Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 01 14 COURT FILE No.: Central East Region: Oshawa Courthouse File #:20-35299

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOSEPH BIAGIO TRENTADUE

Before: Justice Peter C. West

Heard on: June 16, 2021; November 26, 2021

Reasons for Sentence released on: January 14, 2022

Counsel: Ms. H. Cook, counsel for the Crown Mr. S. Khehra, counsel for the accused Biagio Trentadue

Introduction

WEST J.:

[1]

Introduction

Biagio Trentadue pleaded guilty on June 16, 2021, to a single count of accessing child pornography pursuant to s. 163.1(4.1) of the Criminal Code. The Crown proceeded by indictment on this charge.

2After Mr. Trentadue’s guilty plea I ordered a presentence report (PSR), which was marked as Exhibit 1 on November 26, 2021 when I heard submissions by counsel respecting the appropriate sentence to be imposed. Mr. Khehra provided me with numerous letters and reports in a bound Defence Sentencing Materials, which were marked collectively as Exhibit 2. These materials included a letter from Dr. Adisa A.A. Azubuike, Ph.D., C. Psych, dated March 12, 2021; a letter from Mr. Jaime Rosenberg, Payroll & HR Specialist, Keilhauer, dated July 23, 2020; a letter from Betzalel Wolff, Registered Psychotherapist, dated March 7, 2021; a letter from Ms. Emily Greenop, Family Services Worker, Durham Children’s Aid Society, dated July 2, 2020; a Certificate of Completion from Metamorphosis Centre for Change, dated October 15, 2021, signed by CEO-Frank Mazzawi; a letter from Megan Phillips, Registered Psychotherapist with Phillips Psychotherapy Services dated November 18, 2021; a Psychiatric Evaluation by Dr. Sean Prabhu, M.D., DABPN, Consultant Psychiatrist, dated September 19, 2021 and a letter from Ms. Laura Duplantis, Mr. Trentadue’s wife, undated. Joseph Biagio Trentadue also wrote a letter to the Court, undated, which was marked as Exhibit 3.

3The agreed statement of facts was fairly brief and involved police being advised on February 24, 2020, by an electronic service provider Pinterest of an upload of one image of child pornography by user account “treet12” from IP address 99.248.58.173 on December 6, 2019. The email associated with the account was trentadue@rogers.com. The image was of a girl approximately 10 years old drinking a glass of semen. The facts did not indicate that the child was undressed. Mr. Trentadue was charged on June 19, 2020.

4DRPS identified the subscriber of the IP address to be that of Mr. Trentadue’s wife. This email address was also registered with the Ontario Sex Offender Registry as part of Mr. Trentadue’s reporting, advising he was the owner of the account. A search warrant was executed at the residence where Mr. Trentadue lives with his wife and 6 year old daughter. It was determined that only Mr. Trentadue had access and used the email address, which had accessed the image of child pornography. Mr. Trentadue was arrested on a charge of accessing child pornography.

5A number of devices were seized from the residence for forensic analysis. The image described above was not located, however Pinterest activity and the account information was located indicating that Biagio Trentadue was the holder of that account that had uploaded the image. Mr. Trentadue had screen shots of “sexual addiction counselling and notes of self motivation-no porn/avoid trigger, no escorts, zero taboo porn.” There were search terms found which suggested Mr. Trentadue had been actively searching out child pornography but no images or videos were discovered through the forensic analysis of his cell phone and as a result there was no evidence presented of any images or videos of child pornography found on his cell phone. The image reported by Pinterest was not found on Mr. Trentadue’s cell phone.

Position of the Parties

[6]

Position of the Parties

The Crown is seeking a 4 month (120 day) jail sentence and 3 years probation, as well as ancillary orders such as a SOIRA order and a s. 161 order. The Crown concedes they can only prove the upload of one image of child pornography to Pinterest by Mr. Trentadue’s email address.

