke about the backpack which had been left at the Mission Thrift Store. When Mr. Dienaar learned that it would not be returned for at least a week, he expressed some concern that people would go through it or steal his possessions. He said that he had medicine and some toys for her in the backpack (meaning sex toys).

14Ms. Dykstra said Ms. Montgomery had been in contact with her several times about retrieving Mr. Dienaar’s backpack, which included Mr. Dienaar’s heart medication. Police were contacted and seized the backpack, which contained multiple storage devices – USBs, SD cards, hard drives, etc. – as well as condoms, dildos, a vaginal speculum, medication (in his name and in the name of others), sexual enhancement pills, and miscellaneous other items.

15Ms. Montgomery had commonly seen Mr. Dienaar with a black backpack and routinely carries one with him.

16Ms. Montgomery told Mr. Dienaar that the police had seized his backpack. At this point Mr. Dienaar indicated to her that he was going to be in trouble, saying “I’m fucked”, “I’m never going to see you again”, and apologized to her. Ms. Montgomery advised police that she had allowed Mr. Dienaar to use eBay on her laptop but only in her presence. On one occasion, however, she had returned to her apartment and found him trying to fix the laptop which was frustratingly slow and he was accessing the website, eBay. The history of the laptop was ‘zero’ and upon her inquiring from Mr. Dienaar, he said “it was just that way”. In a heated argument shortly thereafter, Ms. Montgomery destroyed the laptop and disposed of it.

17On March 12, 2020, while Mr. Dienaar was in custody, his son Jeff, without Mr. Dienaar’s permission or knowledge, attended Mr. Dienaar’s rented room and retrieved his property including valuables. None of these belongings have been returned to Mr. Dienaar or Ms. Montgomery. This was witnessed by Mr. Dienaar’s landlord and confirmed by Jeff. As a result, the police did not seek a search warrant at Mr. Dienaar’s residence.

18A search warrant was executed on 59 devices seized from Mr. Dienaar’s person and his backpack. Two of the devices from the backpack – a Sandisk USB (32 GB) and a high-capacity Seagate hard drive (4 Terabytes) were viewed. The two devices contained 313,482 CP images and 5,098 CP videos (emphasis added). Mr. Micner is his sentencing submissions has indicated that there were in fact 292,589 accessible images, but obviously this is not the size of collection of which Mr. Dienaar was found in possession.

Details of the Child Pornography

19In addition to the two devices containing child pornography, there were also numerous documents associated with the name “Jenn” including Microsoft Excel authored by username “Jenn M”. This username can be set by the user and modified at any time. The username is apparently typically automatically associated to the document when the user saves the file. This username does not require a password and can be easily modified in the Microsoft Excel options.

20The contents of the images and the video are described in an Evidence Overview by Det. Const. Imber #3075 which is included in the Agreed Statement of Facts:

• They include a large amount of bestiality, aggressive, and forced sexual acts including the use of restraints against children as young as infants.
• The majority of the files display young females, engaged equally in explicit sexual acts and images with sexual focus aged between 4-10 years of age.
• Adult Pornography: of the over 175,000 files of child pornography I observed less than 100 files of adult pornography.
• Category 2 Images; almost exclusively, the category 2 files observed contain young teens/early adults engaged in sexual acts and sexualized images. However, due to the clarity of the files and proximity of those observed to 18 years of age it becomes difficult to place an approximate age of the females/males observed.

IMAGES Description : Category 1 Images

• Both female and male children, however, the vast majority include young females
• Age range: Infant to prepubescent, oldest estimated age 12 years old. Majority of images are of females between the ages of 4-10 years of age.
• Large quantity of images of sexualized child nudity such as: modelling in sexual poses and/or clothing, baby and child genital close ups, child masturbation, nude images in positions which look to have been taken during sexual assault.
• Over 2,000 images observed displaying aggressive child bondage sexual acts, including bestiality and the use of limb restraints and facial masks. These acts include females/males aged from as early as infant to 2 years of age. The explicit sexual acts observed contain fellatio, touching, bestiality, adult ejaculation and masturbation.
• The images are split between penetration/sexual intercourse between an adult male/female with a child and images focused on sexualized child nudity.

VIDEOS Description Category 1 Videos

• Display both female and male children, however, the vast majority include young Females.
• Age range: Infant to prepubescent, oldest estimated age 12-14 years old.
• Majority of images are of females between the ages of 4-10 years of age.
• The majority of videos detail explicit sexual acts such as: vaginal penetrative intercourse, fellatio, touching, child masturbation
• A portion of the videos contain bestiality, forced, aggressive sexual acts with young females/males including the use of limb restraints.

