ONTARIO COURT OF JUSTICE
DATE: 2025-07-29
COURT FILE No.: Toronto 4815 998 23 48119022
BETWEEN:
HIS MAJESTY THE KING
— AND —
ROSS FLIGHT
Before Justice David Rose
Heard on January 29, July 10, 2025
Reasons for Judgment released on July 29, 2025
V. Gallegos — counsel for the Crown
C. Hurley, B. Daley — counsel for the accused Ross Flight
[1]
Mr. Flight pleaded guilty before me to Accessing Child Pornography and Possessing Child Pornography on January 5, 2023. These are the reasons for sentence.
The facts
[2]
An Agreed Statement of Facts (ASF) was filed on January 29 when Mr. Flight entered his plea. In it Mr. Flight admitted to uploading an image of child sexual exploitation material to an image hosting service on January 5, 2023. It was of a girl between 8 and 12 years old in an erotic position. It met the definition of child pornography. That uploading was detected by the authorities in the US. That in turn led the Toronto police to obtain a Production Order for the IP address of the user, and then a search warrant for Mr. Flight’s address in Toronto. When it was executed the police found electronic devices which, when examined forensically, contained some 3,046 unique images and 27 unique videos of child pornography. The material fit all categories of child pornography on the SAP (Sentencing Advisory Panel) scale. In other words, they ranged from mere nudity of children with no sexual activity all the way up to and including imagery with sadism involving children.
[3]
A representative sample was entered into evidence by Det Hall of TPS. She showed the Court 10 still images and 5 videos seized from Mr. Flight. They were mostly quite exploitive, depicting acts of sexual humiliation. In one of the videos the child performing oral sex on the man smiles as if she enjoys herself. In another an infant, apparently asleep in diapers, is being penetrated. Another video shows a pre-pubescent girl being penetrated. From this I find that the material has a child who was groomed and will surely suffer from the long lasting consequences. Common sense tells me that the infant must have been drugged or incapacitated in some way in order to sleep through the assault.
[4]
The Crown seeks 2.5 years in jail, s. 161 Order, SOIRA for life and DNA. Defence does not oppose the s. 161 order, but opposes the lifetime SOIRA Order.
Mr. Flight
[5]
A PSR and Risk Assessment of Mr. Flight was filed at sentencing. He is now 81 years old, has a graduate degree in education and spent his career teaching at the high school level. He retired in 1999. He has been in a stable marriage since 1968. He and his wife have 3 adopted children. He enjoys spending time at his vacation property and boating. In short, he has lived a pro-social, if not enviable, life for all of his adulthood.
[6]
Mr. Flight has various health challenges: He wears a pacemaker, has Type 2 diabetes, chronic kidney disease, coronary artery disease, and hypertension. He has a history of prostate cancer, osteoarthritis, and various skin cancers. The letter of his physician Dr. Shepherd confirms this. He takes some 10 medications daily, and requires intermittent blood glucose monitoring for his diabetes.
[7]
Mr. Flight filed letters of support from his wife and his friend Ms. Hill. As regards Ms. Hill, her understanding of the case is inconsistent with the ASF, and I would reduce the weight of it accordingly. Nonetheless she confirms that Mr. Flight has otherwise led a pro-social life up to now.
[8]
The report of Dr. Stirpe and PSR shows insight by Mr. Flight. Specific deterrence is therefore not an element which requires incarceration. In the words of Dr. Stirpe, in the absence of a history of sexual offences, viewing child sexual exploitation material is generally associated with a low risk for future sexual offending. As she put it:
Mr. Flight has no history of contact sexual offenses. In the absence of such a history, the viewing of child sexual exploitation material (CSEM) is generally associated with a low risk for future sexual offending. In cases where the convictions pertain solely to accessing or possessing CSEM—certain protective factors may be present that mitigate the risk of contact offending. These factors can include high levels of empathy, strong self regulation, stable familial and social relationships, and limited access to children. Mr. Flight has led a prosocial life and therefore does not meet diagnostic criteria for antisocial personality disorder, further reducing the likelihood of acting on deviant sexual interests. Additionally, he is over 80 years old and has no prior record of antisocial behavior, both of which are relevant considerations in assessing risk.