7Mr. Khehra submitted a 12 month conditional sentence with electronic supervision for the entire conditional sentence, followed by 3 years probation was the appropriate sentence having regard to the exceptional circumstances present in Mr. Trentadue’s case. It was Mr. Khehra’s submission that the principles of denunciation and deterrence, which are the paramount sentencing principles in child pornography cases, could be met through the conditional sentence having restrictive terms such as electronic monitoring for the entire duration. He further submitted Mr. Trentadue’s plea of guilty and acceptance of responsibility and the many rehabilitative steps Mr. Trentadue has taken to address what he believes is an addiction through attending for counselling with a psychotherapist and psychiatrist, as well as attending a thirty (30) day residential treatment program all support a conditional sentence being the appropriate sentence. Further, Mr. Trentadue has strong family support and a willingness and resolve to do everything in his power to ensure this conduct does not occur in the future.

Offender’s Background

[8]

Offender’s Background

Mr. Trentadue is 49 years of age. He is married since 2013 to Laura Duplantis and they have a daughter, currently 8 years old.

9Mr. Trentadue graduated from high school and graduated from a business program at a Toronto University. He has been employed with Keilhauser for 7.5 years but was laid off at the beginning of COVID-19. His current source of income is through Employment Insurance, although this was to end shortly.

10He was convicted of child pornography in April 2013 and received a thirty (30) day jail sentence with presentence custody of 4 days, followed by 3 years probation. This offence was brought to the attention of the police by Mr. Trentadue who self-reported his involvement with child pornography to them when they were investigating an allegation of domestic assault involving his wife. He ultimately took the Partner Abuse Response (PAR) program prior to pleading guilty to the child pornography charge. The assault charge was withdrawn by the Crown. He underwent psychotherapy counselling after this conviction for a period of time but his life together with his wife became hectic and busy with the arrival of their daughter in 2013, Mr. Trentadue starting a new job in 2014 and the purchase of their first house. Ms. Duplantis described how her husband continued, unknown to her at that time, to struggle with his addiction and would withdraw when things became too much for him, even contemplating suicide, which he attempted. He discussed his ideation about suicide with Dr. Prabhu during his psychiatric assessment. Ms. Duplantis believed the suicide attempt occurred because at that point her husband had not truly focused on the reasons behind his addiction, which she believed was a symptom of something much more complicated and traumatizing.

11In the PSR Mr. Trentadue described first being introduced to pornography at the age of eight or nine at a friend’s house where the friend’s older brother was viewing explicit videos. He further described being the victim of sexual abuse at the age of ten. He also recounted being bullied and “pushed around” by several boys in his neighbourhood. He advised the probation officer he was made to expose himself along with “awful stuff” on more than one occasion. He has begun to address the trauma caused by the sexual abuse he experienced as a child and this was referred by Megan Phillips, Registered Psychotherapist with Phillips Psychotherapy Services, in her letter where she indicated Mr. Trentadue was involved in 15 psychotherapy sessions with her while at a residential treatment facility, Metamorphosis Centre for Change, dealing with his addiction to pornography and the trauma he experienced from sexual abuse as a child.

12His wife continues to be extremely supportive of her husband despite his being charged again in June 2020. She recounted the very positive changes she has observed in her husband as a result of his more than a year of counselling sessions with his sex addiction psychotherapist, as well as his residential treatment at Metamorphosis. She described how she could “see a huge change in Biagio’s personality. He seemed lighter, less irritable, and less encumbered. His energy was just different, like a huge burden had been lifted from his shoulders.” She described his experience at Metamorphosis as being “truly transformative - life altering in so many ways….Biagio has gained so much insight into himself and his addiction.”

13The Children’s Aid Society investigated the family when the new charge was laid in June 2020 and on July 2, 2020, they completed their investigation and closed their file. Ms. Duplantis described her husband as a truly incredible father to their daughter, loving, supportive and attentive. She has never been concerned for their daughter’s wellbeing or safety. Mr. Trentadue currently is living with his mother, who is his surety, and he continues to see his daughter regularly.

14Mr. Trentadue was referred by Dr. Bal, his family doctor, to Dr. Sean Prabhu, a psychiatrist for a psychiatric evaluation. He identifies Mr. Trentadue’s addiction to pornography and recommends continued psychotherapy, which would “uncover unconscious motivations and unmet needs” which would likely improve outcome. He also recommended pharmacotherapy to decrease sexual drive and impulsivity and lists a number of medications for Mr. Trentadue’s doctor to consider prescribing. In the PSR Mr. Trentadue advised his family doctor had prescribed anti-depressant medication to suppress his hyper sexual activity a year ago and he has complied with taking that medication. He reported he has not had any suicidal thoughts since September 2020. There is no risk assessment or psychiatric diagnosis provided by Dr. Prabhu in his psychiatric evaluation.

