minicounsel

DATE: September 11, 2024

Information No.: 21-75002612-00

BEFORE THE HONOURABLE JUSTICE B. BROWN

On September 11, 2024, at TORONTO, Ontario.

APPEARANCES:

P. Santora Counsel for the Crown

D. Lerner Counsel for Aaron Greene

September 11, 2024

THE COURT: The defendant, Aaron Greene, was charged in an Information with two sets of charges of possession and access to child pornography, for two separate dates. For the earlier date of November 25, 2021, the Crown withdrew those counts, being counts one and two, at the outset of trial. The Crown proceeded summarily on counts three and four for possession of child pornography, contrary to s. 163.1(4) and access to child pornography, contrary to s. 163.1(4.1) of the Criminal Code.

At the end of the trial, the Court granted the Crown’s request to amend the date for these offences to be between June 8, 2020, and June 8, 2021, which was a 12 month period prior to the execution of the search warrant at the residence of Mr. Greene.

After a trial which involved Charter applications relating to Sections 8, 9 and 10, the Court, on August 31, 2023, in lengthy reasons for judgment, found Mr. Greene guilty of possessing child pornography material on his desktop Seagate 2 terabyte internal hard drive. He was also in possession of child pornography images on his Smartphone, being one image in the “Movies” folder and one image in the “Pictures” folder. There was also one child pornography video on his phone.

The Court also found Mr. Greene guilty of accessing child pornography by looking at, reading or copying at least one of the 107 images, stories or videos that were child pornography during the one year date range.

The reasons for judgment given by this Court set out in more specific detail the dates and images accessed by Mr. Greene by viewing the material, or copying and pasting it to another device or media, and thereby accessing the material contrary to s. 163.1(4.1) and (4.2) of the Criminal Code.

The reasons for judgment are contained in a transcript which had been prepared and is put before the Court. The expert witness, Doctor Pearce, requested this transcript of the reasons for judgment. The Court ordered a Pre-sentence Report for Mr. Greene, which is now before the Court in evidence.

There was a considerable delay in proceeding to sentence in this matter as would be noted given that it has been over a year since the findings of guilt. This has arisen from the defence request for a risk assessment to be done by Doctor Pearce, arising from his heavy caseload. This report was not completed until April 3, 2024, and it is now before the Court as an exhibit on sentence. Doctor Pearce also testified and was cross-examined on his opinion on April 23, 2024. Submissions by counsel were made.

The Court had a question for counsel, and counsel obtained additional information and provided that information to the Court some time after those submissions, relating to the Ontario Correctional Institute. There was a delay arising from the unavailability of counsel, and the case is now before the Court for the imposition of sentence.

The key issue in this case is whether the Court should impose a conditional sentence, as submitted by the defence, or a period of straight incarceration, as submitted by the Crown.

THE FACTS:

A. Circumstances of the offence:

The Court delivered extensive and detailed reasons for judgment on August 23, 2023. Reference should be made to those reasons for greater detail. The reasons are summarized here only to the extent necessary to outline the circumstances of the offences.

Mr. Aaron Greene lived with his mother, Michelle Marsolais, and brother, Zachary Greene, in a self contained unit in a house at 521 Donlands Avenue, in Toronto. This was in a residential neighbourhood. This unit had an entry in the front, and the other unit had an entry in the back, which the police did not enter. Other family members lived in another unit of the house.

Mr. Aaron Greene lived with his mother, Michelle Marsolais, and brother, Zachary Greene, in the self contained unit in the front of the house at 521 Donlands Avenue, in Toronto. This was, as indicated, in a residential neighbourhood. The unit had the entry in the front and, as indicated, there was a separate entry to the back. Other family members lived in the other unit of the house. Although Mr. Zachary Greene had his own computer, he was not charged with any criminal offences in this investigation.

The investigation was commenced on February 2, 2021, after Detective Constable Tamas received a report from the National Centre for Missing and Exploited Children. This report indicated that child pornography images and videos were uploaded to a Yahoo server on November 25, 2020, following which a report was given to the RCMP on December 1, 2020. The information was that the user had the email address peterpane573@yahoo.com. The person had sent the images to themselves. The Yahoo account was registered under the name Aaron Greene, as advised by Yahoo, with a phone number associated with the account being 647-767-8228. A date of birth of September 2, 1994, was associated with the person. The postal code associated with the account was M4J 3S4, which was determined to be in East York.

The images were received and reviewed by the Detective, and they were child pornography. A search was done and the address for Aaron Greene was determined to be 521 Donlands Avenue, in East York. A search warrant was subsequently executed at his residence on June 8, 2021.

Detective Constable Tamas knocked on the door for entry and it was answered by Mr. Greene’s mother, who was there with a dog. The officer explained that they were there to execute a search warrant. The mother, Ms. Marsolais, was in disbelief but she was very cooperative and invited the police inside the residence. The officers entered the unit.

Some officers went into the room on the main level for Mr. Greene’s brother, Zachary. D.C. Rahaman, located Zachary Greene in his bedroom and escorted him upstairs in the unit to the main area. Officer Tamas and other officers went upstairs. Afterwards, Officer Tamas remained in the living room and other officers went inside the room, which was the bedroom for Aaron Greene.

The Court is not going to repeat the evidence and facts related to the Charter application that was raised in the trial.

The electronic devices owned by Mr. Aaron Greene that were seized and contained child pornography included:

i) A Seagate two terabyte hard disk drive, which was the internal hard drive on his desktop computer in his bedroom. This contained 107 images and three videos that fit the definition of child pornography, s. 163.1 Criminal Code. This also contained two written stories that fit the definition of child pornography.

ii) A Western digital one terabyte hard disk drive. This contained 20 images that fit the definition of child pornography. By the end of the trial, it was noted that those images had been deleted, but were able to be seen by the Toronto Police Service forensic examiner, Detective Constable Saini. Also, all of the 20 images that had been deleted were also on the above desktop computer.

iii) A Samsung Smartphone, which was police Exhibit 2. This contained two images and one video that fit the definition of child pornography. By the end of the trial, it was apparent that these images and video were also on the desktop two terabyte Seagate internal hard drive.

Those three devices were the property of Aaron Greene and he is the only person who placed those materials on those devices.

At the time of the offences, Mr. Greene was 21 years of age. He lived with his mother, Michelle Marsolais, and his brother, Zachary Greene, at the unit at 521 Donlands Avenue, in Toronto. He had his own bedroom. In his bedroom, during the execution of the search warrant on June 8, 2021, he had in a desktop computer, an internal Seagate two terabyte hard disk drive (which had the computer operating drive on it) and an internal Samsung one terabyte hard disk drive. He also had a Western digital one terabyte hard disk drive, and two Samsung 500 gigabyte SSD drives.

All of these electronics were owned by Mr. Aaron Greene and were in his bedroom. Mr. Aaron Greene also owned the Samsung Smartphone. No one in Mr. Greene’s family, other than potentially Mr. Aaron Greene, used any of these devices to access or possess child pornography. Similarly, no one, other than potentially Mr. Aaron Greene, was aware that there was child pornography on any of these devices. No one else in the residence used any of these devices to access or possess child pornography, nor was anyone else aware, as indicated, that there was child pornography on the devices.

Police officers had also seized from Aaron Greene’s room a Samsung one terabyte hard disk drive from the desktop computer, but it did not contain any child pornography material. Police also seized two Samsung 500 gigabyte SSD drives, but they did not contain any child pornography material.

The child pornography material was found in downloads and on various folders on Aaron Greene’s desktop, the Seagate two terabyte hard disk drive. The material is referred to below in the reasons at various points. There is no indication as to the date or dates of the downloads of these materials. The named folders included Loli, one gig Loli, +1 Girl, Ban from Phone (which was in one gig Loli folder), Loli Hentai vids, Jax paid for, and Loli. Those folders contained both child pornography and pornography which was not child pornography, including age indeterminate pornography. The nature of the name chosen for the folders is significant, as further discussed below.

Detective Constable Tamas found images of females who were approximately under the age of 12 years, either fully nude or partially dressed with their sexual organs visible and the main focus of the images. There were images of female children under the age of six years involved in sexual activity. In one, she was holding a male penis in her hand. There were more images simply showing the children nude rather than involved in sexual activity. There were a few that showed penetration of the female vagina by an adult male’s penis. There were three videos of child pornography, two of which showed real people, and one of which was a cartoon. All three videos showed vaginal penetration by an adult penis.

The ages of the children in the videos was three or four years of age, then another under 12 years, and the cartoon depicting probably between six and 10 years of age.

There were two stories of child pornography on the desktop Seagate hard drive. The first was called My First Daddy, and showed a 13 year old female in a sexual relationship with her best friend’s father, having a sexual encounter, sex, in the male’s vehicle. The other story was called My First Encountering with the Loli Kind, which is a 15 year old female on the beach who sees a little Loli on the beach with her mom, and the 15 year old plays with the young girl, then goes back and masturbates while thinking about touching the young Loli, the young girl.

It is important to note the relevant evidence from the Crown witnesses as it related to the names chosen by the computer user, who is Mr. Aaron Greene, for purposes of the child pornography material, for folders containing child pornography. Detective Constable Tamas gave significant evidence in this regard.

The term Loli refers to children who are under aged, female children. The term Lolicons refers to people who are sexually obsessed with females who are underaged. Loli can depict real people. The term Lolida is a novel, where the main male character is obsessed and sexualy abusing a 12 year old female. The character also went by the name Loli.

Detective Constable Tamas testified that the term “hentai” is a Japanese cartoon where the characters are very sexualized. The Loli Hentai has characters which are underage, all children, engaged in sexual activity.

Of the 107 child pornography images on the Seagate desktop computer, approximately 70 were Hentai (cartoons) and 30 were real people.

The Western digital hard drive had child pornography which contained deleted images. There were no videos on this drive. The images were of real people rather than Hentai images.

It is notable that all of the child pornography images deleted from the Western hard drive, which were 20 in total, were contained on the Seagate two terabyte desktop computer. Also, the images on the Samsung cellphone, as indicated above, were also on the Seagate two terabyte desktop computer. In terms of the child pornography videos, there was one video on the cellphone, and three videos on the Seagate two terabyte desktop computer (the video on the cellphone was also on the Seagate two terabyte desktop computer). There were no child pornography videos on the western digital hard drive.

As indicated, the child pornography material was found in the downloads folder in the desktop. It was located in numerous folders which were named by the user of the computer, indicative of the content in the folders. It is significant that numerous descriptors for the folders, such as “Loli”, are indicative of child pornography as noted elsewhere in these reasons in greater detail. It is also significant that one of the folders with pornography, named “+1 Girl”, is indicative of an age below adult age. Then, within the folders named as such, was pornographic material, including child pornographic material. Therefore the naming of the folders by the user reflected knowledge by the user that at least some of the images contained children and were pornography, given that they were in these series of folders. The user would need to look at the images to be able to properly categorize the images and, for example, not put in landscape photographs with child pornography photographs.