The Victim Impact

21Mr. Guimond filed a compilation of Victim Impact Statements (some in video and written form; the others just in writing) from both parents of victims who were still of a young age and of victims themselves, many of whom are now adults. These have been compiled and verified by the Canadian Centre for Child Protection Inc. based in Winnipeg. The parents were asked to share their fears and concerns about their child/childrens' future. They described:

• their child's behavioural issues some often requiring hospitalization, cutting, and the choice of inappropriate friends.
• the parents' fear of their child being revictimized by a different predator, therefore, restricting their child's freedom.
• the knowledge that the images will be forever in the internet domain so much so that it will never be in the past but always in the present.

22The victims who had been identified as being present in the videos not only were traumatized by the actions themselves, but also were asked specific questions:

1. How has the sex abuse you suffered impacted you?
2. How has the existence of images and videos of sexual abuse impacted you?
3. How do you think the existence of images will impact you in the future?
4. How long do you think the problem will last?

23Appallingly some of these victims were abused and filmed by their fathers who were involved in an international child pornography trading ring.

24They identified the following:

• A constant feeling of distrust and anxiety.
• They were suffering from suicidal thoughts.
• One victim thought about child pornography every day.
• One victim considered she had no bright future, no husband no kids, a short time on this earth.
• They could resort to aggression easily.
• They would punish themselves by cutting.
• Many had spent time as an inpatient in a psychiatric setting.
• All were terrified that somebody would identify them in one of the videos and were fully aware that the images were on the internet forever.
• Most had truncated their educational pursuits as they had not been able to focus.
• Many suffered from dissociative episodes.
• A difficulty in forming positive relations.

25While none of these victims have been specifically identified as being in the images which Mr. Dienaar possessed, these impact statements are illustrative of the long-term harm that those who download and view are responsible for. The permanence of these images never allows the victims to truly heal and forget.

26Interestingly it appears that many of these statements are from American victims; and many request a significant sentence for those who are found guilty of possession of child pornography. While these statements themselves are admissible, the Criminal Code of Canada mandates by Section 722.1 the following:

the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

27Therefore, while the submissions as to sentence are not to be considered by me in deciding the appropriate sentence, they are clearly a logical reaction to the awful criminality that is involved and one that is reflected in the imprimatur from the Supreme Court of Canada in R. v. Friesen.

28Frankly a review of these statements brings home the truth of what so many judgments in this province and country have repeatedly opined are the effects of this offence. The making of such horrendous images is treated differently in terms of sentence; but the downloading and watching of these images - however dated they are - perpetuates the market and endangers the health and safety of the young"graduates" of this horror who live with the likelihood that someone somewhere will recognize them, years from now, as being in this video/image. These indelible images serve as a constant reminder in graphic fashion of the abuse for those who are forced to deal with the horrendous psychological and psychiatric effects of being subjected to this abuse.

The Background of Mr. Dienaar

29Mr. Dienaar was born in Ontario, however, his parents led a worldwide peripatetic life, which was dependent on his now-deceased father's job as a mechanical engineer. His mother now lives in the Netherlands and, at 86, is suffering from dementia. Mr. Dienaar's sister also lives in the Netherlands and so far as he is aware, does not know of his incarceration.

30In terms of employment, Mr. Dienaar worked in accounting in the Netherlands, he was scripted into the army there. He served in Lebanon for 6 months during the time when the PLO were most dangerously active.

31In terms of his domestic life, Mr. Dienaar’s first wife died in the early 2000's of breast cancer, leaving him with their three boys who were born in 1989, 1994 and 1997. Not surprisingly because of the nature of his offending, Mr. Dienaar presently has a strained relationship with all of his children and presumably his two grandchildren.

32Mr. Dienaar's present partner, Jennifer, is the mother of his now two children and is 24 years younger than he and is the daughter of his previous partner although that former relationship had finished before the present relationship commenced. Jennifer is supportive of him.

33In terms of his health, Mr. Dienaar had a subarachnoid hemorrhage with hydrocephalus for which he received a brain shunt in 2019. He also contracted the COVID virus while in custody and was quite unwell.

34With respect to support in the community, while it appears that Mr. Dienaar has not had any communication with his older sons while in custody: he does have the support of the mother of his two younger children and her mother Lynne. Ms. Jennifer Montgomery says she is fully aware of Mr. Dienaar's past and is supportive of his reintegration. She says she has grown during his time in custody and categorically states she will not to be manipulated by him if he doesn’t follow through and do what he needs to be done. She says if he fails, she will end their relationship.

