WARNING
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) 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(3), read as follows:
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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.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 subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 10 17 COURT FILE Nos.: Hamilton 21-4603 and 22-10005097
BETWEEN:
HIS MAJESTY THE KING
— AND —
JORDAN ROMAKER
Before: Justice J.P.P. Fiorucci
Heard on: November 22, 2023, July 10 and October 17, 2024 Reasons for Sentence released on: October 17, 2024
Counsel: Michael Dean and Matthew Moser................................................. counsel for the Crown Kim Edward................................................ counsel for the Defendant, Jordan Romaker
INTRODUCTION
1Jordan Romaker is being sentenced for two offences: (i) possession of child pornography on May 4, 2021 (s. 163.1(4) of the Criminal Code); and (ii) voyeurism on August 27, 2022 (s. 162(1)(c) of the Criminal Code). He entered guilty pleas to both charges. [1]
2The Crown seeks a sentence of four to five years jail for possession of child pornography and six months jail for voyeurism, to be served consecutively. Mr. Romaker submits that a conditional sentence of imprisonment for the maximum duration of two years less a day, followed by a three-year probation order should be imposed. In the alternative, if the Court finds that a sentence under two years is inappropriate, making a conditional sentence of imprisonment unavailable, Defence counsel seeks a global sentence of two-and-one-half to three years jail less Downes credit for time spent under stringent bail conditions. The parties agree on the ancillary orders, including the conditions of the s. 161 Criminal Code prohibition order.
CIRCUMSTANCES OF THE OFFENCES
Possession of Child Pornography on May 4, 2021
3On March 17, 2021, the Hamilton Police Service Internet Child Exploitation Unit began an investigation into an IP address that was making child pornography available for distribution via BitTorrent between December 19, 2020 and March 7, 2021. Investigators learned that, on March 7, 2021, the user of the IP address was in possession of 19 unique media files that met the Criminal Code definition of child pornography.
4On April 21, 2021, a justice issued a warrant authorizing the police to search the address associated to the subscriber of the IP address of interest. It was the dwelling house of Mr. Romaker and his parents. The police searched the residence on May 4, 2021. Mr. Romaker and his parents were home. Mr. Romaker told the police that he was responsible for the offences they were investigating. The police arrested Mr. Romaker and seized digital and external devices which were found to contain an extensive collection of child pornography.
5Of the images and videos that the police categorized, Mr. Romaker was found to be in possession of 11,803 unique images of child pornography amongst a total of 33,637 images. The LASERi Image and Video Analysis Report, filed as Exhibit 1 on the sentencing hearing, shows that of the 11,803 unique images, 11,344 were accessible and 459 were inaccessible.
6Mr. Romaker was in possession of 217 unique videos of child pornography that were accessible and 97 unique videos of child pornography that were inaccessible amongst a total of 228 accessible videos and 413 inaccessible videos. The LASERi Image and Video Analysis Report, filed as Exhibit 1 on the sentencing hearing, includes the total run times for the videos that the police located.
7Due to the large volume of images and videos on Mr. Romaker’s digital and external devices, the police stopped categorizing them. The Child Pornography Collection Assessment, filed as Exhibit 2 on the sentencing hearing, shows that 664,946 images and 170,853 videos were not categorized by the police.
8Exhibit 2 states that the level of sophistication of the collection was high. The collection included infants and toddlers as well as young, pre-pubescent, and early pubescent children. The dominant gender of the collection was female. The nature of the collection included the depiction of sexualized posing with no sexual activity, sexual activity between children, or solo masturbation by a child, non-penetrative sexual activity between adults and children and penetrative sexual activity between children and adults.
Voyeurism on August 27, 2022
9On May 4, 2021, Mr. Romaker entered into a release order in relation to the Hamilton child pornography charges, with his father being the named surety. [2] The release order included a condition that Mr. Romaker not attend or be on the grounds of a public park, public swimming area, skating rink or arena, daycare centre, school ground, playground, community centre, drop-in centre, or group home or any place where persons under the age of 18 years are present or can reasonably be expected to be present unless accompanied by his surety.
10On August 27, 2022, Mr. Romaker attended the Metro Convention Centre at 255 Front Street West in Toronto, while bound by the release order. He was not in the company of his surety. A Fan Expo was taking place at the Metro Convention Centre that day. The Expo attracts hundreds of thousands of young females under the age of 18 years. Mr. Romaker had a four-day pass to the event.
11At approximately 6:00 p.m., the first victim was standing in line at the fudge bar with another person when she felt a bump from behind. These individuals quickly turned and observed Mr. Romaker walking away while tucking his cell phone away. The person that was with the first victim followed Mr. Romaker and observed him taking an upskirt photo of a second victim. This witness confronted Mr. Romaker and made the second victim aware of what had occurred.
12The witness demanded that Mr. Romaker delete the photos on his phone. Mr. Romaker entered his cell phone password and while attempting to delete the photos, the witness observed an upskirt photo of the first victim along with hundreds of upskirt and cleavage photos of other female fans in attendance at the convention. Police attended and arrested Mr. Romaker. He was released on a release order with a surety on August 28, 2022.
CIRCUMSTANCES OF THE OFFENDER
13Mr. Romaker is 40 years old. He is being sentenced as a first-time offender. In 1997, Mr. Romaker’s paternal grandfather died by suicide which had a significant impact on Mr. Romaker because they had a close relationship. Mr. Romaker lives with his parents. His father is a retired police officer who works as a bus driver. Mr. Romaker’s mother was a nurse but left the profession when she was diagnosed with multiple sclerosis. She is now a quadriplegic and is non-verbal. Mr. Romaker has a very close relationship with his mother. He advised the author of the pre-sentence report (PSR) that his childhood was marred by the progression of his mother’s illness. According to Mr. Romaker, it coloured his every interaction with her. He reported feeling left out of sporting and school events as neither parent was present to support him.
14Mr. Romaker witnessed conflict between his parents during his childhood. His relationship with his father is currently strained. Mr. Romaker’s father has been his surety for both the May 4, 2021 and the August 28, 2022 release orders. His father describes the home as a “boot camp” where his son has minimal privacy as his bedroom door has been removed.
15Mr. Romaker completed high school and attended college for two programs prior to transferring to a program that focused on filmmaking. He graduated from this program and continued his education with courses in welding, security, videogame design, gas fitting and creative writing. He has not held employment related to the fields of study he pursued.
16Mr. Romaker is currently unemployed and is supported by his father. He was last employed in 2021, selling alcohol during the pandemic. When stores reopened, his hours were significantly reduced as staff returned to the workplace. This coincided with his mother’s symptoms progressing, requiring him to be home more. Mr. Romaker has in the past been employed in retail positions, as a security officer, and at a restaurant. Mr. Romaker is struggling financially due to his lack of employment. He cited debt of approximately $30,000 in addition to a student loan. Mr. Romaker helps his father maintain the home and is paid by his father for doing so. According to Mr. Romaker’s father, he pays his son for this service to provide his son with a sense of self-worth, accomplishment, and satisfaction.
17No issues with substance use were identified by any of the sources contacted for preparation of the PSR. Mr. Romaker advised the author of the PSR that he developed an addiction to pornography, spending upwards of eight hours a day on the Internet. He explained to the author of the PSR that he was driven to possess the various forms of pornography that he saw before it was removed from the Internet. He described his desire to have a well-rounded complete pornography collection. He explained that he would enter a “world” of fetishes that did not interest him but if it was “out there” he had to have it. Mr. Romaker filled hard drives with the content that he found. He says that at the time of his arrest, he had more digital content than he could ever view.
18Mr. Romaker claims to be attracted to females who are his own age. He admitted to the author of the PSR that he is aroused by voyeurism and “upskirting” where he publicly films up women’s skirts. He was referred to Rocco Gizzarelli, a registered social worker, for a psycho-sexual assessment. Mr. Gizzarelli described Mr. Romaker as being addicted to pornography and voyeurism.
19According to Mr. Gizzarelli, Mr. Romaker struggled with anxiety, depression, and suicidal ideations. Mr. Romaker’s father describes him as a loner and anti-social. Mr. Romaker attended the assessment with Mr. Gizzarelli and presented as open to continuing counselling. However, the author of the PSR noted that Mr. Gizzarelli had not heard from Mr. Romaker since October 2023.
20Mr. Romaker’s letter, which is Exhibit 6 on the sentencing proceedings, sets out his position that exceptional circumstances exist to warrant a conditional sentence of imprisonment. He refers in detail to the history of mental illness in his family, the devastating effects of his grandfather’s suicide when he was 12 years old, his own depression, and his belief, as well as his mother’s, that he is bipolar and suffers from undiagnosed autism, and ADHD. He states that he has always “exhibited a propensity for addiction (particularly with collecting things), overindulgence, and impulse control”. He admits to knowing that possession of the child pornography was wrong but stated that his addiction was too strong, and he eventually felt helplessly compelled to possess it, purely for the sake of adding it to his collection. He expressed remorse for his behaviour and his understanding that the children in the material are in fact victims.
21He explains in his letter the steps he has taken to rehabilitate himself, with the assistance of his father, including charity work he has undertaken to benefit McMaster Children’s Hospital.
22Mr. Romaker and his father provide daily care for his mother. Mr. Romaker expressed concern for his mother’s well-being if he were to be incarcerated. He discussed this with the author of the PSR, in his letter filed as Exhibit 6 on the proceedings and during his allocution in court. Mr. Romaker’s letter explains in detail the time he takes to care for his mother. He seeks leniency in sentencing, especially as consideration for his mother’s ailing health, his role as her caregiver and the collateral consequences his mother will experience should he be jailed for these offences.
23At the sentencing hearing, Mr. Romaker stated that either he or his father need to be present to care for his mother at all times, even when she is in a hospital setting due to frequent choking incidents that require someone to administer a breathing apparatus. He explains that his family cannot afford a long-term personal care worker to assist his mother, and the increasing needs of his father.
LEGAL PRINCIPLES
24On April 2, 2020, the Supreme Court of Canada released the landmark case of R. v. Friesen, 2020 SCC 9 which sent a clear message that sentences for sexual offences against children must increase to fully reflect and give effect to the profound wrongfulness and harmfulness of these offences. At paragraph 5, the Court said:
“…we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
25In Friesen, at paragraph 44, the Court stated that, although the guidance they were providing focused on sentencing principles for the offence of sexual interference, and the closely related offences of invitation to sexual touching, sexual exploitation, incest and sexual assault, the principles discussed have relevance to sentencing for a myriad of sexual offences against children, including possession of child pornography. The Court stated that sentencing courts should thus draw upon the principles set out in the decision when imposing sentences for such other sexual offences against children.
26Recently, the Court of Appeal for Ontario has addressed the application of the Friesen principles in the context of sentencing for possession of child pornography in R. v. Pike; R. v. Scott, 2024 ONCA 608 (hereinafter “Pike”). Pike was released after counsel made their sentencing submissions in Mr. Romaker’s case. By e-mail correspondence through the judicial assistant, I invited Crown and Defence counsel to make further sentencing submissions in light of the release of the Pike decision. Ms. Edward on behalf of Mr. Romaker and Mr. Moser on behalf of the Crown chose not to make any further submissions.
27In Pike, the Court of Appeal for Ontario applied the child-centered approach from Friesen to “address the distinct wrongs and harms of the s. 163.1(4) offence of possessing child pornography, its gravity, and perpetrators' moral blameworthiness”: Pike, at para. 143. The Court articulated the distinct wrongs and harms associated with possession of child pornography, which can be summarized as follows:
(1) People who possess child pornography violate children’s dignity. Child pornography depicting real children cannot come into existence without their exploitation and abuse. Therefore, perpetrators who possess it are in possession of crime scene images of child sexual abuse or exploitation: Pike, at para. 147;
(2) People who possess images of the abused and exploited children directly invade children’s privacy. The very existence of child pornography violates children’s privacy interest in preventing uncontrolled disclosure of their abuse and exploitation to third parties. The permanent nature of the recordings intensifies the wrong by capturing children’s victimization in detail in a form that people who possess these recordings can access, study, and manipulate: Pike, at para. 148;
(3) People who possess child pornography inflict severe emotional harm on children. After the trauma of the production of the recordings of their victimization, children suffer further pain when they learn that unknown perpetrators have accessed and can view those recordings. This prevents and hinders children’s recovery from the initial violence and exploitation resulting from the production of the recordings. People who possess child pornography also cause distinct additional harm, making children feel powerless because they cannot destroy or control the dissemination of child pornography that is posted online, leading them to fear that perpetrators will recognize them in person and target them for additional abuse. They cause children to become anxious that they are taking pleasure in the recordings of their victimization and even using those recordings to abuse other children. They humiliate children and undermine their self-worth by violating their privacy and dignity. People who possess child pornography thus cause ongoing psychological harm to children that can extend long into adulthood: Pike, at paras. 149-150;
(4) People who possess child pornography “instigate the production and distribution of child pornography”, and, thus, the sexual abuse and exploitation of children. Their willingness to acquire child pornography necessarily creates a market for the exploitation of children, fuelling a cycle of abuse in which producers continue abusing existing victims and seek out new victims. People who seek to possess such images motivate both commercial producers and those who seek prestige or simply the knowledge that others desire the material they make: Pike, at para. 151;
(5) Possessing and viewing child pornography can incite perpetrators to commit and facilitate their commission of other sexual offences against children. People who both possess child pornography and participate in the child pornography subculture expose children to heightened risk: Pike, at paras. 152-153; and
(6) People who possess child pornography perpetuate pernicious messages that attack children's humanity and equality: Pike, at para. 154. Child pornography lies to children by normalizing their sexual abuse and exploitation. It also lies to adults. By falsely depicting children seeming to participate in their own exploitation, it erases children’s vulnerability and wrongly suggest they can consent, or that their exploitation is not a real crime: Pike, at para. 155. Canada’s child pornography laws combat these harmful lies because they reawaken the long-banished ideas that children are property for adults to exploit and transfer from owner to owner: Pike, at para. 156.
28At paragraph 157 of Pike, Chief Justice Tulloch stated:
Possession is a grave offence because it causes these wrongs and harms. "[C]ourts do not see [possession as] a minor, or victimless crime" (Kwok (2007), at para. 52) or one that merely seeks to prevent future risks to children that have not yet materialized: Smolen, at p. 60. Rather"possession of child pornography is itself child sexual abuse": Inksetter, at para. 22 (quotation omitted). People who possess child pornography participate in the producer's initial sexual abuse of children through the market that their demand creates, and drive demand for even more abuse. They also independently abuse those children by violating their dignity and privacy, which causes them severe emotional harm.
29Parliament has also recognized the gravity of this offence by enacting section 718.01 which states that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. In Pike, the Court recognized that possession of child pornography is a difficult offence to detect. At paragraph 159, the Court said:
By imposing stricter sentences, courts compensate for the difficulty of detection by warning would-be perpetrators that, while there is a chance they might escape detection, they will face severe consequences if caught: R. v. Lynch-Staunton, [2012] O.J. No. 313 (S.C.), at paras. 56-57.
30At paragraph 169 of Pike, Chief Justice Tulloch said:
Courts must follow Parliament's direction by placing children and the wrongs and harms that people who possess child pornography inflict on them at the centre of the sentencing process. Courts can give significant weight to the personal circumstances and mitigating factors of people who possess child pornography, and to sentencing objectives such as rehabilitation: Friesen, at paras. 91-92, 104. But it is all too easy for those considerations, which focus on the people being sentenced, to overshadow the wrongs and harms they inflict because their victims are all too often invisible. The police struggle to identify the producers of these images and the children they victimize because the producers abuse and exploit those children in private homes or in countries oceans away: J.S., at para. 104; HM Advocate v. Graham, [2010] HCJAC 50, 2011 J.C. 1, at para. 45. Courts must overcome this invisibility by making child victims the central focus: Friesen, at paras. 53, 67, 74-75; see also Bertrand-Marchand, at para. 32. That is why courts can neither prioritize other objectives to the same degree as or higher than denunciation and deterrence, nor use the personal circumstances and mitigating factors of people who possess child pornography to avoid grappling with the wrongs and harms they cause: Friesen, at para. 104; R. v. Porte, [2015] NSWCCA 174, 252 A. Crim. R. 294, at paras. 88, 128.
31Regarding perpetrators’ degree of responsibility, Chief Justice Tulloch said, at paragraph 161:
Courts must reject myths that minimize the degree of responsibility of those who possess child pornography, and the wrongfulness and harmfulness of their conduct: Friesen, at paras. 43, 87. These myths include that the conduct of those possessing child pornography is harmless and victimless, accidental and passive, caused by medical and psychiatric conditions, or an isolated occurrence: see, e.g., Mary Graw Leary"The Language of Child Sexual Abuse and Exploitation" in Hessick, ed., Refining Child Pornography Law 109, at pp. 122-124; O'Donnell & Milner, at pp. 194-195; Smolen, at pp. 53-55, 70-71. These myths cannot conceal an all-too-obvious reality: People who possess child pornography exploit real child victims callously, deliberately, and repeatedly. Failing to recognize this reality risks "undermin[ing] the credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large": Friesen, at para. 43.
32The conduct of those possessing child pornography is very morally blameworthy because they intentionally exploit vulnerable children: Pike, at para. 162; Friesen, at para. 90. As Chief Justice Tulloch put it, at paragraph 163, “[t]hey display a disturbing lack of empathy and compassion by continuing to collect and view this material without considering the plight of the victims it depicts: D.P.P. v. D'Alessandro, [2010] VSCA 60, 26 V.R. 477, at para. 23; Lynch-Staunton, at para. 51”. Possession of child pornography is deliberate, not accidental, or passive: Pike, at para. 164.
33At paragraph 164, Chief Justice Tulloch re-affirms the prioritization of denunciation and deterrence by stating:
Courts thus should not recast people who possess child pornography as victims of its easy availability. Likewise, while courts can consider mental illnesses that contribute to people's decisions to possess child pornography (Bertrand Marchand, at para. 128), they should not assume that psychiatric conditions like pedophilia compel those people to possess child pornography. Both forms of minimization wrongly excuse people who possess child pornography from responsibility for their choices and undermine Parliament's prioritization of deterrence and denunciation: Friesen, at para. 132; U.S. v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc), at pp. 1198-1200, cert. denied, 563 U.S. 917 (2011); Porte, at paras. 71-72.
34At paragraph 165 of Pike, Chief Justice Tulloch observes that “possession involves repeated conduct”. It “is a continuing choice because people who possess child pornography do not merely access material once but rather retain it, often indefinitely or for a significant period”. Perpetrators “often make deliberate choices to acquire more material, organize their collection, and repeatedly view their images, victimizing children each time they do so”: Pike, at para. 165. As Chief Justice Tulloch notes, “[t]hese choices demonstrate that possession generally is neither ‘a momentary lapse’ nor an isolated act”: Pike, at para. 165.
35In Pike, Chief Justice Tulloch recognized that Ontario courts use the non-exhaustive list of aggravating and mitigating factors that Justice Molloy set out in R. v. Kwok to sentence people who possess child pornography. Chief Justice Tulloch clarified and updated the list of factors to reflect Friesen and other subsequent developments in the law.
36In Kwok, at paragraph 7, Justice Molloy recognized the following six aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.
37Justice Molloy identified the generally recognized mitigating factors to include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community), which Chief Justice Tulloch labelled “stigma and collateral consequences” at paragraph 166 of Pike.
38At paragraph 167 of Pike, Chief Justice Tulloch cautioned that the size of the collection is not determinative and should be considered together with the number of real child victims, the degree of organization, and the ratio of videos to still images:
In general, the number of different children depicted is more aggravating than large collection size because people who victimize more children should expect to receive "significantly higher sentences": Friesen, at para. 133. Indeed, large collection size matters in large part because courts infer from it that the collection contains many victims: R. v. Gent, [2005] NSWCCA 370, 162 A. Crim. R. 29, at para. 99. The level of organization is also aggravating because it shows that people who possess child pornography have more interest in the material: R. v. Martin, [2014] NSWCCA 283, 246 A. Crim. R. 477, at paras. 50, 59. Further, videos are more aggravating than still images because, by adding more realistic and graphic detail, they are more invasive and harmful privacy violations: Alisdair A. Gillespie, Child Pornography: Law and Policy (New York: Routledge, 2011), at pp. 255-256; Jarvis (2019), at para. 62. For all these reasons, stricter sentences for smaller-size collections are appropriate if other aggravating factors demand it: R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179, at paras. 31-33.
39At paragraph 168 of Pike, the Court said the following about the nature of the collection:
Second, the seriousness of the collection's nature turns on the depicted activity's degree of harmfulness and wrongfulness. Thus, material depicting more physically intrusive activities that feature additional violence beyond that inherent in sexual offences against children is aggravating because those features may cause additional harm: Warner, at p. 386; Friesen, at paras. 139, 152. Some sentencing judges use image ranking tools to account for this, as in R. v. Jonat, 2019 ONSC 1633. But judges who do so must recognize that the harms and wrongs of such recordings do not depend on penetration, and that other forms of exploitation can cause severe emotional harm, even absent additional violence and even if victims appear to participate. For instance, recordings of sexualized posing are serious because they show horrifying and profoundly harmful sexual exploitation: Friesen, at paras. 140-146, 152; Snowden, at para. 102; D.P.P. v. Watson, [2016] VSCA 73, 259 A. Crim. R. 327, at paras. 41-46.
40Courts should consider whether the collection depicts real children: Pike, at para. 169. The possession of recordings of virtual or fictional children is less serious than recordings depicting the abuse of real children.
41The Court in Pike added the additional aggravating factors of duration, frequency, collaboration with other offenders, planning, organization, sophistication, and participation in the child pornography subculture. Chief Justice Tulloch explained as follows, at paragraph 170:
The 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: Friesen, at paras. 131-133; Hammond, at para. 12; Inksetter, at para. 22. Collaboration, 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: Clayton C. Ruby, Sentencing, 10th ed. (Markham, Ont.: LexisNexis, 2020), at §§ 5.4, 5.12, 5.97; D.G.F., at para. 25. Participation in the child pornography subculture is also 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: D.G.F., at para. 25.
42At paragraphs 171, 172 and 173 of Pike, Chief Justice Tulloch cautioned against using the absence of certain aggravating factors as mitigation and overemphasizing certain mitigating factors. For instance, the absence of aggravating factors like the actual production and distribution of child pornography, the depiction of very young children, or payment to acquire child pornography is not mitigating. Courts must “avoid the trap of imposing disproportionately low sentences in cases involving older preteen and teenage children” and “also recognize 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”: Pike, at para. 171.
43Good character, employment, and stigma are less significant factors in sentencing people who possess child pornography. As Chief Justice Tulloch observed, at paragraph 172 of Pike, “[p]rior good character and employment receive only limited weight because many perpetrators are people of otherwise good character who 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 [citations omitted]”. Stigma receives less weight because it is a predictable consequence of conviction: Pike, at para. 172; R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27, at para. 39.
44At paragraph 173 of Pike, Chief Justice Tulloch addresses remorse and insight:
Finally, 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: Lynch-Staunton, at paras. 50-53, 55; Kwok (2007), at paras. 35-37, 39.
45In Pike, the Court of Appeal for Ontario recognized the uncertainty that existed in Ontario regarding the sentencing range for possession of child pornography because it had not yet defined a range, and sentencing judges identified divergent ranges. Therefore, in Pike, the Court provided quantitative guidance to sentencing judges to end the uncertainty. To account for Friesen and the legislative increase to the maximum sentence in 2015, the Court raised the three-and-one-half to four-year upper end of the range for possession of child pornography identified in R. v. Lynch-Staunton, [2012] O.J. No. 313 (S.C.), at para. 79 and R. v. Branco, 2019 ONSC 3591, to five years.
46Chief Justice Tulloch declined “to set a lower end for the possession range because, like child luring, 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: M.V., at paras. 84-85, 92; R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670, at para. 39”: Pike, at para. 176.
47Chief Justice Tulloch instructs sentencing judges to situate cases on the range by assessing the aggravating and mitigating factors outlined in Pike, and by comparing them to the facts of decided cases, with the most useful cases being those decided post-Friesen and post-2015 legislative changes. Chief Justice Tulloch identified cases such as the Court of Appeal’s decisions in R. v. Inksetter, 2018 ONCA 474, R. v. John, 2018 ONCA 702, R. v. McCaw, 2023 ONCA 8, R. v. Olivetti, 2022 ONCA 142, and R. v. Rule, 2023 ONCA 31 as being most useful because they show a deep understanding of the gravity and degree of responsibility of those possessing these images. The 2007 Kwok range’s upper end has long been surpassed.
48In R. v. Branco, supra, at paragraphs 83 and 84, Justice Stribopoulos provided the following useful summaries of the Inksetter and John decisions:
83 In Inksetter, the offender amassed one of the "largest and worst" collections of child pornography that the Ottawa Police Service had ever uncovered. It included over 28,052 images and 1,144 videos. The collection likely included even more, but there was so much material that the police stopped cataloguing it with more than 1.2 million images, and 40,000 videos still outstanding for review. Nearly ninety-five percent of the material depicted actual penetration and other explicit sexual activity. Some of the images included children as young as one year of age, as well as acts of bondage and bestiality. The offender pled guilty, was employed, and posed a low-risk to reoffend. He also demonstrated insight and remorse. The Court of Appeal allowed the Crown's appeal against a sentence of two years less a day imprisonment, concurrent on one count of possessing child pornography and one count of making child pornography available, followed by three years of probation. It substituted sentences of three and one-half-years imprisonment concurrent on both counts.
84 In John, the Court of Appeal, after declaring unconstitutional the minimum sentence of six months imprisonment on an indictable election, introduced as part of the 2012 amendments, affirmed a sentence of imprisonment for 10 months imposed on an offender convicted after a trial of possessing child pornography. The collection consisted of 50 images and 89 videos of child pornography. It involved children as young as two to four years of age, subject to anal and vaginal penetration with sex toys and adult penises. The offender was 31 years old at the time of sentencing. He had mental health problems and had been suicidal in the past but was pursuing psychotherapy to address his mental health issues. The offender was employed. He was also remorseful. The horrendous abuse documented weighed heavily in the court's reasoning, as did the extensive efforts of the offender towards his rehabilitation.
49The Court noted in Pike that, “in Inksetter, a five-year sentence for the possession count likely would have been appropriate but for the early guilty plea, lack of a criminal record, low risk, remorse, insight, and treatment”: Pike, at para. 178.
50In Rule, the Ontario Court of Appeal upheld a 22-month jail sentence for accessing and possession of child pornography. The Court also found that it was appropriate, having regard to the nature of the offence, the size of the collection, the duration of possession, and frequency of examination of the images, for the sentencing judge to rule out a conditional sentence which would have been inconsistent with the fundamental purposes and principles of sentencing, despite the appellant’s health problems. The appellant was 70 years of age, had no criminal record, and entered guilty pleas to accessing child pornography and three counts of possessing child pornography. He downloaded 100,000 images on his computer that would have met the definition of child pornography as well as 204 videos. The images were being collected by the appellant over a period of five years. The appellant had a diagnosis of rectal cancer.
51I adopt Justice Lacelle’s summaries of the Olivetti and McCaw decisions set out at paragraphs 51 and 58 of R. v. LeClair, 2024 ONSC 1217:
51 In R. v. Olivetti, 2022 ONCA 142, the 77-year-old offender had pleaded guilty to possessing and accessing child pornography. The trial judge accepted the joint submission for a 4 year sentence. The sentence of 4 years was upheld on appeal. There was evidence the offender had some health issues, but the Court of Appeal confirmed these were best left to the parole board. Aggravating factors in this case included that the offender had a "very large collection" of images (11,000 images and 88 videos, primarily of prepubescent girls), and a history of sexually offending against children for which he had received a sentence of over 10 years. The offender had a history of employment and had expressed remorse for his actions.
58 R. v. McCaw, 2023 ONCA 8, involved an offender who had received a conditional sentence, notwithstanding that he had two prior convictions for child pornography offences. The Court of Appeal overturned that sentence and imposed a sentence of three years' imprisonment. On this occasion, the offender possessed seven unique images and three unique videos, but he admitted to accessing child pornography almost daily. Trotter J.A. described the collection as "shockingly vile", and reasoned that consequently"the relatively small size of the respondent's collection of child pornography had no mitigating value": at para. 33. The children depicted were between one and twelve. The offender was 47 years old and had a number of mental health challenges. He reportedly used child pornography to cope with his loneliness. He had been diagnosed with pedophilia and paraphilia. The offender was remorseful and apologized to the children he had harmed by his use of pornography. Given that he posed a real risk of re-offending, and a sentence of under 2 years was not appropriate, a conditional sentence should not have been imposed.
52Counsel provided no authorities in respect of the range of sentence for the offence of voyeurism. In R. v. R.R., 2022 ONCJ 407, Justice Jones undertook a review of sentencing authorities for voyeurism at paragraphs 58 to 69. I adopt the following paragraphs of Justice Jones’ decision in R.R.:
58 Deterrence is an important consideration when sentencing an offender for the crime of voyeurism. A clear message must be sent to the community that those who would violate the sexual integrity and personal dignity of their victims by surreptitiously taking photographs or videos of their bodies will pay a significant price.
59 In R. v. McFarlane, 2018 MBCA 48, the Manitoba Court of Appeal held that the range of sentence for a first offender who pleads guilty to voyeurism is between a discharge and 12 months' imprisonment, recognizing the wide range of activity that can encapsulate the offence: see para. 25.
60 R. v. Russell, 2019 BCCA 51, the British Columbia Court of Appeal held that voyeurism represents a serious invasion of personal privacy: see para. 34. The Court recognized the Manitoba Court of Appeal's decision in McFarlane but clarified that other reported decisions revealed sentences as high as two years' incarceration. Cases that resulted in a disposition at the higher end of the range involved more serious offences in conjunction with the offence of voyeurism, and the sentences were typically consecutive: see para. 39.
61 Russell attended at a mall and recorded a young girl by taking an "upskirt" photograph of her as she stood in line at a food court. A mall security officer arrested him. A police investigation revealed that he had a digital camera and digital storage cards containing 64 videos of views taken in similar circumstances of 85 young women or girls. Some of these girls were wearing school uniforms.
62 He had a significant prior criminal record including entries for similar offences and was bound by a long-term supervision order (LTSO) at the time of the offences. The Court of Appeal upheld an 18 month jail sentence consecutive to a 12 month jail sentence for breaching his LTSO: see paras. 40-41.
64 In R. v. R.B., 2014 ONCA 840, the appellant was convicted of a number of child pornography offences and one count of voyeurism. He hid a video camera in his 13 year old niece's bedroom and filmed her as she changed. On that count, he received a sentence of six months' custody. The Court of Appeal upheld the sentencing decision and commented that consecutive sentences were appropriate as the offences engaged different legally protected interests: see para. 7.
66 In R. v. De Jesus Carrasco, 2020 ONSC 5308, the victim worked at a bar for the accused. One evening, he started massaging her, and she froze. He held her up against a wall and touched her vagina. She told him to stop, but he persisted. The bar had a digital video recording system which recorded her without her knowledge or consent. Justice Goldstein found he exploited an employer-employee relationship and filmed her for his own sexual gratification. He was convicted of one count of sexual assault and one count of voyeurism. He was sentenced to 12 months custody for the act of sexual assault and six months consecutive for the act of voyeurism: see para. 53.
67 Following the decision of the Supreme Court of Canada in Jarvis, the offender was sentenced by Justice Goodman of the Superior Court of Justice: see R. v. Jarvis, 2019 ONSC 4938. Jarvis was a high school teacher who secretly recorded videos of students using a pen camera. They were mostly female students between the ages of 14 and 18. The recordings took place in various locations in the school where the students should have felt safe and secure. While the students were clothed, the videos often focused on the female students' cleavage.
68 Jarvis had significant family support, expressed remorse for his actions and underwent counseling prior to sentencing. Recognizing the harm he caused by his repeated acts of recording adolescent girls, Justice Goodman imposed a sentence of six months' custody: see para. 93.
69 In summary, the factors that a court should consider when deciding upon a sentence for a count of voyeurism under section 162(1)(b) include the following:
The circumstances of the victim at the time of the events - including her age and whether she was in a position of vulnerability;
The circumstances of the defendant, including his age and whether he was in a position of trust towards the victim;
The degree of invasiveness of the crime including the extent the recordings violated the sexual integrity of the victim;
The location of where the crime occurred;
The number of images or videos taken;
Whether the images or videos taken were ultimately recovered and deleted, and/or whether they were distributed to other persons including into the wider online community such that it may exist forever further harming the victim;
The impact on the victim, including psychological harm; and
Whether the act of voyeurism was committed in conjunction with or otherwise connected to another criminal offence such as sexual assault.
AGGRAVATING AND MITIGATING FACTORS
53I find the following to be aggravating factors in Mr. Romaker’s case:
(1) The size of the collection of child pornography found is very large. It is much more than the size of the collection in John, smaller than the collection in Inksetter, and similar in size to the collection in Olivetti. Mr. Romaker’s case bears some similarity to Inksetter in that there was so much material that the police stopped cataloguing it;
(2) The nature of the images and videos in Mr. Romaker’s collection is a seriously aggravating factor. From the very large collection size, I infer that it contains many real child victims. The degree of harmfulness and wrongfulness depicted in Mr. Romaker’s collection is also a significant aggravating factor. It includes infants and toddlers as well as young, pre-pubescent, and early pubescent children and includes material depicting more physically intrusive activities such as solo masturbation by a child, non-penetrative sexual activity between adults and children, and penetrative sexual activity between children and adults. In Mr. Romaker’s case, the sophistication of the collection was high, increasing the moral blameworthiness of the offence as it shows that Mr. Romaker’s conduct was entrenched, which increased the number of times he victimized the depicted children; and
(3) While Mr. Romaker, was on release for the child pornography charges, he breached a condition of his release order by attending at an Expo which attracts young females under the age of 18 years. He did not simply attend the Expo, but rather used his cell phone to take photos of females’ cleavages and up their skirts. The Victim Impact Statement of M.F., filed as Exhibit 7 on the proceedings, demonstrates that the voyeurism offence has had a significant impact upon her. It has made her feel afraid and unsafe, and affected the way she lives her life. Similarly, the Victim Impact Statement of E.W., filed as Exhibit 8 on the proceedings, sets out the lasting impact that Mr. Romaker’s actions have had on her life, including shame, embarrassment, and continuing anxiety, which has affected her work and personal life. The significant impact upon the victims, M.F. and E.W., is understandable given the violation of their sexual integrity and is an aggravating factor to be considered on sentence.
54The following are mitigating factors in Mr. Romaker’s case:
(1) He entered guilty pleas to the offences, which is an expression of remorse and acceptance of responsibility for the offences. The guilty pleas have avoided the necessity of trials in both matters and preserved the judicial resources required for those trials;
(2) Mr. Romaker has no prior criminal record. On consent, counsel filed a CPIC query which shows that Mr. Romaker was granted a conditional discharge on November 14, 2018 in relation to a finding of guilt for voyeurism. I have made no use of the record of discharge in arriving at the sentences I impose upon Mr. Romaker. I have sentenced him as a first-time offender. The Crown introduced the record of the conditional discharge after the retention period in s. 6.1 of the Criminal Records Act had passed: R. v. Singh, [2023] O.J. No. 3855 (S.C.J.), 2023 ONSC 4949; [3]
(3) I have considered Mr. Romaker’s mental illness and challenges, which are documented in both the PSR and his letter made Exhibit 6 on the proceedings, as a further mitigating factor. These mental health challenges including his addiction to pornography and voyeurism are relevant to the commission of his offences. However, I note that, aside from participating in a psycho-sexual assessment with Mr. Gizzarelli, to date Mr. Romaker has done little, if anything, to address and treat his addictions. The lack of treatment is merely the absence of a further mitigating factor, not an aggravating factor;
(4) Mr. Romaker expressed remorse for having committed the offences in his letter filed as Exhibit 6, and insight into the harm his offences have caused. In Exhibit 6, he listed the steps he has taken toward self-improvement with the support of his father; and
(5) Mr. Romaker has prospects for rehabilitation. He recognizes his addictions and the fact that he needs to address them. He has the support of his father. Mr. Romaker has demonstrated that he can successfully pursue and complete educational goals and that he can be gainfully employed. These factors tend to increase his prospects of rehabilitation.
55I accept that a custodial disposition will create collateral consequences for Mr. Romaker and his family, particularly in relation to the care of Mr. Romaker’s mother who is afflicted by multiple sclerosis and requires significant attention from caregivers including Mr. Romaker and his father. Collateral consequences may be considered by a sentencing judge in determining the appropriate sentence. Collateral consequences are neither aggravating nor mitigating factors, but they are significant, legally and practically: R. v. Suter, 2018 SCC 34, at para. 48. However, collateral consequences “cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender”: Suter, at para. 56.
56Mr. Romaker seeks Downes credit for strict bail conditions he says he was subjected to on his release order of August 28, 2022. He has been bound by the release order since that date. Defence counsel did not seek credit for conditions of the prior release order of May 4, 2021, which Mr. Romaker breached.
57Counsel provided me with a copy of the August 28, 2022 release order. It includes a condition that Mr. Romaker remain in his residence at all times except when he is in the direct presence of his surety, his father, Philip Romaker.
58Where an offender is subject to strict bail terms, this may be considered mitigating on sentence, particularly where the offender is subject to house arrest: R. v. Downes, (2006), 79 O.R. (3d) 321 (Ont. C.A.), at para. 37. The credit to be given for strict bail terms, including house arrest, is not automatic. The relevant inquiry is whether the bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation: R. v. Joseph, 2020 ONCA 733, at para. 114. The focus, therefore, is on the effect of the conditions, not the appropriateness of the conditions.
59If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code. Defence counsel argued that the condition requiring Mr. Romaker to remain in his residence, unless in the direct presence of his surety, was restrictive. However, I find that Mr. Romaker has not established to the requisite standard that the condition had an impact on his liberty. For instance, he has not adduced any information about attempts he made to obtain employment or pursue further education that were hindered by the condition. Mr. Romaker says that he focused almost exclusively on the care of his mother during this period. This is commendable. However, no information has been provided as to how the condition requiring him to remain in his residence unless in the company of his father hindered his ability to care for his mother or affected his ability to participate in any other activities. No evidence or information has been provided to suggest that Mr. Romaker sought to have the condition of his release relaxed because it was having an impact upon him: R. v. Junkert, 2010 ONCA 549, at para. 37.
60Defence counsel argued that restrictions on Mr. Romaker’s ability to use the Internet or a vehicle should be considered in assessing Downes credit, as well as the lack of privacy he had in the home because his father removed the door of his bedroom. I do not find these to be relevant considerations in assessing Downes credit. The fact that Mr. Romaker’s father, his surety, placed these additional restrictions on him, if in fact he did, do not amount to restrictions of the type that warrant Downes credit being given.
61I do not find it appropriate to grant any Downes credit on the record before me and decline to do so.
THE SENTENCE
62Having considered the authorities I referred to above, including the guidance provided by the Court of Appeal for Ontario in Pike, I find that a penitentiary sentence of three-and-one-half (3.5) years jail is the appropriate sentence for the offence of possession of child pornography. I find that a sentence of six (6) months jail to be served consecutively for the voyeurism offence is appropriate. Consecutive sentences are appropriate as the offences engaged different legally protected interests and involved separate and distinct delicts.
63I make the following ancillary orders:
(1) Possession of child pornography is a primary DNA designated offence. I order that Mr. Romaker provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act;
(2) I make an order, pursuant to s. 161(1)(d) of the Criminal Code, in accordance with the draft order provided by counsel; and
(3) I make an order in Form 52 of the Criminal Code requiring Mr. Romaker to comply with the Sex Offender Information Registration Act for a period of 20 years.
Released: October 17, 2024 Signed: Justice J.P.P. Fiorucci
Footnotes:
1On November 22, 2023, the Crown proceeded by indictment on the possession of child pornography charge. Mr. Romaker elected to be tried by the Ontario Court of Justice and entered a guilty plea to the charge. Sentencing was adjourned for preparation of a pre-sentence report and for the voyeurism charge to be transferred to Hamilton from Toronto. On July 10, 2024, the Crown proceeded summarily on the Toronto voyeurism charge and Mr. Romaker entered his guilty plea to the offence. On the same date, counsel made sentencing submissions with respect to both offences.
2When Mr. Romaker entered his guilty plea to the voyeurism charge on July 10, 2024, Crown counsel read into the court record that Mr. Romaker was released on an undertaking, a fact which was admitted by Defence counsel. However, the parties provided me with a copy of the release order of Justice of the Peace Kelly Visser dated May 4, 2021, and agree that judicial interim release on that date was by way of that release order.
3Pursuant to s. 6.1(1)(b) of the Criminal Records Act, the conditional discharge Mr. Romaker received on November 14, 2018 could not be disclosed after November 14, 2021. There was no evidence that the Crown sought or received the prior approval of the Minister of Public Safety and Emergency Preparedness to disclose the record of discharge, or the existence of the record, or the fact of the discharge. Therefore, the CPIC entry was inadmissible. The Crown was entitled to put before the Court the factual reality that the incidents on which Mr. Romaker entered pleas of guilt were not the first incident: R. v. Montesano, 2019 ONCA 194, at para. 11; R. v. Foreshaw, 2024 ONCA 177, at para. 30. However, the Crown did not adduce the underlying facts of the occurrence that led to the conditional discharge for voyeurism on November 14, 2018. Accordingly, I have no information about the prior incident and therefore, no basis on which to consider it as a factor in determining whether Mr. Romaker’s current offences are “isolated incidents” or “out-of-character”: R. v. Singh, supra, at para. 38. A prior discharge, which is admissible at a sentencing hearing (ie. an absolute or conditional discharge that is within the disclosure periods set out in s. 6.1 of the Criminal Records Act), is relevant in determining the fitness of another discharge, and “the underlying facts of a discharge, if properly adduced, particularly if they are similar to the offences in front of the court, are relevant to the issue of deterrence and/or rehabilitation”: R. v. McConnell, 2021 ONCJ 431, at para. 12.