The organization of the material on various folders and files reflected that the user had viewed, and then categorized the images carefully, to determine which folder the user wanted to put them in and presumably later find them later on.

The test for the Court ultimately, will not be whether every image or all material in a folder was child pornography, but whether there was some child pornography located on the various electronic devices.

There was additional software put on the computer. Avira, anti virus software, was installed on the desktop. That was in addition to the antivirus software defender which is built into the Windows operating system of the desktop computer.

It is notable that Mr. Aaron Greene’s desktop computer had additional software put on it. For example, it had the TOR Browser. This enables access to the dark web, which has the capability of accessing child pornography while masking one’s identity online. While this could also be used for illegal downloading of Hollywood movies which could not be traced to the user, it can also be used to access child pornography on the dark web and not be traced back to the user.

In addition, the software Anaconda, was on the desktop Seagate internal hard drive. It is a platform for program languages. It can be used for python script, to write script, which is a language code for computers. Anaconda offers a lot more functions than a regular text editor.

The desktop computer also had added the Jupyter program, which is a computing platform for programming purposes. The computer also had added to it Proton VPN, which is a virtual private network. It gives the user anonymity on the internet and masks your IP address, it also encrypts your traffic on the internet.

This Court would find that the evidence relating to the contents of the electronic devices and, in particular the Seagate hard drive on the desktop, would be consistent with Mr. Aaron Greene not being an unsophisticated computer user in terms of knowledge and/or use of technology.

While Detective Constable Saini testified it is very difficult to locate and obtain child pornography through a Google search (as compared to the more successful option of searching the dark web for such material), there is evidence that Mr. Greene’s desktop computer had actually sought out, in search terms used with Google, material that could be considered child porn. See reference to “ Three year old hentai teacher”.

Most notably, as it related to the access count and the one year prior to the search warrant execution on June 8, 2021, the Court would note the evidence set out in Item 10 on the USB key, Exhibit D, that there was a search done on the subject desktop computer for “three year old hentai teacher”, for which the computer loaded results on May 20, 2021. This was within the one year access offence period, and is circumstantial evidence of the user, Mr. Greene, seeking out images of child pornography, given the wording of the term referring to a three year old. There are also other search terms set out as well indicative of other child pornography related terms such as Loli hentai, and other child pornography terminology, in the years leading up to the execution of the search warrant, indicative of prior attempts to find CP material through Google on the regular web.

Detective Constable Saini testified, in terms of whether the user of the computer could have accidentally downloaded child pornography material, that it is difficult to find and obtain through ordinary means. Determination is required, and this material is best found on the dark web.

The fact that similar material in similar

folders was on the western digital hard drive originally, and then the desktop computer, shows that the user was copying and moving around folders as the collection was being created, organized and maintained.

Most of the folders of child pornography were in the Pictures folder of the desktop as noted above. However, there was also on the desktop, a folder named “Misc shit”, in other words, “Miscellaneous shit.” The name of this folder “misc shit” is fairly innocuous and not indicative of child pornography content. However, the sub folders within that folder were more descriptive. Relative to this case, the Court notes that this folder “misc shit”, contained a sub folder similar to the name on the Pictures folder called “stuffs”, which is also a fairly innocuous name. Within that folder was a further subfolder “Loli”.

Overall, if one closed the sub file and if one was just looking at the desktop and pictures folders, one would need to take steps to go beyond the first set of folders, such as “stuffs” or “misc shit”, neither of which names would be suggestive of the child pornography content that followed after going deeper into examining the sub folders. In that sense, the child pornography material was somewhat hidden in the computer. However, it would not take many steps to go into that content, and the particular content in the pictures or desktop sub folders, that was descriptive in name of child pornography subfolder and file content.

It is interesting to note that in the Pictures folder of the computer, there was a folder with images named “me”, which are three images of an erect penis. Two of the images show an erect penis, and the third image shows an erect penis with a tape measure. The images zoom into the penis area and do not show the rest of the body in order to identify the person who is attached to the penis. The Court would note that was accessed May 26 at 5:21 a.m., which may have been a date on which Mr. Greene was copying files and moving them.

A submission was been made by the Crown that sub folders of child pornography material were accessed on that date, and potentially either viewed or right clicked and copied onto another device at that time. In other words, the Crown’s submission is that the user was working with those files on that date, so the Court would find it is reasonable to infer that the user was right clicking and copying or viewing named subfolders which contained child pornography, thereby reasonably inferring the user saw the child pornography named subfolders.

The only reasonable conclusion available is that Mr. Greene would have known the child pornography content was still on his computer. This is a reasonable inference based upon evidence or lack of evidence in totality. There is no other plausible theory or reasonable possibility arising from this evidence.

Some were called “Loli” with a number, “Loli girl being fucked next to her sleeping friend,” “cute little Loli in red dress, reference to cat,” all in PDF number two.

The Court found that Mr. Greene possessed the child pornography material on his desktop Seagate two terabyte internal hard drive, by the actus reus of having it there, and also having the mens rea of knowing it was on this device. The Court considered the extensive evidence noted in the reasons for judgment, applying the Villaroman test for consideration of circumstantial evidence in this case, based on logic and experience applied to the totality of evidence and lack of evidence, is that Mr. Greene knew he still had child pornography on his desktop Seagate internal hard drive. There is no other plausible theory or reasonable possibility that he would not have known he had child pornography material on his desktop computer.

He had continued to add material to his child pornography collection in the period leading up to 2021. He continued to search for material to add to his curated child pornography collection with descriptive child pornography folder and file names indicative of child pornography content, and he continued to interact with this material, as noted below under the access count, in the year leading up to June 8, 2021. He was a 21 year old user of the computer, who was not unsophisticated.

The Court found Mr. Greene guilty of possession of child pornography on his desktop Seagate internal hard disk drive. He was also found guilty of access child pornography.

Exhibit 4 was sealed and filed on sentence, and contained a description of a representative sample of the child pornography in this case.

B. Circumstances of the offender:

The Pre-sentence Report which was prepared in 2023, has provided a great deal of information relating to Mr. Greene. His date of birth is September 2, 1999, making him 25 years of age. He is single and a Canadian citizen. He is the younger of two sons, and his brother is 8 years older than him. He described his father as an alcoholic and as someone who did not play a role in his life. The report seems to contradict the position of Mr. Greene regarding his relationship with his father. He also stated that he recalled being with his father every other weekend and sharing a memory of their time at a water-park. His father passed away in 2023 due to complications from pneumonia.

Mr. Greene stated that he spent many hours outdoors with friends. He was involved in theatre, stunt and circus school summer courses, and speech arts. He recalled living a few enjoyable years in Keswick, Ontario, when his mother moved there for work opportunities before moving back to their current Scarborough area for construction work. The Court would note reference to Scarborough as opposed to where the Court has been told he lives. He described his mother as a hard worker who is now retired but had various careers in construction and in a family owned seafood business. She was essentially a single parent for most of Mr. Greene’s life.

The Pre-sentence Report describes a traumatic incident in Mr. Greene’s life. Since his early childhood, the subject has lived with the effects of a brain injury which he sustained when he intervened in someone being bullied. He was picked up and hit a brick wall. While on the ground, the other student stomped three times on his head. The subject and Ms. Marsolais recounted how this resulted in hospitalization, significant memory deficits, and that it took him up to three years to recover. He experienced residual vertigo as well as passing out from loud sounds.

He completed high school in 2019 at an alternative high school. The report notes that he had attention and hyperactivity issues. He attended a local college to pursue broadcasting and digital media, and he advised that he achieved A’s in his final semester until his arrest for the subject offences. He now pursues interests in woodworking.

The report states that:

“Regarding his employment, the subject has held a full-time position since 2016 as a location support personnel. He was responsible for security set up relating to equipment, green room, and catering set-up, as well as tear downs. A writer’s strike in the industry and a company closure have impacted his ability to work in the recent year, though he noted he made efforts to seek employment and was contacted for interviews. In the past, the subject shared work experience in retail as a cashier, night shift stocker, as well worked for his mother’s fish business. He expressed an enjoyment with freelance woodworking for friends and family, as well as those in the nearby neighbourhood.”

Mr. Greene advised that he uses marijuana daily to aid with headaches. He consumes approximately four grams of marijuana per week.

He stated he has an interest and attraction to tall adult females. He denied having sexual attraction in young children.

His mother provided information to the author of the Pre-sentence Report. The report states:

“Ms. Marsolais described her son in very positive terms since his childhood and that the subject does not have problematic substance use issues or emotional health history. She conveyed his willingness to stand up for others and has countless examples throughout his upbringing of this. She added that he is helpful in caring for her and his family given their health limitations and has always had a close connection with his family and their support. Ms. Marsolais expressed her shock in reaction to the initial charges and conveyed that this is in extreme contradiction to how she and the family know the subject to be.”

He has been on a bail order since being charged, with his mother as his surety. There have been no breach charges. He is a first offender.

When the Court invited Mr. Greene to make any statement he might wish to make following the completion of submissions by counsel regarding sentence, Mr. Greene stated:

“I don’t know really what to say.”

There is no expression of remorse whatsoever, in this case.

Evidence of Doctor Mark Pearce relating to the offender:

The other significant information relating to Mr. Greene as an offender is provided by Doctor Mark Pearce, both in his report, which is in evidence, and in his viva voce testimony.

The Court has a CV for Doctor Pearce which was filed as Exhibit 2B. Doctor Pearce’s written report was filed as Exhibit 2A. The parties agreed, and Doctor Pearce was qualified as an expert in forensic psychiatry and, in particular, the performance of risk assessments of sexual offenders. His evidence was quite helpful as well in setting out the personal circumstances of Mr. Greene.

He indicated that Mr. Greene had a fairly stable childhood and upbringing. While his father was not in his life and suffered from alcohol issues, Mr. Greene had a fairly supportive and stable upbringing. He had no significant substance abuse issues, no poly substance use, disorder, no addictions, just experimental marijuana use. Doctor Pearce testified that Mr. Greene is of average IQ.

Mr. Greene denied any wrongdoing, he denied searching for child pornography, he denied intentionally possessing child pornography, and he blamed the presence of the child pornography material on his devices as a phishing scheme.

Mr. Greene did not believe he needs any sexual treatment. He does not believe he has any issues whatsoever.

Doctor Pearce agreed that there was evidence that Mr. Greene manipulated the phallometric testing and, as a result, it was inconclusive. This was due to response manipulation and suppression test interference. Doctor Pearce did not know if Mr. Greene did that subconsciously or not. Doctor Pearce opined that the results were from conscious or subconscious attempts at test manipulation. This is important evidence because this is one of the key aspects of the risk assessment by Doctor Pearce.

Another important aspect of the testimony of Doctor Pearce related to the role of Mr. Greene’s mother. She was a collateral source and a source of family support. The concern however, is that she does not believe that Mr. Greene needs treatment and she also does not believe that he committed any offence.

