R. v. Wilhelm, 2025 ONCJ 594

ONTARIO COURT OF JUSTICE

CITATION: R. v. Wilhelm, 2025 ONCJ 594

DATE: 2025 11 13

COURT FILE No.: Windsor 22-81101040

BETWEEN:

HIS MAJESTY THE KING

— AND —

NICHOLAS WILHELM

Before Justice S. G. Pratt

Heard on 9 September 2025

Reasons for Judgment released on 13 November 2025

Andrea Harris...................................................................................... Counsel for the Crown

Evan Weber................................................................................. Counsel for the Defendant

Pratt J.:

1On 5 September 2025, I found Nicholas Wilhelm (hereinafter “the Offender”) guilty of possessing child pornography. Sentencing submissions were made on that date. These are my reasons for sentence.

Facts

2The Windsor Police Service was made aware by the National Centre for Missing and Exploited Children of a Facebook user who was sharing child pornography. The specific internet protocol (IP) address used for the sharing was investigated, as was the related Facebook account. The information gained in that investigation led police to the Offender. He was the Facebook user, and the IP address was related to his residence.

3On arrest, police searched the Offender’s phone. A partial analysis was carried out. The results of that analysis are summarized in the categorization report filed as an exhibit. While there were 115,818 total images on the phone, only 20,961 were reviewed. Of that number, police found 123 unique videos that met the definition of child pornography. There were as well 100 images of child pornography, but police determined that all but one was a thumbnail image that corresponded to one of the found videos. These thumbnails were in the phone’s cache file. As the report noted, “This means the video files were viewed/accessed on the Samsung Galaxy S8, thereby creating the thumbnail images of the videos.” I do not understand the Crown to be arguing additional culpability as a result of these images specifically as it appears they were created without the input of the Offender once the related videos were accessed.

4Unlike the images, the videos were not found in a cache file. Rather, each was found in the phone’s Facebook messenger folder. They had been actively downloaded by the Offender.

The Positions of the Parties

5For the Offender, counsel seeks a conditional sentence of 18 months. He points to the Offender’s taking of responsibility for his actions and also relies on caselaw that confirms conditional sentences are not unheard of for this offence.

6Crown counsel seeks a sentence of 12 months jail, followed by probation, together with various ancillary orders. While acknowledging that conditional sentences are available, counsel argues it would be inappropriate in this case. The Crown also filed caselaw in support of its position.

The Pre-Sentence Report

7The Pre-Sentence Report (PSR) in this case is mixed. It sets out the Offender’s background, which was largely positive. He enjoyed a good relationship with his mother and had his needs met as a child. He was in a relationship for 25 years, which produced three children. The relationship ended in 2006 when the Offender was charged with threatening his partner. He maintains some contact with his two sons, but is closest to his daughter. He said both he and his partner had issues with alcohol, which contributed to the demise of their marriage.

8Since the end of the marriage, the Offender has been in two other long-term relationships: one of ten years’ duration, and his current relationship, which began approximately five years ago.

9The Offender has been employed for most of his adulthood. He worked at an automotive company for 23 years and in roofing for 6 years. For the past four years, he has worked as a Process Operator. He continues to hold that job. On retirement, he would like to move out of the city.

10Regarding addictions, the Offender has struggled with alcohol for a long time. He attended rehab in 2009 and maintained sobriety for 18 months before relapsing. Currently, he told the PSR author he drinks two beers a night. He doesn’t see his drinking as a problem currently, but agreed he could probably benefit from counselling just the same.

11At the time of the offence, the Offender said he was drinking heavily. This, he said, is no longer the case.

12Generally, the above is positive. The Offender has support from his family and is employed. He appears to have his alcohol consumption under control. All of these facts reflect well on him.

13That being said, the PSR also produces some concern. This is from pages 4 and 5:

The Subject stated he was heavily drinking during this period of his life, and he was single during the time that he was part of the “adult discussion groups”. When questioned about the nature of the discussion groups, he remained vague and denied any pornographic content.

