WARNING The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2024 10 11 COURT FILE No.: Toronto 4810 998 23 48106533 00
BETWEEN:
HIS MAJESTY THE KING
— AND —
SI-QI LIANG
Before Justice Christine Mainville
Heard on June 4 and August 14, 2024
Reasons for Sentence released on October 11, 2024
Counsel: Devin Harm .......................................................................................... counsel for the Crown Michelle Johal....................................................................................... counsel for Mr. Liang
1I am sentencing Mr. Liang following his guilty plea to one count of possessing child pornography. The Crown elected to proceed by indictment.
Agreed Statement of Facts
2On April 4, 2023, images and video files identified as child pornography were downloaded by an IP address associated with Mr. Liang. Following the execution of a search warrant at his place of residence on May 31, 2023, 208 images and 65 videos that meet the definition of child pornography were located on his computer.
3The majority of the videos depict children involved in explicit sexual acts with either themselves, adults or other children. There are a smaller number of videos which depict children exposing their genitals. The majority of the images consist of children’s exposed genitalia and a smaller amount represents children involved in explicit sexual acts. The children were generally female and in the age range of 6 to 12 years old. The officer in charge testified that none included babies or other very aggravating features such as bondage.
4I viewed a representative sample of six images and six videos.
5File sharing systems were also downloaded onto the accused’s computer. The child exploitation material would have been obtained through an online file sharing system.
Victim Impact
6While I did not receive any victim or community impact statement in this case, the courts now recognize that child pornography offences are not victimless crimes.
7Victims of child abuse have to live with the reality that their images and the imagery of their abuse continues to exist and in many cases are circulated and viewed by others. If they are not, they live in fear that they will be. This keeps their victimization always current. They are powerless to permanently destroy the images of their abuse, and they are victimized over and over every time their images are sought out, watched, and retained.
8There is no doubt that this is a serious offence, and that denunciation and deterrence must be front and center in the sentencing analysis: R. v. Pike , 2024 ONCA 608 , at para. 159 ; s. 718.01 Cr.C .
Circumstances of the Offender
9Mr. Liang was 38 years old at the time of these offences and a first-time offender. He turned 40 years old yesterday. He resides with his wife and 13-year-old stepson. He met his wife, who is the same age as him, in 2019. They have been married for over two years and she continues to be supportive of him in these difficult circumstances.
10Mr. Liang was born in China and came to Canada at the age of eight with his mother and brother. He is now a Canadian citizen. His dad was absent and he experienced some difficulties in childhood, finding the adjustment to life and school here very challenging. He did not speak English and had to live in his uncle’s basement. His cousins resented him and his family for that, and he was bullied at school. He ultimately got a degree in management and has recently been employed in the shipping industry, in logistics and e-commerce accounting. He has no children of his own.
11In 2021, things took an unexpected turn. Mr. Liang lost his mother to Covid-19, and he was unable to say goodbye. He was tasked with putting his mother’s affairs in order, a task which he largely had to bear on his own given that his stepfather broke down after losing Mr. Liang’s mother. There was a lot to be done given her sudden departure, and he had to contend with things such as her tenants getting Covid and blaming him for it. He struggled with the ensuing stress and his mental health deteriorated. He suffered from depression, explaining that everything fell apart. His sleep was poor, his appetite and weight were down, and he unravelled. He did acknowledge that it was after he had mostly come back to himself, about a year after his mother passed, that the problematic behaviour that brings him before the court began.
12Mr. Liang has had psychotherapy sessions with Dr. Tian that have been focused on the loss of his mother and his anxiety, but he has not discussed the present charges with him.
The Parties’ Positions
13The Crown takes the position that a sentence of incarceration of 15 months followed by 18 months probation should be imposed in this case.
14The defence submits that a custodial sentence in the range of six months is appropriate, followed by one year of probation.
15The parties agree on the terms of the probationary order. However, the defence argues for a shorter term given the time that Mr. Liang has spent on fairly restrictive bail terms with which he has been compliant.
16Finally, the parties agree that a DNA order should be made. They disagree on the necessity of an order under the Sex Offender Information Registry Act ( SOIRA ) and of a prohibition order under s. 161 Cr.C .
Forensic Assessment
17After pleading guilty to this offence, Mr. Liang underwent a forensic psychiatric assessment which was performed by Dr. Hy Bloom. This psychiatric, sexological and risk assessment was aimed in part at identifying any applicable sexual or non-sexual diagnoses, and identifying the risk that Mr. Liang poses going forward.
18Dr. Bloom is a highly qualified and experienced forensic psychiatrist. He is a part time staff member in the Complex Mental Disorders Program at the Centre for Addiction and Mental Health (CAMH) and teaches in the Departments of Medicine at the University of Toronto and at McMaster University.
19Dr. Bloom received various materials from the police disclosure and the defence, interviewed Mr. Liang at length, and had him undergo a number of assessments and testing, including phallometric testing.
20Phallometric testing is an objective measure of physiological sexual arousal. It is considered more reliable than self-reports. However, the test in this case was deemed invalid, as Mr. Liang’s test responses were too low, primarily due to his penis retracting from the phallometric cuff. While he appeared to be most stimulated by adult females and the results did not suggest that he has pedohebephilic interests, the output was considered too low for a valid test.
21Mr. Liang has had relationships with women of around his age since college. He reports being exclusively heterosexual. He described a significant interest in adult pornography since adolescence. He otherwise described a normal sex life. He denied any interest in collecting or having children paraphernalia and has never been in a position that puts him in a supervisory role over children. This was confirmed by his spouse.
22Mr. Liang explained to Dr. Bloom that he was visiting conventional pornography sites but eventually wished to see material beyond routine pornography. He found his way to problematic sites and a server called “Pirate Boy”, which allowed for fairly indiscriminate downloading of a wide array of materials. This occurred for the first time in or around the winter/spring of 2023. Mr. Liang said he had a tendency to download the material for potential future viewing.
23When he first saw child pornography, he explained being shocked, but curiosity drove him to return to viewing material of this kind. He was looking at so much pornography at the time and wanted to see something different. He could not preview the material which placed him in the position of downloading materials that could be problematic. He acknowledged that he tried to masturbate to some of it but did not find that it worked for him.
24Dr. Bloom noted the ratio of child pornography to regular adult pornography: the police located approximately 1900 videos and 1200 images of adult pornography, as compared to the 65 videos and 208 images of child pornography. Mr. Liang estimated that just one percent or so of his pornography collection would have involved child pornography.
25Mr. Liang advised that he did not initially turn his mind to whether anyone was being harmed by his viewing, though he knew it was not right. He has now realized that somebody on the other side got hurt – he didn’t see it even though it was right in front of him. He accepted responsibility for his behaviour and acknowledged that it was injurious to victims.
26Dr. Bloom also interviewed Mr. Liang’s wife who advised that he is generally a caring, sensitive, and law-abiding person. She has never observed any unusual behaviours nor known him to be involved with children in the community. She strongly disapproves of what he did but has tried to remain supportive. He left it to her to decide whether she wanted to stay with him. She believes he is remorseful for what he did. He has frequently apologized to her and did so before the court as well.
27Aside from curiosity, the behaviour could also be attributed to activities that were novel and perhaps forbidden in quality, yielding, in Dr. Bloom’s view, a measure of excitement to help offset negative affects that he had been experiencing for some time in the aftermath of his mother’s passing.
28Overall, Dr. Bloom estimated that Mr. Liang was curious, inappropriately stimulated, and the events may have occurred at a time when he was having difficulty self-regulating negative affects and became overly reliant on highly provocative material to create some positive stimulation of his mood.
29Dr. Bloom ultimately could not diagnose Mr. Liang with a pedophilic disorder. He indicated that the evidence pointed away from this hypothesis and that his overall collection of pornography pointed to his viewing of child pornography as an anomaly. As set out in the report, pedophilic disorder under the DSM-5 is defined as a period of at least six months of recurrent, intense, sexually arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child or children. The subject must also have acted on the urges, or the urges need to have caused marked distress or interpersonal difficulty.
30There was also no evidence of a problematic personality pathology. This has positive prognostic implications.
31As it relates to his future risk, Dr. Bloom reported – based on the literature – that child pornography offenders who have not committed any “hands on” sexual offences against children have a low recidivism rate both in terms of subsequent accessing of child pornography and in committing hands on offences against children in the future. Dr. Bloom opined that Mr. Liang’s risk of viewing child pornography in the future is low. Protective factors in his case include spousal support, a prosocial attitude, and a fulfilling work structure.
32Dr. Bloom did recommend that Mr. Liang pursue supportive psychotherapy and that he be referred to a sex offender treatment program such as the Sexual Behaviours Clinic at CAMH.
Aggravating and Mitigating Factors
33The Court of Appeal in Pike , at para. 7 , very recently emphasized the child-centred approach to sentencing that must be taken in child pornography cases post- Friesen (in reference to R. v. Friesen , 2020 SCC 9 ):
A child-centered approach to sentencing requires judges to consider child victims and the wrongs and harms that people who possess child pornography inflict on them, to reject myths that minimize the perpetrator’s responsibility and, finally, to apply a denunciatory sentencing range that reflects the abhorrent and harmful nature of these offences and their long-term negative impacts on children.
34In that case, one of the accused (Mr. Scott) was convicted after trial of importing and possessing child pornography. The Court of Appeal at para. 6 stated that the 23-month conditional sentence order that the trial judge had imposed was insufficient to recognize the deleterious long-term impact of this type of offence on society at large and on children in particular and held that a three-year custodial sentence was in order.
35The Court in Pike updated a non-exhaustive list of aggravating and mitigating factors that apply to sentencing people who possess child pornography: see paras. 166 and ff.
36First, I should consider the presence of a criminal record. Mr. Liang has no record and is being sentenced as a first offender. This is a significant mitigating factor.
37Pike then directs us to consider whether there was any production or distribution of the child exploitation material. It points out that the absence of these factors is not mitigating – it rather points to the absence of an aggravating feature: Pike , at para. 171 . I do not have any evidence that this was a factor in this case.
38As for the size of the collection, Mr. Liang had just over 200 images and 65 videos. The Crown has characterized this as somewhere in the middle: not a large but also not a small collection. I accept this characterization. This remains aggravating given the quantity he possessed.
39As the Court of Appeal explained, at para. 167, the number should be placed in context. It needs to “be considered together with the number of real child victims, the degree of organization, and the ratio of videos to still images”.
40I do not have evidence of any particular organization of the collection here, but the number of real victims is substantial. And while there are more images than videos, there are many videos in the collection.
41Still, in terms of duration, this was not a collection that was amassed over years, as in some cases. When the warrant was executed, Mr. Liang had only begun downloading child pornography a few weeks earlier.
42This is of some import because “[t]he duration of possession and the frequency of downloading and viewing images increase the moral blameworthiness of people who possess child pornography by showing that their conduct is entrenched and increasing the number of times they victimize the depicted children”: Pike , at para. 170 . While Mr. Liang is morally blameworthy for having persisted in this conduct over some weeks, I would not characterize this behaviour as entrenched.
43On the other hand, this was not a fleeting offence. There is also no question that Mr. Liang sought out the child pornography. This offending did not occur accidentally or passively. As set out by Pike at paras. 161 and 164 , it is in fact a myth that this type of material is something that can just fall into your lap. It is and was deliberate. He also downloaded it for potential later viewing.
44Pursuant to Pike , in addition to duration and frequency, “collaboration with other offenders, planning, organization, sophistication, and participation in the child pornography subculture” are relevant considerations. While Mr. Liang demonstrated some technological prowess in locating the child exploitation material, none of these aggravating features are present here. He was not part of any child pornography subculture or community, nor did much planning or organization go into obtaining the material. There was also no payment made to acquire it.
45These considerations are significant because “[c]ollaboration, planning, organization, and sophistication are aggravating and trigger a greater need for deterrence because perpetrators who employ these methods can cause greater harm and avoid detection more easily”: Pike , at para. 170 . Further, “[p]articipation in the child pornography subculture is … aggravating because, by reinforcing the offending behaviour of people who possess child pornography and encouraging them to graduate to even more serious offending, it increases the risk to children”: Pike , at para. 170 .
46On the other hand, even where there is no payment for the material, Pike reminds us that “people who do not pay for the child pornography they possess still motivate those producers of child pornography who seek to win respect rather than money”: para. 171.
47The seriousness of the nature of the collection is the next consideration. The images and videos here are disturbing. The activities depicted include penetration. Children are engaged in explicit sexual acts with other kids or adults. The degree of harmfulness and wrongfulness is therefore significant. While it is not at the high end of the spectrum identified in Pike , at para. 190 (torture, aggressive sexual activity, and bestiality), all of it is horrifying and would cause severe physical and emotional harm to the helpless and real victims of this abuse. The children depicted are almost exclusively female and range from six to 12 years of age.
48The Crown characterized the material as being somewhere in the middle of the range, but closer to the more severe end. Given the age range and activities depicted, which are serious but do not include more aggravating features seen in other cases such as babies or additional violence, this case in my view falls in the middle of the range.
49Next is the risk the offender presents to children.
50Dr. Bloom opined that Mr. Liang presents a low risk of re-offending as it relates to child pornography, and I accept that opinion. His opinion is properly supported by the assessment and was not challenged.
51I also accept that Mr. Liang does not present a real risk of committing any hands-on offences against children. He is an online offender – which to be sure, is still a perpetrator of abuse – but he has not shown any notable interest in children in his community or surroundings.
52As stated in Pike , at para. 152 , “child pornography can incite perpetrators to commit and facilitate their commission of other sexual offences against children” because “it leads them to deny and minimize the wrongfulness of, rationalize and normalize, and even fantasize about sexually exploiting children”. I do not believe this to be Mr. Liang’s situation.
53Mr. Liang does not deny or minimize the wrongfulness of the child pornography, nor does he seek to rationalize or normalize the conduct.
54I then turn to the offender’s good character, employment situation, and the stigma arising from these charges.
55These are noted as less significant factors at para. 172 of Pike , given that “many people of otherwise good character … secretly commit the offence, and possession usually involves repeated conduct over a significant period rather than an out-of-character isolated act, and it is very blameworthy for people of otherwise prior good character to fail to appreciate the wrongfulness of their actions”.
56Here, Mr. Liang did indeed fail to appreciate how morally blameworthy his actions were, despite it staring him in the face, as he put it. Still, his character otherwise speaks to his potential for rehabilitation. He has been a productive member of society and has a positive support network including his wife. One of his cousins who he is quite close to is also aware of these charges.
57I believe that Mr. Liang has good prospects of rehabilitation.
58I next consider his level of insight and remorse.
59As stated in Pike , at para. 173 , “courts assessing remorse and insight should focus on whether people who possess child pornography recognize and express remorse for wronging and harming real children. Conversely, these factors are entitled to less weight if the people being sentenced continue to engage in distorted thinking and minimize or excuse their actions as harmless fantasies”.
60I accept that Mr. Liang is ashamed of his conduct and is genuinely remorseful for his actions. He has some insight into what led him to commit this offence and garnered greater insight into the harm he thereby occasioned to real children. He accepts that he is responsible for these harms. These factors therefore speak to Mr. Liang’s low risk of re-offending. I believe he has been deterred in engaging in such conduct in the future.
61I also consider Mr. Liang’s guilty plea. I am informed that he intended to plead guilty from the outset. He took full responsibility for his actions and submitted himself to a psychiatric assessment to enable greater insight into his conduct.
62I may also consider the collateral consequences that Mr. Liang will suffer. Loss of employment is one such consequence: no doubt anticipating the inevitable, he planned to resign from his job before serving his sentence. Given his upcoming term of incarceration, he has also made financial arrangements to ensure that his wife, stepson, and brother are provided for while he is serving his sentence.
Sentencing Range
63In Pike , the Court of Appeal updated the sentencing range for possession of child pornography to account for Friesen and the legislative increase to the maximum sentence: para. 174. The 18-month upper end of the range had previously been increased to three and a half to four years, and Pike increased it further to five years.
64The Court declined “to set a lower end for the possession range because … possession can be committed in a wide variety of circumstances and is sometimes prosecuted summarily, which lowers the maximum sentence to two-years-less-a-day”: para. 176. It also recognized that some sentencing judges continued to impose lower sentences post- Friesen , but that this could merely reflect the wide variety of circumstances in which the possession offence can be committed: para. 175.
65The Court observed that courts should situate cases on the range by assessing the applicable aggravating and mitigating factors, noting that the most useful precedents are post- Friesen : para. 178 .
66In Mr. Scott’s case in R. v. Pike , the accused had been collecting child pornography for three decades and there was no question he was a persistent user of child pornography and had minimized his offending, describing his actions as mere fantasies. As stated by the Court at para. 8, Mr. Scott “treated the children he sexually abused as property and objects to exploit and to add to his so-called ‘collection’. The dignity he denied to those children belies his attempt upon arrest to minimize his crime as a mere harmless fantasy.” The denunciatory sentence that the Court of Appeal deemed appropriate there was three years in custody, for both importing and possessing child pornography. This sentence was imposed after trial, and not pursuant to a guilty plea.
67In R. v. M.V. , 2023 ONCA 724 , at para. 99 , the Court of Appeal characterized a 1-year sentence on a possession of child pornography charge as being towards the lower end of the range, reflecting an increase post- Friesen . It found that this sentence was warranted for possession of close to 500 unique images and 213 unique videos, in addition to child pornography connected to child luring.
68In this case, Mr. Liang pled guilty and readily accepted responsibility for what he did. He had a not-insignificant amount of child-exploitation material, but it is substantially less than in M.V. and the period of offending is of very limited duration. He is being sentenced as a first offender for possessing child pornography over the course of a few weeks. He was not an avid collector or in any way involved in a subculture that seeks to minimize the crimes and the harms occasioned as mere fantasy.
69By downloading the material in his possession, however, he increased demand and thereby participated in the victimization of all the children depicted therein. And while he understands why it was wrong, he did initially demonstrate “a disturbing lack of empathy and compassion by continuing to collect and view the material without considering the plight of the victims it depicts” and being “confronted with child abuse and exploitation that would horrify and repulse right-thinking people each time they view the material”, as stated by the Court of Appeal in Pike , at para. 163 .
70Today, however, he does not minimize his actions and he acknowledges the very real harm he caused. Some of his life circumstances around the time of these offences appear to have clouded his judgment and led him down a path that he may not otherwise have trodden. Dr. Bloom opines that this was an anomaly for Mr. Liang.
71As acknowledged in Pike , at para. 160 , while courts must place “children and the wrongs and harms that people who possess child pornography inflict on them at the centre of the sentencing process”, we “can give significant weight to the personal circumstances and mitigating factors of people who possess child pornography, and to sentencing objectives such as rehabilitation”. We must simply be mindful of the need to not have these considerations “overshadow the wrongs and harms they inflict”.
72The Court of Appeal in R. v. C.B. , 2024 ONCA 160 , at para. 34 , has also recently stated that restraint and lessened moral culpability remain relevant in the child sexual assault context post- Friesen . In that case, the Court of Appeal upheld a global 18-month sentence for making and distributing child pornography and voyeurism, stating that this sentence did not fail to apply Friesen or fail to prioritize the principles of denunciation and deterrence: see para. 30.
73The Crown highlights the case of R. v. Welter , 2024 O.J. No. 197 (Prov. Ct.) as a close comparator to the present case. The accused there was 36 years old, also had no criminal record and was remorseful for his actions. He also had family support and was employed. The accused was convicted of one count of possessing 181 unique videos and 10 unique images of child pornography. The accused pled guilty but only after an unsuccessful Charter application. He was sentenced to 15 months in jail followed by 24 months of probation.
74The case is informative but there are some distinguishing factors with the present case. Aside from Mr. Liang’s earlier guilty plea and the fewer number of videos he possessed, the nature of the material was more serious in Welter . The ages of the victims in that case were estimated to be between 2 and 10, and the material included bestiality.
75Other cases where sentences have been imposed in the range of what has been proposed by the parties serve as helpful comparators.
76In R. v. Kardaal , 2022 ONCJ 441 , just over 13 months was imposed for possession of 276 images and no videos. The accused was elderly and had significant health issues. He was also a first offender and had strong family support. Some material however depicted toddlers and infants, and one image depicted bondage.
77In R. v. Tardif , 2024 ONCJ (unreported, January 18, 2024, Toronto # 22-30001368-00), Justice Chapman imposed a sentence of 12 months for possession (and 15 months for distribution) of child pornography. The accused had also pled guilty. The images and videos depicted children aged 3 to 12 and the accused purchased the material from flea markets. The distribution count related to him also sharing the material on multiple occasions. The offender was diagnosed with pedophilia.
78In R. v. Rousseau , 2024 O.J. No. 877 (Prov. Ct.) , another sentence of 12 months was imposed for possession of child pornography following a guilty plea. The offender had 21 unique images depicting pre-teen females.
79In R. v. Tang , 2022 ONCJ 251 , the court sentenced the offender to 10 months jail for making child pornography available, which was held to be more serious than possession. The offender, who was 22 years old, pled guilty to posting 28 video thumbnails and two partial video thumbnails to an online platform. A search warrant executed at the offender’s home resulted in locating four laptops containing 1126 images categorized as child pornography, as well as 54 videos of the same classification. The victims’ ages varied from 2 to 11.
80In R. v. A.M. , 2023 ONCJ 181 , the offender was sentenced to nine months for possessing five videos and 18 images. He had accessed additional material but deleted it as he went. He had committed his offences out of apparent boredom.
81In R. v. Tcheong , 2023 ONCJ 205 , a sentence of eight months was imposed for possession of 350 images and 14 videos. The material depicted children as young as five and it was accessed over a period of five years. The accused pled guilty and was also a first offender.
82In R. v. Treloar , 2023 ONCJ 100 , a sentence of six months was handed down for accessing child pornography following trial, although the Crown proceeded summarily. There were no videos but there were over 2500 unique images that included sexual intercourse, bondage, and bestiality.
83While these cases did not have the benefit of the Court of Appeal’s recent guidance in Pike , they were decided after Friesen and they remain relevant, in particular from a parity perspective.
84By contrast, sentences closer to two years have been imposed in cases where the offender lacked insight or there were additional aggravating features.
85For instance, in R. v. Insanally , 2024 ONSC 722 , the offender was sentenced to custody for two years less a day. Mr. Insanally had little insight and had also pled guilty to making child pornography available. He had 222 videos and 2369 images ranging from infants to early teens. The material also included bondage.
86Similarly, the Court of Appeal upheld a 22-month sentence in R. v. Rule , (2023) O.J. No. 168 , where the accused possessed and accessed over 20,000 images and over 200 videos of child pornography. The nature of the child pornography was toward the higher end of seriousness, including babies in diapers and a general age range of one to 15 years. It similarly involved acts of penetration. In that case, the offender was diagnosed with hebephilia (an interest in girls aged 9 to 13) and had been viewing these images for a decade.
87In R. v. Jenkins , 2021 ONSC 2963 , the accused was sentenced to 18 months for a far greater number of images and videos depicting all forms of sexual abuse. A conditional sentence was deemed inappropriate even though the accused was elderly, in poor health, and was sentenced during the Covid-19 pandemic.
88In R. v. Bekmambetov , 2021 ONSC 6219 , the offender had been collecting material for over 5 years. He had 9500 images and 283 videos in his possession and been diagnosed with pedophilia. He was sentenced to two years following a guilty plea.
A Conditional Sentence Order Would be Unfit
89While the parties’ positions reflect the fact that a sentence of under two years is appropriate in this case, and that a conditional sentence is therefore available, the defence does not seek such a sentence in the present case. It recognizes the changed legal landscape post- Friesen and Pike , and the fact that special considerations usually apply when conditional sentences are deemed appropriate in child pornography cases.
90I agree that Mr. Liang should face a real term of incarceration. While I accept that he would not endanger the community, I do not believe that imposing a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, which is a further prerequisite to imposing a conditional sentence.
91Deciding whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing, especially the fundamental principle, proportionality, “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”: Pike , at para. 179 .
92Applying R. v. M.M. , 2022 ONCA 441 , the Court of Appeal in Pike , at para. 179 , opined that “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”. See also R. v. Doucette , 2021 ONSC 371 , at paras. 39 and 53 , relying on R. v. Inksetter , 2018 ONCA 474 .
93While Pike , at paras. 181 and 182 , states that conditional sentences ought not be perceived as exceptional and there is no presumption against conditional sentences in sentencing child pornography offenders, “more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors”, are required to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago.
94This case presents some aggravating factors and there is nothing exceptional or otherwise sufficiently mitigating including with respect to Mr. Liang’s personal circumstances to render a conditional sentence appropriate. Denunciation and deterrence must remain at the forefront of the analysis.
95In R. v. Snead , 2021 ONSC 7017 , the offender pled guilty to one charge of possession of child pornography. He was sentenced to an eight-month conditional sentence in addition to twelve months of probation. On appeal, the court concluded that the sentence was demonstrably unfit, as it failed to reflect the well-established need for general deterrence and denunciation for child pornography offences. There were no exceptional circumstances to allow for a conditional sentence. Instead, a just and fit sentence would have been twelve months in jail. The offender had participated in Zoom rooms where child pornography was streamed with over 50 other individuals watching.
96Similarly, in R. v. A.M. , 2023 ONCJ 181 , the 38-year old offender was convicted of possession of a small collection of child pornography. The trial judge did not find any exceptional circumstances to justify a conditional sentence. The offender was sentenced to 9 months in the reformatory, followed by 18 months of probation.
97While there were factors that may have affected Mr. Liang’s judgment in this time of his life, there was nothing that would have predisposed him to committing this offence and he should have immediately recognized the wrongfulness of the conduct and refrained from it. Mr. Liang instead invaded the privacy of several victimized children, and he instigated the production and distribution of child pornography and thus the sexual abuse and exploitation of children. This was neither a momentary lapse nor an isolated act. His sentence will therefore be served in custody.
Sentence Order
98In my assessment, recognizing the aggravating and mitigating factors set out above, a sentence of 9 and a half months (285 days) is appropriate in the present case.
99I note that Friesen involved the offences of sexual interference, invitation to sexual touching, sexual exploitation, incest, and sexual assault. In R. v. Parker , 2024 ONCA 591 , at para. 31 , the Court of Appeal observed that while Friesen stands for the proposition that offences involving child pornography are also very serious and that sentencing for such offences should increase in recognition of the wrongfulness of the conduct and the serious harm caused to children, it “cannot be read as suggesting that sentencing for offences involving the making available and possession of child pornography should necessarily be in the same range as sentencing for sexual interference and the other related offences.” See also paras. 32 and 37.
100At paras. 94 to 97 of Parker , the Court also noted that the sentencing range for possession of child pornography is uncertain, and that a range beginning at six months is still applied by some courts, even after Friesen ; that sentences in the Ontario Court of Justice, where summary prosecutions are more common, only rarely exceed one-year imprisonment; and that conditional sentences for possession of child pornography are not uncommon.
101That said, the nature of the offending in this case mandates a sentence that firmly denounces the conduct and deters others from committing this type of offence. I believe a sentence of incarceration of nearly 10 months achieves these objectives.
102I will include a recommendation for Mr. Liang to access specific programming for sexual offenders at the Ontario Correctional Institute (OCI), to increase his chances at rehabilitation.
103Similarly, I believe Mr. Liang should be referred to the Sexual Behaviours clinic at CAMH, as recommended by Dr. Bloom. Mr. Liang has not yet completed counselling specifically directed at this offending and in my view would benefit from such counselling to avoid re-offending.
104The 285 days (9.5 months) custodial sentence will therefore be followed by 18 months of probation to enable Mr. Liang to address his rehabilitation more fully. This will be on the terms agreed upon by counsel, which include assessments and/or counselling relating to child pornography and sexual offending, in addition to mental health. The probationary terms, which I will set out in full at the conclusion of my decision, also include some protective measures aimed at preventing this type of offending and facilitating its detection.
Ancillary Orders
Sex Offender Registry
105The Crown also seeks a 20-year order under SOIRA , and a section 161 prohibition order for 10 years. The defence submits that I should decline to make these orders.
106A SOIRA order in this case is not mandatory given that the sentence imposed is under two years. However, section 490.012(3) requires me to make the order unless I am 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 .
107While I accept that Mr. Liang presents a low risk of re-offending, the factors that I must consider under subsection (4) lead me to the conclusion that a SOIRA order must be made.
108The offence here is serious and the victims were all under 16, as conceded by the defence. While Mr. Liang has no criminal history and there is nothing in Dr. Bloom’s assessment or relating to Mr. Liang’s personal characteristics that suggest the order should be made, the results of the phallometric testing were inconclusive. So although I accept his low risk of re-offending, the impact of the order on him would not be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature. There are residual safety concerns that justify such an order and that do not allow me to find that the limited exceptions set out in s. 490.012(3) have been met.
109Since this offence attracts a maximum sentence of 10 years, s. 490.013(2)(b) designates the duration of the order as 20 years.
Section 161 Prohibition Order
110Finally, the Crown seeks a 10-year prohibition order under s. 161 of the Criminal Code , as it relates to employment that involves being in a position of trust towards persons under 16, having contact with persons under 16, and use of the Internet, under subsections (b) through (d).
111The Crown argues that such orders are appropriate and intended to ensure that offenders who collect and have a sexual interest in children do not have the opportunity to further commit offences against children.
112The defence argues that none of these prohibitions are required in this case. It submits that there is insufficient evidence to establish a nexus and justify them, in particular given that Mr. Liang has not been diagnosed with a pedophilic disorder and is at low risk of re-offending.
113In R. v. K.R.J. , 2016 SCC 31 , the Supreme Court at para. 48 indicated that it agreed “with the line of cases holding that s. 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk. … These orders are not available as a matter of course. In addition, the content of the order must carefully respond to an offender’s specific circumstances.” See also paras. 112 and 114.
114Similarly, in R. v. Brar , 2016 ONCA 724 , at para. 18 , the Court of Appeal held that:
Because these orders can have a significant impact on the liberty and security of offenders and can attract a considerable degree of stigma, they will be justified where the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk the offender poses to children.
115I have already found that Mr. Liang does not present a risk to children as it relates to hands-on offences. He has not committed any offence while on bail. He will also be in custody over much of the next year and thereafter on probation and will be registered as a sex offender. Imposing prohibitions with respect to employment or contact with children beyond that would not in my view meet the strict criteria needed to impose prohibition orders under s. 161, given Mr. Liang’s specific circumstances. Such orders would have a significant impact on him yet would serve no real purpose.
116As for Internet prohibitions, while Mr. Liang’s risk of further offending online is low, it remains present. Some longer-term restrictions on the use of the Internet are in order.
117As recently stated by the British Columbia Court of Appeal in R. v. S.J.H. , 2024 BCCA 134 , at para. 21 , “…the analytic approach in Friesen that focuses on the protection of children from sexual exploitation should inform the s. 161 analysis established in K.R.J. , and reliance on precedents that pre-date Friesen may be of limited assistance to sentencing judges and appellate courts.”
118I must however ensure that the restrictions are sufficiently tailored to the risk Mr. Liang poses. This is particularly the case in the context of Internet restrictions given how impactful they can be.
119Indeed, the Supreme Court at paras. 54 and ff. of K.R.J. described the significant detrimental impact of such orders on offenders:
This Court has recognized that living in the community under restrictions can attract a considerable degree of stigma… And depriving an offender under s. 161(1)(d) of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life. …
For many Canadians, membership in online communities is an integral component of citizenship and personhood. …
A complete ban on “using the Internet or other digital network” — an indispensable tool of modern life and an avenue of democratic participation — is more intrusive than the previous ban on “using a computer system . . . for the purpose of communicating” with young people. This constitutes a significant deprivation of liberty.
120In Brar , the accused was prohibited from accessing any illegal content and from participating in any manner in any social network, online forums or chat rooms (para. 28). This was in circumstances where the offender was engaged in predatory behaviour online. That is not a feature of this case. See also R. v. J.P.K. , 2023 O.J. No. 3243, at paras. 5-6 .
121The Internet restrictions here in my view should not inhibit Mr. Liang’s employment or any eventual search for employment or his rehabilitation, as that would be counter productive. It should also not erect barriers to his full participation in society, which – as recognized in K.R.J. – may result in substantial consequences both socially and economically.
122As for the appropriate length of the order, s. 161(2) provides that it may be for life or any shorter duration the court considers desirable. In S.J.H. , the BC Court of Appeal commented at para. 91 that the duration must take account of the length of the offender’s sentence, the offender’s age upon release, and his prospects of rehabilitation.
123Given some restrictions and protections that are already accounted for in the probation order, including providing the probation officer with up-to-date information regarding his Internet Service Provider (ISP) account, I believe the following additional restrictions for a duration of three years are sufficient to account for Mr. Liang’s level of risk:
You must not access any digital network including the Internet to: (1) access child pornography, or to 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; (2) access, directly or indirectly, Internet discussion forums or chat rooms, peer-to-peer file sharing networks or online file sharing services; (3) communicate or attempt to communicate with any person you know to be or who reasonably appears or represents themselves to be under the age of 16 years, unless they are members of your family.
Your own personal devices must not save files in an encrypted fashion or have TOR, peer-to-peer, torrent, scrubbing software, usenet, Freenet, or cloud-storage applications installed.
And you must, upon the request of a peace officer, give them access to any device in your possession that is capable of accessing the Internet or any computer network so they can verify compliance with this condition.
For greater clarity, where you are not self-employed, you may use or access the Internet or other digital network at your place of work, for work purposes and in accordance with IT and other policies at your place of work.
Other Orders
124Finally, there will be a DNA order given that this is a primary designated offence.
125I will hear the parties on the victim fine surcharge and the forfeiture order.
Released: October 11, 2024 Signed: Justice Mainville