Mr. Flight acknowledges that his behavior was illegal and harmful. He did not minimize his actions, instead describing them as fundamentally unacceptable and highly regrettable.
[9]
In coming to this conclusion Dr. Stirpe reviewed the case file, interviews with Mr. Flight and the results of several actuarial tests on him.
[10]
I would find that the sheer number of significant ailments facing Mr. Flight make jail time more difficult. There is no evidence that the authorities cannot provide adequate medical care, but with that said, jail time will be more difficult as an octogenarian inmate who requires intensive monitoring and care in the jail setting.
[11]
Based on the foregoing I find the aggravating factors in this case to be:
- the volume of unique child sexual exploitation images, which is over 3,000;
- the gruesome imagery in the sample videos. The child who appears to enjoy her exploitation will inevitably suffer significant psychological effects once she later understands what happened to her. The infant who was asleep while she was being assaulted was likely drugged or incapacitated. Gruesome, dreadful, and vile are all proper adjectives for that sequence.
- because of those two factors s. 718.01 is engaged;
- Mr. Flight had uploaded child exploitation material to a hosting service on January 5, 2023. He therefore was not just a consumer of child pornography but a trader as well. I have no hesitation in finding that he bears significant responsibility for these offences.
[12]
There are several mitigating factors:
- Mr. Flight pleaded guilty, and has accepted responsibility;
- Mr. Flight is 82 years old. It is therefore mitigating that he has led a pro-social life until now. It is also mitigating that incarceration for a man of his age will necessarily be more difficult. Elderly offenders tend to receive mitigation because of age, see R. v. R.(A.), [1994] 4 W.W.R. 620 (Man. C.A.), see Love, Kelly, Doron, “Age and Ageism in Sentencing Practises: Outcomes from a Case Law Review” (2012), 16 Can. Crim. L.R. 253.
- he has a supportive partner;
- He is at a low risk to re-offend;
- he suffers from several serious health challenges.
[13]
For these reasons I find that the principal concern in this sentencing is denunciation and deterrence. It involves the graphic exploitation of young children. Mr. Flight was a consumer and trader in child pornography. His moral culpability is high. Rehabilitation is also a consideration but of lesser weight.
[14]
To repeat, denunciation and deterrence are principal factors in this sentencing. I would begin with the Supreme Court’s ruling in R. v. Friesen, 2020 SCC 9. Notably, the Court began its judgement with the following:
5 Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of 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.
[15]
While Friesen was itself a case about a physical sexual assault against a 4 year old child, the Court was clear that the new emphasis on proportionality must apply to cases involving child pornography, see Friesen at para. 48. Clear as well is that the age of the victim is a significant aggravating factor, where the victim(s) are younger children, see Friesen at para. 134, see also R. v. Jenkins, 2021 ONSC 2963 (Kelly J.).
[16]
I also take considerable guidance from the Ontario Court of Appeal’s recent ruling R. v. Pike and Scott, 2024 ONCA 608. In that decision the Court conveniently summarized the list of aggravating and mitigating factors for child pornography sentencing cases and, more importantly, how sentencing courts should weigh them:
i. 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; (para 167)
ii. The seriousness of the collection’s nature turns on the depicted activity’s degree of harmfulness and wrongfulness; (para 168)
iii. Whether the collection depicts real children; (para 169)
iv. The duration, frequency, collaboration with other offenders, planning, organization, sophistication, and participation in the CP subculture are additional aggravating factors; (para 170)
v. The absence of aggravating factors like the actual production and distribution of CP, the depiction of very young children, or payment to acquire CP is not mitigating; (para 171)
vi. Good character, employment, and stigma are less significant factors in sentencing people who possess CP and cannot function as disguised class discrimination; (para 172) and
vii. Courts assessing remorse and insight should focus on whether people who possess CP 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. (para 173)
[17]
The Court in Pike & Scott went on to identify (at paras. 177 – 178) a sentencing range for possession of child pornography. At the upper end is 5 years. The Court declined to fix a lower end of the range.
[18]
Pike & Scott provided the Court of Appeal with an opportunity to clarify its prior ruling in R. v. M.M., 2022 ONCA 441. In that decision the Court held that “Conditional Sentences for sexual offences against children will only rarely be appropriate” (at para. 16). In Pike & Scott the Court did not distance itself from those comments, but rather expanded on them, saying:
181 But in my respectful view, M.M. did not and could not have intended to depart from R. v. Proulx by creating an offence-specific presumption against conditional sentences. Rather, it used the "exceptional circumstances" term to convey that, since R. v. Proulx, Parliament has increased maximum sentences and prioritized denunciation and deterrence for sexual offences against children and, further, that the courts' understanding of the harmfulness and wrongfulness of these offences has deepened: Friesen, at paras. 109-110; see M.M., at paras. 13-15. Thus, while there is no presumption against conditional sentences, these post-R. v. Proulx changes require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors, to justify a conditional sentence than might have been the case when R. v. Proulx was decided more than two decades ago.
Emphasis added
[19]
In this case the Crown seeks a penitentiary sentence of 2.5 years, and the defence argues for a sentencing of less than 2 years. Although this is a close call I would find that a custodial sentence of less than 2 years is appropriate to meet the sentencing objectives identified above. Foremost in that decision is Mr. Flight’s age, his health, and the fact that this will be his first conviction, let alone period of incarceration. A penitentiary sentence will add nothing to a provincial custodial sentence.
[20]
The pivotal issue then becomes is a conditional sentence appropriate? Having found that Mr. Flight should be incarcerated for less than 2 years the first part of the test in s. 742.1 is satisfied. I am also satisfied that Mr. Flight would not “endanger the safety of the community” as the second part of the test in s. 742.1(a). The evidence is clear that he poses a low risk to re-offend. There is no evidence to the contrary. The real question to be decided is whether serving a sentence in the community would “…be consistent with the fundamental principles of sentencing set out in sections 718 to 718.2”, per s. 742.1(a).
[21]
On considerable reflection I find that a conditional sentence would simply not meet the sentencing objectives outlined above. A conditional sentence would be disproportionate to these offences. The collection is too large, the material too vile and Mr. Flight’s responsibility too great to impose a conditional sentence. His ailments are many and they are serious but I have no evidence which supports a finding that the provincial jail setting cannot adequately meet his medical needs.
[22]
Balancing the various factors, I find that a 15 month custodial sentence will adequately meet the sentencing objectives. This case could easily have attracted a reformatory sentence close to the maximum, but Mr. Flight’s age and health issues call for some restraint.
[23]
The order for Forfeiture and Disposition will go, as will the DNA Order as primary designated offences. There will be a s. 161 Order for 10 years on terms outlined in the Crown’s draft Order.
[24]
As regards the SOIRA Order Mr. Flight has been convicted of two offences under s. 163.1 which carries a 10 year maximum penalty. A 20 year SOIRA Order is the minimum period under s. 490.013(2)(b). The Crown seeks a lifetime SOIRA Order under s. 490.013(3) because Mr. Flight has been convicted of two s. 163.1 offences. I am not satisfied that s. 490.013(3)(b) applies. The evidence of Dr. Stirpe is uncontradicted that Mr. Flight is at a low risk to re-offend. There is, therefore, no evidence that he “…presents an increased risk of re-offending by committing a crime of a sexual nature”, as is required in s. 490.013(3)(b). This limb of the Crown’s argument fails. A SOIRA Order for 20 years will go, under s. 490.013(2)(b).
[25]
Both Mr. Hurley and Ms. Gallegos were organized and focussed throughout this proceeding and I am grateful for their assistance.
Released: July 29, 2025
Signed: Justice Rose