35Ms. Lynne Montgomery also adds her voice of support in a letter filed by Mr. Micner. She feels that Mr. Dienaar is not a risk to her daughter and grandchildren and that he is a "good guy who has made poor choices in the past". She also says that if she ever felt there was any harm coming from Mr. Dienaar to her family or that he was going back to his old ways she would "make sure he goes back to prison".

36Mr. Dienaar has also apparently been a participating member of Brampton Prison Ministry both in and out of custody. Marco Mallia, the Director of that organization, and Reverend Mark Stephen, both have written indicating their knowledge and support of Mr. Dienaar when he is released from custody.

37While in custody, despite the lockdown, Mr. Dienaar has managed to complete 25 courses with New Life Ministries with an average mark of 97% plus a number of other courses with Cross Roads and Gospel Echoes Team. This obviously is a credit to him and an example of the diligence with which he can apply himself, even in the most difficult of living situations: all of which augurs well for a possible crime free existence.

38Given Mr. Dienaar's criminal history; it is not surprising to learn that he was sexually abused over different periods of his adolescence in different countries. Mr. Dienaar describes himself as an addict of eating, hoarding and sex. He sees this admission as a new step in the road to recovery and now admits them and says: “I need to fix my addiction, chemically or any way I can fix it”.

39I will now turn to the dominating factor in this sentencing: Mr. Dienaar is far from a first offender: He was convicted in 2007 for possession of child pornography. He received a 9-month conditional sentence plus probation on top of 40 days of pretrial custody. He had 1524 images of CP on his computer, of which about three quarters were of pre-pubescent children, the rest of teenagers.

40One of his conditions of bail was not to be in the company of teenagers under the age of 14. In 2006, he was found in a car with his two children and no surety. He was also found in possession of a thumb drive which provided access to pornography including females depicted as younger people. He was charged with breach, spent 20 days in custody and his two children were made crown wards.

41In 2014 Mr. Dienaar was given a 15-month sentence after being given credit for 802 days of pretrial custody and the LTSO for 8 years. He was convicted of possession for distribution of CP, possession of CP, and voyeurism. Amongst the 8,126 images and 471 videos of CP, was a video taken surreptitiously of this then girlfriend's daughter, aged between 11-13, being undressed by her mother. In serving his remnant 15 months, Mr. Dienaar was admitted to OCI.

Mr. Dienaar’s explanations according to Dr. Pearce about his offending and whether he will reoffend.

42Dr. Pearce reports the following with respect to Mr. Dienaar’s treatment at OCI:

His experience there was "different. I was still in denial. I was thinking that the therapy at the OCI would help me...but I still didn't believe I was attracted to that. I didn’t want to believe it". He said he participated in but did not quite complete sexual offender treatment "as I was out before I could finish it". [5]

43Mr. Dienaar’s explanation to Dr. Pearce for his current reoffending and future was:

When asked about the index offences, Mr. Dienaar said he “stayed away from” CP for “a long time. But then I came across it again online and I started acting on it.” That is, he started accumulating CP over the span of half a year or so. He masturbated to it at times, “but I still had that problem.” That is, he had some trouble achieving and maintaining an erection. When asked, he did not think he was more aroused to the CP than his partner or adult-themed pornography. He procured “quite a bit” of CP, “as I just kept on, kept on, kept on. I had probably seen only 1% or 2% of it. Most of it was uncompiled so I have no idea what was on it.” He procured the CP through “a website you could go on. Several websites, they would go from one to the other to the other. It wasn’t peer-to peer.” He learned about locating CP this way after “coming across it. I can’t remember how [at first]. Once I learned about it… It was called Channel 144… I went back to my old ways. Once I did come across it, it was my downfall. I didn’t search for [CP] though.”

Mr. Dienaar agreed that he was subjected to a LTSO at the time of the offences. He realized he could get into trouble, “but I had lost my job. I had a hemorrhage. My kids didn’t really want anything to do with me. I got a feeling that I didn’t deserve to live.” When reminded he had a partner and a young child, he said, “My addiction took over. I didn’t realize how much she did for me or how much she meant to me. My addiction got the better of me.”