15The probation officer described Mr. Trentadue as being cooperative during the preparation of the PSR. He was remorseful and accepted responsibility for the commission of the offence. It is apparent from reading the PSR that Mr. Trentadue is very committed to doing everything in his power to prevent a relapse. He maintained he is “off porn” completely and feels his life is balanced. He described his time with his mother being beneficial and said he finds strength from his family. He saw a psychologist for 10 sessions up to January 2021, to assist him managing issues from being arrested, anxiety and marital matters. He and his wife saw Dr. Azubuike twice for counselling. These counselling sessions were prior to Mr. Trentadue recommencing his psychotherapy with Mr. Wolff. Mr. Wolff in his letter and to the probation officer described how Mr. Trentadue has focussed during their 32 sessions since this charge in gaining a greater understanding of his addiction and their most recent sessions have begun to focus on his underlying trauma, his past psychological and sexual abuse that he endured when he was young. Mr. Trentadue was described by Mr. Wolff as being open and receptive to therapy.

16Mr. Trentadue has also been attending “SA” Sex Anonymous meetings weekly since the summer of 2021. Mr. Wolff expressed his opinion that Mr. Trentadue is not a threat to the public nor should there be concern for his daughter.

17The PSR is very positive and indicated Mr. Trentadue is an excellent candidate to be involved in community supervision. His previous experience under community supervision was positive throughout. Mr. Trentadue expressed to the probation officer he was prepared to be involved and participate in any programming that will assist him with his addiction. He expressed interest in programs offered by CAMH, Sexual Behaviours Clinic. Mr. Wolff has been involved in weekly virtual sessions with Mr. Trentadue since July 2020.

18The only concern expressed by the probation officer is Mr. Trentadue’s access to a computer while he is on probation and the triggers that might create for him and has made a number of recommendations respecting computer access.

19Mr. Trentadue also provided a detailed letter to the Court, which in my view is quite insightful and aware of the future steps he must continue to take in terms of his psychotherapy to ensure he is successful in continuing to overcoming his addiction.

Sentencing Principles Applied

[20]

Sentencing Principles Applied

The purpose of sentencing is set out in sections 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases.

21Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct; (b) Deter the offender, and others, from committing such an offence; (c) Separate the offender from society, where necessary; (d) Assist in the rehabilitation of the offender; (e) Provide reparation for harm done to “victims”, or the community; and (f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

22The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 42, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary

23As Rosenberg J.A. held in R. v. Priest, [1996] O.J. No. 3369, at para. 26:

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

24Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)). Section 718.2 also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b)), that the combined duration of consecutive sentences not be unduly long (718.2(c)), that an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)), and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

25Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 explained:

…The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

26The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583, where at paragraph 90, the court held:

Sentencing 'ranges' ...are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality... Individual circumstances matter.

27In R. v. D.D., [2002] O.J. No. 1061 (C.A.), Moldaver J. (as he then was) said the following, at para. 33: “[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.”

28This issue has been revisited by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paragraphs 57 to 58 and 60 to 61, where the Court held:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered 'averages', let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case...

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 44.)

In other words, sentencing ranges are primarily guidelines, and not hard and fast rules. (Emphasis added)

29As discussed above the fundamental principle of sentencing is that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court in Lacasse was clearly indicating a sentence can be imposed that is outside an established range of sentence as long as it is in accordance with the principles and objectives of sentencing. Sentencing is a “highly individualized exercise” and “determining a proportionate sentence is a delicate task.” (Lacasse, at para. 13). In some cases the facts and circumstances will be such that a sentence outside the usual range will be appropriate.

Range of Sentence for Accessing Child Pornography

[30]

Range of Sentence for Accessing Child Pornography

Pursuant to s. 718.01, when a court imposes a sentence for an offence that involves the abuse of a person under 18 years of age, it “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” The reason for this is because conviction for an offence of child pornography is a serious matter and Mr. Trentadue’s offence involved his accessing an image of a person under the age of 18 who is engaged in or is depicted as engaged in explicit sexual activity.