Doctor Pearce testified that there is some chance, perhaps a good chance, that Mr. Greene suffers from pedohebephilic disorder, but he could not quite conclude that on balance. He testified that the majority of clients he sees with child pornography charges, suffer from pedohebephilic disorder.

Pedohebephilic disorder refers to people that have a primary sexual interest in children. A person may have an exclusive interest in children, or a non exclusive interest, having also an interest in adults. Not everyone who offends against a child meets the criteria of this diagnosis.

Doctor Pearce testified that there are three ways to diagnose this disorder. Firstly, it is the diagnosis when the offender admits to it. The Court would note that Mr. Greene never made any such admission. The second way is clinical suspicion, plus positive phallometric test results.

As noted in the reasons, the evidence is that there was conscious or subconscious manipulation of the phallometric testing by Mr. Greene, making this testing inconclusive, and thereby thwarting the consideration of the second way to make the diagnosis. The third way to diagnose is where there is so much child porn material, that the psychiatrist just makes the diagnosis.

In this case, based on the results before him, Doctor Pearce felt he was not able to make the “call” of diagnosing Mr. Greene with a pedohebephilic disorder. He discussed the case with other professionals. The challenge arose from Mr. Greene having a lot of other indicators suggesting the disorder, such as downloading the material, moving it around, renaming it, but Doctor Pearce there was very little child pornography on his devices in comparison to other cases where there are thousands of images. Doctor Pearce testified that if there was more material, he would have made the diagnosis.

The Court would note its concern regarding this aspect of the opinion of Doctor Pearce, as there was evidence in this trial, which was noted in the reasons for judgment, which were provided to Doctor Pearce, indicating the nature of many deleted images. It did not seem that Doctor Pearce took that evidence into account in coming to his opinion. He simply relied upon the court’s findings of fact related strictly to the offence period, and no other evidence noted in the judgment. Doctor Pearce also clearly did not take into account the portion of the reasons for judgment that indicated that Mr. Greene possessed the material, moved it around and organized it for years, from 2018 to 2021.

Doctor Pearce indicated that pedehebephilia requires a requires a sustained interest that lasts for at least 6 months, and although Doctor Pearce only considered the one year period in this case, that is significant. Later in cross- examination, Doctor Pearce explained that if Mr. Greene has the pedohebephilic disorder, then he could not be low risk because this is the most important factor driving recidivism.

The Court is also troubled by the evidence that Doctor Pearce admitted that if he had more clear details about dates for search, as he was asked, outside the offence period, how often he searched, when he downloaded, how often, that this could leave to him being more confident about the possible diagnosis of a pedohebephilic disorder. This alone could change the risk assessment to a higher level, for example, moving it up from fairly low risk to low to moderate risk.

Doctor Pearce testified that Mr. Greene did not have any major mental disorder. He is not what defence counsel referred to as a psychopth.

In considering the risk assessment, Doctor Pearce considered the protective factors of lack of prior involvement in the criminal justice system, work ethic, presence of some support, absence of a serious substance use disorder and ability to abide by conditions imposed. The first four protective factors existed during the offence period. In terms of the 5^th factor, he did not have any conditions at the time of the offence which he was required to comply with in terms of behaviour.

The overall opinion of Doctor Pearce was that Mr. Greene was at fairly low risk of re-offence.

In terms of criminogenic factors, Doctor Pearce noted the possible presence of a paedophilic hebeophilic disorder, and difficulty accepting responsibility for his actions. Dr Pearce explained that the scientific literature is not clear as to whether difficulty accepting responsibility is actually a risk enhancing factor. The Court would note that this aspect of scientific literature is somewhat troubling to the Court as the Court considers the case law in terms of sentencing offenders and whether the ability to accept responsibility, enhances rehabilitation and potentially lowers the likelihood of future offences. The Court questions whether this is one area where the case law and opinion of Dr Pearce in this regard differ somewhat, in what may be a significant aspect.

In this case, Doctor Pearce was of the view that Mr. Greene flat out denies responsibility even in the face of stark proof to the contrary. There is no evidence that he will ever accept responsibility. He also testified it could be described as “extreme difficulty accepting responsibility”. Doctor Pearce admitted that is problematic, as treatment is designed to improve that but it is not clear that it will do so.

The Court found the testimony of Doctor Pearce troubling as it related to the scientific literature not being exactly robust in terms of treatment lowering risk. He later qualified that evidence to state that the overall consensus is that it helps “a little bit”. He testified it is hard to be confident in this regard. He hoped that the treatment would at least provide Mr. Greene with an opportunity to learn coping techniques to help him cope with any deviant sexual thoughts he may have in the future.

Doctor Pearce testified he assumed that Mr. Greene would be compelled to take certain treatment. He agreed that given that Mr. Greene did not want to take treatment, he would not take treatment if he had a choice. Doctor Pearce predicted that the Court would put Mr. Greene on probation, and the probation officer would ensure he take treatment. It was Doctor Pearce’s prediction that Mr. Greene would take treatment because he stated Mr. Pearce is largely a pro-social guy, an opinion that seemed in part to be based upon Mr. Greene’s lack of a prior criminal record. Doctor Pearce however did not rule out, and said that it is possible that Mr. Greene might tell the probation officer “Go ahead and breach me, I’m not doing treatment.”

In cross-examination, Doctor Pearce testified that the treatment at some points will require Mr. Greene to have some insight and discuss that, and that is where the problem would arise in light of Mr. Green not accepting responsibility for the offences.

In cross-examination, Doctor Pearce effectively admitted the limitations of risk assessment in this area. There are no actuarial tools, as there are with other types of offenders, where the forensic psychiatrist can be more objective and rely more strongly on the scientific evidence. He testified that the base rate, which is for randomly selected child pornography offenders, is quite low at five percent over five years. The Court would comment that this is a troubling aspect of his evidence, as there is no explanation as to how this random sample was selected, and other aspects of what is defined as re-offence. Doctor Pearce seemed to testify that it is assumed that a criminal prosecution would play a role in limiting the risk to re-offend, but again the explanation for this in terms of research was unclear. There is no scientific validated actuarial risk assessment tool to gauge the risk to reoffend. Doctor Pearce testified that there is clearly a risk. He testified that Mr. Greene was at a low risk to re-offend. But in cross-examination he admitted that he could be wrong.

Generally, Doctor Pearce agreed that as he relied upon information from Mr. Greene about his circumstances, given his comments regarding the offending behaviour, that Mr. Greene might not be the most accurate historian. It Is possible that Mr. Greene misled Doctor Pearce with respect to other details. In terms of the phallometric testing, he admitted that Mr. Greene may have manipulated the assessment related to the sexual component. The Court has noted above how significant a role this might play in a potential diagnosis of a pedohebephilic disorder.

Overall, in cross-examination, Doctor Pearce admitted that many of his conclusions regarding a risk assessment for Mr. Greene is based more on a broader data set, than a more indepth analysis of the circumstances unique to Mr. Greene. Doctor Pearce had no opinion with respect to the deterrent effect of a sentence on an assessment of future risk.

Overall, the Court is of the view, after carefully considering both the contents of the report of Doctor Pearce, and his viva voce testimony, that with no disrespect to Doctor Pearce, but based upon the state of research and limitations of scientific literature and studies, and the lack of actuarial tools enabling an analysis of circumstances unique to an offender, that the risk assessment evidence in this case is of very questionable assistance to this Court. The Court would also add that there is an even greater concern in this case as it relates to the manipulation of the phallometric testing, which has caused serious impacts on the ability to make a proper diagnosis one way or the other with respect to a potential pedohebophilic disorder for Mr. Greene. This directly and significantly impacts what is clearly a driving force for the risk assessment that was done by Doctor Pearce in this case.

LEGAL PARAMETERS

In this case the Crown proceeded summarily.

The range of punishment is set out in s. 163.1 of the Criminal Code. It provides for the offence of possession of child pornography, pursuant to s. 163.1(4)(b):

“(4)(b)Every person who possesses any child pornography is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.”

The Court would note it is of view that the provision for it being a minimum punishment has effectively been struck down as unconstitutional based on appellate case law, R. v. John, 2018 ONCA 702.

For the offence of accessing child pornography, s. 163.1(4.1)(b) provides that:

“Every person who accesses any child pornography is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.”

Similarly, the Court finds that minimum punishment provision has been struck down as unconstitutional by appellate case law, R. V. John, 2018 ONCA 702.

The parties agree that the mandatory minimum sentence provisions do not apply in this case.

POSITIONS OF CROWN AND DEFENCE ON SENTENCE:

The Court would note that submissions by counsel in relation to sentence were made prior to the release of the Ontario Court of Appeal judgment in R. v. Pike; R. v. Scott (hereinafter referred to as R. v. Pike), 2024 ONCA 608, just last month.

The Crown submitted earlier that the appropriate sentence would be one of eight to ten months custody, actual custody. The Crown strenuously opposes a conditional sentence. The Crown also submitted that a three year probation order following custody is appropriate, with various suggested terms of probation. The Crown also requested ancillary orders, consisting of a SOIRA order, a s. 161 order with conditions as outlined later. As another term of probation, the Crown submitted that there be control over Mr. Greene’s access to internet connected data capable devices as set out further. The Crown also seeks a DNA sample for the primary designated offence, and the parties are in agreement regarding the forfeiture of the devices.

The defence makes the submission that the range of sentence is between six months and three years. The defence seeks a jail sentence of six months jail or, in the alternative, argued that it is an exceptional circumstance where a conditional sentence would be appropriate in the range of 12 months, although it could be longer.

MITIGATING AND AGGRAVATING FACTORS:

Mitigating:

The Court considers the relative youth of Mr. Greene, being just under 22 years of age at the time of the offences, and 25 years of age today at the time of sentence. He has no prior criminal record.

In a troubling way, however, despite his youth, he appears to not be interested in treatment or rehabilitation, nor does he appear to have any insight or reflection with respect to these offences. He also appears to have lower treatment prospects given this context, the Court would find. While Doctor Pearce opined that if he was forced, Mr. Greene would take treatment, it is not at all clear that will happen, even as a “pro social” person, given his view that he did not commit the offences and his perception that he does not need treatment. As indicated earlier, this self-reflection may be required for the administration of effective treatment later on.

There are no statements or indications of remorse by Mr. Greene.

Aggravating:

The Crown submits, and the Court accepts, that there are aggravating factors arising from the nature of the child pornography collection in this case. The collection of child pornography images include young children between the ages of six and 10 years old. In addition to the material displaying their genitals, the material also includes them involved in sexual acts with adult males including oral sex and vaginal sex. It is not considered to be at the lower end of the spectrum for child pornography images. The aggravating circumstances in terms of the nature of the collection and as it relates to real children are discussed below in the context of the consideration of the sentencing case law.