When asked if part of him is attracted to children, he replied, “I would say so.” He had recognized same “probably…since I’ve been in here. I realized that there must be something. I don’t like the idea [of that attraction] but that’s the way it is.” When asked what treatment he needed, if any, he replied, “Could be chemical. That might be one of the ways to go. I need to deal with my issues, that would be part of it. Really delving into what makes me tick and why it makes me tick the way it does. Once I know what makes me tick, and why, then I can deal with counteracting that or not going that route.”

44In terms of Mr. Dienaar’s insight and appreciation of what he has to do in the future, Dr. Pearce reported: [6]

When asked how he had been treated by the judicial system, he felt that his prior conviction and LTO designation was “a bit harsh and severe. I know now they’re trying to get me on a DO but I don’t understand that. I don’t see myself as being a risk to society. I know I have re-offended but I don’t want to come back in here. I want to live my life peacefully and with my family, if possible. I want to be an example to my sons… That’s my goal. That’s what I want in life. I want to stay away from things that would put me in a bad position again. Like no computers, no internet access or anything like that. No pornography, no movies or magazines or anything like that. Those are things I want to deal with when I’m going through therapy or medication or whatever it is. Whatever I need for. Whatever I can do to stay on track, that’s all I want.” In that regard, he said he would take high-potency, libido-reducing medication even though it would affect his sexual relationship with his partner. When asked why an LTSO did not prevent reoffence and why he should be given another chance, he replied, “I don’t know. I just need another chance. That’s all I want is one more chance. I’m not going to fucking blow it this time. I was in denial before. I’m not in denial anymore. I didn’t want to believe it before.” He said that potent sex-drive reducing medication was never recommended to him in the past.

When asked what he requires in order to succeed, Mr. Dienaar replied, “Therapy that’s for sure. I need a good support system, which Jen is going to be the main one for me. The church will be there too. I want to tackle these issues and not go back to it. The trouble is, I’m very ashamed of it. That puts me into a depression and it is like a vicious cycle. I’m ashamed of what I am or how I think or what makes me tick. I’m ready to deal with this now. I wasn’t before.”

When asked whether he presented any risk for re-offence, Mr. Dienaar replied, “No. Honestly, no. I know I’m going to lose everything this time. My kids, Jen, everything. With all that she’s done and all that she’s put into it, I can’t hurt her like that. I’ve hurt her already and I can’t do it again.”

When asked why he didn’t discuss his problems with his PO, he stated, “I was afraid to… I was honest with them a few times, but it just bit me in the ass.” He could not provide specific examples. Nonetheless, he planned on working with his PO going forward and said he would abide by terms imposed. When reminded he had repeatedly had trouble following conditions, he said, “My main goal is to be with my wife and kids. I don’t want to do this again or come back in here. I want to change my life around. I want to be someone they can look up to. I can’t come back in here.

The conclusion of Dr. Pearce as to Mr. Dienaar’s risk of reoffence for the purpose of the consideration of an LTSO.

45Dr. Pearce was unable to conclude that Mr. Dienaar suffered from a major mental disorder however found that he did meet the criteria for pedophilic disorder and voyeuristic disorder. Furthermore, Dr. Pearce found that Mr. Dienaar had traits of personality disorders namely antisocial, narcissistic and histrionic disorders. Apparently, this finding of personality disorders across the spectrum is known as “Cluster B” traits.

46Mr. Dienaar has undergone two separate episodes of phallometric testing: one in 2014 which, according to Dr. Pearce's report, was "not conclusive”. He was noted to be avoiding the test's visual stimuli and was making small movements. He suppressed his responses. The second episode was in 2015 when Mr. Dienaar admitted some attraction to children and was diagnosed as having bisexual pedohebephilia. [7]

47In terms of actuarial risk assessment for sexual recidivism, Dr. Pearce conducted both the PCL-R and the Static -99R tests. On each of Mr. Dienaar’s tests, the scores were low thereby suggesting a low risk to reoffend. [8]

48Dr. Pearce considered overall Mr. Dienaar to be in a moderate risk category for sexual recidivism.

49In terms of going forward Dr. Pearce opined that Mr. Dienaar: [9]

…. most certainly (emphasis added) requires long-acting, potent anti-libidinal medication when in the community. Other means of attempting to risk manage him have not been successful, despite favourable reports from his treatment providers. His insight remains limited despite his history and his self-report is unreliable. During the interview he was amenable to anti-libidinal therapy if recommended but that the same time, it is hard to know how much weight to place on what he said.

In conclusion, if treated with potent, injectable anti libidinal medication, given his age and co-morbid medical conditions there are some reasons for optimism in treating/managing Mr. Dienaar's relevant diagnoses.