31The Court of Appeal has repeatedly recognized that the objectives of denunciation and deterrence are of paramount importance when sentencing offenders for child pornography offences. It has done so both before and after the enactment of s. 718.01 of the Criminal Code: R. v. John, 2018 ONCA 702, [2018] O.J. No. 4495 (C.A.), at para. 41; R. v. Inksetter, 2018 ONCA 474, [2018] O.J. No. 2702, at para. 16; R. v. Nisbet, [2011] O.J. No. 11 (C.A.), at para. 1; and R. v. O.E., [2003] O.J. No. 563 (C.A.), at para. 7. (See also R. v. Branco, [2019] O.J. No. 3170 (SCJ, Stribopoulos), at para. 43.) In R. v. D.D., [2002] O.J. No. 1061 (C.A.). Justice Moldaver, as he then was, held “absent exceptional circumstances, the objectives of sentencing proclaimed in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.” According to s. 718.2 (a)(ii.1), evidence that the offender, in committing the offence, “abused a person under 18 years of age,” is statutorily deemed to be an aggravating circumstance of the offence. Therefore, the paramount principles of sentencing in cases involving sexual abuse of young children are denunciation and deterrence. Prior to the enactment of s. 718.01 referred to above, the Ontario Court of Appeal in R. v. Woodward, supra, Moldaver J.A., (as he then was) confirmed:

…when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

32Courts have very few options other than imprisonment to achieve the objectives of denunciation and deterrence in this context – R. v. Inksetter, supra, at para. 17, citing R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64.

33The Supreme Court of Canada recently in R. v. Friesen, [2020] S.C.J. No. 100, recognized Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code and confirmed the need for courts to impose more severe sanctions for sexual offences against children. The words “primary consideration” in s. 718.01 prescribes a relative ordering of the sentencing objectives set out in s. 718 (a) through (f) (see Friesen, at para. 102). However, the section should not be interpreted as limiting other sentencing objectives, such as separation from society, which reinforces and gives practical effect to denunciation and deterrence (see Friesen, at para. 103 and Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.), at para. 76). The Supreme Court did indicate that “where Parliament has indicated which sentencing objectives are to receive priority in certain cases, a sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority” (see Friesen, at para. 104). A sentencing judge retains discretion to accord significant weight to other facts (including rehabilitation and Gladue factors) in arriving at a fit sentence, in accordance with the fundamental principle of proportionality. The Supreme Court concluded, “Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause” (Friesen, at para. 105).

34Justice Stribopoulos in R. v. Branco has provided a comprehensive review of numerous Ontario court sentencing decisions respecting possession and accessing child pornography and provided the following range of sentence at para. 101:

This review of the case law demonstrates that the range of sentences varies widely, from intermittent sentences at the low end, to penitentiary sentences as long as 3 1/2 years at the upper end. Ultimately, with the exception of some outliers, where a particular case falls within the overall range of sentences is a function of its specific aggravating and mitigating factors.

35In R. v. Kwok, [2007] O.J. No. 457 (SCJ), at para. 7, Justice Molloy provided a helpful summary of aggravating and mitigating factors to consider in cases involving child pornography:

Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).

Aggravating and Mitigating Factors

[36]

Aggravating and Mitigating Factors

Mr. Trentadue has a criminal record from 9 years ago (2012) for an offence of child pornography, where he was sentenced to a 30 day jail sentence followed by probation. It is my understanding from the information provided to me by counsel concerning this record that the reason for such a low sentence was because Mr. Trentadue self-disclosed to the police his possession of child pornography during an investigation into a domestic assault allegation involving his wife and the fact that the number of images were few. This is still a serious aggravating circumstance in Mr. Trentadue’s sentencing. The factual background demonstrates that Mr. Trentadue is not involved in the distribution or production of child pornography. There is no doubt the image described to the police qualified as child pornography but the relative depravity and violence depicted is quite low. There was no collection of images or videos, rather the facts were that Mr. Trentadue uploaded one image of child pornography and when his devices were seized by warrant and searched no child pornography images or videos were discovered. In fact, the image described to the police was not discovered on his cell phone. There also was no evidence that Mr. Trentadue ever harmed a child or purchased child pornography.

