WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
L.M.
Before Justice J. Bliss
Heard on June 3, 2024
Reasons for Sentence released on June 21, 2024
J. Stanton counsel for the Crown
V. Rishea counsel for the accused L.M.
BLISS J.:
1On June 1, 2022, L.M. pled guilty to possessing, accessing, and making available child pornography on May 30, 2021 and breaching his probation order between May 30, 2021 and September 21, 2021 when he was prohibited from possessing any computer, cell phone, or other device that has internet access except for employment, education and with the prior written permission of his probation officer.
2L.M. was arrested on September 21, 2021 following the execution of a search warrant at his residence. On October 1, 2021, he was released on bail. The Crown brought an application to review his release, and on October 29, 2021 the decision was reversed and L.M. was ordered detained. He has remained in custody since that date.
3Following L.M.’s guilty pleas, the Crown applied for an Order, pursuant to s.752.1 of the Criminal Code, for L.M. to be assessed to determine whether he might be found to be a dangerous offender as defined in s.753, or a long-term offender as defined in s.753.1 of the Code. Under s.753, for an offender to be found to be a dangerous offender, the predicate offence must be a “serious personal injury offence” (SPIO) as defined in s.752. L.M. resisted any assessment being ordered, and argued that none of the offences that he had pled guilty to amounted to a “serious personal injury offence”.
4On July 25, 2022, a hearing was held on the issue of whether an assessment order should be made. The focus of the hearing was whether any of L.M.’s offences constituted SPIOs and could lead to him being declared a dangerous offender, or whether he could be found to be a long-term offender. On August 17, 2022, I released my ruling in which I held that that the circumstances and context of L.M.’s offences did not constitute a “serious personal injury offence”, but did find that he might be found to be a long-term offender pursuant to s.753.1 of the Criminal Code and ordered he be assessed for that purpose. (R. v. L.M. 2022 ONCJ 389)
5After my ruling was released, and before a formal assessment order was made, the matter was adjourned to determine when a forensic psychiatrist could conduct an assessment. The Crown also sought production orders to obtain L.M.’s records relevant to the sentence hearing. Discussions between the Crown and L.M.’s then defence counsel led to an agreement for Dr. Sumeeta Chatterjee to conduct the assessment which was to commence on October 17, 2022.
6On November 25, 2022, the Crown brought to the court’s attention that they had received disclosure of a new, albeit historical, unproven allegation of sexual assault that, if proven, would impact Dr. Chatterjee’s ultimate opinion. A hearing into the admissibility of this aggravating fact was heard on January 9, 10 and 16, 2023. On January 19, 2023, I released my ruling which found that the evidence established beyond a reasonable doubt that L.M. had sexually assaulted his then 12 year old stepdaughter in 2008. (R. v. L.M. 2023 ONCJ 615)
7Dr. Chatterjee’s report was provided on February 12, 2023, and the matter was then adjourned for the Attorney-General’s consent as required by s.754 of the Criminal Code.
8On May 11, 2023, the Crown filed the Notice of the Attorney-General’s consent. Notwithstanding my ruling that the offences for which L.M. was found guilty did not constitute “serious personal injury offences” and did not provide a route for him to be declared a dangerous offender, the Crown sought, and obtained, the consent of the Attorney-General to have L.M. designated a dangerous offender and have him sentenced to an indeterminate period of imprisonment. The Attorney-General’s consent to initiate proceedings to have L.M. declared to be a dangerous offender was predicated on L.M. having been found “guilty of the serious personal injury offences of possession of child pornography, contrary to s. 163.1(4), accessing child pornography, contrary to s. 163.1(4.1) and making available child pornography, contrary to s. 163.1(3)” except that while he was found guilty of those offences, I did not find them to constitute SPIOs and so L.M. could only be designated a long-term offender. When queried about the Notice, the Crown advised, candidly, that they disagreed with my ruling and would invite me to reconsider it.
9When the issue of whether any of L.M.’s offences were SPIOs was argued before me on July 25, 2022, one of the cases that was referred to was Justice Newton-Smith’s November 22, 2021 decision in R. v. Snowden [2021] O.J. No. 6626 (C.J.). All were aware that this decision was being appealed, and it was well known as L.M.’s matter wound its way through this court, that the hearing date in Snowden was imminent. Snowden was heard on April 12, 2023 and the Court of Appeal released its decision [2023] O.J. No. 5271 on November 17, 2023, reversing Newton-Smith J. and ordering a new hearing. The Crown then applied to have me reconsider my ruling on the SPIO issue in light of Snowden.
10L.M. agreed that I could reconsider the issue, and a hearing was held on May 7, 2024. On May 21, 2024, I released my ruling (R. v. L.M. 2024 ONCJ 306). After having reconsidered the circumstances of L.M.’s predicate offences, I remained of the view that L.M.’s offences did not constitute SPIOs.
11The sole issue left to be determined is whether L.M meets the criteria to be a long-term offender as defined in s.753.1 and for a fixed sentence to be imposed. The Crown seeks a 5 year sentence less pre-sentence custody and a 10 year long term supervision order. The defence seeks a 4½ year sentence considering the particularly harsh conditions of his now 978 days of pre-sentence custody, and argues that the statutory conditions for a long-term offender designation and a long-term supervision order to be imposed have not been met. The parties agree with the terms of the s.161(1), SOIRA, forfeiture, and DNA orders being sought.
12Under s.753.1(1), for L.M. to be designated a long-term offender, the court must be 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.
13The defence concedes: (a) that a sentence of two years or more is appropriate, and does not take issue with (c), that there is a reasonable possibility of eventual control of the risk in the community. The issue is whether the evidence establishes that there is a “substantial risk of reoffending” as defined in s.753.1(2). The offences L.M. was found guilty of are enumerated in ss. (2)(a) and so the issue, for L.M., is whether either of ss.(2)(b)(i) or (2)(b)(ii) have been met.
14Section 753.1(2) reads:
(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if
(a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) 273 (aggravated sexual assault) or 279.011 (trafficking — person under 18 years) or subsection 279.02(2) (material benefit — trafficking of person under 18 years), 279.03(2) (withholding or destroying documents — trafficking of person under 18 years), 286.1(2) (obtaining sexual services for consideration from person under 18 years), 286.2(2) (material benefit from sexual services provided by person under 18 years) or 286.3(2) (procuring — person under 18 years), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; 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.
