Court File and Parties
ONTARIO COURT OF JUSTICE
Date: 2024 09 20 Court File No.: London, Ontario Information: 22-23100985
BETWEEN:
HIS MAJESTY THE KING
— AND —
JOSEPH MOSS
Before: Justice J. Miller
Heard on: September 11, 2024 Reasons for Judgment released on: September 20, 2024
Counsel: L. Defoe, counsel for the Crown B. Neufeld, counsel for the accused Joseph Moss
WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsections 486.4(1) and (3) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) and 486.4(3), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
INTRODUCTION
1Mr. Moss appears before this Court for sentencing in relation to several internet child exploitation offences. Some of these offences, and specifically those related to the known victim R.B. [1], have transnational elements. These elements were raised by Mr. Moss as part of his sentencing submissions, both through counsel and when I heard from him directly.
2This is not rare or unique in the world of online child exploitation. The internet has made it incredibly easy for offenders in one country to exploit children located in other countries. I will say more on this later in this judgment.
3However, to be clear, my duty in this matter is to impose a sentence in accordance with the applicable laws in Canada; where the offender committed his offences from, was charged and plead guilty in, and for that matter was born, raised and has resided his entire life. Further my sentence must be one that reflects both the contemporary and collective voices of Canadian society. [2]
THE FACTS
4On September 11, 2024, Mr. Moss plead guilty to the following five criminal offences on Information 22-23100985, which stated in relatively plain language were:
a) Count 2: that between March 26, 2021, and September 16, 2021, he made child pornography;
b) Count 4: that between March 26, 2021 and September 16, 2021 he distributed child pornography;
c) Count 5: that between March 26, 2021 and September 16, 2021 he possessed child pornography;
d) Count 7: that between March 26, 2021 and September 16, 2021 he made sexually explicit material available to R.B., a person under the age of 18 in order to facilitate a child pornography offence in relation to R.B.
e) Count 13: that between March 26, 2021 and September 16, 2021 he used telecommunications to communicate with to R.B., a person under the age of 18, in order to facilitate a child pornography offence in relation to R.B.
5The parties filed an Agreed Statement of Facts [3] in this matter. They also relied upon and filed some additional exhibits including:
a) A support letter from Mr. Moss’s father [4];
b) Support letters from people purporting to be the victim R.B.’s family [5];
c) A Pre-Sentence Report dated December 11, 2023 [6]; and
d) A Representative Sampling of the Child Pornography in this case, both in written description and digital form. [7]
6Further, on September 11, 2024, I heard submissions from counsel, and I heard directly from Mr. Moss. Based on the evidence I have received I make the following findings of fact. Most of these findings are based on the Agreed Statement of Facts. Where the findings are more complex, I will provide more details on what I found and what that finding was based on.
7On April 8th, April 9th, May 6th, and May 28th of the year 2021 Mr. Moss shared child pornography over the internet using the Facebook Messenger Application with another unidentified user. That pornography involved videos of prepubescent children in which their genitals were visible, and in 2 of the videos, these very young children were engaged in sexual intercourse with adults.
8These uploads came to the attention of the London Police Service who executed a search warrant at Mr. Moss’s residence. An iPhone was seized from Mr. Moss’s person incident to his arrest. Police also located and seized a Fujitsu laptop and a five terabyte Seagate backup hard drive [8] that was connected to it.
9When these items were analyzed by the London Police Service, they located a total of 2002 unique images and 496 unique videos across all three of the devices that met the legal definition of child pornography in Canada.
10This collection of child pornography depicted children whose ages ranged from approximately 1 to 14 years of age.
11The images spanned depravity standards, from children posed in sexually exploitative positions to children engaged in explicit sexual acts, including with adults. This Court was provided with representative samples and written descriptions. What was provided establishes that the images contained pre-pubescent children, as young as 3 or 4 years old, involved in explicit sexual acts with adults. Some fifty of the images were pictures of written child pornography that detailed stories of adults engaged in sexually explicit relationships with young children, including pre-pubescent. Some of the pages contained drawings of the children engaged in the sex acts with these adults. The story lines are extremely graphic and disturbing as is all the child pornography.
12The videos discovered include even more depraved material. One video involves a female child who is approximately one year of age being horrifically sexually assaulted by an adult male. I refuse to describe the details of it in my judgment for public consumption, it is contained in Exhibit #5. Another involves a female child who is about 4-6 years of age being forced to engaged in sex acts with an adult male and a canine. The videos include pre-pubescent children involved in vaginal and anal sex with other children and adults. In some of the videos the children are being ejaculated on.
13Forensic analysis of the accused’s devices also revealed that he was in an online sexual relationship with a 12-year-old female, R.B., who resided in the Philippines with her family.