37Respecting the mitigating circumstances in this case, they are many. First, Mr. Trentadue pleaded guilty to a charge of accessing child pornography, which demonstrates his remorse and acceptance of responsibility for his conduct. In my view his remorse is genuine and this is echoed by all those who have worked with him as psychotherapists, as well as the probation officer who prepared the PSR. The reports indicate he has insight into the wrongfulness of his behaviour, he is highly motivated to continue in counselling and treatment to examine and gain awareness into what he describes and recognizes as an addiction in terms of the underlying causes. In my view his guilty plea demonstrates the sincerity of his remorse and acceptance of responsibility, particularly given the factual circumstances respecting his accessing the one image, reported to DRPS by Pinterest, which image was not retained and provided to police or found by police during their analysis and search of Mr. Trentadue’s devices. There were triable issues in this case that Mr. Trentadue did not pursue because of his decision to plead guilty, which in my view positively demonstrates his commitment to gain insight and awareness of his addiction and to develop strategies to prevent a recurrence.

38As I indicated he self-reported to the police he was accessing child pornography previously because he wanted to be held accountable and change his behaviour. He saw a psychotherapist for 13 sessions starting in August 2012, as a result of his disclosure to the police and his being charged. He concedes he allowed other priorities (his employment, the purchase of his family’s first house and the birth of his daughter) to take precedence in his life (this is confirmed by his wife in her letter, in Exhibit 2). Further, he recognized after being charged in June 2020, for a second time, that his psychotherapy needed to focus on his unresolved childhood trauma of being sexually abused. According to his psychotherapist he has begun to address this issue, as well as his mental health issues, unconscious motivations/unmet needs and the fact he now recognizes and admits he has an addiction to pornography, including child pornography. He has sought out assistance through individual counselling with his psychotherapist, Betzalel Wolff, again for 32 sessions, has been assessed by a psychiatrist, Dr. Prabhu, entered a 30 day residential treatment program with Metamorphosis, which involved psychotherapy with Megan Phillips and he has attended weekly at SA “Sex Anonymous” since the summer of 2021. In her letter his wife indicated, “Biagio has gained so much insight into himself, and his addiction, and I believe with all my heart that he is a changed man. He knows what tools are available to him and realizes what he needs to do to continue on a healthy path moving forward.” His presentence report is very positive and reflects he is prepared and interested in becoming involved in CAMH’s, Sexual Behaviours Clinic. It is my view from the materials I have been provided, including Mr. Trentadue’s letter to the Court, he is very motivated and serious about doing everything within his power to prevent him from engaging in similar behaviour in the future. He has also followed the advice of Dr. Prabhu respecting pschopharmacology and has begun taking medication prescribed by his family doctor, which he indicates he has found helpful.

39The Durham Children’s Aid Society immediately investigated Mr. Trentadue’s family and closed there file in a letter dated July 2, 2020. Although Mr. Trentadue has not been living with his wife and daughter at there home, as he is living with his mother, who is his surety, he has been permitted to have regular contact and interaction with his now 8 year old daughter and no concerns have been indicated. All of the materials provided to me reflect that Mr. Trentadue is an amazing father who has a very good relationship with his daughter.

Sentence Imposed

[40]

Sentence Imposed

As I indicated at the outset, Mr. Khehra submits a 12 month conditional sentence with electronic supervision for the entire sentence is the appropriate sentence having regard to the unique circumstances of this case. As such this is a case where I have been asked to impose a sentence for child pornography that is outside the usual sentence for this type of offence, which usually leads to a prison sentence. The Crown is seeking a four month custodial sentence.

41Our Court of Appeal has indicated that a conditional sentence should rarely be imposed in cases involving the sexual abuse of children by adults, particularly where the sexual violation is of a vulnerable victim by a person in a position of trust (see R. v. D.R., [2003] O.J. No 561 (C.A.) at para 8; R. v. Rafiq, 2015 ONCA 768, [2015] O.J. No. 5878 (C.A.), at para. 27; and R. v. Folino, [2005] O.J. No. 4737 (C.A.), at para. 25). However, while a conditional sentence in child pornography cases is rare, it is not unheard of where exceptional circumstances exist: see R. v. Rytel, [2019] O.J. No. 4856 (SCJ, Harris), at paras. 82-83; R. v. Canning, [2019] O.J. No. 4846 (C.J.), at para. 34; R. v. Cayabyab, 2019 ONCJ 772 (OCJ, O’Donnell), at para. 38; and R. v. Doucette, [2019] O.J. No. 1924 (SCJ, Schreck), at paras. 54-55.