SENTENCING PRINCIPLES:

Analysis:

The Court bears in mind guiding comments of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64. (The Court will provide the citations for the cases mentioned in the reasons if and when the reasons are ordered). In that judgment, the Court stated that sentencing ranges are primarily guidelines, not hard and fast rules. Even if an appellate court has established a range, it may be that a fact pattern may arise which is sufficiently dissimilar to past decisions that the range must be expanded. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which may 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. Accordingly, a sentencing range is not a straitjacket to the exercise of discretion of a sentencing judge. Each crime is committed in unique circumstances by an offender with a unique profile. Everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. Sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work. The Court specifically considers paragraph 73 of that case.

In 2010, the Supreme Court of Canada noted in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.), at paragraph 43 that:

“No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.”

Sentencing is highly individualized, see R. v. Suter, 2018 SCC 34. As the Court stated in paragraph four:

“A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a ‘sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender’ (s. 718.1 of the Criminal Code). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case.

In 2021, The Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, [2021] SCJ No. 46, in the majority judgment at paragraph ten, noted that:

“Proportionality is the organizing principle for the Court in imposing a fair, fit and principled sentence. Proportionality is the fundamental principle. Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender, and the unique circumstances of each case. Parity and individualization are important, yet secondary principles. The demands of proportionality must be calibrated by reference to the sentences imposed in other cases. Individualization is central to the assessment of proportionality in that it demands consideration of the individual circumstances of each offender, as set out in paragraph 12.”

As often stated by appellate courts considering sentence appeals, every case has its unique features relating to the offender or the offence. This Court has reviewed all of the cases referred to by the defence and by the Crown. The absence of mention by this Court of any case does not mean that this Court has not considered a particular case. It simply reflects the court’s view that the circumstances in those unmentioned cases are not of assistance in considering the appropriate sentence in this case.

The principle of proportionality is also codified now in the Criminal Code, which states that the sentence imposed by the Court must be proportionate to the gravity of the offence and the degree of responsibility of the offender (see 718.1 of the Criminal Code).

Further, the Court bears in mind that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterrence (both generally and specifically for the offender), separation of the offenders from society where necessary, rehabilitation, to provide reparation for harm done to victims or to the community, and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community (see s. 718 of the Criminal Code).

The Court bears in mind any applicable sentencing principles as set out in S. 718.2, and as well the principles of parity, totality and judicial restraint in considering a sentence of deprivation of liberty or imprisonment, as set out in s. 718.2(b) through (e). The emphasis of the Court in considering those various objectives depends on the nature of the offence, and the circumstances of an offender.

The Court considers the nature of the offence together now, with the circumstances of the offender.

The Court specifically considers the principle of judicial restraint. Currently it is codified in s. 718.2. The Court specifically considers this as it relates to Mr. Greene, a youthful first offender. In that regard, the Court also considers the combination of R. v. Proulx¸ 2000 SCC 5, [2000] S.C.J., No. 6, together with the prior Ontario Court of Appeal decision in R. v. Priest 1996 CanLII 1381 (ON CA), [1996], OJ No. 3369. The Ontario Court of Appeal judgment in Priest predated the availability of conditional sentences. While the Priest judgment related to property offences, the principle which has emerged from its consideration of the case is that the Court should explore all other dispositions before imposing a custodial sentence. This principle followed the Court’s earlier case of R. v. Stein (1974), 15 ccc 2d 376, OCA, at p. 377, a judgment authored by Martin, JA. The Court also held that for a first term of imprisonment, the length should be as short as possible. This Court also considers the judgment of the Court of Appeal for Ontario in R. v. Batisse (2009), 2009 ONCA 114, 93 OR 3d 643,… at paragraphs 32 to 34. Proulx made it clear that a sentence of incarceration should only be imposed if a conditional sentence is not appropriate. The suitability of a conditional sentence for this offence is discussed below.

The principle of restraint for a first offender requires the sentencing judge to consider all sanctions apart from incarceration, and where incarceration is imposed, to impose a term as short as possible and tailored to the individual circumstances of the accused following R. v. Priest. Secondly, it requires the sentencing judge to consider rehabilitation. Thirdly, where the case is serious and involves violence, general deterrence and denunciation are also significant factors to be considered. As noted below, for this type of offence of possession and access to child pornography, the primary principles are of general deterrence and denunciation.

The Supreme Court of Canada in Friesen, and in paragraph 91, has added to the list of mitigating factors a category of offenders who suffer from mental disabilities that impose serious cognitive limitations, that will likely have reduced moral culpability. Although there is mention of Mr. Greene having sustained a prior brain injury as a child, this does not put him in the category of a mental disability of this nature given the evidence of this case, including Doctor Pearce.

The Court of Appeal for Ontario in R. v. John, 2018 ONCA 702, identified serious mental health problems for which the offender had been inadequately treated as a factor. In that case, the offender had at times been suicidal. Neither of those factors apply to Mr. Greene. He has been assessed by Doctor Pearce, a well known forensic psychiatrist, and he does not suffer from any major mental illness. He is of average IQ. There is no indication of any mental disabilities or cognitive limitations related to Mr. Greene. Accordingly, he lacks those mitigating circumstances.

An offender with an indigenous background can also have a mitigating effect on moral blameworthiness. Mr. Greene has not been identified as a person with an aboriginal or indigenous background.

The fact that the defendant entered a plea of not guilty and a trial follows is not an aggravating factor. A guilty plea, saving the need for witnesses to testify at trial, can be a mitigating factor. The absence of a guilty plea is neutral. As the Court of Appeal for Ontario noted in R. v. Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] O.J. No. 3346, the:

“...failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation.”

Nature of the offence:

In this case, Mr. Greene has been found guilty of two offences, possession of child pornography, contrary to s. 163.1(4) and access to child pornography contrary to 163.1(4.1). In determining an appropriate sentence for this offender and these offences, the Court must specifically consider the nature of the offences. In that regard, the Court would note the following.

The law has evolved significantly over the last 12 years or so, both in terms of statutory provisions and common law.

As it relates to possession of child pornography, in 2003 the offence was subject to the summary conviction range of punishment, or if by indictment, to a maximum of 5 years incarceration. In 2005, Parliament increased the penalty for summary conviction election to a minimum punishment of 14 days jail, and a maximum of 18 months jail. Where the Crown proceeded by indictment, the range was a minimum punishment of 45 days and a max of five years jail.

In 2012, Parliament again sent a signal by increasing the minimum penalty for both summary and indictable elections. For a summary election, an offender was subject to the similar maximum of 18 months incarceration, but the minimum punishment was increased to 90 days. Where the Crown proceeded by indictment, the minimum penalty was increased to six months, and the maximum was kept at five years.

In 2015, Parliament passed the Tougher Penalties for Child Predators Act, which amended the penalty provision for this offence. Although it remained a hybrid offence where the crown proceeds summarily, the maximum punishment remained at two years less a day, and the minimum punishment was increased to six months jail. Where the Crown proceeds by indictment, the penalty was increased to a maximum of 10 years, with an increase in the minimum penalty of one year. The Court would also make reference to the constitutionality of the minimum range of punishment as being struck down. That is pursuant to the common law.

The Court would note at this point that now the Court of Appeal in R. v. Pike is also making references to these changes in the law in paragraph 158 of that judgment.

As it relates to the offences of access child pornography, there have been similar and parallel changes to the provisions, with similar penalty provisions for this related offence.

Parliament has sent recurring very strong signals that it seeks to have higher sentences imposed for make available child pornography, and possession of child pornography and access child pornography over the many years that these offences have been in existence. While the Court acknowledges that appellate courts have struck down mandatory minimum penalty provisions in relation to similar offences, including proceeding by indictment and that the Court treats the mandatory minimum sentences in the subject provisions to be of no force and effect, there is no doubt that Parliament views these offences as serious and in need of greater punishments than have previously been recognized by the Courts in the past.

There is no doubt that deterrence and denunciation are the paramount principles in relation to sentencing for these offences. Parliament has prioritized denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01, and as well by stating that where offences involve the abuse of a person under the age of 18 years, the Court must give “primary consideration” to the objectives of denunciation and deterrence of such conduct when imposing sentence. At the same time, the sentencing judge still has discretion to attach significant weight to other factors, including rehabilitation and Gladue factors where appropriate, in determining a fit sentence, including of the overall principle of proportionality.

Further, there is no doubt that the Court of Appeal for Ontario, and Supreme Court of Canada have also by their pronouncements sent a clear message to Courts that the penalties for these offences should reflect the seriousness of these offences. Implicitly the message is that prior sentences were not sufficient to address the paramount sentencing principles of deterrence and denunciation.

The Court of Appeal for Ontario has considered the quantum of sentence for offences related to child pornography in R. v. Inksetter, 2018 ONCA 474, [2018] O.J. No. 2702 (C.A.). On May 23, 2018, in that judgment, the Court made a very strong declaration regarding the nature of penalties for make available and possession of child pornography, regardless of any subsequent declaration of unconstitutionality of mandatory minimum penalties, stating at paragraph 24:

“I am aware that there is an appeal pending in this Court in R. v. Cristoferi-Paolucci, 2017 ONSC 4246. [2017] O.J. NO. 4341, challenging the constitutionality of the mandatory minimums for possession of, and making available, child pornography. However, even if the mandatory minimums are declared of no force and effect, Parliament's legislative initiatives signal Canadians' concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewed with some caution.”

And continuing at paragraph 27:

“A longer sentence on the count of “make available” child pornography than for the count of “possession” is warranted because by making images and videos, he downloaded available to others via the internet, the respondent contributed to the further victimization of the children depicted in the pornographic images. In my view, a sentence of three years imprisonment on the count of “possession” of child pornography and three and one half years imprisonment on the count of “make available” child pornography, to be served concurrently is fit in these circumstances, which include the early guilty plea and other mitigating factors identified by the trial judge.”

The size of the child pornography collection in Inkesetter was far beyond that in the case at bar. The Court allowed a Crown appeal from a provincial sentence to a penitentiary sentence for the offences.

It is interesting to note that the Court of Appeal for Ontario had before it also in 2018 the case of R. v. John, 2018 ONCA 702, which was released on September 4, 2018, some months later. In this case, the Court ruled that the mandatory minimum penalty of six months jail where the Crown proceeded summarily, was unconstitutional. The Court considered a reasonable hypothetical related to an 18-year-old’s friend forwards him a sext from the friend’s 17-year-old girlfriend without her knowledge, and the 18-year-old keeps the sext on his phone but does not forward it, in making that declaration. The Court held most members of the community would consider a six month jail sentence a substantial interference with individual liberty and would find it intolerable that such a punishment could be applied to this behaviour, especially given the number of images/videos involved (one single image), the nature of the image in question (lawfully self-created), the manner of acquisition (passive recipient) and the nature of the offender (young adult).