14It is curious that the Offender would point to these adult discussion groups when discussing the offence, but then deny there was any pornographic content in them. Later on page 5, the PSR author noted:

…he demonstrated difficulty accepting responsibility, indicating he was not aware of the content of the videos he had saved.

15This issue was addressed in submissions. After hearing from both counsel and from the Offender himself, the following became clear: the Offender downloaded adult pornography through Facebook. Amongst the adult material, he also downloaded child pornography. While that initial download may not have been intentional, he soon realized what he had and took no steps to delete it. I am satisfied he had the requisite knowledge and control to establish possession of the material. I note further there is no suggestion this material sat unseen in the messenger folder. As the categorization report stated, the thumbnail images were only created after the videos were viewed. This was not a case of a handful of child pornography files mixed unexpectedly into a long list of other downloads. It was 123 unique videos of children and toddlers being abused by adults. The Offender saw what he had and intentionally kept it. Respectfully, his statement to me that “I was intending on removing it, I just hadn’t gotten around to it yet” does not ring true. Deleting a file from a cell phone is not an onerous process. If he’d wanted to delete them, he would have.

Principles of Sentencing

16Parliament has enacted several sections of the Criminal Code that are relevant to the present case.

17To begin, s. 718 sets out the purpose and principles of sentencing. A sentence should protect society and encourage respect for the law. It must consider several objectives, like denunciation, deterrence, rehabilitation, and reparation.

18Section 718.01 requires a sentencing court to prioritize denunciation and deterrence when an offence involves the abuse of a person under 18 years old. While the offence before me does not involve hands-on abuse of a child by the Offender, it clearly involves child abuse. I am mandated to emphasize denunciation and deterrence in fashioning an appropriate sentence.

19Section 718.2(a)(ii.1) makes the abuse of a person under the age of 18 an aggravating factor. Again, while there was no hands-on abuse in the present case, as stated by Justice Woolcombe in R. v. John 2017 ONSC 810, [2017] O.J. No. 651 (S.C.J.), “Inherent in the possession of child pornography is the abuse of children” (see par. 26).

20Further, a person should not be deprived of their liberty if other less restrictive sanctions may be appropriate in the circumstances, and any sentence imposed should be similar to those imposed in similar cases.

21Finally, and fundamentally, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Caselaw

22Both counsel relied on several cases in support of their positions. I begin by noting that after submissions were completed, the Supreme Court of Canada released its decision in Quebec (Attorney General) v. Senneville 2025 SCC 33. This case officially struck down the mandatory minimum sentence of one year jail when the offence before me is prosecuted by indictment. I say “officially”, as courts in Ontario had been effectively functioning without that minimum since the decision of our Court of Appeal in R. v. John 2018 ONCA 702.

23While Senneville has come under significant public scrutiny, Justice Pardu in John explained why minimum sentences for the present offence are not required. Her Honour said this at paragraph 41:

The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter (2018), 141 O.R. (3d) 161, [2018] O.J. No. 2702, 2018 ONCA 474, at para. 16. In another recent decision, R. v. S. (J.), [2018] O.J. No. 4095, 2018 ONCA 675, this court upheld a sentence of 18 years for sexual abuse of young children, making child pornography depicting that abuse and distribution of that material.

24The removal of any mandatory minimum sentence in this case really has little effect on my decision. The possession of child abuse material was a gravely serious offence before Senneville and John, and it remains so today.

25The defence cases largely support the imposition of a conditional sentence, while the Crown cases do not.

26As I have said elsewhere, R. v. Friesen 2020 SCC 9, [2020] 1 S.C.R. 424 was a watershed moment in Canadian criminal jurisprudence. It stated clearly that sentences for child abuse in Canada were too short and needed to be increased. It recognized the permanent, horrible damage abuse can inflict on children. That applies both to children who are abused by the offenders before the Court, as well as those who are abused throughout the world to feed the demand for child pornography. It must be further remembered that in the case of images or videos of child abuse, those files can live forever online. Each time they are viewed, the child is victimized again. Images and videos of abuse created today will still be available years from now. Thanks to the internet, the abuse and victimization is perpetual.