42The conditional sentence provisions in the Criminal Code, s. 742.1, have been amended on a number of occasions since they were first introduced in 1996. The current legislation sets out specific offences and categories of offences that are not eligible for the imposition of a conditional sentence. There are five prerequisites for the imposition of a conditional sentence as it relates to the offences Mr. Trentadue was convicted of:

1. The safety of the community would not be endangered by the offender serving the sentence in the community (s. 742.1(a));
2. The offence is not an offence punishable by a minimum term of imprisonment (s. 742.1(b));
3. The offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life (s. 742.1(c)); and
4. The court must impose a sentence of imprisonment that is less than two years (s. 742.1) and
5. Is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 (s. 742.1 (a)).

43Under the current s. 742.1 (b), a conditional sentence would not have been available to Mr. Trentadue because of the mandatory minimum sentence pursuant to s. 163.1(4.1)(a), which prescribed a one year minimum sentence where the Crown proceeded by indictment. There have been a number of cases: R. v. John, supra, at paras. 39-40; R. v. Rytel, supra; at paras. 8-9; R. v. Walker, [2021] O.J. No. 461 (SCJ); R. v. Doucette, supra, at para. 38, and R. v. Swaby, 2018 B.C.J. No. 3603 (C.A.), [2019] S.C.C.A. 17, (refusing leave), which have struck down the MMP for child pornography offences under s. 163.1. As a result, the Crown in this case did not require Mr. Khehra to bring a constitutional challenge to the MMP. In my view this was a responsible decision on Ms. Cook’s part.

44Given Mr. Trentadue’s efforts since being charged in June 2020, in terms of seeking psychotherapy and counselling, it is my view the safety of the community would not be endangered by his serving his jail sentence in the community. He is highly motivated to participate in treatment and counselling and he completed his previous community supervision under probation successfully and co-operatively. The offence does not carry a maximum penalty of imprisonment of 14 years or more. The sentence requested by the Crown is significantly lower than the two year upper limit under s. 742.1.

45I initially considered a sentence of 90 days, which could be served on an intermittent basis, which appears to be the low end of the range for child pornography sentences (as reflected in the summary of cases set out in R. v. Branco), however, currently because of the threats caused by COVID-19 respecting outbreaks within the custodial facilities, those facilities are not permitting offenders to serve intermittent sentences; rather, they are instructing offenders to serve their weekend jail sentences in their residences. It is my view this would not be an appropriate or fit sentence given the seriousness of a child pornography offence.

46Therefore the final remaining issue to be determined is whether a conditional sentence is consistent with the fundamental purpose and sentencing principles set out in sections 718 to 718.2, described above. This requires a determination of whether a conditional sentence can adequately address the principles of deterrence and denunciation and the promotion of a sense of responsibility and accountability in Mr. Trentadue as these are the paramount sentencing principles pursuant to s. 718.01, as well as the numerous precedents from the Ontario Court of Appeal and Supreme Court of Canada. At para. 22 of Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation" for many offences although there may be circumstances where the need for denunciation and deterrence is so pressing that a custodial sentence in “real” jail must be imposed. In para. 127, #8, the Court held:

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

47Chief Justice Lamer, writing for a unanimous Supreme Court in Proulx referred to s. 742.1 as a new type of sanction, a conditional sentence of imprisonment (see paras. 1, 14 and 29). A conditional sentence however is not as onerous as a “real” jail sentence. Although a conditional sentence is not subject to reduction by way of parole “a conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration” (see para. 44). It is for this reason that where a conditional sentence is consistent with the fundamental purpose and sentencing principles set out in sections 718 to 718.2, the length of the conditional sentence should be greater than a sentence involving incarceration. Restrictive conditions involving house arrest and limits on an offender’s liberty are the norm where a conditional sentence is imposed. In my view this is why Mr. Khehra submitted a 12 month conditional sentence with house arrest for the entire duration monitored by the electronic supervision program is the appropriate sentence in this case.