The Court struck down the mandatory minimum of six months jail for the offence in the Criminal Code. It is interesting to note that the circumstances of the offence were quite different from the reasonable hypothetical. The Court, nonetheless, upheld the ten month sentence imposed in that case, where the Crown had proceeded summarily, and the collection consisted of 89 unique videos and 50 unique images of very young children being subjected to anal and vaginal penetration. The sentence was proportionate to the gravity of the offence and the accused's degree of responsibility without regard to the mandatory minimum and, but for his considerable efforts at rehabilitation, the Court indicated that the sentence could have been much higher. It is also notable that the court stated in paragraph 41:

“The mandatory minimum is entirely unnecessary. This Court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter (2018), 141 O.R. (3D) 161, 2018 O.J. No. 2702, 2018 ONCA 474, at paragraph 16 .”

The Court also stated in relation to the sentence appeal which it dismissed:

“In that case, the appellant was 29 years old at the time of the offence and 31 years old at the time of sentencing.”

The Court noted:

“He has suffered from serious mental health problems for which he was inadequately treated. At times he was suicidal. He has pursued a course of psychotherapy with a view to dealing with his problems. The appellant is employed and is continuing counselling. He is remorseful, and no risk factors have been identified requiring further treatment.”

And at paragraph 45:

“Despite these mitigating factors, the size and nature of the appellant's collection is a seriously aggravating factor. The appellant had possession of 89 unique videos and 50 unique images of child pornography. He actively sought out these images and videos. His collection included images of children as young as four years old, and some perhaps as young as two or three years old, subjected to anal and vaginal penetration with sex toys and adult penises. This is terrible abuse of young children. In R. v. Lynch-Staunton, [2012] O.J. No. 313, 2012 ONSC 218 (S.C.J.), at paragraph 57, Ratushny J. pointed that out that:

‘It is to be understood by those trolling the internet for child pornography, that these pictures are acts of violence against children, that viewing and possessing them perpetuates the original violence, that viewing and possessing them encourages new child victims, and that as a consequence, jail terms will result.” [page 682].

The Court further stated:

“But for the appellant’s very considerable efforts at rehabilitation, the sentence imposed could have been much higher.

47The sentence imposed was fit and proportionate to the gravity of the offence and the degree of responsibility of the offender without regard to the mandatory minimum.”

The Court dismissed the appeal from sentence.

Aggravating:

This Court would note that there are aggravating factors as it relates to the nature of this child pornograph collection in this case. In this case, there were 127 images, 32 of which depicted real children who were being sexually abused and three videos, two of which depicted real children. The Crown’s submission is that this represents many lives profoundly impacted. It reflects significant amounts of abuse of very vulnerable people, and that submission is notable. Every image on line, and on devices held by people, perpetuates the abuse, and further traumatizes the victims. The case law is clear in this regard.

In this case, Mr. Greene not only possessed the child pornography material, he also reproduced it by copying it and moving it from device to device. The expert witness in the trial made it very clear how easy it is to copy and move this material. Just copy, click, paste and drag and it can be moved on additional devices and put elsewhere. This reproduction of the images multiplies the trauma to the victims.

The Court agrees with the Crown submissions that the extent of the period Mr. Greene possessed the material is aggravating, it is not just a brief period. It extended over a one year period of this offence. He kept searching for more material of a similar nature, being particular images such as Loli and hentai images, to add to his collection which he had gathered over an extended period of time and which he had curated. His interests reflect very young girls performing sexual acts with adult males. The Crown’s submission is that this puts the case in the sentencing range of 12 months.

It is mitigating that Mr. Greene is a youthful adult offender, with no prior criminal record. In a troubling way, however, despite his youth, he appears to not be interested in treatment or rehabilitation, and to have no insight or reflection with respect to these offences. He also appears, this Court would find, to have lower treatment prospects in light of his unwillingness to take treatment. While Doctor Pearce opined that if he was forced he would take treatment, it is not at all clear that would happen, even as a pro social person, given his view that he did not commit the offences and his perception he does not need treatment.

In this case, the Court also considers the lack of remorse and the lack of any upfront counselling, or any stated willingness to do counselling.

The Court places very little weight on evidence of Doctor Pearce as it relates to the risk assessment, given the limitations of that evidence as set out above. While Mr. Greene is not at fault for his mother’s views they are similar to those of Mr. Greene, for example, that he is innocent, that he did not possess child pornography, that he does not need treatment. There does not appear to be anyone in his immediate surroundings to support him who would encourage Mr. Greene to take treatment, which no doubt will potentially affect his rehabilitation and risk given his stated views.

The Supreme Court of Canada in its seminal judgment in R. v. Friesen, 2020 SCC 9, considered relevant principles to consider in sentencing for sexual offences. In that case the Court was considering sexual offences against victims who are children. At paragraph five, the Court stated:

“Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of the sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.”

Further, the Court reached out to make it clear it intended that its comments be considered in relation to other types of offences involving children, at paragraph 44, noting:

“Courts may also draw upon these principles when imposing sentences for child abduction and human trafficking offences where the victim is a child and the factual foundation for the conviction involves sexual violence or exploitation.”

The Court specifically considered sexual offences against children in the age of technology, where there has been a proliferation of child pornography offences. In that regard, the Court specifically noted, at paragraph 48:

“Technology can make sexual offences against children qualitatively different too. For instance, 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. (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paragraph 92; R. v. S.(J.), 2018 ONCA 675, 142 O.R. (3d) 81, at paragraph 120).”

Following the Supreme Court of Canada’s comments in Friesen, which echoed its earlier comments in 2001 in Sharpe, the Court has sent strong signals that for offences relation to child pornography, such as make available and possession of child pornography, sentences where children’s vulnerability are exploited, and which cause profound harm, should reflect those circumstances. The Court noted that sentences must be proportional to the gravity of the offences and degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives. Courts must take into account the wrongfulness and harmfulness of sexual offences against children in applying the proportionality principle, as it impacts on the gravity of the offence and degree of responsibility of the offender.

The Court reflected upon the wrongfulness of treating children not as persons with equal dignity, but as sexual objects to be used by adults, as they are exploited (see paragraph 78). The Court noted that Parliament’s recognition for this profound harm, has led to increases to sentencing for these offences, as it has determined that sentences for such offences should increase to match Parliament’s view of their gravity (see paragraph 95). Parliament has shown that it wants such offences to be treated as more grave and punished more harshly than in the past (paragraphs 96-97, and see also Lacasse, at paragraph 7). It has addressed this by increasing maximum sentences and prioritizing denunciation and deterrence in sentencing. The Court was very clear in the need for sentencing judges to respond to the increases in maximum penalties for these offences by stating the following at paragraph 100:

“To respect Parliament's decision to increase maximum sentences, Courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament's view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in "toughened sanctions" (paragraph 175; see also Woodward, paragraph 58). Sentencing judges and appellate Courts need to give effect to Parliament's clear and repeated signals to increase sentences imposed for these offences.”

The Court explicitly directed that it was providing guidance to Courts. In that regard, it stated that there should be upward departure from prior precedents and sentencing ranges in order to impose a proportionate sentence. Relying upon Lacasse, the Court stated that sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence for an offence and when society’s recognition for the harm arising from the offence has increased. Courts should not feel bound to adhere to a range that no longer reflects Parliament’s view of the gravity of the offence. To be clear, sentences should increase as a result. (See paragraphs 108-110).

THE COURT: Given that it’s 11:30, the Court’s going to take a recess now for 20 minutes and continue after the break.

R E C E S S

UPON RESUMING:

THE COURT: In R. v. M.M., 2022 ONCA 441, the Court of Appeal affirmed its prior judgment in Inksetter and the judgment of the Supreme Court of Canada in Friesen, stating at paragraphs 15 and 16:

“15: The Supreme Court's instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at paragraph 3 . Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow. “16: Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate - for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.”

While counsel have made reference to the Court of Appeal case of R. v. M.V., 2023 ONCA 724, and this Court has carefully considered the reasons of the Court in that case, this Court is of the view that the more recent case of the Ontario Court of Appeal in R. v. Pike released just last month and authored by the Chief Justice, is much more compelling and persuasive. It also sets out principles and a range of sentence intending for it to be a precedent. In that way, this Court will summarize aspects of Pike at this point.

At paragraphs 143 to 177, the Court set out the principles related to sentencing for possession of child pornography. The Court reflected the history, since the introduction of the offence in 1993 in the Criminal Code, of the Courts being on a learning curve to understand the wrongs and harms. Following R. v. Friesen, 2020 SCC 9, the Court has applied a child-centred approach. The internet has transformed this product by enabling perpetrators to produce distribute and acquire child pornography more quickly and easily with much less risk of detection. Child porn has become a “global cancer” that Canada has international duties to combat, with Canada ratifying the Convention on the Rights of the Child in 1993.

The Court considered six distinct wrongs and harms related to child pornography. Firstly, people who possess child pornography violate the dignity of children. It only comes into existence as a result of their exploitation and abuse. Secondly, people who possess images of abused and exploited children, directly invade the privacy of children in an extreme way. The recordings are of a permanent nature which people can access, study and manipulate. Thirdly, possessors of child porn inflict severe emotional harm on children. The possession of this material makes the path to recovery for child victims steeper by turning the initial exploitation and violence into a continuing violation.

Fourthly, people who possess child pornography instigate the production and distribution of child pornography, and thereby the sexual abuse and exploitation of children. The willingness to acquire this material necessarily creates a market for the exploitation of children. It fuels a cycle of abuse where producers continue abusing existing victims and seek out new victims. Fifth, possessing and viewing child porn can incite perpetrators to commit and facilitate their commission of other sexual offences against children. Sixth, people who possess child porn perpetuate pernicious messages that attack children’s humanity and equality.

Children have absolute dignity and infinite value and deserve equal respect. It lies to children by normalizing their sexual abuse and exploitation and lies to adults by falsely depicting children seeming to participate in their own exploitation, it erases their vulnerability and wrongly suggests that they can consent, or that their exploitation is not a real crime. It portrays children as property for adults to collect, exploit and exchange, even to the point of glorifying their enslavement. [see paragraphs 147 to 156].

The Court affirmed its statement in Inksetter at paragraph 22, that possession of child pornography is itself child sexual abuse, at paragraph 157. People who possess child pornography participate in the producer’s initial sexual abuse of children through the market that their demand creates, and drive demand for even more abuse. They also independently abuse those children by violating their dignity and privacy which causes them severe emotional harm.

The Court tracked the increase in penalty provisions in the Criminal Code in paragraph 158, as set out above in this Court’s reasons.

Deterrence and denunciation are prioritized in s. 718.01 of the Criminal Code. The Court noted that many people who possess child pornography are likely to be deterred by the prospect of strict sentences because they are often the otherwise law-abiding people of good character and employment without prior convictions. The court referred to the myths and stereotypes minimizing the degree of responsibility of those who possess child pornography. The myths are that it is harmless and victimless, accidental and passive, caused by medical and psychiatric conditions, or isolated.