14Hundreds of images and videos of the victim and her family were saved on the accused’s devices. The evidence shows that Mr. Moss, often at the request of the family, including R.B., bought them food, cell phones, bedding, and clothing. In a recorded video chat Mr. Moss reminds R.B.’s older sister that “even the roof of that house your mom asked me to buy all the materials to build when it had a hole. All the rebuilt rooms. So much other stuff.”
15I find that the relationship between Mr. Moss, R.B. and her family has been going on for years. This confirms what Mr. Moss himself has said. In the Pre-Sentence Report, he advised the report writer that he was in a long-term relationship from 2016-2019 that ended when his partner found out he was using the internet to “build relationships with the victim of the offence and her family”. He also advised that he viewed R.B. and her family as his “family”. In the letters Mr. Moss filed as part of Exhibit #3 written in December 2023, the purported family members of R.B. reference their relationship with Mr. Moss being over the last four [9] and five [10] years respectively.
16In one chat found on Mr. Moss’s cellphone he advises an unknown third party that “I gave R. [11] 30000 pesos this month alone to help her and her family. Every time they have their water shut off or electricity turned off I pay the bill. So it really hurts that she was dating someone else”.
17In one chat found on Mr. Moss’s cellphone he advises R.B. that he doesn’t know if she loves him or just the money and gifts, telling her “you are not willing to do something difficult”. He then tells her he could trust her if she had sex with him.
18Further, in another chat on Mr. Moss’s cellphone R.B. advises Mr. Moss “Here I am outside the store I only go home if you give me milk tea and shawarma”. Mr. Moss responds to this text stating “Will your clothes come off?”. R.B. advises “I can do it”. The chat then shows that Mr. Moss pays for the goods using an App called “foodpanda”. This chat continues with Mr. Moss urging R.B. to return home once she advises she has the goods. R.B. thanks Mr. Moss and Mr. Moss advises R.B. “keep your promise is the only thanks I need”. I infer that the promise Mr. Moss was referring to is the promise that she would go home after and her “clothes will come off”. This takes on added significance given the saved video chats of Mr. Moss and R.B. on his devices.
19In these chats Mr. Moss at times literally begs R.B. to remove her clothing. He instructs her to engage in masturbation and other sex acts. He is seen to take off his clothes and engage in masturbation, often focussing the camera on his erect penis so that R.B. can see him masturbating, including to the point of ejaculation. During some of these videos R.B. occasionally removes her top to display her breasts. She often covers up after a brief period of displaying her breasts. In one video R.B. appears to be wearing nothing on the lower half of her body and focusses her camera on her exposed vaginal area.
20Based on the above, and having had the opportunity to view the interactions between Mr. Moss and R.B. on the videos, along with reading the messages exchanged that are filed as part of Exhibits #1 and #5, I find beyond a reasonable doubt that Mr. Moss was engaged in an exploitative sexual relationship with R.B. Whatever the truth is behind how this relationship started, for some noteworthy period Mr. Moss has been engaged in systematic grooming of R.B. by linking his support of her and her family to her willingness to engage in a sexual exploitative relationship with him, and by consistently professing his love for her. To put it simply, Mr. Moss had clearly established in his mind and that of R.B. a pay to play arrangement, in which his love and support was dependent on her complying with his sexual advances.
21It is unclear to me what role R.B.’s family played in this arrangement. Mr. Moss makes a note in his sexualized video chats with the victim R.B. to ask whether she is alone before engaging in sexualized behaviour. This suggests he intended to keep their activities between them private. It is possible that the family did not appreciate the true extent of the exploitation being carried out.
22This is an opportune time to comment on the letters provided to me that are Exhibit #3. They purport to be from R.B.’s parents and sister. They speak of Mr. Moss in glowing terms. The letter purportedly from R.B.’s sister makes no reference to R.B. or the charges against Mr. Moss. The letter that purports to be from the parents makes no reference to R.B. and only vaguely refers to having heard “what happened to” Mr. Moss and being sorry for his “situation”. The ‘letters’ were filed as printouts of photographs of letters. I find this extremely odd, and I received no explanation for why the original letters, inclusive of some proof, like an envelope postmarked from the Philippines, were not being produced to help establish providence. I only have Mr. Moss’s word and for reasons I provide below when I explain why I reject his position that he was not aware of the considerable amount of child pornography on the five terabyte external hard drive, I don’t find him to be a reliable source of information.
23In the end, I find I need not ultimately deal with whether these letters are in fact from the family of R.B. or what in fact they knew if they wrote them. If they are from R.B.’s family and they knew what Mr. Moss had done to R.B., their support does not mitigate his offences in any way. Indeed, I would find their continued support of him to cause me serious concerns about their own criminal liability and Mr. Moss’s ability to re-victimized R.B. with their assistance. It would support a finding that the family allowed Mr. Moss to sexually abuse R.B. to continue receiving financial benefits from him and wrote the letters motivated by financial gain. I want to be clear; I do not find the evidence allows me to say this on what is before me.