27All sentencing decisions for this offence must take Friesen into account.

28R. v. Pike 2024 ONCA 608 is a decision of Chief Justice Tulloch. In this lengthy and detailed ruling, the Chief Justice spoke powerfully of the effect this offence can have on its victims. At paragraph 7, His Honour said:

These offences against children are abhorrent in nature and have lasting and widespread societal impact. By possessing recordings depicting the sexual abuse and exploitation of children over the course of three decades, Mr. Scott sexually abused children by invading their privacy, wounding their dignity, and causing them serious emotional harm. He shares culpability with those who produced the images depicting the victimization of children that he possessed on his digital devices. The offences for which he was charged normalize and increase the demand for further child abuse and exploitation. They increase the risk of sexual abuse of children and perpetuate demeaning messages that children are property or objects and not people. A child-centered approach to sentencing requires judges to consider child victims and the wrongs and harms that people who possess child pornography inflict on them, to reject myths that minimize the perpetrator’s responsibility and, finally, to apply a denunciatory sentencing range that reflects the abhorrent and harmful nature of these offences and their long-term negative impacts on children.

29At paragraphs 144 – 165, Chief Justice Tulloch set out in detail the myriad ways in which the possession of child pornography is a gravely serious offence that harms victims and society. I will not repeat those paragraphs here but I do rely on them in determining a fit sentence in the present case.

30His Honour declined to set a lower end for sentencing ranges related to the possession of child pornography. He did note the effect Friesen had in raising the upper end of any such ranges.

31The case of R. v. Rule 2023 ONCA 31 saw a 22-month jail sentence upheld by the Court of Appeal for an offender with a large collection of images and videos obtained over the course of several years. This case included the rare circumstance of three victims being located by police and presenting victim impact statements. Despite the offender’s age and poor health, the trial judge’s sentence, and her determination that a conditional sentence was inappropriate, were both upheld.

32The Offender relied on R. v. King 2020 ABPC 219. In that case, King was in possession of 1,112 images and 79 videos, as well as 500 written stories of child pornography. While the offender was ultimately sentenced to 18 months incarceration, Justice Fradsham did note that a conditional sentence was not unavailable. His Honour cited the Manitoba provincial court decision of R. v. Nepon 2020 MBPC 48 as an example of when it was found to be a proper sentence.

33In Nepon, the offender was partially blind and had been diagnosed as being on the Autism Spectrum. The trial judge had the benefit of two experts who testified that the offender’s physical and developmental limitations meant any sort of custodial environment would be inordinately difficult. As one expert testified, “I cannot imagine any correctional setting being a suitable place for him. He will stand out significantly, be vulnerable and he would not even be able to self-isolate if he felt frightened.” (see paragraph 144). Justice Devine found a custodial sentence would be grossly disproportionate for that offender. As Her Honour stated at paragraph 109:

This is a case where the circumstances of the offender make it the exception to the rule.

34In imposing a conditional sentence, the Court stated the following at paragraph 154:

The sentence will be a 12-month Conditional Sentence Order (CSO) followed by two years of supervised probation. The length of the CSO and the probation order are in recognition of the unintentional punitive effect of the release conditions which have been in place for over two years, of the over 18 months of effective sex offender treatment Mr. Nepon has already completed, and his low risk to reoffend.

35Respectfully, I see none of the mitigating factors in Nepon reflected in the present case. Nepon was on a bail condition prohibiting him from using a cell phone, but given his vision impairment, he needed his phone to zoom in on things like street signs. He had already undergone significant treatment that the experts said was working. It is not hard to agree with Justice Devine that Nepon was an exceptional case.