48Taking into account the totality of the unique aggravating and mitigating circumstances in this case, it is my view this is one of those extremely rare cases where a sentence other than “real” jail, one served in the community, can adequately respond to all of the relevant objectives of sentencing, including denunciation and general deterrence. Consequently, it is my view the appropriate, proportionate sentence is a conditional sentence of twelve months length. Mr. Trentadue was assessed by the Electronic Supervision Program and was found to meet the program’s requirements. As a result he will be subject to house arrest for the entirety of the conditional sentence, as submitted by Mr. Khehra. I will discuss with counsel appropriate exceptions to the house arrest condition, as well as other terms and conditions. It is my view the house arrest condition with electronic supervision adequately addresses the principles of denunciation and deterrence. The provisions of s. 718 to 718.2 reflect that jail should only be used where necessary and to the extent necessary. Considering the unique circumstances present in this case it is my view “real” jail is not necessary. Specific deterrence is not a pressing need in this case and the objectives of rehabilitation and restraint can be more fully achieved by a strict, restrictive conditional sentence. In my view the twelve (12) month house arrest conditional sentence contains a punitive component, which in my view will be more onerous in the long run for Mr. Trentadue but also more beneficial to him and the community, having regard to his continued rehabilitation through counselling and treatment has already initiated. As the Supreme Court recognized in Proulx, at para. 113:

…Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender's prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse…

49In the exceptional circumstances of this case it will also send the appropriate message to deter like-minded individuals from engaging in this behaviour. Following this conditional sentence Mr. Trentadue will be placed on probation for a period of three years with terms and conditions to be discussed with counsel. Further, the ancillary orders relating to Mr. Trentadue providing a sample of his DNA and a S.O.I.R.A. order for 10 years sought by the Crown will be ordered. I want to address the terms of the s. 161 order that I believe are appropriate given the factual circumstances of this case.

50In R. v. Shultz, 2018 ONCA 598, [2018] O.J. No. 3526 (C.A.), at para. 41, the Court of Appeal reviewed the jurisprudence on s. 161 orders and held that:

The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender's specific circumstances: K.R.J., at paras. 48-49.

51Similarly, in R. v. Brar, 2016 ONCA 724, the Ontario Court of Appeal carefully reviewed the Supreme Court of Canada's decision on section 161 orders in R. v. J. (K.R.), 2016 SCC 31, [2016] S.C.J. No. 31 and explained at paragraphs 17 and 18 that:

In J. (K.R.), the majority of the Supreme Court confirmed that orders made under s. 161 have a predominantly protective purpose, that is, to shield children from sexual violence (at para. 44). [full paragraph not reproduced]...

The Supreme Court emphasized that these orders are discretionary and flexible, as s. 161 "was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community" (at para. 47). Because these orders can have a significant impact on the liberty and security of offenders and can attract a considerable degree of stigma, they will be justified where the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk the offender poses to children (J. (K.R.), at paras. 48, 54). The terms of such orders must, therefore"carefully respond to an offender's specific circumstances" (at para. 48).

52I find that there is, in the circumstances of this case, evidence that Mr. Trentadue poses some risk to children based on his admitted addiction to pornography and child pornography in respect of his searching out images of child pornography. Based on the facts relating to Mr. Trentadue’s criminal behaviour, I am exercising my discretion and not making orders respecting s. 161(1)(a) to (c). However, I am making an order pursuant to s. 161(1)(d) as follows:

Your use of the internet shall be in accordance with the following conditions:

• You may possess an internet capable device and use it to access the internet in accordance with the conditions below; however, you must do so on a device for which you are the sole owner and user. Further, the internet service must be in your own name or else provided through your employer or the education institution you are attending, if applicable.
• You may not access the internet using public wi-fi services, internet cafes, or via shared public computers (e.g. computers at a public library).
• You shall not use any encryption software or security program designed to prevent access to the contents of your internet capable devices or take independent action to encrypt any digital storage devices in your possession. You shall not install or permit to be installed on your internet capable device any software or service designed to defeat forensic analysis of the internet capable device.
• You shall not use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet (e.g. TOR browser).
• You shall not use or permit to be installed on any device in your possession any scrubbing software or software that saves files in an encrypted fashion.
• You are not to directly or indirectly access any Peer-to-peer file sharing networks (including but not limited to “kik,” “discord,” Pinterest,” “Skype,” “motherless,” “LimeWire,” “gnutella,” or “bearshare.”)
• You are not to use any telecommunication device to access the Internet or other digital network in order to possess or access content that violates the law.

53I want to express my gratitude to counsel for their preparation and submissions in this difficult sentencing case.