People exploit real child victims callously, deliberately and repeatedly. Courts must embrace this reality. This is morally blameworthy conduct, arising from the intentional exploitation of vulnerable children, see also Friesen at paragraph 90.

The offenders display a disturbing lack of empathy and compassion by collecting and viewing this material without considering the plight of the victims. The crime is not accidental or passive, it is deliberate, committed by choice, acquiring and maintaining the material and expanding the collection. It is also a continuing choice, to possess, and retain the material, often indefinitely or for a significant period. Often there is a deliberate choice to acquire more material, organize the collection and repeatedly view the images, victimizing children each time they do so, see paragraph 165.

This Court would note that is the case with Mr. Greene, who was involved in the acquisition and organization, and curating of his collection over the year he had the material for the offence.

While the Court considers the case of Justice Molloy in R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] OJ No. 457 setting out aggravating facts in 2007, the Court of Appeal in R. v. Pike elaborated on those factors. As it relates to the size of the collection, the Court considered that what must be considered together with the number of images is the number of real child victims, the degree of organization and the ratio of videos to still images. The greater the number of real children victimized, the more aggravating the factor. The level of organization, as in the case at bar the Court would note, refers to people who have more interest in the material. Further the Court noted that videos are more aggravating than still images because it adds more realistic and graphic detail and they are more invasive and harmful privacy violations [see paragraph 167]. Accordingly, stricter sentences for smaller-size collections are appropriate if other aggravating factors demand it, quoting from R. v. McCaw, 2023 ONCA 8, at paragraphs 31 to 33.

The nature or seriousness of the collection relates to the degree of harmfulness and wrongfulness. Material showing more physical intrusive activities that feature additional violence beyond that inherent in sexual offences against children is aggravating as that can cause additional harm. The Court noted that the harms and wrongs do not depend on penetration as other forms of exploitation can cause severe emotional harm, even if victims appear to participate, including acts of posing. In addition, the nature of the collection includes consideration of whether it depicts real children, as opposed to stories or virtual images. The Court noted that the collections of virtual or fictional children does not victimize real children and in that sense is less serious. [see paragraphs 168 and 169].

Further, the duration of possession and the frequency of downloading and viewing images increases the moral blameworthiness of people who possess child pornography, showing the entrenchment of their conduct and increasing the number of times they victimize the depicted children. People who collaborate, plan and organize can trigger a greater need for deterrence because perpetrators who employ these methods can cause greater harm and avoid detection more easily.

As a general concept, the Court noted at paragraph 171 that the absence of aggravating factors is not mitigating. Good character, employment and stigma are less significant factors in sentencing. The Court warned against giving preferential treatment to the rich, privileged and powerful. The Court also referred to the recognition and expression of remorse, and conversely, people who engage in distorted thinking and minimize or excuse their actions as harmless fantasies.

The Court set out, in a precedential fashion in paragraph 176, the upper end of the range for possession of child pornography to now be five years incarceration. Significantly, the Court declined to set out a lower end for the possession range, as possession can be committed in a wide variety of circumstances, and sometimes the offence is prosecuted summarily which lower the maximum sentence to two years less a day. The Court would note that is the situation in the case at bar. The Crown proceeded summarily against Mr. Greene. The Court went further, in paragraph 178 to set out the cases which set out the range, including Inksetter, John, McCaw, Olivetti and Rule 2023 ONCA 31, and Friesen at paragraphs 108 to 110. The Court specifically stated in a noteworthy comment that:

“The length of sentence imposed in cases that applied the 2007 Kwok range has limited utility going forward because that range’s upper end has long been surpassed.” [see paragraph 178].

The Court must consider the appropriateness of the past sentences imposed by courts, for similar offences and similar offenders, in the context of the principles set out above. The Court has set out above what it finds to be relevant case law and the sentencing range for this offence and this offender.

The Court must also carefully consider the circumstances of the offences before the Court, in terms of the various child pornography images and aggravating and mitigating factors and the circumstances of the offender, in imposing the appropriate sentence in this case.

The Court has exercised caution in considering sentences imposed before the 2015 amendments to the Criminal Code which increased the maximum penalties for the offences. The Court considers the principles set out by the Supreme Court of Canada in the Friesen case, that sentences need to be increased. Cases for offences committed prior to the 2015 amendments to the Criminal Code, which increased penalties for child pornography offences, must be examined through the Friesen filter in that they were imposed when the gravity of the offence was considered less than the offences before this Court.

Overall, this Court would make the observation that the trend of the sentencing pronouncements of the Supreme Court of Canada and the Ontario Court of Appeal continuing with Pike with respect to child pornography and offences against children, which exploit their vulnerability, suggest that the terms of incarceration must be increased.

In terms of the size of the collection in this case compared to reported cases, the Court would note that many cases submitted by the Crown over various occasions to this Court, and by the defence, include many where the number of images exceeds by a multiplier factor those in the case at bar, and the sentences imposed were in excess of the sentence sought by the Crown in the case at bar.

This is a classic case where there are not many cases similar to the one before this Court. The Court is mindful of the principle of disparity, but the cautionary statements of the Supreme Court of Canada in Friesen as it relates to potentially relying upon earlier sentencing cases which are out of step with the recognition of the greater gravity of the offence and need to consider increased sentences are important. This Court is mindful of the clear signals of Parliament, and the Court of Appeal in Inkster and Pike and the Supreme Court of Canada in Friesen, to properly address proportionality in sentencing. It is not a simple exercise. But more importantly, the Court considers the principles set out in Pike. The Court considers the number of real children depicted in the images and the videos. The Court considers the nature of what is depicted and the age range of the little girls. This is not a collection at the lower end of the range.

While the Court is somewhat challenged in finding cases to be of assistance in defining a range of sentence for this offence and this offender, the Court finds this difficult given the principles set out by the Court of Appeal in R. v. Pike. In that regard, the Court finds that the cases that have been located are likely to have been greater sentences if they were imposed after the Ontario Court of Appeal consideration in Pike. Many of these cases pre-date the point at which appellate courts in Ontario, such as Pike, have set a much higher range of sentence.

The Court notes R. v. John, 2018 ONCA 702, in that case considered both a conviction and sentence appeal. The case involved only possession of child pornography, which consisted of were 50 unique images and 89 unique videos amounting to child pornography stored on the appellant's computer. The Court held that the mandatory minimum penalty of six months, which was in effect at the time of this offence, was unconstitutional. Nonetheless, the Court upheld a 10 month jail sentence imposed by the Superior Court trial judge after a trial. The Court noted that the appellant was 29 years old at the time of the offence and 31 years old at the time of sentencing. However, he had suffered from serious mental health problems for which he was inadequately treated. At times he was suicidal. He has pursued a course of psychotherapy with a view to dealing with his problems. The appellant was employed and is continued counselling. He was remorseful, and had no risk factors that had been identified requiring further treatment.

The Court held that despite these mitigating factors, the size and nature of the appellant's collection was a serious aggravating factor. The appellant actively sought out the images and videos. His collection included images of children as young as four years old, and some perhaps as young as two or three years old who subjected to anal and vaginal penetration with sex toys and adult penises. That case terrible involved terrible abuse of young children. The Court further stated that but for the appellant's very considerable efforts at rehabilitation, the sentence imposed could have been much higher.

The Court finds that given the current state of the law, the appropriate sentence for this case in 2018, would likely be far in excess of the ten months imposed by the trial judge and upheld by the Court of Appeal if it were considered after the Pike case.

The Court has considered the case of R. v. Natal Carlos, 2015 ONSC 8085, 2016 ONCA 920, which was affirmed by the Court of Appeal. This included charges of make available child pornography and possession of child pornography. The offences were prior to 2015 amendments to Criminal Code which increased sentencing provisions. In that case there was a collection of 12 videos and 38 videos of incomplete files. The Court upheld a three year penitentiary sentence for those offences. The offender had not plead guilty. He was likely to face deportation following the conviction. Doctor Pearce gave evidence in this case and had noted that there was no significant arousal to the children stimuli, and concluded he did not meet criteria for pedophilia or any other paraphilia (sexual arousal or interest in children) and was at very low to low risk for re- offending for being in possession of child pornography.

In its review of case law put before it by counsel, many of which predated the 2015 amendments to the sentencing provisions related to child pornography, the trial judge noted a case and noted that it was an aggravating factor that the offender had a child of similar age to the children depicted in the images (see paragraph 56). The trial judge noted the mitigating and aggravating factors at paragraphs 71 to 83.

Essentially, the mitigating factors were noted to be 12 videos of complete files, nine files could not be opened, 38 videos of incomplete files. The videos had been deleted within a 4 week period. Of the images, the videos were more graphic than still images and showed very young, although it didn’t say age of the children, involved in actual intercourse with adult males with no indication of any heightened depravity, brutality or bestiality. The accused in that case had no criminal record, a steady work record, likely faces deportation, and was given a three year sentence.

The Court has also considered the cases submitted by the Crown, of R. V. M.M. and M.V. set out above, R. v. Graham, 2022 ONCJ 275, R. v. Treloar, [2023] OJ No. 1041, [2024] OJ No. 554 (sum conv appeal); R. v. Snead, 2021 ONSC 7017; R. v. Himel, [2024] OJ No. 143; R. v. A.M. 2023 ONCJ 181. The Court has also considered the cases submitted by the defence, including R. v. Doucette, 2021 ONSC 371, R. v. S.L. 2021 ONCJ 69, and R. v. John, 2018 ONCA 702, which is discussed above, together with R. v. C.B. 2024 ONCA 160. The defence further relied upon R. v. Cusick, 2022 ONCJ 590, R. v. Dutchession, 2021, ONCJ 480, R v. Afzaal, [2022] OJ No. 927, R. v. Ereault, 2022 ONCJ 270, and R. v Scott, 2023 ONSC 3023.

The Court would note that the Court should not be overwhelmed by the numerical size of the collection as a factor, relative to the other factors, as set out by the Court of Appeal in Pike.

There are numerous distinguishing features in many of these cases, although the Court does consider them for the purpose of placing the case at bar within a range of sentence for this offence and this offender, and particularly in light of the current state of the law after R. v. Pike.

Overall, the Court applying Pike to these cases, finds that the lower end of the range of sentence for the case at bar is at 12 to 14 months, and runs up from that to a lengthier period of incarceration. The maximum penalty for this offence where the Crown proceeds summarily, is two years less a day. The Crown in this case submitted, prior to the Pike case, that the proper penalty is eight to ten months jail for these offences and this offender, and considering that submission, the Court is prepared to consider the range of ten months in this case, although it could run higher given the decision in Pike which was subsequent to the submissions of counsel and the principles in Friesen and the law relating to these offences, and the nature of the offence.

Following the principles in Pike, the Court is of the view that the range of sentence for this offence could easily have run in the 12 to 15 month range, even considering the mitigating factors in this case.