50And as to the ultimate question: the probability of future offending, Dr. Pearce said this [10]:

……risk assessment also involves speaking to imminence, frequency and severity of re-offence. In these domains, we are left with clinical judgment alone. In examining Mr. Dienaar's pattern of offending, it is worth remembering that he has not committed a "hands on" offence. As opined by Dr. Klassen several years ago, he is unlikely to. However, he has repeatedly turned to procuring CP, usually after avoiding doing so for a couple of years. Overall, if he does re-offend, he is most likely to do so by downloading CP or perhaps, in the alternative, producing voyeuristic content.

Overall weighing the aforenoted considerations, as best as I am able to predict, Mr. Dienaar is in a moderate risk category for sexual recidivism.

51With that Dr. Pearce declined to assist with any opinion as to whether a dangerous offender designation should be made. In discussing the possibility of an LTSO, he concluded:

...there may be reasons for optimism that this gentleman will be manageable in the community while subjected to an LTSO and after the expiry of such an order. In my opinion and from a purely psychiatric perspective, I am able to conclude that there is a reasonable expectation of eventual control of Mr. Dienaar's risk in the community.

52Finally, Dr. Pearce made a number of helpful recommendations as to the needed structures and conditions for Mr. Dienaar to follow while in the community [11].

Principles of Sentencing

53Sentencing obviously is within the discretion of the trial judge with the fundamental purpose being to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: the overall objective to impose a just and appropriate sentence that balances and reflects the gravity of the offence and the moral blameworthiness of the offender. [12]

54The purpose of sentencing must fulfill a number of factors: to serve as both general (to the public) deterrence for the commission of such an offence, specific deterrence to deter this offender both of which are of primary concerns in this case, to denounce his actions and evaluate the prospects of rehabilitation.

55Furthermore, any impact on the victim must be considered and in this case: that is a significant factor. While the impact can be assumed, the number of victim impact statements filed from victims of the abuse brought about to achieve the images of child pornography and the parents of those children really accentuate the lifelong harm that the downloading and observation of such images perpetuates. I am also mindful of the provisions of Section 718.2(b) of the Criminal Code particularly the following:

• a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (principle of parity of sentence)
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (principle of totality of sentence).

Sentencing as it relates to Child Pornography

56That fundamental principle of sentencing: to protect society, is one that the Supreme Court of Canada in R. v. Friesen spoke to. The need for the protection of children led the call for judges to recognize the lifelong harm that is perpetrated by those who abuse children both actually and in child pornography offences.

57All nine members of the Court spoke with one voice on the area of child sexual abuse and sent an unequivocal message: those sexual offenders, where their victims are children, are to be dealt with more severely than in cases of sexual abuse where an adult is the victim. The offender’s degree of responsibility is higher when it is an offence committed against a child.

58Twelve years ago now in Her Majesty the Queen v. D.G.F., Justice Feldman, speaking for the Ontario Court of Appeal in a sentencing matter, noted that as technology improves in efficiency so does the incidence of CP; evidence at that hearing indicted how easily accessible it is by the touch of a button. I believe I can take judicial notice of that fact that as the years pass, so does the speed and accessibility of everything on the internet; sadly CP sites must be included.

59That fact is borne out by the comments in R. v. Inksetter. Mr. Inksetter was convicted of the offences of possession and make available of CP. The very first sentence of the appellate judgment states this:

The respondent, Mahlon Inksetter, amassed one of the largest and worst collections of child pornography that the Ottawa Police Service had ever uncovered.

60The collection is described in the judgment as follows:

The police identified 28,052 unique images and 1,144 unique videos of child pornography on the respondent's computer and various devices. At that point, they halted their investigation, even though there were still 1.2 million other images and 40,000 other videos left to review and categorize. Detective Carr testified that the respondent's collection -- which was amassed over several years -- was among the top one or two most difficult collections she has ever had to review. Ninety-five percent of the material depicted actual penetration and other explicit sexual activity. Some of the images of explicit sexual activity involved children as young as one-year old. The images included bondage and bestiality. The respondent organized his collection in hundreds of folders, named in a manner consistent with their contents.

61The Court, while concurring with the sentencing judge that the principles of specific deterrence and rehabilitation had been met by Mr. Inksetter before sentencing, the principles of general deterrence and denunciation for this first offender who had pleaded guilty, were not given sufficient weight in the sentence imposed of two years less one day plus probation. The Court imposed a sentence of 3 years on the possession of child pornography and 3.5 years on the make available to run concurrently.