15L.M. has been diagnosed with pedohebephilic disorder, a primary sexual interest in prepubescent and pubescent-aged children. L.M. does not challenge this diagnosis. The Crown submits that L.M.’s offence history reveals a pattern of him repeatedly targeting and victimizing prepubescent girls for his own sexual gratification and so satisfies the language of ss. (2)(b)(i), and also engaging in sexual conduct that is likely to cause injury, pain or other evil in the future through the commission of similar offences as defined in ss. (2)(b)(ii).
16The defence submits that a pattern of offending must be more specific than simply a general pattern of L.M. targeting prepubescent females for his sexual gratification, and that there is a marked difference between L.M.’s current voyeuristic child pornography offences, and his hands-on offending with his stepdaughter in 2008 and the extortionate child luring offences in 2016 which involved him communicating with a victim in real-time. According to L.M., only the current 2021 child pornography index offences and the 2018 child pornography offences share common elements, but that the two are not sufficient to establish a pattern for purposes of 753.1(2)(b)(i). L.M. argues that the causal connection between L.M.’s offending and the children abused in L.M.’s child pornography collection is, adopting words I used in my reconsideration of the SPIO Ruling, too indirect, thin or remote to show a likelihood of inflicting severe psychological damage or causing, injury, pain or other evil.
Is there a “Pattern of Repetitive Behaviour” to L.M.’s Offending
17In R. v. Szostak 2014 ONCA 15, [2014] O.J. No. 95 (C.A.), the Court considered what “a pattern of repetitive behaviour” meant. Referring to a number of cases that had considered the issue, including R. v. Dow [1999] B.C.J. No. 589 (C.A.), Rosenberg J.A. adopted the meaning ascribed to the term in R. v. Hogg, 2011 ONCA 840 at para 40 that “…the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future.” (Szostak, para 56)
18In L.M.’s case, that exercise considers the elements of his offending history in comparison to the elements of his current child pornography offences, the predicate offences. There must be a sufficient pattern that connects his past offending to the current offences to be able to predict a likelihood of him offending in the same way in the future. The same elements of unrestrained dangerous conduct must be found in some, albeit not necessarily all, of L.M.’s other offences, in order to find a pattern that emerges to predict that L.M. will likely offend in the same way in the future.
19What the British Columbia Court of Appeal wrote in R. v. Dow (supra) is instructive:
22 …there must be a pattern revealed by repetitive behaviour; the pattern must contain an element that the dangerous behaviour was not restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause…injury.
23 …For the purposes of describing the pattern, each of the…elements may be particularized in a way that gives individuality to the pattern by indicating specific similarities between one incident and another. But it is important that the process of particularization not result in a level of detail which obscures the common characteristics which embody and reveal the …essential elements of the pattern.
24 In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to show first, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injury to other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed.
25 I add that it is the very essence of a pattern that there be a number of significant relevant similarities between each example of the pattern that is being considered, but that, at the same time, there may be differences between each example, some of them quite distinctive, so long as the differences leave the key significant relevant elements of the pattern in place. That is, after all, what is meant by a pattern. We talk of a pattern in dress-making. That means that each example is assembled from pieces that are cut in the same proportions and that fact, in itself, is what constitutes the common element of the pattern. But the size of the pieces and of the assembled item of clothing, the fabric of which they are made, and the colour of the item of clothing may all be different without affecting the identity of the pattern. The same is true of patterns of decorative tiles, and of many other items. The aspects of the object which are relevant to a description of the pattern must all be similar in their essential characteristics. But other aspects of the items, which are not essential to a description of the relevant pattern itself, may be markedly different from one example to another.
20In Dow, the Court found that the sentencing judge erred in requiring that "all of the parts of the [most recent] offence must be of like form, order or arrangement." That, the Court held, constitutes a degree of similarity that is more than is required to represent a relevant pattern. The Court held that the requisite elements of the pattern should be described at a level of generality which gives individuality to the pattern, but beyond that it is not necessary that all of the parts of the most recent offence must be like all parts of the earlier offences, though further similarities may add vividness to the pattern. (Dow, para 27). In that case, it was sufficient that all the victims were female and were violently assaulted in generally similar circumstances. The fact that in the most recent incident the victim was not sexually penetrated was not a distinction that destroys the pattern, just as the fact that Dow knew one of his victims does not destroy the pattern which covers all the other incidents in which his victims were unknown to him beforehand. (Dow, para 26)
21Similarly, in Hogg, the Court cautioned that “the offences need not be the same in every detail; that would unduly restrict the application of the section.” (Hogg, para 40). In that case, the sentencing judge’s view that there was a pattern to the appellant's behaviour of using violence to achieve his sexual desires with an inability to control or restrain his impulses, was found by the appellate court to be a reasonable one. That, arguably, is a general pattern but which subsumed the more specific acts of direct sexual assaults with violence against his female victim as well as in the predicate offence, and violence against a man who would otherwise not allow the appellant to have sex with his wife. (Hogg, para 41). What that illustrates is that while specific acts may be more detailed, a pattern, expressed in general terms, may emerge nonetheless.
L.M.’s Offending History
2008 Uncharged But Proven Sexual Assault Of M.L.
22L.M. began targeting female children to satisfy his sexual impulses in 2008 when he sexually molested his then 12 year old stepdaughter. Evidence about this incident was tendered as an aggravating fact on sentencing and I found it had been proven beyond a reasonable doubt.
23L.M. had begun a relationship with N.L. in 1997 and by 1998 all were living together. N.L. had a daughter, M.L. In April 2001, L.M. and N.L. had a daughter, L. By 2008, L.M. and N.L were living in the same house, but by then their relationship had seemingly run its course. Although L.M. remained living in the family home, he did not eat dinner with the family and slept in the basement, while N.L. either slept in the master bedroom or with one of the children. L.M.’s stepdaughter, M.L., did not have a good relationship with him. In 2008 M.L. disclosed to her mother that L.M. had touched her sexually. Police became involved and a statement was taken but no charges were laid. In April 2008, when M.L. was 12 years old, L.M. approached M.L. when they were they were alone at home, and created a fictitious story about her sleepwalking and asking about sex as a pretext to ask her if she wanted to learn about sex or for him to show her. When she said “no”, he persisted in asking to feel her breasts until she relented and allowed him to touch her so that he would stop asking. L.M. touched M.L.’s breast under her pyjama top, and “played” with her nipple and breast area until she had to ask him to stop. After L.M. stopped touching M.L., he warned her that she would get in trouble if she told and offered her DS games if she kept silent.
2013-10-15 Luring a Child Under 16 years of age
Invitation to Sexual Touching
Extortion
Luring a Child Under 16 years of age
Indecent Exposure to a Person under 16 years of age
24In 2011, L.M. portrayed himself as Justin Bieber to communicate with a 10 year old girl over Facebook. Although he later confessed that he was not Justin Bieber, he assumed another false identity. He moved the communication to another platform that would enable him to see the girl using a webcam and ultimately convinced her to show him her breasts. When she did so, he then told he that he had recorded her and used this to extort her to comply with his sexual demands under the threat of sending the video to her family and friends if she did not comply including showing him her dirty white socks. He coerced the child to engage in increasingly intrusive sexual acts for his sexual pleasure through promises and threats. When the now 12 year old girl told her parents and police became involved, police conducted an undercover operation. An undercover officer posed as a 14 year old girl and L.M. told her how he wanted to be with her and sent pictures of his penis to her. They arranged to meet and when he showed up he was arrested.
25Forensic examination of L.M.’s electronic devices revealed numerous images of Justin Bieber which was consistent with the online persona he utilized to communicate with young girls. He had created twenty-three profiles to communicate with twenty-two young girls and the chats all involved L.M. requesting the girls wear white socks for his sexual pleasure. Police also located 93 images of child pornography of which 58 were unique and 32 images of child nudity of which 21 were unique. The vast majority focused on the child’s genital area. A smaller proportion involved images of children engaged in anal or vaginal intercourse with adults or other children or involving digital penetration, while other images were of children masturbating or engaged in oral sex. L.M.’s collection appeared to show him having a sexual preference for girls between the age of 12 and 16 years old.
26L.M. was convicted of two counts of luring a child under the age of 16 years, invitation to sexual touching, extortion and indecent exposure. He received a global sentence of 4 years imprisonment in addition to 15 days of presentence custody. That sentence was to expire on October 14, 2017.
27On June 15, 2016, L.M. was released on parole. His parole conditions included prohibitions on him consuming alcohol or non-medically prescribed drugs, or owning or possessing a computer with access to the internet, being around children under the age of 16 years, and being anywhere where any child would be likely to congregate.
2018-01-26 Imports, distributes, sells or possession for the purpose of Distribution or Sale any Child Pornography
Possession of Child pornography
28In December, 2016, the social media website Twitter became aware of images depicting child pornography that had been uploaded by a person using the account “Shannoncookie81” on its social media website. Twitter notified the National Centre for Missing and Exploited Children, who in turn notified the National Child Exploitation Coordination Centre, which led to a search warrant being executed at L.M.’s residence on May 31, 2017. Child pornography was found on electronic devices in L.M.’s bedroom. On January 26, 2018, L.M. pled guilty to importing, distributing, selling or possessing child pornography for the purse of distribution, and possession of child pornography. It was clear from his allocution to the court that L.M. recognized the harm caused to these children and his role in that. He apologized for his actions and decisions and told the court, “I don’t want to be known as a person that contributes to the harming of children or anyone directly or indirectly. I hope the people involved in these videos on both sides can be found and get the help that they need as I do myself need.” (Transcript, January 26, 2018, p.34) A representative sample of the images from the 2018 charges were played for the Court during this sentence hearing for L.M.’s current charges. To put it bluntly, the images and videos are horrific. The children being sexually abused in L.M.’s collection included a baby in a diaper, and children subjected to acts of bestiality, bondage, fellatio, and anal and vaginal penetration. L.M. was sentenced to 19 months imprisonment in addition to 158 days credited for his pre-sentence custody and placed on probation for 3 years. A s.161(1) order for 10 years was also imposed.
Index offences
2022-06-01 Possession of child pornography
Accessing child pornography
Making available Child Pornography
Fail to comply with Probation
29On May 31st, 2021, Instagram reported that an account user, who turned out to be L.M., uploaded a file that met the Criminal Code definition of child pornography to another Instagram account user. L.M. had also used his Instagram account to send child pornography to another user on May 30th, 2021. The image was of female child between 2 and 4 years old lying on her back with her top pulled up exposing her stomach area. Her vaginal and anal regions were visible and male ejaculate was present.
30On September 21, 2021, a search warrant was executed at L.M.’s residence. Police located a cellular device hidden within a bookshelf in L.M.’s bedroom. Police seized and analyzed the phone and found several images and videos that met the Criminal Code definition of child pornography. L.M. was then arrested and charged. At the time, he was on probation from his 2018 convictions. The probation order, which commenced on February 15, 2019, included a term that L.M. not possess or use any computer, cell phone or other device that has internet access with exceptions for employment or education and with the prior written permission of his probation officer. He was also prohibited from possessing, accessing or making available any child pornography, or erotica and he was not to possess or access any image of children who are or are depicted to be or appear to be under the age of 18 who are clothed or naked and portrayed in a sexual manner.
31On September 29th, 2021, Instagram reported that L.M. had sent two images to another user on August 31st, 2021. One of those images was child pornography. Further analysis of L.M.’s devices revealed 62 images and 3 videos meeting the Criminal Code definition of child pornography. Many of the children are females in the range of 6-10 years old. One of the images depicted a baby. Approximately half of the content in L.M.’s collection depicted pre-pubescent children without clothing and where the dominant characteristic of the image or video is the sexual organ(s) and/or anal region of the child. The remaining half of the content depicts children being vaginally penetrated by adult males or objects. Two children are “identified” children. A representative sample of L.M.’s collection was played for the Court. Stating the obvious, the images and videos displaying the sexual abuse of these children is horrific.
Is there a Pattern to L.M.’s Offending
32The Crown submits that L.M.’s history of offending reveals a pattern of:
Repeatedly accessing, possessing and making available child pornography;
Engaging with “live” children in the context of online luring and in-person
Engaging online or in person with children who are female, pre-pubescent, between the ages of 6 to 10 years;
Engaging in fetishism (i.e. white socks) in the context of his Child Sexual Abuse Material (CSAM) collections;
Continuing to engage in offences against children while prohibited from doing so by way of court order, including s. 161 of the Code and various recognizances.
33L.M. submits that there are only two offences in L.M.’s offending history that are comparable for purposes of the “pattern” analysis: The 2021 index offences and his 2018 offences for possession of child pornography and related offences. L.M. submits that those offences differ markedly from L.M.’s sexual touching of his 12 year old stepdaughter in 2008 and his 2013 child luring offences in which L.M. had direct contact with his 12 year old female victim who he manipulated and extorted to engage in sexual activity for his sexual gratification. The defence seeks to parse out L.M.’s hands-on offending in 2008 involving his stepdaughter and his online child luring offences in 2011, from his 2018 and 2021 offences involving child pornography to argue that the two latter offences do not make a “pattern” as that term has been interpreted.
34The Crown argues that L.M.’s pattern of repetitive sexual offending is not limited to those two offences and that all of his offending demonstrates a pattern of targeting prepubescent and pubescent females to satisfy his sexual desires. Essentially, whether L.M.’s offending is “hands-on” or “voyeuristic”, the common thread binding all of L.M.’s offences is his targeting of this specific group for the purpose of satisfying his sexual desires whether face to face, online, or (my words) indirectly, by accessing, viewing or distributing child pornography. The means by which L.M. obtains his sexual gratification does not take away from his pattern of offending in which a specific target group is sought out, repeatedly, and unrestrainedly, to satisfy his sexual desires.
35When Dr. Chatterjee was questioned during cross-examination about whether there was a pattern to L.M.’s offending, her opinion was that from a clinical perspective there is a pattern of behaviour that is motivated by L.M.’s deviant sexual interest that has been repeated over time based on opportunity. The opportunity for hands-on offending in 2008 was the first instance, and then with identifiable victims in 2013 and then with non-identifiable child pornography related convictions thereafter based on opportunity and access to the internet. From a clinical perspective, because the motivation or the thread of that motivation is sexually motivated offending against peri-pubescent females, or related convictions supporting that deviant sexual interest, it is a “pattern”. Dr. Chatterjee resisted the suggestion that only the similar child pornography offences made up the pattern, but instead stressed that from her perspective she defined the pattern in L.M.’s case as sexually motivated behaviour aligned with L.M.’s deviant sexual interest. (Testimony, September 21, 2023). The issue of whether a pattern was made out in the context of the long-term offender provisions of the Criminal Code, was, as she pointed out, for the court to decide.
36From a legal perspective, “the pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future.” It was sufficient in Dow that the pattern was that “all the victims were female and were violently assaulted in generally similar circumstances.” (Dow, para 26) In Szostak, the repeated resort to force that caused serious injuries made out the necessary pattern (Szostak, para 63). In Hogg, it was reasonable that the pattern was that of the appellant using violence to achieve his sexual desires with an inability to control or restrain his impulses (Hogg, para 41).
37The pattern of repetitive behaviour that includes the predicate offence has to contain enough of the same elements of unrestrained dangerous conduct to be able to predict that the offender will likely offend in the same way in the future. A “likelihood” means that the predicted event is probable and not simply possible. That was the standard Code J. set out in R. v. Gibson 2013 ONSC 589 at para 18, adopted by Bell J. in R. v. R.M.P. 2020 ONSC 6337 at para 114 (S.C.J.), and one that I too adopt.
38In my view, L.M.’s pattern of offending is not limited to his two child pornography offences. They may be similar in the kind of offending he has engaged in most recently, but there is a more general pattern to his offending both online and in-person. I agree with the Crown that L.M.’s history of offending does reveal a pattern or common thread. At minimum, L.M.’s online offending reveals a pattern of seeking out prepubescent females for his sexual gratification and an inability to restrain his sexual impulses. Even the hands-on offending involving his stepdaughter meets that same pattern of repetitive behaviour, driven by his pedohebephilia, targeting prepubescent and early pubescent females for his sexual gratification. Even excluding his hands-on offending with his stepdaughter, his online offending reveals an unrestrained pattern of him seeking out prepubescent females and targets them, whether “live” or recorded, for his sexual gratification. In short, for purposes of s.753.1(2)(b)(i), L.M.’s offending history reveals a pattern of offending with an inability to control or restrain his impulses that is likely to be repeated in the same way in the future.
Is there a Likelihood of L.M. Causing Injury or inflicting Severe Psychological Damage, or Causing Injury, Pain or Other Evil
39Under s.753.1(2)(b)(i), the pattern, of which the offence for which L.M. has been convicted forms a part, must show a likelihood of causing death or injury to other persons or inflicting severe psychological damage on other persons. Having found that L.M.’s conduct, including the current predicate offences, is part of a pattern of conduct targeting prepubescent and peri-pubescent females to satisfy his deviant sexual impulses, the remaining question is whether L.M.’s conduct is likely to cause injury or inflict severe psychological damage on other persons (ss. 2(b)(i)), or cause injury, pain or other evil to other persons in the future through similar offences (ss. 2(b)(ii)). Either route provides a basis for a long term offender designation.
40During submissions, I queried whether the term “injury, pain or other evil” in ss. (b)(ii) was qualified in any way, or whether the likelihood of causing any injury, pain, or other evil would suffice? In response, the Crown referred me to a number of cases which recognized the limited consideration of the term.
41In R. v. Dwyer 1977 ALTASCAD 63, [1977] A.J. No. 743 (C.A.) at para 16, the Court wrote that “[i]n general understanding, when "evil" is used as a noun it usually connotes moral badness or depravity. In the context of the sections and the circumstances…I think it must be taken to mean evil consequent on the commission of any offence.” In the context of child pornography offences, its description as evil, morally bad, or depraved is apt.
42The harm caused by child pornography, and those like L.M. who access, view and make it available to others, is not in dispute. The caselaw is replete with comments acknowledging that harm.
43In R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 (S.C.J.) at para 32
…Each possession, viewing, sharing, downloading, or uploading can be seen as a repetition of the initial hands-on abuse. The more pornographic images that are in circulation and the greater the distribution, the more significant the abuse of the child becomes.
44In R. v. Ashkewe [2010] O.J. No. 5372 (S.C.J.):
20 The possession of child pornography is tantamount to violence against children. Victims are vulnerable and defenseless and this exploitation is at the very least notionally violent behaviour by all engaged in the practice.
22 Child pornography is repugnant. Other courts have articulated the evil it represents and I will not add to the commentary. The victimization never ends. It is bad enough that children are sexually abused in the most degrading fashion. Distribution over the internet seals lifelong damage. Those who possess this product are an essential cog. If no one watched production and distribution would significantly decline. The audience needs to know that their responsibility for these offences against children is substantial and will bring significant sanction…
45In R. v. Garcia [2009] B.C.J. No. 581 (B.C.S.C) at para 14:
In terms of the impact on victims, users of child porn may like to think of it as harmless because the user is not actually touching a child but simply looking at an image. This thinking is the worst kind of self-serving rationalization. Child pornography victimizes the children who are photographed or filmed. The children are at a minimum sexually exploited and very often are sexually abused as part of the image-taking. The child is re-victimized every time someone looks at the images as they are widely circulated through the Internet.
46In R. v. Friesen 2020 SCC 9, [2019] S.C.J. No. 100, the Supreme Court of Canada, referencing R. v. Sharpe 2001 SCC 2, [2001] S.C.J. No. 3, spoke of how online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child's life at any time (Friesen, para 48).
47In Sharpe, McLachlin C.J., wrote how “[t]he link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone." (Sharpe, para 92)
48Most recently in Snowden, the Court of Appeal repeated the comments from every level of court about how the harm caused to children by these offences extends beyond the creation of the child pornography. Referring to the case of R. v. S.(J.) 2018 ONCA 675, the Court noted how “the appellant’s violation of his victims is repeated every time the images are viewed on the Internet, where they cannot be erased and will likely reside in perpetuity. And, as the sentencing judge observed, the victims, particularly S, whose face is shown, may be further traumatized by the knowledge that these images and films could surface in their personal lives at any time. (Snowden, para 65).
49The Community Impact Statements filed in this case similarly sets out the impact, from the victims’ perspective, of the ongoing harm caused by child pornography: The permanence of the images as a constant source of worry in their present day lives, a sense of powerlessness, and of “being abused over and over again”. The sentiment from one victim that "the hands-on was horrible. But at the very least it is over and done with. The constant sharing of the abuse will never end; therefore the reminder of its existence will never end.”
50Those who access, possess and distribute child pornography, as L.M. did, cause harm to the victims. There is no dispute about that. That the harm is perpetrated online does not insulate the offender from responsibility and connection to the harm. L.M. has repeatedly targeted and victimized pubescent and peri-pubescent females online and in-person for his own sexual gratification and victimized and harmed them in the process.
The Likelihood of L.M. Reoffending
51L.M. is likely to sexually reoffend. Put in the statutory language of s.753.1(2)(b)(i) and (ii), L.M. is likely to cause injury or inflict severe psychological damage, or cause, injury pain or other evil. While the sexual offending may be online as it was in 2011, 2016, and 2021, his victims, whether through his direct contact with them or indirectly through his seeking out and accessing child pornography, are likely to be harmed and suffer injury, severe psychological damage, pain or other evil. Their injury may be psychological, but it will be injurious to them nonetheless. L.M.’s offending history suggests nothing less.
52L.M.’s current offence is now his fourth sexual offence. While he has gone from hands-on offending, to offending online, and from direct contact with a child, manipulating, extorting and threatening the child to satisfy his sexual desires, to possessing and distributing a significant amount of child pornography, to now being in possession of a lesser amount of child pornography, it is highly likely that L.M. will again target prepubescent and peripubescent girls to reoffend sexually. L.M. has been undeterred and unrestrained by prison sentences or court orders.
53Before being sentenced in 2018, L.M. told the court: “I apologize for my actions and my decisions. I don’t want to be known as a person that contributes to the harming of children or anyone directly or indirectly. I hope the people involved in these videos on both sides can be found and get the help that they need as I do myself need that.” (Transcript, January 26, 2018). L.M. recognized the harm caused to the victims depicted in the child sexual abuse material he was convicted of possessing and distributing by his very possession and distribution. L.M. recognized that his actions “indirectly” harmed the children whose abuse was recorded and shared on the internet which L.M. then again sought out, possessed and shared.
54L.M. is now 46 years of age. His sexual offending against prepubescent and peripubescent females began with his uncharged sexual offence involving his 12 year old stepdaughter in 2008. He then engaged in manipulative and exploitive conduct towards another 12 year old girl that he sought out and victimized online in 2011, which ultimately led to his convictions for child luring and related offences in 2013 and a 4 year sentence of imprisonment. In 2016, while on parole, he offended again by possessing and distributing images from his significant collection of child pornography. For those offences he received a 19 month sentence in addition to the 158 days of presentence custody and placed on probation for 3 years with terms to restrict his access to the internet as well as a s.161 order. In 2021, while on probation and in breach of at least two terms of his probation order, and while being “supervised” by his father, he managed to find out the Wi-Fi password and concealed his ownership of a cell phone that contained 62 images and three videos of child sexual abuse material that he possessed, accessed and made available.
55Dr. Chatterjee’s assessment and her testimony, as acknowledged by L.M., was largely unchallenged. While I am entitled to reject her evidence, there is no basis for me to do so. Her assessment and testimony was provided in a clear, concise and measured manner. It considered the voluminous amount of material from L.M.’s participation in sex offender programmes, prior assessments and collateral sources, as well as considering L.M.’s own words and the results of actuarial tests. Dr. Chatterjee was realistic about measures that needed to be in place for there to be a reasonable possibility of L.M.’s eventual control in the community. L.M.’s allocution revealed his recognition of his need to abide by future terms as, in his words, “if [he] was to get in trouble again, [he] would never get out.”
56It was Dr. Chatterjee’s opinion that L.M.’s diagnosis of pedohebephilic disorder, a primary sexual interest in prepubescent and pubescent-aged children was clear. There were other disorders that impacted the primary one including a fetishistic disorder relating to his sexual arousal from white socks worn by females, severe alcohol use disorder currently in sustained remission given his custodial status, and antisocial and dependent personality traits. L.M. acknowledged his sexual arousal to female children particularly peri-pubescent children age 10 to 12 years old.
57As Dr. Chatterjee noted, L.M. has completed numerous individual and group sex offender programs since his first incarceration in 2012. In spite of seemingly comprehending and individualizing the material to his personal circumstances, he has been unsuccessful in applying these concepts and regulating his behaviour to avoid sexual recidivism.
58L.M.’s first sex offender treatment program was the High Intensity Sex Offender Treatment Program from September 2014 to February 2015. He was thought to have made gains and developed insight. A psychological assessment after completing the programme identified him as being at the low end of the moderate range of risk for violent and general recidivism.
59L.M. also participated in the Community Maintenance Sex Offender Program from November 2015 to May 2016. A performance report noted he participated in 17 sessions over two cycles and exhibited a positive attitude, was comfortable in the group, and completed assignments on time and with effort.
60While on parole in 2016, L.M. stayed at a Correctional Residential Facility before moving in with his father. He completed a three-month sex offender therapeutic program twice while on parole, once at the halfway house and once while living at his father’s home. While at the Ontario Correctional Institute in 2017, he participated in two sex offender groups. In May 2017, L.M. was arrested for offences involving his possession and distribution of child pornography in 2016. During a post-suspension interview on June 2, 2017, L.M. admitted that he had failed to apply his self-management plan and engage with the sexual offender program in an open and honest manner.
61As Dr. Chatterjee observed in her assessment report, L.M. was actively offending while participating in sex offender relapse prevention programming, failed to disclose his offending behaviour to supervising officers and treatment providers, and exhibited an ability to misleadingly portray himself as an individual who was fairly insightful about his issues and motivated to abstain from future offending and thereby did not require further programming.
62From 2018 to 2019, while at OCI, L.M. completed a Sexual Offending Relapse Prevention group, Stop Offending Sexually group, as well as completing workbooks on Adult Relapse Prevention, Cybersex Unplugged, and Internet Porn Addiction. In 2021, following his release, and while still on probation, L.M. once again reoffended.
63Actuarial tools administered during the assessment supported Dr. Chatterjee’s view of L.M.’s risk of reoffending. On the PCL-R, which measures psychopathy, L.M. scored 17 out of a possible 40 points. With a standard error of measurement of ±3, L.M.’s true score was between 14 and 20. A score of 17 placed L.M. at the 28th percentile of North American male offenders and suggested a psychopathic personality. According to Dr. Chatterjee, this, in and of itself, does not contribute to his risk of future recidivism, but is a score consistent with his clinical presentation of antisocial personality traits.
64L.M. was also scored using the SORAG (Sex Offender Risk Appraisal Guide), which is used to predict violence among male sex offenders. The SORAG is recommended for use in individuals with a history of sexual offending to offer a probabilistic estimate of risk of committing a further violent offence. In L.M.’s case, the definition of violent recidivism was justified by his history of both contact and non-contact sexual offences. As Dr. Chatterjee pointed out, however, a noted limitation of the SORAG is that it is not a strong predictor of sexual recidivism specifically, but rather provides probabilistic estimates of individuals engaging in any form of violent re-offending and that its applicability to L.M. needed to be viewed with this in mind. It is, according to the doctor, not a great tool to predict sexual versus violent recidivism and does not distinguish between a child or adult victim. As the SORAG measures all types of violent offending and not specifically sexual violence, Dr. Chatterjee did not expect L.M. to score highly.
65L.M. obtained a score of +8 on the SORAG. This placed him in the 43rd percentile and the 5th of 9 ascending categories of risk (or bins) on the instrument which is within the “moderate risk” category on this instrument. Dr. Chatterjee noted that taking into account the estimated error of measurement, L.M.’s true score would be expected to fall within one risk category above or below this result but still within the moderate risk category.
66L.M. was also scored using the Static-99R which assesses an offender’s relative degree of risk for contact and non-contact sexual recidivism with identifiable victims. The Static-99R applies to individuals who have committed any type of contact or non-contact sexual offence involving an identifiable victim including internet luring and sexual communication with a minor. It is apparently a more predictable tool for assessing non-contact sexual recidivism, but does not predict the nature of the sexual reoffending. According to the Dr. Chatterjee, L.M.’s offending history closely resembled the reference sample used. L.M.’s score was 4 out of 12, assuming release sometime within the next fifteen years, which placed him in the ‘Above Average Risk’ range with his risk of recidivating sexually 1.94 times higher than the average sex offender.
67Overall, Dr. Chatterjee viewed L.M. at an “Above Average” risk for sexual recidivism compared to other sexual offenders. From purely a psychiatric perspective, Dr. Chatterjee pointed to the incontrovertible fact that L.M. has exhibited a repetitive pattern of sexual offending and a failure to restrain his deviant sexual impulses involving peri-pubescent aged females in the form of contact and non-contact offences against identifiable victims in addition to child pornography-related offences. L.M.’s offending behaviour has occurred over the course of approximately 13 years, and has recurred in spite of legal sanctions, supervision and monitoring, access to supports, and several courses of treatment. This repetitious pattern is indicative of seeming indifference as to the consequences of his behaviour, to both himself and others. Dr. Chatterjee cautioned that it would be a mistake to consider him utilizing child pornography as an ”improvement” in his offending or that his future risk would be limited to child pornography offending in the future. Based on the above-noted risk assessment, Dr. Chatterjee was of the view that L.M.’s overall risk of committing a new sexual offence that causes harm of a similar nature is “Above Average” whether hands-on or online.
68Whether there is a “reasonable possibility of eventual control”, from a psychiatric perspective, would depend on whether or not L.M. could be considered treatable and whether such treatment offers any hope or assurance that his risk could be managed within the community.
69According to Dr. Chatterjee, L.M.’s primary diagnosis of pedohebephilic disorder is considered difficult to treat and is the most salient factor in his risk of sexual recidivism. Her evidence was that the most optimistic research indicates only a modest reduction of risk. The most rigorously controlled studies have shown little or no benefit from psychological treatment. Pharmacological treatment may hold out the possibility of more substantial reductions in recidivism although it depends on the offender’s willingness to take such treatment in an ongoing fashion. While these treatment measures may mask L.M.’s sexual impulses, or assist him in not acting on them, they will not change his underlying sexual preferences. Given that L.M. has failed multiple courses of group and individual sexual offender treatment programming, administered both in jail and community settings, and in spite of being described as an engaged and receptive student, future programming is seen as unlikely on its own to be of much benefit in mitigating his risk. It is unclear how L.M. will respond to, or comply with, pharmacological interventions as he has never engaged with such in the past.
70Overall, Dr. Chatterjee viewed L.M.’s prognosis as guarded. L.M. does acknowledge his pedophilic and hebephilic disorder and expressed what was described as an “enthusiastic” willingness to participate in any recommended psychological form of treatment. At the time of the assessment, L.M. was less enthusiastic, though willing to consider, pharmacological treatment to reduce his sexual impulses if this offered him the opportunity for release back into the community.
71The primary form of recommended treatment in L.M.’s case to mitigate his risk of reoffence and seek to control his behaviour in the community is by the use of high potency sex drive reducing medications, delivered intramuscularly to improve compliance. L.M. has not had a trial of high-potency sex drive reducing medication (such as Lupron), but pharmacological intervention is, according to Dr. Chatterjee, the best chance he has. The evidence to demonstrate that pharmacological treatment predictably and substantially reduces the risk of sexual recidivism in the long term is promising but still in its early stages. As well, as Dr. Chatterjee noted, compliance rates are typically poor. The reasons for poor general compliance are multifaceted. The medication is generally well tolerated notwithstanding the side effects, but L.M. can refuse treatment or find the side-effects intolerable and withdraw his consent at any time. It is also relatively easy to counteract the effects of such medication with the taking of exogenous testosterone (i.e. testosterone gel) or with the use of medication such as Cialis or Viagra. These medications are taken only as needed, some are not systemically absorbed, and those that are exit the system relatively quickly, making detection extraordinarily difficult.
72When the topic of sex drive-reducing medications was discussed with L.M. during the assessment, he advised that he had not considered it previously and was apprehensive about committing as he had heard that it was “bad stuff” which could cause weight gain and ruin his sex drive forever. He also expressed concerns that such treatment would impede his sexual relationships. Against that however, he also asserted that he did not wish to offend again and characterized his current situation as his “last chance”. Ultimately, he was open to considering sex drive-reducing medication if it could facilitate his release and reduce his chance of re-offending. He was more enthusiastic about further psychological treatment for sexual offending as he found previous therapeutic programming helpful to learn and connect with peers for support, and specifically endorsed wanting individual counselling which he did not think he had received enough of in the past.
73Although L.M. had expressed a willingness to engage in a broad range of treatment programs including sex drive reducing medication (SDRM) while in the community, but not while incarcerated, in mid to late February 2024, he conveyed to his counsel that he wished to begin taking sex drive reducing medication while incarcerated and instructed counsel to make efforts to try and facilitate that. Although efforts were made, and continued to have been made up to the time submissions were heard, L.M. was not able to have such medication prescribed nor begin any treatment.
74L.M.’s track record of adhering to conditions of release has been poor. He re-offended while on parole just months prior to his warrant expiry in 2016. He re-offended again in respect of the current set of charges while he was still on probation and within months of his probation order ending. He does appear to do relatively well while residing at a Correctional Residential Facility, where he was subject to very high levels of supervision, monitoring, and externally imposed expectations that he needed to fulfill prior to release. However, the gains he made in that setting dissolved rather precipitously after he moved in with his father, who was, by all accounts a highly supportive individual who made reasonable efforts to provide the necessary supervision and monitoring for L.M.
75Overall, it was Dr. Chatterjee’s opinion that if released into the community, L.M. will need “eyes-on” supervision such as in a community correctional facility as lesser degrees of supervision, to date, have been unsuccessful in managing his risk. Without supervision it was her opinion that the chance of L.M. engaging in sexual offending is above average or high. Dr. Chatterjee’s view was that L.M. could be eventually managed in the community contingent on two main interventions: The utilization of high potency sex drive reducing agents (delivered intramuscularly to diminish risk of non-compliance), and lengthy placement in a correctional residential facility in which there is a high level of supervision and monitoring and time out of the facility is very gradual. He would also require a comprehensive risk-management plan that should include that he not have unmonitored access to the internet, leads a highly structured lifestyle, abstains absolutely from the use of alcohol or drugs, and attends programming as recommended by his supervising officers and treatment providers.
76Dr. Chatterjee’s recommended conditions for the management of L.M.’s risk in the community are instructive:
L.M. should receive treatment with high potency sex-drive reducing medication (i.e. Lupron) prior to any eventual release into the community to address his primary risk factor for sexual recidivism, namely his pedohebephilic disorder
L.M. should be prohibited from having any unsupervised contact with individuals under the age of 18 in perpetuity.
L.M. should abstain absolutely from the use of alcohol or any other non-prescribed substances, with monitoring to verify same.
L.M. should be prohibited from accessing the internet, or possessing any device with internet capability.
L.M. should be subject to intense and lengthy supervision upon any eventual release into the community, such as that offered by a correctional residential facility. Placement in this facility should be over an extended period of time, and any unsupervised time away from the facility should occur on a gradual basis, and for the purposes of engaging in pro-social structured activities. It should be noted that L.M. has been successful in such a setting in the past, and that the real challenge in risk management will surface if he is eventually permitted to reside outside of such a facility where consistent supervision and monitoring, especially as relates to his online activities, will likely be very difficult.
If residing in the community, monitoring by his supervising officer should be increased in response to changes in his residence, relationships, employment status, or psychosocial stressors. A safety plan should engage any pro-social community support identified, to assist in monitoring his behaviour.
L.M. should be required to adhere to a highly structured schedule that incorporates pro-social employment and activities.
L.M. should access treatment on an ongoing basis for sexual offending and addictions counseling, both while incarcerated and upon any release. He should participate in additional treatment as indicated, that may include vocational, educational, and skills-based training (such as emotional regulation, anger management, and problem-solving).
77I accept Dr. Chatterjee’s opinion. There is a substantial risk L.M. will reoffend. L.M. has a history of targeting prepubescent and peripubescent females for his sexual gratification, but I also find that there is a reasonable possibility of eventual control or management of the risk that L.M. presents if he follows the recommendations to engage in the sex drive reducing regime as it appears he is now motivated to do, both in the community and commencing the regime while incarcerated. L.M. recognizes the jeopardy he is in should he reoffend, and his initial reluctance to engage in such a regime within a carceral setting has changed, as he recognizes the precariousness of his liberty should he not engage in such a program and restrain his sexual conduct in the future.
78There is a likelihood that L.M. will reoffend in the future in a similar manner, targeting prepubescent and peripubescent girls, online or in person, for his sexual gratification and a likelihood of causing injury, pain, or other evil to his victims by his conduct.
79I find that both s.753.1(2)(b)(i) and s.753.1(2)(b)(ii) have been met and, accordingly, L.M. will be designated a long-term offender pursuant to s. 753.1. Given the intractability of L.M.’s disorder and the need to oversee compliance with the treatment regime, the long term supervision order will be for 10 years.
The Fixed Sentence
80L.M. was in custody from September 21, 2021 to his release on bail on October 1, 2021 and then returned to custody following the Crown’s successful review of his release order on October 29, 2021 to the present. To June 21, 2024, he will have spent 978 days of pretrial custody. He will receive Summers credit of 1467 days. The Crown submits that the appropriate sentence for L.M. is one of 5 years (1825 days) less his pre-sentence custody. L.M. submits that taking into account the harshness of his pre-sentence custody, that an appropriate sentence is one of 4 ½ years (1644 days).
81L.M. also seeks additional credit for the particularly harsh conditions of his presentence custody. L.M. has been subject to full and partial lockdown days and most significantly 150 days in which he was triple-bunked. As the Court in R. v. Marshall 2021 ONCA 344, [2021] O.J. No. 2757 (C.A.) noted:
50…A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.
52The “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.
82There are a number of aggravating factors for these offences and this offender: While a small collection, the images and videos are particularly horrific. This is L.M.’s third conviction for sexual offences against a child including his second for child pornography. He was on probation at the time. He went to some lengths to obtain a Wi-Fi password to gain unfettered access to the internet, procured a cell phone which he hid, and used it to obtain and distribute child pornography to others.
83S. 718.01 of the Criminal Code requires that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence. The sentence must also consider, as aggravating, that the offences involved the abuse of a person under the age of eighteen years (s. 718.2(ii.1)) and had a significant impact on the victims (s. 718.2(iii.1)). In mitigation, L.M. entered guilty pleas, has insight into his disorder, and now appears willing to engage in a medication regime to curb his sexual offending.
84There was a difference of opinion as to whether a longer sentence that might otherwise be appropriate can be imposed in the context of the long term supervision regime and Part XXIV of the Criminal Code. In my view, a review of R. v. Spilman 2018 ONCA 551, [2018] O.J. No. 3297 (C.A.) does allow for that.
85In Spilman, the issue, in the context of a dangerous offender proceeding, was whether in determining the length of the custodial portion of a composite sentence, the hearing judge is restricted to the range of sentence that would be appropriate for the offender upon conviction of the predicate offence in the absence of any dangerous offender proceedings and whether the judge may consider the time reasonably necessary for the offender to complete available rehabilitative programs in the penitentiary. (Spilman, para 31)
86The Court held that in determining the length of the fixed-term custodial component of a composite sentence under s. 753(4)(b), the hearing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which sentence is being imposed, the paramount purpose of public protection under Part XXIV, and other applicable sentencing principles under ss. 718-718.2. This analysis may justify fixed term sentences lengthier than those appropriate outside the dangerous offender context. (Spilman, para 32)
87While some of the reasons for that conclusion apply specifically to the dangerous offender regime, I find that they also have application to the long term offender regime. In particular, recognizing that the general purpose of Part XXIV of the Code is public protection, a judge is entitled to consider public safety when imposing sentence. (Spilman, para 33-36) I find as well that Spilman provides authority for a hearing judge to take into account access to rehabilitative programming in a penitentiary in deciding upon the appropriate length of the custodial component of a composite sentence. (Spilman, para 39).
88While I acknowledge that the conditions of L.M.’s presentence have at times been particularly difficult, the calculation of an appropriate sentence must also consider his particular circumstances, the safety of the public, and the need for correctional services to conduct assessments and provide whatever rehabilitative programming and treatment they are able within a custodial setting, along with their recommendations to the Parole Board, before L.M.’s inevitable release into the community under the terms of his Long Term Supervision Order.
89Having considered all of the aggravating and mitigating factors including the conditions of L.M.’s pretrial custody, I am of the view that the appropriate sentence case is one of 4 years and 9 months (1730 days) made up of 3 years and 3 months for accessing and possession child pornography (1185 days), a further 1 year (365 days) consecutive sentence for the make available count and 6 months (180 days) consecutive for the breach of the probation order. The sentence will be reduced by the 1467 days of pre-sentence custody, leaving a remaining sentence of 263 days imprisonment following which L.M. will be subject to a 10 year Long Term Supervision Order.
90There will be an order under s.760 of the Criminal Code that all records relied upon by Dr. Chatterjee along with her report and transcript of her testimony be forwarded to the Correctional Service of Canada. L.M. will be subject to an order under s.161(1) for life on the terms set out, a forfeiture order under s.164.2, DNA order under s.487.05, and an order requiring L.M. to register as a Sex Offender for life pursuant to s.490.012 of the Criminal Code.
Released: June 21, 2024
Justice J. Bliss