The defence position was that the low end of the range of sentence being six months incarceration. The Court is of the view that the lower end of the range for this type of sentence is well above six months and probably in the range of 12 months, although potentially in the range of 10 months after consideration of Pike.

The defence makes the alternate submission that this case falls within the category of exceptional circumstances for a potential conditional sentence 12 months in length. The Court now considers this option.

The Court must consider the provision for this type of sentence, set out in S. 742.1 of the Criminal Code. The relevant provisions are as follows:

742.1: If a person is convicted of an offence and the Court imposes a sentence of imprisonment of less than two years, the Court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the Court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in Sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment.”

The Court must first determine whether a conditional sentence of imprisonment would be available pursuant to the statutory provision. The Crown proceeded summarily in this case. The offence is not punishable by a minimum term of imprisonment, following constitutional considerations. Mr. Greene has not been charged with breaching any terms of bail. This potentially impacts on the Court’s consideration of whether the safety of the community would not be endangered by Mr. Greene serving his sentence in the community.

The key issue, however, in this case is whether a conditional sentence would satisfy the fundamental purpose, principles and objectives of sentencing, as set out in ss. 718 to 718.2 of the Criminal Code, for this offence and this offender. The case law is clear that the paramount principles/primary sentencing objectives in a case of this nature are denunciation and deterrence. Courts have been clear that in some cases, a conditional sentence may satisfy the principles of denunciation and deterrence; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paragraphs 102 and 107, R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 33 O.R. (3d) 225 (C.A.). As noted by Justice Doherty in R. v. Killam, 1999 CanLII 2489 (ON CA), [1999] O.J. No. 4289 (C.A.), a conditional sentence does not, generally speaking, have the same denunciatory effect as a period of imprisonment; incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.

In Proulx, in paragraph 96, the Supreme Court specifically considered the principle and objective of judicial restraint, pursuant to s. 718.2(d), that is to say, that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. However, the Court stated that this principle is, of course, not solely determinative, but involves a more comprehensive consideration. As stated in that paragraph:

“A determination of when less restrictive sanctions are ‘appropriate’ and alternatives to incarceration ‘reasonable’ in the circumstances, requires a consideration of the other principles of sentencing set out in ss. 718 to 718.2.”

So this is but one of the principles and objectives to consider. The Court must have regard to both the seriousness of the offence and the offender’s degree of responsibility.

The Chief Justice in Proulx went on to state at paragraph 106:

“There may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct.”

As stated by the Court of Appeal for Ontario in R. v. McGregor, [2008] O.J. 4939 (C.A.):

“The nature of the offence or the circumstances of the offender may require a term of incarceration to adequately express society’s condemnation of the conduct at issue, or to achieve the required deterrent effect.”

The Court considers the comments of Justice Molloy in R. v. Kwok, regarding conditional sentences, where she stated at paragraph 57:

“Staying at home for a year or so, unless at work or at school, would not be seen by many deviant personalities as much of a deterrent when weighed against the strength of their urges to access child pornography. However, going to jail is a different matter altogether.”

Later, at paragraph 58, she stated: “However, for some crimes and for some offenders, the prospect of imprisonment can have a strong deterrent affect. It is my belief that possession of child pornography is one of those offences. It is too easily seen as harmless. People persuade themselves that it is not really bad, that they are not the ones hurting anybody. They do not see themselves as criminals, just as drunk driving was not seen as truly criminal conduct in decades gone by. A message must be sent to those people, before they start down the path of accessing child pornography, that police are becoming more sophisticated, that society is becoming less tolerant, that more and more people are being caught, and that if caught, they stand a very good chance of going to jail. In my view, these factors are all in operation here and support a term of imprisonment rather than a conditional sentence to be served in the community.”

More recently, the Ontario Court of Appeal in R. v. M.M. the Court made a very strong statement in setting a threshold at the time for imposing conditional sentences for these types of offences. In that case the Court stated at paragraph 16:

“Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.”

The Court finds that the Court of Appeal for Ontario in R. v. M.M. previously set this threshold for the consideration of a conditional sentence as only in exceptional circumstances. The Court would note that exceptional circumstances are not the same as mitigating circumstances.

Thereafter, the Court of Appeal for Ontario in R. v. Pike further commented upon the suitability of a conditional sentence for the offence of possession of child pornography, further commenting upon the Proulx and MM cases. The Court stated, at paragraphs 179 to 182:

“179 This brings me to the appropriateness of conditional sentences for possession. First, judges should situate cases on the range and determine whether an under two year sentence is appropriate before deciding whether it should be served in the community. They must also determine that a community sentence would not endanger community safety: McCaw, at paragraphs 20-26. Second, even if these conditions are met, Court must decide whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing, especially the fundamental principle, proportionality. This test requires considering not only personal circumstances and mitigating factors of people who possess child pornography, but also the severe wrongs and harms that they cause, their moral blameworthiness, and Parliament's prioritization of deterrence and denunciation: McCaw, at paragraphs 27-129; M.M., 2022 ONCA 441 at paragraphs 15-16. As this Court held in M.M., applying this second step ordinarily results in custodial sentences because Parliament has prioritized denouncing and deterring the wrongs and harms that people who possess child pornography cause real children: at paragraphs 15-16.

180 I must reconcile the ‘exceptional circumstances’ term that M.M. used to express this point with the Supreme Court's decisions in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, and Parranto. At first glance, M.M.'s use of this term might seem contrary to these cases, which respectively hold that appellate courts can neither create presumptions that conditional sentences are inappropriate for specific offences (Proulx, at paragraphs 80-83), nor require exceptional circumstances to depart from a range (Parranto, at paragraph 40).

181 But in my respectful view, M.M. did not and could not have intended to depart from Proulx by creating an offence-specific presumption against conditional sentences. Rather, it used the ‘exceptional circumstances’ term to convey that, since Proulx, Parliament has increased maximum sentences and prioritized denunciation and deterrence for sexual offences against children and, further, that the Courts' understanding of the harmfulness and wrongfulness of these offences has deepened: Friesen, at paragraphs 109-110; see M.M., at paragraphs 13-15. Thus, while there is no presumption against conditional sentences, these post-Proulx changes require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago.

182 Nor, in my view, did M.M. intend to depart from Parranto by requiring exceptional circumstances to impose a conditional sentence. Rather, M.M. used ‘exceptional circumstances’ as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate, as in R. v. Padda, 2019 BCCA 351, at paragraph 36. Not only is there no closed list of such circumstances and factors (M.M., at paragraph 16), but multiple seemingly non-exceptional factors taken together, such as being a young first offender with family support who poses little risk and takes responsibility for his actions, can collectively render a conditional sentence proportionate: R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1, at paragraph 99. This is consistent with Parranto's holding that sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories: at paragraph 40; see R. v. Ellis, 2022 BCCA 278, 417 C.C.C. (3d) 102, at paragraph 118.”

In this case both Crown and defence submit that the appropriate sentence in this case is in the reformatory range. There is no minimum sentence of imprisonment. Theoretically, a conditional sentence is available. However, the Court’s consideration of the principles set out in Pike guide the analysis. The Court must consider a potential conditional sentence in light of the case law suggesting the nature of sentences for possession of child pornography in light of the comments of the Court of Appeal for Ontario. The Court asks itself whether there are compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors, to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago. Secondly the Court asks whether there are personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate.

In this case, there was not the mitigating circumstance of a guilty plea that occurred in many other cases. Also, unlike Scott in the Pike decision, Mr. Greene has not accepted that he possessed and accessed the child pornography material. Mr. Greene has a lack of insight and he also lacks willingness to take any treatment. In some other cases the offender not only had insight and appreciated the need for treatment, the offender had already taken treatment.

In the case at bar, the youthful age of Mr. Greene is a mitigating factor, and he is of otherwise good character. The risk factor is, this Court would find, notwithstanding the evidence of Doctor Pearce, somewhat uncertain.

The Court of Appeal in Pike considered the factors which were noted to be mitigating and aggravating by Justice Molloy in R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] OJ No. 457, and the Court also expanded on that list. The Court would also note that on the record before this Court, unlike offenders in a number of other cases, Mr. Greene has not already suffered in terms of family, career or community occasioned by the discovery of the offence, as has happened with other offenders.

The Court would note the additional factor that Mr. Greene was not just a latent collector, but he reproduced the material, copied it, moved it from device to device, and curated the collection over time. With the ease of copying and clicking, he added to the trauma and harm to the real children. He sought additional images to add to the collection over time. The offence occurred over a one year period and there is evidence that it started prior to that time.

The Court also considers the nature of the collection, including its size, the ages of the real children involved and the relative depravity and violence depicted.

In this case, in summary form, the nature of this child pornography collection included 127 images, 32 of which depicted real children who were being sexually abused, and three videos, two of which depicted real children.

In this case the Crown filed in evidence a summary of a sample of the child pornography. While the Court is reluctant to describe the images in detail, it is clear that there are numerous images of real females in the range of five to eight years, eight to ten years and six to ten years. Some of them show the females posing and exposing genital areas. Some images also contain a male showing his penis and touching by the female and oral sex with the male and a relative position of the male and female lying on her back suggestive of intercourse. One image showed the child’s wrist securing it in place during the act. There is a nine second video of a real child believed to be under ten years, where there is penile penetration. The sexual acts involving the little girls are with adult males including oral sex and vaginal sex. The Court declines to summarize in detail the various images which are in a sealed exhibit marked in the trial. Nonetheless, it is not a lower end collection in terms of the nature of the material and the ages of the girls.

In this case the Court finds that there are not compelling circumstances, mitigating factors and/or an absence of aggravating factors to justify a conditional sentence for this offence. A conditional sentence would not be consistent with the fundamental purpose and principles of sentencing, especially the fundamental principle of proportionality. This test requires considering not only the personal circumstances and mitigating factors of people who possess child pornography, but also the severe wrongs and harms that they cause, their moral blameworthiness, and Parliament's prioritization of deterrence and denunciation. The Court considers whether a conditional sentence would properly address denunciation and deterrence given the aggravating factors in this case.

Bearing in mind the appellate case law as set out above, the appropriate sentencing range for this offender and these offences, including the lack of insight, the lack of willingness to take treatment, the Court is of the view that a conditional sentence would not adequately express society’s condemnation of the conduct, nor achieve the required deterrent effect in this case.

The Court finds that a conditional sentence would not address the fundamental purpose and principles of sentencing. A conditional sentence is not appropriate and it will not be imposed in this case. A straight period of incarceration is required in this case.

After a very careful consideration of the sentencing range over a period of time, it is the Court’s determination that the appropriate sentence, after considering the position of both parties in this matter, is one of ten months straight incarceration, with a recommendation that Mr. Greene serve his sentence at the Ontario Correctional Institute and receive treatment addressing past and potential future child pornography offences.

The defence has submitted that the Court should stay the conviction on the access count once the Court makes the finding of guilt and sentence on the possession of child pornography. In considering that argument the Court has considered R. v. R.K. 2005 CanLII 21092 (ON CA), [2005] OJ No. 2434 (CA), and R. v. Prince , together with R. v. Branco, 2019 ONSC 3591.