62Obviously, the number of images and videos found on Mr. Dienaar's devices are vast and not only make the first paragraph of Inksetter appear to be horrifically outdated but also the portentous words of Justice Feldman in D.G.F. concerning the ease of access, understated.

63Mr. Micner has referred to a number of cases which have dealt with offenders who have also had large collections: R. v. Blatchley where the court referred to the 1.3 million images found on the offender's computer: "much of it being child pornography”. A four-year sentence was imposed which included a three-year sentence for distributing and a one-year sentence for child pornography.

64Also, more recently, in R. v. Marquardt, Justice Boxall of the Ottawa Court imposed a sentence of 3.5 years for possession of 76, 000 images and videos and also a make available offence. Justice Boxall imposed a sentence of 3.5 years on each offence concurrent to each other. He did not in any substantive way distinguish the seriousness of the two delicts, rather focused on the size and nature of the collection for this 51-year-old offender who had no record, was suffering from some mental health issues, particularly over the death of his son.

65All cases are unique, those unique factors in the case of Mr. Dienaar really differentiate the facts of the sentences referred to by both counsel in particular in evaluating the seriousness of this offence, I must not only consider the size of the collection (R. v. Kwok) but I also have the unenviable task of considering how depraved on a scale of depravity the images found on Mr. Dienaar’s devices fall. I have not seen the images, but I have read the descriptions of a representative sample of the images, they range from pointed exposure of the genitalia of children to horrific images of bondage, bestiality, fellatio and other types of abuse of babies and young children. The written descriptors are enough to mandate a finding of some the most depraved I have read in my entire judicial career.

66Also, there is the issue of Mr. Dienaar’s previous record: he is a persistent offender and in fact has been convicted twice before for child pornography offences: the last conviction in November 2014 where he received the equivalent or 3.5 years and was on a LTSO.

Sentencing as it relates to the breach of the long-term supervision order

67Mr. Guimond advocates for a consecutive sentence; Mr. Micner who describes the breach as a "technical" one submits a concurrent sentence is appropriate. Mr. Guimond, however, argues that the additional factors read in on the plea including a number of other infractions: the possession of the child pornography, and the accessing of a computer to download the images, justifies a 3-year consecutive sentence.

68In R. v. Ipeelee the Supreme Court of Canada examined the principles that govern sentencing of offenders for breaches of LTSO and articulated as follows: long-term supervision, as a form of conditional release, has two specific objectives: protecting the public from the risk of re-offence; and rehabilitating the LTSO and reintegrating him or her into the community.

69Breaches of differing seriousness must be distinguished. Not all breaches should in of themselves receive significant sentences. The severity of a breach of a LTSO depends on all the circumstances, including the circumstances of the breach, the nature of the condition breached; and the relationship between the condition breached and the management of offender's risk of re-offence.

70All the sentencing principles contained in ss. 718.1 and 718.2 of the Criminal Code must be observed in furthering the overall objectives of sentencing. Proportionality is still key to sentencing for a breach of an LTSO in order to devise a sentence that furthers the overall objectives of sentencing.

71Included in the circumstances of Mr. Dienaar's breach is the fact that he had reported the pregnancy to the CAS a month prior to telling his supervisor, although even that was tardy given that Ms. Montgomery revealed that “they had known she was pregnant for several months”. [25]

72I agree with Mr. Guimond that the other circumstances of Mr. Dienaar’s breach are certainly an aggravating factor: the surreptitious accessing of the computer to obtain child pornography. However, the breach that he in fact pleaded to out of the three with which he was charged, was the most benign.

73I disagree with Mr. Micner that the breach of a long-term supervision order should be a concurrent sentence; it is an entirely separate delict, however, obviously the requirements of the principle of totality found in Section 718.2 are a factor.

The Aggravating and Mitigating Factors

74I will now turn to the aggravating factors of this offence and this offender:

(a) The size of the collection which is massive. (b) The nature of the collection which is at high end of the depraved scale. (c) The fact that Mr. Dienaar is already a twice convicted offender for child pornography. (d) He was on a LTSO because of his record of like offences. (e) He made a number of attempts to safeguard the backpack containing his collection from the prying investigation of the police, in particular asking his girlfriend and the mother of his young son to pick up the backpack while describing its contents as merely medicine and sex toys for her. (f) Mr. Dienaar was fully aware of the seriousness of his wrongdoing: his conversation with Ms. Montgomery once he knew of the police seizure of his backpack: “I am never going to see you again .. I’m fucked” is evidence of that. Thus, in full knowledge of the risks he was taking, he still indulged his predilection. (g) Mr. Dienaar still has limited insight: his mystification at why a further assessment under the dangerous offender legislation has been ordered: "I don’t see myself as a threat to society". This statement is an example of the fallacy of perception of the innocuousness of just watching these images and in no way considers the real damage done to the children. (h) The Victim Impact Statements are real evidence of that damage and must be considered an aggravating factor. (i) Any breach of any condition of a long-term supervision order is serious: Mr. Dienaar purposely chose not to report his impending fatherhood to his supervising officer, he does not get the choice of the personality to whom he must report.

75I will now turn to the mitigating factors:

(a) Mr. Dienaar pleaded guilty although the case against him was strong and his plea was shortly before trial, however, it is an indication of remorse. (b) Mr. Dienaar seems to have some insight as to the depth of his problem and appears willing to take the medication and therapy he needs to assist him in his rehabilitation. (c) Mr. Dienaar is not a young or a well man, he has a number of ailments including high blood pressure, the aforementioned brain shunt, and seizures. (d) Furthermore, he was assaulted while in custody and received a broken nose and black eyes. (e) Mr. Dienaar has some support in the community.

76I will now turn to one significant aspect of any sentencing: that is the mitigation of the custodial ramifications experienced during the COVID-19 Pandemic and the related principles espoused in R. v. Duncan which permits a consideration of conditions of hardship of pretrial custody in the overall sentence.

77Mr. Dienaar was arrested on March 5, 2020 (the Crown's factum on sentence indicates the date of arrest was April 23, 2020: that is an error). He will commence his sentence on these offences on April 26, 2022, a total of 782 days.

78With respect to appropriate mitigation for serving his sentence during the time of COVID, Mr. Guimond suggests that Mr. Dienaar's sentence should be reduced by one year to account for the difficulties of incarceration during that period of time.

79Mr. Micner suggests that Mr. Dienaar should receive the following deductions (separate from Summers credit for the numerous often consecutive day lockdowns in the following manner: 1.5 days of credit for each full day of lockdown (307 days); 0.5 of a day for each partial day of lockdown (32 days); COVID Credit: .5 for each 720 days of COVID custody.

80It should also be noted that from the 15th of September to the 3rd of November, Mr. Dienaar was transferred to Hamilton Wentworth Detention Centre and from the records that I have reviewed all but 16 of those days he was in a cell for two with three men. = 33 days of triple bunking.

81Jail conditions during the COVID Pandemic have become a matter of notoriety or "judicial notice" see R. v. Morgan.

(a) Social distancing is not possible. (b) Masks and other personal hygiene matters were not provided. (c) Lockdowns were frequent, days and sometime months long. However, lockdowns in Maplehurst also occurred before the declaration of a Pandemic and have long been a feature of life as an inmate in Maplehurst due to staff shortages. However, the frequency and longevity of day after day lockdowns became a common feature during the Pandemic. (d) Visits were non-existent. (e) Defendants had limited contact with their lawyers due to both lockdowns and an inability to use the phone. (f) Programmes were limited. (g) Maplehurst in particular was in outbreak status and lockdown mode. According to the Ministry of the Solicitor General records filed on request of Mr. Micner: 264 inmates and 97 staff between March 1 2020 and November 18, 2021 contracted COVID: one of those was Mr. Dienaar who was most unwell.

82Until May of 2021, sentencing courts engaged in an unstructured mathematical analysis of determining Duncan credit and deducting that amount of credit in the same breath as Summers credit. R. v. Marshall changed that by recategorizing Duncan credit as a mitigating circumstance:

The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

Often times, a specific number of days or months are given as "Duncan" credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the "Duncan" credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the "Summers" credit. (emphasis added) If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge's calculations, the "Duncan" credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.

Conclusion on the sentencing for the two substantive offences

83As indicated Mr. Dienaar has served 782 days in pretrial credit. Thus, he will receive a Summers credit of 1173 days = 3 years and 2 months and 15 days.

84The size of Mr. Dienaar's collection; the egregiousness of the contents, his related criminal record and the fact that he was already on a long-term offender order, I believe leaves me with a range of sentence for the child pornography offence that is much higher than any of the sentences imposed in the cases provided to me. However, given the balancing that I must do weighing the principle of proportionality, the hardship of pretrial incarceration, the other mitigating circumstances and the principle of totality, I will impose a sentence of six years on the possession charge and one year and 3 months consecutive on the breach.

85Going forward, therefore, after deduction of pretrial credit, Mr. Dienaar will serve a 4 years and 15 days. I am recommending that he be given access to programmes that deal with sexual offending, its effects and the need for long term solutions to such offending.

86I will now turn to the issue of the joint recommendation for the imposition of a long-term Supervision Order.

Is a second LTSO appropriate and is so for what period?

87The Criminal Code provisions are as follows:

Section 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted. (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community.

(2) The court shall be satisfied that there is a substantial risk [30] that the offender will reoffend if

a) the offender has been convicted of an offence…Section163.1(4) (possession of child pornography [31]) ; and (b) the offender (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

(3) If the court finds an offender to be a long-term offender, it shall

(a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and (b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years or life

88Thus, I make the following findings on the evidence.

89Mr. Dienaar must receive a sentence in excess of two years (before any credit for pretrial custody) for the large and offensive collection of child pornography [32]

90The Code mandates in order to impose an LTSO I must find there is a substantial risk he will reoffend because (a) his criminal record is evidence of the fact that he has shown a pattern of repetitive behaviour, which behavior shows a likelihood of inflicting severe psychological damage on other persons; or (b) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

91While Mr. Guimond submits Sub (b) is apposite, I agree, but also consider that (a) is as well. The Victim Impact Statements are clear evidence of the evil, injury and pain caused by those who continue to perpetuate the market for child pornography. Dr. Pearce opined there was a medium risk to reoffend and given Mr. Dienaar's thus far proven inability to resist child pornography, there is a likelihood that he could do it again.

92However, given Mr. Dienaar's age, remorse and readiness to take drastic steps (i.e., the medication recommended by Dr. Pearce to inhibit his obsession), I am able to find that there is a possibility of eventual control of the risk to the community.

93Therefore, at the conclusion of his sentence of imprisonment Mr. Dienaar will enter into a supervision order for the maximum period of time: that is 10 years during which time he will observe the following conditions:

i. Not to own, use or possess a computer, as defined in s. 342.1 of the Criminal Code, or any technological device, that would allow you unsupervised access to the internet except for employment purposes with direction/approval of your parole supervisor. ii. Not to be in, near, or around places where children under the age of 16 are likely to congregate such as elementary and secondary schools, parks, swimming pools and recreational centres unless accompanied by an adult previously approved in writing by your parole supervisor. iii. Not to purchase, acquire, possess or access pornography or sexually explicit material in any form or type of media except with the approval of your parole supervisor. iv. Not to be in the presence of any children under the age of 16 unless you are accompanied at all times by an adult over the age of 21 who knows your criminal history and has previously been approved in writing by your parole supervisor. v. Immediately report all intimate sexual and non-sexual relationships and friendships with females to your parole supervisor. vi. He should be referred for longitudinally-bases “booster” programming once he returns to the community, to bolster the effects of institutional programmes. vii. He should be assessed by a psychiatrist in the community and if recommended prescribed a potent, injectable, long-acting anti-libidinal medication until no longer required as recommended by the psychiatrist.

94Additionally, Mr. Dienaar will be subject to a Section 161 Order under the Criminal Code for life with the following prohibitions:

(a) He will not attend any schoolground, daycare centre, playground, or swimming pool where persons under the age of 16 years are reasonably expected to be present unless in the company of an adult over the age of 21 who is aware of this order. (b) He is prohibited from 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) He is prohibited from using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years. (d) He is not to access the internet or use any device capable of accessing the internet or any similar communication device while in the presence of a person under the age of sixteen. (e) Under any circumstances, he is not to use any telecommunication device to access the internet or other digital network in order to:

• access or possess child pornography or pornography depicting acts that are illegal under the Criminal Code of Canada;
• possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner; or
• access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material. (f) He is not to use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet.

95Section 487.051 of the Criminal Code mandates an order that Mr. Dienaar provide a bodily sample for admission to the DNA databank. Possession of child pornography is a primary designated offence, breach of the LTSO is a secondary designated offence.

96Section 490.012 requires Mr. Dienaar to comply with the reporting requirements of the Sex Offender Information Registration Act for life.

97Finally, a forfeiture order will be made; this is on consent: that all of Mr. Dienaar’s possessions and devices seized as a result of his arrest will be forfeited.

98The Victim Fine Surcharge is waived; given his age, his pretrial custody, and the length of his sentence, I find that Mr. Dienaar is unable to pay these fines.