24If these letters are from R.B.’s family and they are not aware of his crimes against R.B., their continued support is based on ignorance of critical knowledge I find would certainly change the views of any right-thinking family member of R.B. Failure to do so would raise the same concerns noted above. Finally, if these letters are fake, they obviously do not mitigate his sentence, but could aggravate it. I have determined the best course of actions is to simply not take into account these letters when determining the proper sentence – I see no scenario where they would be mitigating, and any aggravating scenario would have to be undertaken only on proof beyond a reasonable doubt which I do not find here.
25To be clear, any involvement of the family in allowing are even tempting Mr. Moss to have or continue a relationship with R.B., does not attenuate Mr. Moss’s moral culpability or impact the seriousness of his offences. Regardless of the views or actions of R.B.’s family, it is Mr. Moss who chose to engage in a sexually exploitative relationship with R.B., make child pornography of her, and to otherwise exploit her for his own selfish sexual desires.
26Mr. Moss asked that the Court order a Pre-Sentence Report and one was prepared. Based on the information in the Pre-Sentence Report, all of which came from Mr. Moss, and the submissions of his counsel, I find the following:
(i) Mr. Moss is 41 years of age and will be 42 at the end of this month.
(ii) He has no prior criminal record.
(iii) His childhood was relatively unremarkable although his father suffered from bouts of alcoholism.
(iv) His mother, father, brother and sisters are all alive however he has little to no contact with them.
(v) He has an eleven-year-old son from a prior relationship who is in the parental custody of the mother, however he has not seen him at least since he was charged some 3 years ago.
(vi) He has a high school education and some college; however, he blames his lack of an advanced education on there being too many “international students”.
(vii) He has a spotty work history with only one longer term of employment, which was as a cleaner at the hospital in London, which he started in 2018, and ended in 2021 after the hospital became aware of his offences.
(viii) He blames his current lack of employment in part on the fact that he is “not brown” and thus cannot get hired at restaurants.
(ix) He does not have substance abuse issues.
(x) He has a high opinion of himself and admits to having “strong convictions”.
(xi) One of these strong convictions is that Mr. Moss sees nothing wrong with having a sexual relationship between an adult such as himself and young girls, such as R.B. He believes girls as young as 13 have the same mentality as that of a university aged girl, that is, age 18 or older.
(xii) Mr. Moss shows no insight into his criminal behaviour or its severity.
(xiii) Mr. Moss reported having no viable outlets for his leisure time because his bail prevented him from being places that children could reasonably be expected to be present.
(xiv) Mr. Moss did substantial anger management counselling at John Howard Society from February 2017 to July 2018; it was never really explained why he was engaged in that counselling.
(xv) Mr. Moss returned to John Howard Society in 2021 and engaged in 29 counselling session focussed on maintaining his mental health, meditation, and healthy relationships. None of this counselling addressed sexual offending. Mr. Moss advised that the counselling was “not effective”.
(xvi) John Howard, upon learning that Mr. Moss was charged with child sex abuse, referred him to a local sexual offending specialist. Mr. Moss never followed up with this referral.
(xvii) Mr. Moss refused to provide a single collateral contact to validate any information he provided.
(xviii) Mr. Moss evinces the unrealistic plan that upon completion of whatever sentence this Court imposes, he will simply move to another country, possibly the Philippines, where he would marry the victim R.B. or her sister.
(xix) Mr. Moss requires intensive intervention measures to reduce his risk to the community, and specifically children.
27Exhibit #2 in this matter in a letter from Mr. Moss’s father. It is unsigned, not dated and contains no contact number. It contains background information about Mr. Moss that is already covered in the Pre-Sentence Report, largely confirming that his childhood was free of abuse and largely unremarkable. It talks about his support of the people in the Philippines without referencing the sexual abuse Mr. Moss committed against R.B. The letter ends with “We trust this gives you some clarification about our son.” I confess the letter offered me no further insight into Mr. Moss or why he committed these offences. I also note that during the sentencing I was told that Mr. Moss now has little to no contact with his father.
28Mr. Moss, at the conclusion of the sentencing hearing, when given the opportunity to speak gave a long, and with all due respect to him bizarre speech to the Court. In my view only two noteworthy things arose from what he told me that should be addressed. First, despite speaking for some time, it was clear to me Mr. Moss had no empathy for the victim R.B. and did not feel remorse for what he has done. Second, Mr. Moss seemed to be denying that he knew of the considerable collection of child pornography on the five terabyte external hard drive.
29For the following reasons, I reject Mr. Moss’s position that he was unaware of the child pornography on the external drive.
30First, his counsel advised the Court that his client acknowledged the large quantity of child pornography but noted that it was not organized, and further indicated that the material was collected and then forgotten about.
31Second, Mr. Moss’s denial seems to be premised on his position that while he is attracted to children as young as 12, he would never deal with material involving younger children. However, per the Agreed Statement of Facts, Mr. Moss supplied such material to another Facebook user on four separate dates in 2021. All these files involved pre-pubescent children.
32Third, per the Agreed Statement of Facts, the material in this case was found across all three devices, all of which belonged to Mr. Moss, and there is no evidence of anyone else having access to them. In total there was 2002 unique images and 496 unique videos. The idea that Mr. Moss knowingly possessed the materials on the laptop and his phone, which he has not disputed, but did not know of the similar material on the external hard drive defies credulity.
33Fourth, the court information was amended to include the written child pornography, to which Mr. Moss plead guilty. Some of the written child pornography involved the graphic depiction of pre-pubescent children engaged in sexual relationships with adults. Most importantly, according to Exhibit #5 the written child pornography was all located on the five terabyte external hard drive in the same directory structure as images and videos containing explicit sexual imagery involving pre-pubescent children.
34Fifth, I also reject as totally absurd that someone would have sold to Mr. Moss a hard drive containing such sexually explicit material without Mr. Moss’s knowledge.
35Finally, it would be coincidence beyond coincidence that the suggested used hard drive sale containing unknown child pornography occurred at a time when Mr. Moss, unbeknownst to the seller, was engaged in an unlawful sexually deviant relationship with a 12-year-old and making child pornography of her. The connected nature of the two offences is simply not coincidental on the evidence before me.
36Based on all the evidence before me I am satisfied beyond a reasonable doubt that Mr. Moss was in knowing possession of all the child pornography described in this case, including that found on the five terabyte external hard drive.
THE LAW
37Section 718.1 of the Criminal Code sets out the fundamental principle of sentencing, which is proportionality. It instructs me that the sentence I impose must be proportionate to the gravity of the offences and the degree of responsibility of the individual being sentenced.
38This is a highly individualized process. While parity in sentencing, which suggests that like offenders who commit like offences should receive like sentences, is an important principle of sentencing, the reality is that seldom are sentencing judges provided with precedents in which there are not at least some important distinguishing factors.
39Criminal sentences imposed by courts in Canada have the goal of protecting society and contributing to respect for the law and the maintenance of a just, peaceful and safe society. [12]
40This is done in part by addressing one or more of the specific sentencing goals, which are stated in s.718(a) through s.718 (d) of the Criminal Code. They include denunciation, general and specific deterrence, separating offenders from society, when necessary, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community.
41For offences involving child sex crimes including internet child exploitation offences, the common law, and the Criminal Code both require that I elevate deterrence and denunciation to the role of primary sentencing objectives. [13]
42While I cannot ignore Mr. Moss’s rehabilitation, the law is clear that this objective is secondary in a sentencing such as this.
43Both counsel in this case are suggesting penitentiary terms for Mr. Moss. [14] When imposing a period of incarceration on a youthful first time offender the law states that such a sentence should be the shortest one that can still achieve the required sentencing goal of proportionality. [15] This principle of restraint however, applies with less weight when the crimes are particularly serious or violent and/or the offender is not youthful. Here the offender is not youthful, and his crimes are particularly serious. Nevertheless, I remind myself that as I am sentencing a first-time offender, I should remain vigilant that I do not impose a sentence that is unduly long solely for general deterrence.
44The Supreme Court of Canada’s decision in R. v. Friesen represented a wake-up call to courts across Canada, who historically had imposed sentences in child sex offences that were collectively too low, and/or based on outdated, stereotypical, and often sexist ideals.
45It is no longer the case that serious sanctions for these types of offences are reserved for cases involving only the most horrendous direct physical violations of children and where the prosecution proves the acts caused actual long lasting and devastating harm.
46The important principles applicable to this sentencing distilled from Friesen can be summarized as follows:
(i) The contemporary understanding of sexual violence against children is a critical factor in sentencing, reflecting a societal shift in awareness and the gravity of such offences.
(ii) The overarching objective is to protect children from wrongful exploitation and harm, which is a fundamental value of Canadian society.
(iii) The principles apply equally to internet child exploitation offences such as child luring and child pornography offences. Child luring is specifically described as a serious and violent sexual offence against children.
(iv) The internet and new technologies have enabled new forms of sexual violence against children, providing sexual offenders with new ways to access children.
(v) Offences such as child luring and child pornography offences are, like all other sexual offences against children, inherently violent ones.
(vi) Sexual offences against children wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities.
(vii) Sentences imposed for these offences must reflect the inherent wrongfulness of them, the potential harm that may flow from them and any actual harm that has been caused.
(viii) The Court must give effect to the potential harm of these offences even in the absence of evidence establishing that they have occurred. Indeed, the true harm caused by these offences may not be evident until years after they have been committed. These potential harms include overly compliant behaviour; loss of patience; tantrums; aggressiveness; anxiety, fear, depression; sleep disturbances, nightmares; low self-esteem; guilt and shame; and lack of trust.
(ix) The Court’s focus on sentencing these offences must be on the harm not the mechanics used to create it. Emphasizing the presence or absence of certain physical acts creates a hierarchy of sexual wrongdoing that is inconsistent with Parliament’s intent and our present understanding of the harm caused by these offences.
(x) While greater interference with a victim’s bodily integrity remains an aggravating factor, it is wrong to view the absence of certain acts including actual physical touching as mitigating. The focus always should be on the prevalence of the activity and the harms caused by it.
(xi) These offences protect not only the bodily integrity of children, but also their privacy and their sexual integrity, which are equally important.
(xii) Sentences for these offences must be meaningfully increased in recognition of the directions of Parliament and the contemporary understanding of the wrongfulness of these offences and the harm they cause.
47Following on the heels of Friesen, the Ontario Court of Appeal has recently addressed the inherent wrongfulness and the harms caused by possessing and accessing child pornography. [16]
48The principles I distill from Pike applicable to this sentencing are as follows:
(i) The possession of child pornography is a deliberate, callous, and repeated act that causes severe emotional harm to the children involved, perpetuates their victimization, and contributes to a market that drives further sexual abuse and exploitation.
(ii) The possession of child pornography can be assumed to cause certain obvious harms including:
(a) Emotional harm – the ongoing psychological trauma that offenders continue to access and view their recorded abuse exacerbates the initial trauma for victims.
(b) Powerlessness and fear – children are powerless to control the dissemination and fearful of being recognized by people who access and possess their recorded abuse.
(c) Anxiety and humiliation – the anxiety of knowing people who access and possess child pornography derive perverse pleasure from observing their abuse and may use it to abuse others. The violation of their privacy and dignity undermines their self-worth and is humiliating.
(d) Reinforcement of victimization – the possession/access of child pornography perpetrates the exploitation that began with the making of the abusive material, which further infringes the child’s right to not be abused.
(e) Market creation and participation – the demand created by people who possess /access child pornography fuels the creation of further abuse material.
(iii) Possession of child pornography can incite further offences by normalizing and rationalizing the sexual exploitation of children.
(iv) There is a high degree of moral blameworthiness that attaches to those that possess/access this material as they intentionally and knowingly exploit vulnerable children.
(v) The Court should reject myths that minimize the responsibility of offenders who possess/access child pornography and impose sentences that meaningfully recognize the seriousness of these offences.
49Section 718.2 of the Criminal Code instructs that sentences should be adjusted for mitigating and aggravating factors. Further 718.2 legislates certain factors as aggravating, although in this case the potentially applicable provisions, the abuse of a victim under the age of 18 [17] and the abuse of a position of trust [18], are in any event aggravating factors at common law.
50S.718.7(a) of the Criminal Code requires that any sentence I impose for offences under s.163.1 of the Criminal Code be served consecutively to any sentence imposed for a sexual offence under another section of the Code committed against a child.
51Finally, the principle of totality as codified in s.718.2 (c) of the Criminal Code requires that any sentence I impose involving consecutive sentences does not result in an overall sentence that is disproportionate to the moral culpability of the offender. It is a principle that ensures that the overarching principle of proportionality is adhered to. Put simply, the cumulative sentences should not become unjustifiably long due to the need to impose separate and consecutive sentences for different offences.
52There is more than one way of ensuring the principle of totality is adhered to. One way is to state the sentences that would be imposed without regard to it, and then adjusting afterwards to ensure the totality principle is satisfied. The other is to simply impose final adjusted sentences with the principle in mind. This includes reducing sentences from what otherwise might be imposed without referencing what the unadjusted sentence would have been, and potentially imposing concurrent sentences for some offences when the judge would have otherwise imposed consecutive ones. I chose the latter approach in this case.
APPLICATION OF THE FACTS TO THE LAW
53Defence counsel suggested several mitigating factors applied in this case, however, upon examination of the suggested factors, most would simply be the lack of an aggravating factor. I have found the following mitigating factors apply in this case:
(i) Mr. Moss has no previous criminal record.
(ii) Mr. Moss entered guilty pleas.
(iii) The collateral consequences of Mr. Moss’s offences in that he has lost the support of his family, friends, and his employment at the hospital along with access to his own child.
54I have considered the weight to be assigned to his guilty plea. Part of the credit afforded to offenders in mitigation of their sentence for a guilty plea comes from the savings to court resources. Some of it comes from sparing witnesses having to testify. The other part of the credit afforded to offenders from a guilty plea flows from its potential to be a sign of remorse.
55The Crown argues here that Mr. Moss’s guilty plea is entitled to little to no mitigation, on the basis that it came late, he is not remorseful, and the nature of the case against him was insurmountably strong. The Ontario Court of Appeal has more recently found it to be erroneous to discount a guilty plea so completely. [19]
56It is true the guilty plea came only after Mr. Moss’s case had been in the system for nearly three years, and further, the case against him appears to be as strong as the Crown states given the available video evidence particularly.
57However, I would still grant him mitigation for his plea. It is only slightly attenuated by its lateness, it still saved trial time, which would have involved in this case, days of evidence from digital forensic analysts. It also did not require any witness testimony.
58I don’t need to decide whether Mr. Moss was just acquiescing to the inevitable when he plead guilty and thus not truly sorry. Whatever the reason Mr. Moss decided to plead guilty, the evidence conclusively shows in my mind that he is not remorseful for his actions and continues to believe that there is nothing wrong with what he did. He believes the law is wrong, not that he did wrong. As his counsel stated, Mr. Moss believes he has what was characterized as a philosophical disagreement about how these matters are treated by Canadian society.
59I have found the following aggravating factors apply to the possession/distribution of child pornography charge:
(i) The size of the collection, and the fact that it contained numerous images, videos, and stories. It should be noted that videos are generally more aggravating than images as they involve an even more hideously complete record of terrible child abuse complete with sound. Video possession/access generally shows an even more callous disregard to the pain and suffering of children. Here the total number of unique videos was almost 500.
(ii) The nature of the collection, in that much of it appears to have been of pre-pubescent children and that it spanned the depravity scale to include severe child abuse material, including children as young as one years of age being violently sexually assaulted and additionally a young child abused with bestiality.
(iii) That the offences involve the abuse of victims under the age of 18.
(iv) The total number of victims involved in the child pornography offences and the imputed harm caused to them by Mr. Moss’s possession and sharing of their recorded sexual abuse.
(v) The additional imputed harm that is caused by Mr. Moss sharing some of the child sexual abuse material with another person.
60In relation to the make child pornography, child luring and making sexually explicit material available charges all related to R.B., I find the following aggravating factors applicable:
(i) The grooming of R.B.
(ii) The offences involve repetitive incidents of sexually abusing R.B.
(iii) The offences were frequently committed while R.B. was in her home, the place she ought to be the safest.
(iv) The offences involve a victim under the age of 18.
(v) The imputed harm caused by these offences.
(vi) The offences involved the exploitation of a child in another country. This requires some further explaining. First, by doing so, Mr. Moss makes detection of his crimes more difficult. Further, Canada is a signatory to the United Nations Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. As I will detail later, so is the Philippines. The Protocols collectively impose obligations on this country to ensure the protection of children, both here and abroad. If members of the convention were to learn that Canada did not take these obligations seriously, it would seriously undermine our international obligations and reputation in the international community as a peace loving and law-abiding nation and undermine our ability to protect Canadian children from foreign offenders.
61For all the offences I also consider as aggravating what I find to be a real and present danger that Mr. Moss will reoffend against children. I view that risk as currently high. I base this on the nature of the offences, the callous and entitled attitude he exhibits, the lack of any sense of remorse, his own claim to have “strong convictions” and that he views Canadian society’s treatment of these matters as wrong.
62Mr. Moss presents as having a strong sense of entitlement. He externalizes blame rather than looking inward. He blames “international students” for why he couldn’t further his education. He blames “brown people” for why he couldn’t get a job. He blames the perceived wrongful thinking of Canadian Society for why he is before the Courts. Until Mr. Moss looks inward and starts blaming the real cause of his problems, himself, he has little chance of being rehabilitated.
63His proposed plan at the completion of his sentence to simply move to another country to either marry the victim in this matter (or her sister), or at least some place where people are more in line with his views that sexual abuse of children is acceptable conduct is as shocking as it is telling.
64He doesn’t see any difference in mentality between an 18–20-year-old and a 13-year-old. He possesses significant and what appear to be engrained cognitive distortions about sex, age, and consent. His amenability to treatment given the above is highly dubious. When given a chance to seek advanced treatment for sexual offending by a John Howard referral he didn’t follow up. The counselling he did take was not really related and he himself described it as “ineffective” for him despite attending 29 sessions.
65I have considered the proposed abuse of trust aggravating factor and I have determined on the unique facts of this case I cannot rely on it. It is an odd situation because on Mr. Moss’s version of events he would arguably be in a position of trust, given that he describes himself like family to the victim and puts himself in the position of a quasi-caregiver from afar.
66I am not satisfied beyond a reasonable doubt however that his description of the relationship is factually accurate. I have already explained that I find Mr. Moss to be a dubious source of information. Further, I have explained that it is not clear to me what role R.B.’s family played in her abuse. It is reasonably possible, on the facts before me, that they were actively leading Mr. Moss to believe that pay to play was acceptable. Further, that the family was directing R.B. to go along with it is a real possibility.
67I want to be clear, R.B. is blameless in all of this, she is a child and not to blame for being abused by both Mr. Moss and her own family, if that is what occurred here.
68Ultimately, I cannot find beyond a reasonable doubt that R.B. and her family trusted Mr. Moss in the manner necessary to find he abused a position of trust.
69While I find Mr. Moss lacks remorse for what he has done, this is not at law at aggravating factor. It does, on all the evidence, however, contribute to my view that he is a current and real danger to children. Further, it causes me to find that specific deterrence is a real and pressing need in this specific case as is the need at this stage to separate him from society and to promote in him a sense of responsibility and acknowledgement of the harm he has caused to his victims.
70I have read the precedents provided by counsel and find, as is often the case, that they are not close enough in their facts, both as to offences and offender to act as anything other than some rough guidelines on the ranges of sentence imposed in cases that involve child pornography and child luring.
71I find the moral culpability of Mr. Moss is extremely high. As stated his callous sexual abuse of children through his possession and sharing of atrocious child pornography along with his systematic sexual abuse of R.B., given his age and lack of any attenuating factors that otherwise explain his criminal engagement such as a diagnosed mental health or cognitive condition that contributed to the offences or similar substance abuse problem leave me with only an adult male in his forties who has chosen to engage in this conduct. The fact that he ‘philosophically disagrees’ with the view of the rest of Canadian Society that his actions are horrendous sexual child abuse does not attenuate his moral culpability.
72His offences are extremely serious. His child pornography offences are on the more serious end of the spectrum for that type of offence in terms of the size of the collection and nature of the material. The number of victims is staggering. Each child in the images and videos is a real child whose life is forever harmed by the unimaginable abuse they suffered in the creation of the material, which is contributed to and exacerbated by Mr. Moss’s possession and sharing of the permanent record of their abuse. The material itself I would describe as cruel and inhumane.
73Further, Mr. Moss’s systemic grooming of a 12-year-old girl living abroad, his recording of the sexual abuse of her, the fact his luring culminated in the actual crime he was luring for, the repeated instances and the fact he violated the sanctity of R.B.’s home all make his very serious offence of luring that much more serious.
74In summation, the offences for which Mr. Moss now appears for sentencing are gravely serious and his moral culpability is extremely high. An exemplary sentence here is needed to meet the ends of proportionality and protect the public from Mr. Moss. It is also needed to meet the primary principles of deterrence and particularly denunciation. Canadians find these offences morally repugnant, intolerable and reasonably expect the Court to do what the Supreme Court of Canada instructed it to do, increase sentences and impose ones that are commensurate with our contemporary understanding of the real and lasting harm caused by these offences.
75Without considering totality I would have found that the making of child pornography offence involving R.B. should be consecutive to the possession and distributing charges. However, the law requires that I make the luring offence and make sexually explicit material available offence consecutive to the offences under s.163.1. Therefore, to ensure the principle of totality is adhered to, and that the cumulative sentence is not unduly long, I will make all the s.163.1 offences concurrent, and that sentence will run consecutive, as s.718(7)(a) requires, to the remaining two counts which I will make concurrent to each other.
76To reiterate my earlier point about totality, the sentences I impose below have been adjusted for it already and for the mitigating factors in this case, including Mr. Moss’s guilty plea. Without the guilty plea to mitigate his offences Mr. Moss in fact, even considering totality, could have received a longer sentence.
SENTENCE
77On the possession count, count 5, I sentence Mr. Moss to 3 years jail. On counts 2 and 4 I sentence him to 2 years jail on each charge concurrent to each other and concurrent to count 5.
78On the luring count, count 13, I sentence Mr. Moss to 4 years jail. On count 7 I sentence him to 1 year jail concurrent to count 13.
79The sentences for counts 2, 4, and 5 will run consecutive to the sentence for counts 7 and 13. This makes the total sentence one of 7 years jail. This is the lowest possible jail sentence I find meets the principles of sentencing in this case.
80I will make an order pursuant to s.743.21 of the Criminal Code that Mr. Moss have no contact or communication directly or indirectly, by any means with R.B. while he is serving his jail sentence.
81Further I will order pursuant to s.487.051 of the Criminal Code that Mr. Moss provide a sample of his DNA today to London Police Service in relation to all the offences which are primary compulsory offences.
82Additionally, pursuant to ss.490.012(1) and 490.013(3) I make a mandatory order that Mr. Moss comply with the Sex Offender Information Registration Act for life.
83I am also making a discretionary order under s.161(1) of the Criminal Code. I have considered the length of the order and given the nature of the offences, what appears to be the entrenched attitude of Mr. Moss that child sexual abuse is acceptable conduct, and the high risk he poses to reoffend I find it is necessary at this stage that it be for life. Further, I have considered what conditions are necessary given the facts of this matter and have concluded a very restrictive order is required to ensure the safety of children from Mr. Moss. The evidence at this stage is that he represents a high risk to them and any prospect for rehabilitation at this point is speculative at best. I note that s.161(3) allows Mr. Moss to apply to vary the Order. After treatment, if the evidence suggests that Mr. Moss’s threat level to children has been meaningfully reduced, he may return to Court to re-address this issue. That order will prohibit Mr. Moss from
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre.
(a.1) being within 2 kilometres of any dwelling-house or other place where the victim R.B. ordinarily resides, attends for education or employment.
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless
You are under the supervision of a person whom the court considers appropriate and approves of in advance.
In relation to any of your biological children you may have contact and communication with them as is approved of in writing by the Children’s Aid Service Supervisor assigned to your case.
It is incidental verbal/physical contact in a retail or similar environment, related to a consumer transaction.
(d) using the Internet or other digital network, unless the offender does so in accordance with the following conditions:
You will provide the London Police Service Child Exploitation Unit or their designate, with the make, model, serial number, telephone number, if applicable, and service provider, for any computer system and/or telecommunications device that has the capability to access the internet that is possessed or used by yourself.
You will provide the London Police Service Child Exploitation Unit or their designate, with all email or social media account usernames and passwords.
You will not use the internet or any similar telecommunications device that has the capacity to access the internet 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 child, or other child exploitation material.
You will not use or possess any computer or telecommunications device that has any peer-to-peer file sharing networks or software, or any cleaning or scrubbing software installed, or that can encrypt saved files.
You will not possess or access child pornography, including anime.
You will not possess or access any images of child nudity, including those depicted to be or appear to be under the age of 18 years.
Upon request of the London Police Service Internet Child Exploitation Unit or their designate, provide the police force with any computer systems, electronic devices, that have the capability to access the internet, as well as any peripherals possessed or used by yourself to allow for the random inspection of such devices to monitor compliance with the terms of this order.
Provide any usernames and passwords, or any other codes necessary to access and permit the inspection of such computer systems, electronic devices or peripherals for the purposes of monitoring compliance with this order.
84Finally, all the seizures in this case are ordered forfeited under s.164.2 of the Criminal Code and I will sign an Order to this effect once it is prepared.
EPILOGUE
85I conclude this sentencing by offering the final observation that Mr. Moss’s professed view that there are places in this world where his behaviour would be viewed less seriously, and perhaps even allowed, including apparently the Philippines is wrong. This has no impact on his sentence, but I feel it is important to educate the public and Mr. Moss about this issue.
86Depending on one’s geopolitical beliefs there are 205 odd recognized sovereign states in the world. Nearly all of them, over 190, are members of the United Nations, including the Philippines.
87Every single United Nations member is a signatory or has ratified to the Convention on the Rights of the Child and nearly all of those are signatories or have ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. The Philippines is signatory and has ratified both.
88In the Philippines, everything that Mr. Moss was charged with here is a serious criminal offence at the time he committed it. [20]
89Indeed, if one looks at the mandatory sentences Mr. Moss would have faced in the Philippines had he been sentenced there, they are much greater than what he faces in Canada. The making child pornography charge alone carries a penalty of what is referred to as reclusion temporal in its maximum period, which requires imprisonment for 12 to 20 years.
90The contemporary recognition throughout the world of the need to provide legal protection for children from harm, including from online sexual exploitation, is one of the few issues in the world that enjoys unanimous approval and recognition. There is no philosophical disagreement about these issues in the world, it only exists in the distorted thinking of Mr. Moss.
Released: September 20, 2024 Signed: Justice J. Miller
[1] I have used initials in the place of the victim’s real name to protect her identity, however the orders of the Court will contain the name of the victim to ensure they can be enforced. [2] R. v. Poulin, 2019 SCC 47, [2019] 3 SCR 566 at para. 61; R. v. R.O., 2023 BCCA 65, at para. 49; R. v. J.N.Z., [2023] O.J. No. 4187 at para. 32 [3] Exhibit #1 [4] Exhibit #2 [5] Exhibit #3 [6] Exhibit #4 [7] Collectively Exhibit #5 [8] While the ASF did not refer to the size of this external drive, I determined this information from the written document that was provided as part of Exhibit #5. [9] Jessil Dichosa Letter [10] Juan, Anna Letter [11] Mr. Moss used the real known first name of R.B., I am substituting her initial in my judgment. [12] See s.718 of the Criminal Code [13] See s.718.01 of the Criminal Code and R. v. Friesen, 2020 SCC 9 [14] The Crown has suggested a total sentence of 8 years, and defence has asked for 4-5 years globally. [15] See R. v. Francis, 2022 ONCA 729 [16] R. v. Pike, 2024 ONCA 608 [17] S.718.2(a)(ii.1) [18] S.718.2(a)(iii) [19] R. v. M.V. 2023 ONCA 724 [20] See the Anti-Child Pornography Act of 2009 - Republic Act No. 9775 now repealed and replaced with the even more protective Anti-Online Sexual Abuse or Exploitation of Children and Anti-Child Sexual Abuse or Exploitation Materials Act – Republic Act N0. 11930