When the Court considers whether there is a factual and legal nexus connecting the offences which capture the same delict, the Court finds that in that case, that is not what happened. In this case there were two separate and distinct acts, first of possession of the material, then copying it and moving it around from drive to drive, distinct and different acts and steps taken. Ongoing possession and retention of the images and videos enabled access, but the additional acts of moving copying and duplicating the images were distinct in this case from mere possession of the material. They are separate and unlawful acts. The analysis on the Kienapple point is essentially an evidentiary and fact- driven analysis in each case this Court would find. Accordingly, the Court declines to enter a stay on the access count.

The Court imposes the sentence of ten months straight incarceration concurrent on the access count, following the ten months incarceration on the possession of child pornography count.

This period of incarceration will be followed by a period of 3 years probation. The probation will have the following terms.

The offender shall report within 3 working days after release from custody, and thereafter as directed by the probation officer. There will be the following additional terms.

Do not use or possess any device capable of a) storing data in a digital format including but not limited to computers, handheld devices, BlackBerry, et cetera, personal digital assistants, PDAs, cellular telephones, digital cameras, video cameras, or be accessing the internet for composing, transmitting or receiving electronic mail (email) unless a), the possession or use of such a device is required and for the purpose of employment, it is used and accessed only at the place of employment and the offender obtains the written permission of the probation officer for the proposed possession of the device in advance or, b) the offender is using the device to search for or negotiate employment and only while in the direct presence of an adult approved of by the probation officer, or the offender obtains written permission from the probation officer to possess any such electronic devices with the following caveats:

First the offender shall not have an electronic mail (email) account without the prior written approval of the probation officer.

Where an approval for an electronic mail (email) account is granted, the offender is permitted to have only one email account which the offender shall not change or use to create any other email accounts.
The offender shall provide to the probation officer sufficient reliable verifiable information regarding the electronic mail (email account) to permit the probation officer to monitor the offender’s use of the electronic mail service.

Do not subscribe to or access by any means whatsoever any internet service or similar communication service except as may be required by your employment and except for a standard use cellphone which does not have the capacity to access the internet and then only with the prior written approval of your probation officer and upon providing all related subscription documentation to your probation officer as proof of the limitations in terms of service.
Provide the probation officer with accurate up-to-date information regarding his internet service provider account. This information includes, but is not limited to, the name of the internet service provided and the offender’s account number and billing address.
Do not use any electronic device to communicate with any person under the age of 18 years.
Do not use any electronic device to access internet “chat rooms” or “social networking sites.”
Do not possess or access child pornography, including written content.
Do not possess or access any images of children who are depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner.
Do not be in the company of any person under the age of 16 years unless you are in the direct and continuous presence of that person’s guardian.
Do not contact or communicate with children under the age of 16 years unless you are in the direct and continuous presence of that person’s guardian.
Attend for assessment and/or counselling as directed by your probation officer and be amenable to such programming as recommended by your probation officer and sign any releases required to allow the probation officer to monitor compliance with treatment and counselling, including and especially sexual offender treatment programming and programming with respect to child pornography offences.
Advise your probation officer of any change in address 24 hours prior to any such change.

Does Mr. Greene understand the terms of that probation order?

AARON GREENE: Yes.

THE COURT: Can you comply with that?

AARON GREENE: Yes, absolutely.

THE COURT: Thank you.

In addition to that, there will be ancillary orders as well.

Firstly, there will be a DNA sample that will be obtained – can you call the Court officer asking them to come up.

CLERK OF THE COURT: Yes.

THE COURT: This is for the offence being a primary designated offence pursuant to Section 487.051(1). It is mandatory. The Court has also considered (2), which provides the Court is not required to make the order if it is satisfied that ANY person has established that the impact of such an order on the privacy and security of ANY person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders. In this case the Court is not satisfied that the impact would be grossly disproportionate to the public interest in this regard, and the Court makes the order that a DNA sample be taken in relation to each of the two offences before the Court.

The Court also considers the imposition of a potential SOIRA order. In that regard the Court considers the sex offender information provisions in the Criminal Code. The Court notes that each of the two s. 163.1 offences are primary offences and accordingly are designated offences pursuant to s. 490.011(a)(xi) of the Criminal Code. In that regard, neither s. 490.012(1) or (2) apply in this case. Currently the Court considers s. 490.012(3)(a) and (b), and as well, the factors outlined in (4). As will be noted in a moment, the Court has considered the factors in Subsection (4).

The Court considers R. v. Ndhlovu, 2022 Supreme Court of Canada SCC 38. The Court notes in particular paragraphs 94 and 95 of that judgment. The Court considers Mr. Greene’s age, and what is his apparent interest in the type of material in this case. The Court considers the nature of his family support, which can be a good factor, except in this case his mother is of the view that he is not guilty and does not need treatment or counselling. This mirrors and is consistent with Mr. Greene’s position that he did not possess or access the child pornography material and that he does not need treatment or counselling.

The Court has carefully considered the evidence of Doctor Pearce and as stated above, the Court has grave concerns about the usefulness of the risk assessment opinion and evidence of Dr. Pearce. This stems from the nature of research in this area, which is deficient in scope in terms of it being generic. The Court also has a concern as stated above in relation to the role Mr. Greene played in manipulating the results of the phallometric testing.

The Court also had concerns regarding the role of the size of the collection in this case, relative to other cases, as it did not appear that Doctor Pearce took into account all of the reasons for judgment, including the period of time over which Mr. Greene had been collecting the images and references to deleted material. In that regard, the Court finds that this expert evidence does not assist the Court as sought by the defence potentially in arguing a low risk to re-offend.

Mr. Greene has not done any counselling or treatment and as stated, he does not believe that he needs either. This affects, the Court would find in light of the case law, the risk of recidivism, notwithstanding the expert evidence in this case. Unlike the offender in Ndhlovu, it cannot be said that the offender is no longer at significant risk to re-offend. As referred to in paragraph 125 of Ndhlovu, judges are able to assess risk.

This Court finds that there is a risk associated currently with Mr. Greene and recidivism related to a similar offence of child pornography. It cannot be said that it is remote or implausible that Mr. Greene’s information will ever prove useful to police. The Court considers the apparent connection between making the order and the purposes of the SOIRA Act for the purpose of preventing and investigating crimes of a sexual nature, and in particular as it relates to Mr. Greene’s offences related to child pornography. In this case there was a challenge in the investigation in that the user, for purposes of internet access, was his mother having the subscription agreement with the internet provider, not Mr. Greene.

After Ndhlovu, the Court considers the current provisions regarding the making of the order. This is set out in Section 490.12(3) which states:

“Subject to subsection (5), when a Court imposes a sentence on a person for a designated offence in circumstances in which neither subsection (1) nor (2) applies, or when the Court renders a verdict of not criminally responsible on account of mental disorder for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act unless the Court is satisfied the person has established that (a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or (b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.

(4) In determining whether to make an order under subsection (3) in respect of a person, the Court shall consider

(a) the nature and seriousness of the designated offence;

(b) the victim’s age and other personal circumstances;

(d) the personal characteristics and circumstances of the person;

(e) the person’s criminal history including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;

(f) the opinions of experts who have examined the person; and

(g) any other factors that the Court considers relevant.

The Court would note that there is a relatively minimal impact on Mr. Greene’s privacy rights. The reporting requirements are yearly or when he changes an address. They are not that onerous. The impact of the order on the person, including their privacy, would not be grossly disproportionate to the public interest in protecting society.

In this case, the defence has failed to establish either s. 490.012(3)(a) or (b), bearing in mind the factors set out in (4).

The Court does not make this order automatically or arbitrarily, but rather after consideration of all of the relevant factors and circumstances. In all of the circumstances, the Court finds that it is appropriate in this case to impose the order. The length of the order is determined by the current provision s. 490.013(2). The order will be imposed and it will be for 10 years.

The Court also makes an order under s. 161 of the Criminal Code. In that regard the Court makes an order under subsection (b) that the offender not seek, obtain, or continue any employment whether or not the employment is remunerated or become or be a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

Secondly, under Section 161(d) not to use or access the internet or other digital network unless you do so:

On your own personal electronic device
For which you have provided Detective Constable Edit Tamas and her badge number and email address in writing, the make, model, serial number and service provider, as well as any telephone number connected with the device
Which is equipped with software or hardware that blocks access to:

(i) social networking sites, including but not limited to Facebook, Twitter and Tumbler;

(ii) peer to peer filing sharing networks including but not limited to Motherless, Livewire, Nutella, Bare Share

(iii) Use net or Free net

Which does not have scrubbing software installed and does not save files in an encrypted fashion.

Secondly, where you are not self-employed you may use or access internet or other digital network at your place of business for business purposes and in accordance with IT and other policies at your place of business.

Number three, not to use any electronic device to access the internet or other digital network in order to access child pornography.

Access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material

Access, Use net or Free net.

The Court would note that it has very carefully considered the principle of rehabilitation and that is why the Court has made a recommendation that Mr. Greene serve his sentence at the Ontario Correctional Institute and receive what the Court understands to be a fairly high quality of programming as it might relate to sexual offence programming and child pornography programming.

The Court does waive the victim fine surcharge in light of all the circumstances in this case.

The Court has also received from the Crown a draft order of forfeiture with respect to the equipment in this case, which the Court understands is on consent. Accordingly, the Court makes an order under (A), and that is things used for child pornography is subject to forfeiture and the fact that the respondent, who is Mr. Green, was convicted of one or more offences under Section 163.1, it is noted that the property listed in A be forfeited to Her Majesty the Queen in right of Ontario to be disposed of as the Attorney General for the Province of Ontario directs, or otherwise dealt with in accordance with the law. And these are the items of property under category (A) to be forfeited.

Firstly, Samsung Smart phone, property tag number 6768345; secondly, desktop computer, property tag number 6768372; and finally three hard drives that are marked collectively with property tag number 67683344.

Those are the reasons of the Court.

R. v. Greene, 2024 ONCJ 462

Case Summary

APPEARANCES:

THE FACTS:

B. Circumstances of the offender:

Evidence of Doctor Mark Pearce relating to the offender:

LEGAL PARAMETERS

POSITIONS OF CROWN AND DEFENCE ON SENTENCE:

MITIGATING AND AGGRAVATING FACTORS:

SENTENCING PRINCIPLES:

Nature of the offence:

R. v. Greene, 2024 ONCJ 462

Case Summary

APPEARANCES:

THE FACTS:

B. Circumstances of the offender:

Evidence of Doctor Mark Pearce relating to the offender:

LEGAL PARAMETERS

POSITIONS OF CROWN AND DEFENCE ON SENTENCE:

MITIGATING AND AGGRAVATING FACTORS:

SENTENCING PRINCIPLES:

Nature of the offence: