Ontario Court of Justice
Date: 2024 11 07 Court File No.: Brampton 21-10840
Between:
HIS MAJESTY THE KING
— AND —
STANISLAW DUNAJSKI
Before: Justice P.T. O’Marra
Heard on: October 24, 2024 Reasons for Judgment released on: November 7, 2024
Counsel: Reza Raeesi, for the Crown Pav Singh, for the defendant Stanislaw Dunajski
Introduction
1On October 21, 2024, Mr. Dunajski pleaded guilty to possession of child pornography contrary to section 163.1(4) of the Criminal Code. I also judicially pre-tried this on August 8, 2024.
2Today, he is before me for sentencing. These are my reasons.
3The facts that support the guilty plea are as follows:
4The Peel Regional Police’s ICE unit received information regarding Mr. Stanislaw Dunajski. After investigating, the police formed the opinion that Mr. Dunajski may have images that meet the Criminal Code definition of child pornography.
5On June 17, 2021, at approximately 8:32 a.m., members of the PRP executed a Criminal Code search warrant, and a search of Mr. Dunajski's residence revealed that he had several electronic devices. An analysis of a hard drive located in a bedroom of the home revealed images that met the Criminal Code definition of child pornography.
6At 12:57 p.m., Mr. Dunajski was placed under arrest for possession of child pornography contrary to section 163.1(4) of the Criminal Code. He was read his rights to counsel, cautioned, and held pending a bail hearing. Mr. Dunajski was released on bail six days later.
7A subsequent analysis of the hard drive revealed a total of 19 images that met the definition of child pornography. The nature of the child sexual abuse material found on Mr. Dunajski’s device involved sexualized posing of pre-pubescent children.
Victim Impact
8While 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.
9Victims of child abuse have to live with the reality that their images and the imagery of their abuse continue 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 destroy the images of their abuse permanently, and they are victimized over and over every time their images are sought out, watched, and retained.
10There is no doubt that this is a serious offence and that denunciation and deterrence must be front and centre in the sentencing analysis. (See: R. v. Pike, 2024 ONCA 608, at para. 159; s. 718.01 Criminal Code.)
The Positions of the Parties
11The Crown seeks a 90-day intermittent jail sentence followed by three years of probation. The Crown also requested ancillary orders, consisting of a SOIRA order for 10 years and a s. 161 order for five years, with conditions as outlined later. As another term of probation, the Crown submitted that there be control over Mr. Dunajski's access to internet-connected data-capable devices as set out further. The Crown also seeks a DNA sample for the primary designated offence, and the parties agree regarding the forfeiture of specific devices.
12The Defence submits that the appropriate sentence in these circumstances is a conditional sentence order for six to nine months followed by twelve months of probation. Counsel does not oppose the corollary orders, except for a modification on computer access in the order under section 161.
Mr. Dunajski’s Circumstances
13A presentence report was not ordered in his matter. However, I have gleaned much of Mr. Dunajski’s personal circumstances and background from a psychiatric report prepared by Dr. Goger.
14Mr. Dunajski is 63 years old and does not have a criminal record. He was born in Montreal, but his parents moved to Ontario when he was four. He was an active, social, and outgoing child. However, in middle and high school, he experienced difficulties socializing and connecting with his peers, and as a result, he became more reserved.
15Mr. Dunajski was bullied as a teenager. He was made fun of because of his Polish heritage.
16He graduated from high school with honours in 1980.
17In 1985, he completed his Bachelor of Science at the University of Toronto. After his graduation, he completed several courses in IT and telecommunications. Shortly after that, he was employed in the Telecommunications Department as a Test Engineer at Nortel.
18In 1985, he started experiencing stress, exhaustion, and insomnia over his work. He developed his first of three duodenal ulcers. He was placed on sick leave.
19In 1988, Mr. Dunajski was promoted to the position of Component Engineer. He held that position until 1994.
20Due to downsizing in the Engineering Department, Nortel moved Mr. Dunajski to a laboratory until 1999.
21In 1999, his department in Nortel Labs was closed, and the company merged with Bay Networks, another telecommunications company. Following this, Mr. Dunajski worked in the Telecom-IT Integration Department. Although a perfect job for him, Mr. Dunajski claimed that he was harassed and called names at work by his manager.
22In 2001, due to his poor performance, Mr. Dunajski was laid off by his manager.
23From 2001 until 2005, Mr. Dunajski was in limbo. But in 2005, he and a friend started their own IT business. After the market crashed in 2008, his business made no profit until 2018. He became depressed and felt that his life was going nowhere.
24Since 2018, Mr. Dunajski has worked in a warehouse at Walmart.
25He spends a lot of his time taking care of his parents, who are in their 90s.
26Mr. Dunajski is single. He has had two long-term relationships but never married and has no children.
27Mr. Dunajski started to view pornography after he was laid off from Nortel in 2001. In 2016, he started to view child pornography as adult pornography was compromised by links that led him to child pornographic images / videos. Eventually, he clicked on a link “out of curiosity.” He visited the sites several more times.
Dr. Goger’s Report
28Based on Mr. Dunajski’s account of himself, the information from the disclosure and the agreed statement of facts, Dr. Goger diagnosed that Mr. Dunajski suffers from pedophilic attraction. His predilection is likely non-exclusive. He also has an interest in adults sexually.
29Since October 2023, he has been involved in cognitive behavioural therapy, insight-oriented counselling and psychoeducational approaches with Caroline Kerjickian.
30Given Mr. Dunajski’s admission to having an underlying attraction, his shown capacity to benefit from counselling and his willingness to engage in ongoing treatment, Dr. Goger sees Mr. Dunajski as a “low risk” to re-offend. His opinion is predicated on Mr. Dunajski engaging in ongoing therapy, ideally in a group format, in a referred sex offender treatment program. Dr. Goger recommends that Mr. Dunajski not have any contact with children in an unsupervised setting.
Legal Parameters
31In this case, the Crown proceeded summarily.
32The range of punishment is set out in s. 163.1 of the Criminal Code. It provides for the offence of possession of child pornography, pursuant to s. 163.1(4)(b):
(4)(b)Every person who possesses any child pornography is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
33The provision for it being a minimum punishment has effectively been struck down as unconstitutional based on appellate case law. (See R. v. John, 2018 ONCA 702.)
Mitigating and Aggravating Factors
34The 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-centred 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.
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 173.)
36First, I should consider the presence of a criminal record. Mr. Dunajski has no record and is being sentenced as a first offender. This is a significant mitigating factor.
37Pike then directed me 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, but rather, it is demonstrative of the absence of an aggravating factor. (See Pike, para. 171.) I do not have any evidence that this was a factor in this case.
38As for the collection size, Mr. Dunajski had 19 images located on his hard drive. The size of the collection is not determinative. It should be considered together with the number of real child victims, the degree of organization, and the ratio of videos to still images. (See: Pike at para. 167.)
39I do not have evidence of any particular organization of the collection here, and I have no evidence of the number of child victims. I have no evidence that Mr. Dunajski was in possession of videos.
40In terms of duration, this was not a collection that was amassed over the years, as in some cases. The analysis revealed that Mr. Dunajski had accessed the images twice in 2017.
41This 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." (See: Pike, at para. 170.) While Mr. Dunajski is morally blameworthy for having persisted in this conduct, I cannot characterize this behaviour as entrenched.
42There is also no question that Mr. Dunajski sought out child pornography. This offending behaviour may have initially occurred accidentally or passively. However, 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 fall into his lap. It was deliberate, and he downloaded it for potential later viewing.
43Pursuant 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. Dunajski has significant and skilled technological prowess in locating, he was not part of any child pornography subculture or community, nor did much planning or organization go into obtaining the material.
44The seriousness of the nature of the collection is the next consideration. This factor 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. (See: Pike, para. 168.)
In this case, the material found on Mr. Dunajski’s computer involved sexualized posing of pre-pubescent children. I believe this case falls at the lower end of the range.
45Next is the risk that Mr. Dunajski presents to children.
46Dr. Goger opined that Mr. Dunajski presents a low risk of re-offending as it relates to child pornography, and I accept that opinion. The assessment properly supported his opinion and was not challenged.
47I also accept that Mr. Dunajski does not present a real risk of committing 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.
48Mr. Dunajski does not deny or minimize the wrongfulness of child pornography, nor does he seek to rationalize or normalize the conduct.
49I then turn to Mr. Dunajski's good character, employment situation, and the stigma arising from this charge.
50These are noted as less significant factors and given limited weight in 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".
51Mr. Dunajski did recognize his morally blameworthy actions, that he was “heading down the wrong path,” and that what he was doing was wrong. He ceased clicking on any links after February. He claimed that he used “distorted logic to tell himself that what he was doing was related to curiosity. He acknowledged that this erotic interest needs to be addressed in ongoing therapy.” (See Dr. Goger’s Report at page 4.) 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 sister and younger brother.
52I believe that Mr. Dunajski has good prospects for rehabilitation.
53I next consider his level of insight and remorse.
54As 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.
55I accept that Mr. Dunajski 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 on real children. He accepts that he is responsible for these harms. He acknowledged that his actions were illegal and immoral, that the children had not consented to the pictures being taken of them, and that his use of child pornography endorsed and perpetuated indirectly the abuse of children. (See Dr. Goger’s Report at page 12.) These factors, therefore, speak to Mr. Dunajski's low risk of re-offending. I believe he has been deterred from engaging in such conduct in the future.
56I also consider Mr. Dunajski'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 and cognitive behavioural therapy to enable greater insight into his conduct.
Governing Legal Principles
57Section 718 of the Criminal Code sets out the purpose and objectives of sentencing:
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or the community and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or the community.
58In other words, the purposes of sentencing are to be accomplished through the imposition of "just sanctions" that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, the promotion of a sense of responsibility in offenders and the acknowledgment of the harm done to victims and the community.
Sentencing Range for Possession of Child Pornography
59In Pike, at para. 174, the Court of Appeal indicated that it was time to update the sentencing ranges in possession of child pornography cases to account for Friesen and the legislative increase to maximum sentences.
60The eighteen-month upper end of the range was previously increased to a three-year sentence for possession as proportionate. (See R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 8, 53-54.) In pre- Friesen cases and cases before 2015, sentencing judges raised the upper end of the range from three-one-half to four years. (See R. v. Lynch-Staunton, at para. 79; R. v. Branco, 2019 ONSC 3591, at paras. 23-24, 101.) However, Pike has increased it to five years.
61The Court of Appeal in Pike declined "to set a lower end for the possession range because ... possession can be committed in various 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 this could merely reflect the various circumstances in which the possession offence can be committed: para. 175.
62The Court recommended that sentencing judges situate cases on the range by assessing the aggravating and mitigating factors these reasons outline and comparing them to the facts of decided cases. The most useful precedents are post- Friesen, post-2015 legislative change cases, especially those that, like the Court’s decisions in Inksetter, John, McCaw, Olivetti, and R. v. Rule, 2023 ONCA 31, which show a deep understanding of the gravity and degree of responsibility of those possessing these images consistent with these reasons: Friesen, at paras. 108-110. (See para. 178).
63The Crown provided the following additional decisions in support of its position.
64In R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179 (CA), the accused pleaded guilty to one count of possession of child pornography. He was a repeat offender, having been convicted of the same offence in 2002 and receiving a one-year conditional sentence. In 2011, he was convicted of possessing and distributing child pornography and received a sentence of two years less a day with three years of probation. Given his record, the Crown sought a three-year penitentiary sentence. Counsel submitted that a fit sentence was time served, followed by three years' probation. In light of the accused's challenges, his guilty plea and acceptance of responsibility, the lengthy gap in his record and his pre-sentence custody and house arrest bail, the judge ultimately imposed what purported to be a two-year conditional sentence notwithstanding that a conditional sentence had to be less than two years. The Court found that the sentence was manifestly unfit and sentenced the offender to three years less time served.
65This case is patently different from the case at bar. Mr. Dunajski is a first-time offender and did not possess the same kind of particularly vile images as in McCaw that involved children from age one to twelve engaging in sexual activity with adults.
66In R. v. Greene, 2024 ONCJ 4206, after trial, the offender was found guilty of possessing child pornography and accessing child pornography by looking at, reading, or copying at least one of the 107 images, stories or videos that were child pornography for one year. The offender was sentenced to ten months. The Court rejected the imposition of a conditional sentence as there were no compelling circumstances, mitigating factors and/or an absence of aggravating factors to justify a conditional sentence for this offence. The Court found that the offender lacked insight and willingness to take treatment. Mr. Dunajski is not the same kind of offender in the Greene case. He was motivated to be assessed, sought therapy, and had insight and empathy.
67In R. v. Kardaal, 2022 ONCJ 441, just over 13 months imprisonment was imposed for possessing 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. The nature and the quantity are different than in this case.
68The four cases that counsel provided in support of a conditional sentence order predate the decision in Pike but post-date Friesen.
69In R. v. Jongsma, 2021 ONSC 100, the offender pleaded guilty to possession of child pornography. He had in his possession 24 videos depicting children between the ages of four and twelve years old engaged in sexual acts with adults. The offender was a victim of sexual abuse. The Court imposed a one-year conditional sentence.
70In R. v. Hawes, 2021 ONCJ 344, the 59-year-old first-time offender pleaded guilty to accessing 92 images of child pornography. The images were described as "minimal and moderate intrusiveness, with a primary focus on vaginal or anal images" exemplified as "one child was seen holding the erect penis of an adult male; one child was seen holding a massage device against the erect penis of an adult male." He was sentenced to an eight-month conditional sentence.
71In R. v. Prendivoj, 2022 ONCJ 2596, the offender pleaded guilty to possession of child pornography. He was in possession of four images and 20 videos. In total, there were five and a half hours of videos. These were videos of girls being involved in all kinds of sexual activity and of boys with boys. All depicted acts of repeated acts of fellatio, anal and vaginal penetration. All of the children were between the ages of six and sixteen. The 45-year-old offender had schizophrenia. Justice K. McLeod sentenced the offender to a six-month conditional sentence.
72In R. v. Cusick, 2022 ONCJ 590, the offender pleaded guilty to possessing 44 images and 238 videos that contained child pornography. In that case, the offender had been on restrictive bail and had established a Charter breach. He also had endured two previous trials and two appeals. The Crown, in that case, supported a conditional sentence. In the end, Mr. Cusick was sentenced to a six-month conditional sentence.
Analysis
73A judge may impose a conditional sentence where four prerequisites are met: (1) the offence must not carry a minimum period of incarceration; (2) the trial judge must determine appropriately that a sentence of less than two years of incarceration will be imposed; (3) serving the sentence in the community would not endanger the safety of the community, and (4) a conditional sentence would be consistent with the fundamental purposes and principles of sentencing. (See R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 46; s. 742.1 of the Criminal Code.)
74Mr. Dunajski meets the first three preconditions. Thus, the issue remains whether a conditional sentence is consistent with the fundamental principles of sentencing in this case.
75In R. v. R.S., 2023 ONCA 608, Justice Paciocco, in dissent, reminded us that it is essential to appreciate that a conditional sentence is a sentence of imprisonment, albeit one that may be served entirely in the community. It is described as a sentence of imprisonment in s. 742.1 of the Criminal Code: Proulx, at para. 29. The punitive impact of a conditional sentence should not be understated, even though an offender may not experience institutional incarceration where a conditional sentence is imposed. Conditional sentences carry significant consequences, and they are punitive, not lenient, and can be as harsh in application as sentences of incarceration: Proulx, at para. 41.
76Justice Paciocco stated at paras. 72-78:
[72] Specifically, suppose the offender breaches the conditions on which they are permitted to serve their sentence of imprisonment in the community. In that case, they will presumptively be incarcerated in an institution for the remainder of their sentence. , a not infrequent outcome. The Crown need not prove breaches of a conditional sentence beyond a reasonable doubt for this to occur. Breaches proved that the balance of probabilities is enough.
[73] Indeed, suppose a breach occurs early in the sentence. In that case, the offender may end up being incarcerated for longer than they would have been if they had initially been sentenced to incarceration. This is because conditional sentences are often longer than sentences of incarceration in recognition that serving a sentence in the community, although punitive, tends not to be as punitive as the equivalent sentence of incarceration, and because conditional sentences are not eligible for parole.
[74] Even when the conditions are complied with, a conditional sentence will have punitive conditions, unlike the conditions imposed on probation, parole, or statutory release. Conditional sentences tend to include real limits on liberty through house arrest provisions. The attraction of the conditional sentence is that it “incorporates some elements of non-custodial measures and some of incarceration”: Proulx, at para. 21. It is therefore capable of achieving both punitive and restorative objectives, simultaneously.
[75] As Lamer C.J.C. emphasized in Proulx, at paras. 22, 41, a conditional sentence is “a punitive sanction capable of achieving the objectives of denunciation and deterrence”. See also R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183.
[76] Having said this, incarceration is more effective in achieving denunciation and deterrence because of the immediate and certain incarceration. Therefore, there are cases where incarceration will be the only suitable way to achieve the denunciation and deterrence that is required: Proulx, at para. 106; R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81, at para. 32. However, I would make two points.
77First, it is an error in principle to decide that a conditional sentence is not fit, based solely on the level of violence committed during the offence, or because denunciation and deterrence are the primary sentencing goals. In Ali, the trial judge committed both of these errors. As Zarnett J.A. said in Ali, at para. 38:
It was an error in principle for the trial judge [in Ali] to rule out a conditional sentence based on the level of violence in this case without considering the extent to which a conditional sentence could provide deterrence and denunciation, especially if punitive conditions were imposed, and without weighing all of the relevant sentencing objectives that were applicable in the factual circumstances.
78The same holds true, in my view, with sexual offences, which are acts of violence. It would be an error in principle to hold that conditional sentences are not available in sexual offence cases because denunciation and deterrence are the primary sentencing goals, or based solely on the kind of sexual intrusion that has occurred. To the extent that my colleague’s decision may suggest that conditional sentences will never be fit for sexual offences as serious as the one that occurred in this case, I must express my disagreement.
77In R. v. Ali, the Ontario Court of Appeal stated in para. 27:
Case law establishes that a conditional sentence can provide deterrence and denunciation, and thus may be appropriate for a crime involving violence, such as aggravated assault, even when deterrence and denunciation are paramount considerations. Conditional sentences have been found appropriate in cases when similar, or more extreme, violence has been present compared to what occurred here.
78The Court in Ali provided helpful guidance in assessing when a conditional sentence vs a custodial sentence is best at para. 28: “The trial judge should have considered whether a custodial sentence or one served in the community would better address all of the relevant sentencing objectives − denunciation and deterrence and restraint and rehabilitation.”
79The Ontario Court of Appeal has held that the restraint principle requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders. It is an error, especially when sentencing a first offender, to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32, 34.
80In this case, both the Crown and Defence submit that the appropriate sentence is at the lower end of the reformatory range. There is no minimum sentence of imprisonment. Therefore, a conditional sentence is available. The principles set out in Pike assist in guiding my analysis. I must consider a potential conditional sentence in light of the case law suggesting the nature of sentences for possession of child pornography and the comments of the Court of Appeal. Are there compelling personal circumstances, mitigating factors, and the absence of aggravating factors to justify a conditional sentence that might have been the case when Proulx was decided more than two decades ago? Secondly, I must ask whether personal circumstances and mitigating factors are sufficiently compelling to make a conditional sentence proportionate.
81Therefore, the issue for me to decide is whether the circumstances of this offence and this offender require a sentence of real incarceration.
82There was the mitigating circumstance of a guilty plea. Mr. Dunajski has accepted he possessed child pornography material. Mr. Dunajski has insight and has taken treatment and will continue to take treatment. He is approaching his senior years. He takes care of his elderly parents and works full-time. He is, otherwise, a person of good character. His risk factor to re-offend is low.
83Mr. Dunajski has served six days of pre-trial custody. With Summers credit at 1:5:1, Mr. Dunajski will be credited nine days pre-sentence custody. I do not doubt that six days at Maplehurst Correctional Complex in Milton has had a salutary and deterrent effect on Mr. Dunajski.
84There is no evidence that despite his expertise in IT, Mr. Dunajski collected, reproduced, or copied child pornography from device to device or curated it over time.
85The 19 images are sexualized posing of pre-pubescent children. This can be categorized as a small collection. I would also place the images' nature and characteristics at the continuum's lower end. Mr. Dunajski accessed and downloaded the images on two occasions seven years ago - January 6 and April 12, 2017.
86In this case, the Crown concedes that Mr. Dunajski had a “viable” section 8 argument he could have advanced at trial due to the “staleness” of the information to obtain the warrant to seize and search his computers. The information provided in support of the ITO arose out of circumstances that allegedly occurred in 2003.
87Which brings me to the terms of an appropriate conditional sentence. Deterrence and denunciation can be achieved with terms that are carefully crafted to restrict Mr. Dunajski's movements to those related to his continued therapy and his ability to work. When weighed against a 90-day intermittent sentence, a conditional sentence order with strict conditions has considerable deterrent value. It can achieve both punitive and restorative objectives.
88The charge against Mr. Dunajski was laid almost over three years ago. I cannot ignore that Mr. Dunajski has been on a release order with strict conditions for over three years without any incident or breach of his release terms. These circumstances go towards satisfying the requirements of deterrence and denunciation.
89Regarding Mr. Dunajski's circumstances, the nature and scope of the offence, the guilty plea, his pretrial custody, and the merits of the section 8 argument, these are sufficiently compelling to make a conditional sentence, with the entire length served at home and enrolled in the GPS program, proportionate. Therefore, I accept the Defence proposal that Mr. Dunajski receives a six (6) month conditional sentence followed by an additional eighteen (18) months of probation. Next, I turn to the terms and conditions for the conditional sentence and probation.
The Terms and Conditions of the Conditional Sentence Order
90The terms and conditions of Mr. Dunajski's conditional sentence are intended to respond to the requirements of deterrence and denunciation as the primary objective of sentencing and rehabilitation. Accordingly, Mr. Dunajski shall:
(a) Keep the peace and be of good behaviour.
(b) Appear before the court when required to do so.
(c) Report to a supervisor within two working days from the date of this order to arrange his enrolment in the GPS program provided by the Ministry of the Solicitor General. After completing the intake process with his conditional sentence supervisor, he shall go directly to his approved addresses and observe a term of complete house arrest until the required GPS unit is installed. There are no exceptions to this house arrest condition. He shall be placed on the GPS program for the entire length of his conditional sentence order.
(d) Be subject to GPS monitoring by Recovery Science Corporation (RSC) and agree to abide by all its rules and protocols by providing his signature on the GPS Rules and Protocols, which will be attached to this order as Schedule “A.” These Rules and Protocols are part of this conditional sentence order.
(e) Reside at […] Avenue, Mississauga, or […] Blvd., Brampton, and notify his supervisor of any change of address within 48 hours of those changes coming into effect.
(f) Remain within those addresses except to go to work on a schedule to be discussed and fixed with his supervisor. Any variations to the schedule are to be discussed and approved by the supervisor before they are implemented.
(g) Leave the residence one morning or afternoon a week for up to three hours to attend to personal needs. The day shall be identified and fixed with his supervisor. Any variations to that day shall be discussed and approved by the supervisor. However, to be clear, the weekly personal time should be fixed and then varied only on account of exceptional requirements.
(h) Leave the residence to attend medical or dental care for himself or his parents, as well as the sex offender and trauma counselling and therapy sessions. The supervisor shall be advised in advance of all such appointments and treatment schedules.
(i) Take, actively participate, and complete any counselling or rehabilitative programming identified by Dr. Goger in his report before the Court and directed by the supervisor, including sex offender counselling.
(j) Sign any releases as may be required to enable the supervisor to monitor his counselling and therapy sessions to confirm compliance with the requirement that Mr. Dunajski continue with his counselling and therapy.
(k) Abstain from being in the company of a person under the age of 18 years unless in the direct company of any adult approved of in writing by his supervisor.
(l) Abstain from accessing the internet or other digital networks, with the following exceptions:
(i) On Mr. Dunajski's device, for which he provides his supervisor in writing, the make, model, serial number and service provider, as well as any phone number connected with the device.
(ii) He may possess an internet-capable device and use it to access the internet in accordance with the conditions below; however, he must do so on a device for which he is the sole owner and user. Further, the internet service must be in his name or else provided through his employer.
(iii) He shall not use any encryption software or security program designed to prevent access to the contents of his internet-capable devices or take independent action to encrypt any digital storage devices in his possession. He shall not install or permit any software or service designed to defeat forensic analysis of his internet-capable device to be installed on his internet-capable device.
(iv) He shall not use or permit any program or service designed to allow anonymous use of the internet (e.g., TOR browser) to be installed on any device in his possession.
(v) He shall not use or permit any scrubbing software or software that saves files in an encrypted fashion to be installed on any device in his possession.
(vi) He is not to make any post or advertisement that targets persons under the age of 16, including any advertisement for sales, services or products intended for use by persons under the age of 16.
(vii) He is not to access any peer-to-peer file directly or indirectly sharing networks (including but not limited to Motherless, LimeWire, Gnutella, and Bearshare).
(viii) He is not 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.
(ix) Mr. Dunajski may use any other telecommunication device under the direct and constant supervision of any person approved in writing by the supervisor.
(x) Under no circumstances shall Mr. Dunajski be permitted to use any telecommunication device to access the internet or other digital network to access child pornography, access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.
91A probation period of eighteen (18) months is to follow the conditional sentence on the following terms. Mr. Dunajski shall:
(a) Keep the peace and be of good behaviour.
(b) Report to probation as directed within 48 hours from the conclusion of his conditional sentence.
(c) Notify the Probation Officer of any changes of address or employment within 48 hours of those changes coming into effect. Maintain full-time employment either with his own business or as an employee.
(d) Continue to actively participate in and complete any counselling or rehabilitative programming as directed by his Probation Officer, including counselling for sex offences.
(e) Sign releases as may be required to enable the Probation Officer to monitor counselling and therapeutic compliance.
(f) Abstain from being in the company of a person under the age of 16 unless in the direct company of any adult approved of in writing by the probation officer.
(g) Abstain from accessing the internet or other digital network, with the following exceptions:
(i) On Mr. Dunajski's personal device, for which he provides his supervisor in writing the make, model, serial number, and service provider, as well as any phone number connected with the device.
(ii) He may possess an internet-capable device and use it to access the internet in accordance with the conditions below; however, he must do so on a device for which he is the sole owner and user. Further, the internet service must be in his name or else provided through his employer or the education institution he is attending, if applicable.
(iii) He shall not use any encryption software or security program designed to prevent access to the contents of his internet-capable devices or take independent action to encrypt any digital storage devices in his possession. He shall not install or permit any software or service designed to defeat forensic analysis of his internet-capable device to be installed on his internet-capable device.
(iv) He shall not use or permit any program or service designed to allow anonymous use of the internet (e.g., TOR browser) to be installed on any device in his possession.
(v) He shall not use or permit any scrubbing software or software that saves files in an encrypted fashion to be installed on any device in his possession.
(vi) He is not to make any post or advertisement that targets persons under the age of 16, including any advertisement for sales, services or products intended for use by persons under the age of 16.
(vii) He is not to access any peer-to-peer file directly or indirectly sharing networks (including but not limited to Motherless, LimeWire, Gnutella, Bearshare).
(viii) He is not 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.
(ix) He may use any other telecommunication device under the direct and constant supervision of any person approved of it in writing by the supervisor.
(x) Under no circumstances shall he be permitted to use any telecommunication device to access the internet or other digital network to access child pornography, access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material.
Ancillary Orders
92Possession of child pornography is a designated offence under s. 490.01(1) of the Criminal Code. Accordingly, it is appropriate that I make an order under s. 490.012(1) requiring Mr. Dunajski to comply with the Sex Offender Registration Act (SOIRA). The order is effective today and will continue in force for 10 years, in accordance with s. 490.013(2)(b) of the Criminal Code.
93Possession of child pornography is a primary designated offence under s.487.04(a)(i.8), and a DNA order is mandatory under s.487.051(1). A DNA sample shall, therefore, be provided.
94It is appropriate to make an order under section 161(1)(a), (b), and (c) for a period of five years from the date of this order.
95Under subsection 161(1)(d), for a period of five years, Mr. Dunajski’s use of the internet shall be in accordance with the following conditions:
a) He may possess an internet-capable device and use it to access the internet in accordance with the conditions below; however, he must do so on a device for which he is the sole owner and user. Further, the internet service must be in his name or else provided through Her employer or the education institution he is attending, if applicable.
b) He shall not use any encryption software or security program designed to prevent access to the contents of Her internet-capable devices or take independent action to encrypt any digital storage devices in his possession. He shall not install or permit any software or service designed to defeat forensic analysis of his internet-capable device to be installed on his internet-capable device.
c) He shall not use or permit any program or service designed to allow anonymous use of the Internet (e.g., the TOR browser) to be installed on any device in his possession.
d) He shall not use or permit any scrubbing software or software that saves files in an encrypted fashion to be installed on any device in his possession.
e) He is not to make any post or advertisement that targets persons under the age of 16, including any advertisement for sales, services or products intended for use by persons under the age of 16.
f) He is not to directly or indirectly access any peer-to-peer file-sharing networks (including but not limited to Motherless, LimeWire, Gnutella, and Bearshare).
g) He is not 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.
96There will be a Forfeiture Order.
Conclusion
97In light of the previous considerations, Mr. Dunajski is to receive a conditional sentence of six (6) months, followed by eighteen (18) months of probation and ancillary orders per the terms and conditions outlined in the preceding paragraphs.
98I will impose the victim fine charge and give Mr. Dunajski two years to pay it.
Released: November 7, 2024 Signed: Justice P.T. O’Marra