36In the case of R. v. Friesen 2021 ABPC 223 (a different Friesen from the Supreme Court case), a 21-year old offender who had 100 child pornography images on his phone was given a conditional sentence of two years less a day. He had no prior record. His guilty plea was at an early stage of proceedings, and he’d taken extensive counselling prior to sentencing. The sentencing judge also noted the publicity that surrounded the case, and the impact public knowledge of his offence had had on the offender.

37A conditional sentence was also imposed in the case of R. v. Dutchession 2021 ONCJ 480. The offender in that case was 51 years old and had no prior record. He was found to have 5,605 unique images of child pornography on his laptop. Justice McLeod found several mitigating factors to be present. This is from paragraph 5:

I find the following to be mitigating facts:

(1)The plea of guilt;

(2)The lack of prior criminal antecedents, which is enhanced by the defendant's age;

(3)The otherwise good character and community involvement of the defendant, including service to his country and deployment to combat zones;

(4)Mr. Dutchession's mental health issues, subsequent and on-going treatment for same;

(5)Mr. Dutchession's genuine expression of remorse;

(6)Mr. Dutchession's expression of insight into the damage caused by child pornography;

(7)The images accessed were limited to images and not videos;

(8)The collateral consequences suffered by Mr. Dutchession.

38Even setting aside the question of whether a collection of images as opposed to videos is a mitigating factor (in my view it is not), there were several factors present for Dutchession that are absent for the Offender. Notable is the fact that he had been assessed by a psychologist and found to be motivated to understand his offence and presented a manageable risk in the community. As well, the Covid-19 pandemic was cited by Her Honour in finding that incarceration would be especially difficult.

39Finally, the defence relies on R. v. Jongsma 2021 ONSC 796, where a conditional sentence was imposed on an offender who had himself been the victim of sexual abuse in childhood.

40The Crown relied on several cases that speak against the imposition of a conditional sentence. R. v. Rousseau [2024] O.J. No. 877 (C.J.) involved a 66-year old offender who possessed 21 unique child pornography images. These images were what has become known as modelling images; that is, the victims are posed but are not engaged in sexual activity. This is not a mitigating factor, but the nature of the images means this offender did not bear the additional aggravation of depictions of active physical abuse.

41While finding a conditional sentence would not endanger the community, Justice Shandler nonetheless imposed 12 months jail, saying the offence required a denunciatory sentence.

42In R. v. Snead 2021 ONSC 7017 a conditional sentence was overturned on appeal. The offender possessed six images of child pornography and had engaged in online video calls with groups of men where child abuse videos were shared. The summary conviction appeal court found the eight-month conditional sentence to be manifestly unfit and replaced it with a 12-month jail sentence.

43The Crown offered several other cases that all reiterated the same theme: possession of child pornography is a very serious offence that requires a harsh, denunciatory sentence. While I will not summarize all of the cases provided, I have reviewed them.

44I will refer specifically to the Court of Appeal for Ontario’s decision in R. v. M.M. 2022 ONCA 441. A unanimous Court said this at paragraphs 15 and 16:

15 The Supreme Court's instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.

16 Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate - for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.

45The bottom line from all of these cases is this: while conditional sentences are legally available for this offence, they are to be the rare exception. Absent significant extenuating circumstances, they will generally be contrary to the purpose and principles of sentencing enacted by Parliament and energized by appellate courts since the 2020 Friesen decision.

Aggravating and Mitigating Factors

46In aggravation, I note the following factors:

(1) The Offender’s prior record;

(2) The size of the Offender’s collection, while not as large as some cases, is larger than several of the cited cases;

(3) The nature of the material goes beyond modelling and includes children as young as two years old engaged in sexual activity with adults. In one video, a girl approximately 9 – 10 years old can be heard crying and asking the adult male assaulting her to stop. That video goes on for nearly three and a half minutes; and

(4) The videos are of real children. They are not animations or written stories that do not victimize actual people.

47In mitigation, I note the following factors:

(1) The Offender’s guilty plea;

(2) The Offender has the support of his partner and is gainfully employed;

(3) The Offender has taken steps to deal with his alcohol addiction, which he said was a contributing factor to his offending; and

(4) The Offender expressed at least limited insight into his offence. To me directly, he expressed shame at his conduct. To the PSR author he said he was “sickened and disgusted” with himself.

Analysis

48I have already set out how appellate courts tell trial courts to deal with child pornography offences. While each offender is an individual who must be treated as such, these offences are gravely serious and must attract meaningful sentences.

49The Offender’s counsel seeks a conditional sentence of imprisonment. I agree the sentence to be imposed here would be less than two years and that the offence is not otherwise excluded from the conditional sentence regime. It is, therefore, available.

50Would a conditional sentence in this case endanger the safety of the community? Taking the circumstances of the offence into account, I find the answer is no. the Offender has taken steps to bring his drinking under control and is in a long-term relationship. I find it would be possible to address any public safety concerns through the imposition of an appropriately restrictive conditional sentence.

51A conditional sentence, however, would not be consistent with the purpose and principles of sentencing. In every case cited to me where such a sentence was imposed, the offender enjoyed mitigating factors that are not present in this case. The caselaw is very clear that conditional sentences for this offence should be the rare exception. I see nothing in the case before me that brings it within that definition. As I have stated elsewhere, a problem with conditional sentences for this offence is that they confine the offender to what are largely the circumstances under which the offence was committed: he must stay in his house at all times. When a crime is committed by a person sitting alone in their home, sentencing them to remain in their home is not especially punitive.

52I say this recognizing that a conditional sentence can indeed achieve the goals of denunciation and deterrence. I accept that as a principle of conditional sentences. In the present case, however, it would not be sufficient.

53The Offender possessed well over 100 videos of sickening child abuse. His moral culpability is high. To emphasize the Court’s and society’s condemnation of his conduct, a jail sentence is necessary.

54The Crown seeks a jail sentence of 12 months. This reflects what had been the minimum mandatory sentence prior to John and Senneville. In my view, taking Friesen, Pike, and other cases into account, the Crown could have reasonably sought a higher sentence. Courts should not be hesitant in imposing sentences that truly reflect the horror this material represents. That said, this is not a case where I will go above what the Crown seeks. I did not advise counsel I was considering that option and so in fairness to the Offender I will not do so.

Result

55The Offender will be sentenced as follows:

(1) He will be imprisoned for a period of 12 months;

(2) On release, he will be bound by a probation order for 24 months on the following terms, in addition to the statutory conditions:

(a) Report in person to a probation officer within two working days of your release from custody, and after that at all times and places as directed by your probation officer or any person authorized by your probation officer to assist in your supervision;

(b) Cooperate with your probation officer. You must sign any releases necessary for your probation officer to monitor your compliance, and you must provide proof of compliance with any condition of this order to your probation officer on request;

(c) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer, including but not limited to counselling for alcohol abuse and psychiatric or psychological issues

(3) He will provide a sample of his DNA to the Windsor Police Service for inclusion in the national DNA databank on or before 31 December 2025;

(4) He will be bound by an order pursuant to s. 161 of the Criminal Code. The order will be pursuant to paragraphs (a) and (b) only, and will be for a period of five years;

(5) He will register under the Sex Offenders Information Registry for a period of 20 years;

(6) There will be a $200 victim surcharge, payable within 90 days of today’s date.

56I have considered imposing a condition, either through the s. 161 order or the probation order, prohibiting or restricting the Offender’s use of the internet. In my view, given the ubiquity of the internet in 2025, this condition is largely unworkable and not warranted in this case. Further, an order prohibiting him from accessing child pornography would be redundant as such conduct is already illegal. If these proceedings have not impressed on the Offender the consequences of illegal online activity, I doubt an additional term on an order will either.