ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
J.G.
Before Justice Fergus ODonnell
Reasons for sentence imposed on 3 April, 2025
Michal Sokolski............................................................................................................. for the Crown
V.J. Singh......................................................................................................... for the defendant, J.G.
Fergus ODonnell J.
Overview
Many of a judge's most challenging decisions involve sentencing.
All the more so when a very serious crime is committed by an offender whose background and circumstances are very favourable.
This is such a case. I am called on to sentence J.G. for child pornography offences. These are repugnant and deeply harmful offences that have awful and long-lasting effects on their victims. They are offences for which denunciation and deterrence are justifiably the dominant sentencing foci. These offences “normally” result in the offender being sent to real jail and, indeed, the Crown here seeks a sentence of twelve to fifteen months’ imprisonment. J.G.’s counsel, by contrast, asks that J.G. receive a conditional sentence instead, stressing that J.G. was twenty years old at the time of the offences, had been isolated in an alien land and culture for two years, pleaded guilty, is genuinely remorseful and has very positive antecedents and future prospects.
For very good reasons a conditional sentence is a rare outcome in child pornography cases. "Rare", however, does not mean "never". I have decided that this is one of those very rare cases in which a conditional sentence is a fit outcome for this offender and these offences; indeed, I am of the view that for this offender and these offences a sentence of real jail would not be at all appropriate.
The Facts
J.G. pleaded guilty to possession of child pornography between 23 October and 5 November, 2021, and to possession of child pornography in May, 2022. He was a twenty year old college student at the time of both offences. As is common in these cases, the first date relates to an internet event that came to the attention of the police and the second event relates to what was found on the offender’s device(s) when the police showed up with a search warrant.
J.G. came to the attention of the police in the fall of 2021 as a result of public complaints that three digital videos of child pornography had either been uploaded to, or made accessible via, Snapchat. The investigation traced those events back to one of J.G.'s devices. The police executed a search warrant on 12 May, 2022. That search disclosed three unique, accessible stills of child pornography and forty-one unique, accessible videos of child pornography, totalling about four hours (There were five unique inaccessible stills and 32 unique inaccessible videos).
J.G. confessed immediately upon his arrest.
As this was a contested sentencing, I viewed a representative sample in chambers in the presence of Crown and defence counsel and the officer-in-charge. All child-pornography is inherently odious, but even odious has ranges. The material in J.G.'s possession included penetration of infants and penetration and bondage of young girls, including an adult female performing fellatio on a young boy that was set to music, a detail that can only be seen as an attempt by the creator of the material to normalize something that could never be normalized.
J.G.'s Background and His Testimony
J.G. testified on sentencing. He arrived in Canada in December, 2019 to attend college. He was eighteen years old and had never lived away from his family before. In his homeland access to higher education is dictated based on religion and he is a member of a tiny religious minority and would have had to have ranked in the 99th percentile in order to be able to attend an affordable college. He took loans to study in Canada, choosing Canada because its policies permitted students to work while attending school and he needed to work in order to pay for school and to send money back to his family.
With the help of a friend from back home, J.G. rented a ten-by-ten foot room, sight-unseen, for three-hundred-and-fifty dollars a month. He described it as devastating to see, "one of the worst places to live". Addicts would find their way into the house and pass out; on one occasion, a seemingly drug-addicted woman made her way into his room while he was asleep, and yelled "don't shoot" at him when he woke up. He had trouble sleeping in that environment. (He has also had trouble sleeping since his arrest, at times managing only two or three hours of sleep a night.) He wanted to move, but could not afford to. There was a homeless encampment across the street. It was depressing walking in the neighbourhood and he felt unsafe after dark. He has since moved now that his elder sister has come to Canada and they live together in a rented house with other room-mates.
The area J.G. speaks of is not unfamiliar. It lies perhaps five minutes' drive from this courthouse. J.G.'s description of it is, tragically, entirely apt. With its proximity to downtown St. Catharines and nearby support services and vacant land, it is very much a magnet for some of the city's most challenged residents, including those dealing with mental health issues, alcohol and substance dependence, homelessness and poverty. It is one of that growing number of neighbourhoods where this country's "left-behind" citizens congregate and live in very difficult circumstances and with faint hope of any improvement. To put it mildly, it is both disheartening and invaluable in a country such as Canada to drive through that area as I do regularly, thereby being faced with some of our fellow citizens’ daily reality. I accept that for J.G. it would have been a culture shock compounded by a culture shock when he arrived and lived there.
J.G. began school about a fortnight after he arrived in Canada and was very eager to start that new experience and to make new friends in his classes. But this was the start of 2020, when Covid 19 reared its ugly head, and by March, 2020 J.G.'s college cancelled all in-person attendance. Indeed, although J.G. did graduate, he never went back to school in person. Even his graduation was done on Zoom. All of his education was done virtually, with him spending almost every day "alone and lonely" in his room, not making new friends at school as he expected.
J.G. has worked throughout his time in college. In the short period before Covid hit, he had a job at a restaurant, but Covid shut that down. He then found work at a nearby care home as a dietary aide, staying there for two or two-and-a-half-years. It was a minimum-wage job in one of the cheapest care facilities available and the patients suffered from addiction, depression and a variety of mental health issues. He was faced with a lot of racism including suggestions from residents that he go back to his own country. He kept his feelings in, but would then cry in conversations with his mother, who told him to come home; but he worked through it. After graduation, J.G. worked in a well-known local restaurant in St. Catharines until his work permit expired in the fall of 2024. He worked long hours, sometimes seven days a week and was promoted to assistant kitchen manager. He is now unemployed and lives with and is supported by his elder sister, who came to Canada after he did.
Another cultural shock for J.G. on arriving in Canada was the internet. Back home he had internet access, but only up to about 1 GB a month, which he had to use sparingly for school-related purposes. In Canada his internet access was much more affordable and his usage leapt as he was isolated and dependent on the internet for virtual attendance at college and also for trying to establish virtual social connections as a stranger to Canada in a Covid environment. In Covid, he said, nobody wanted to go out and nobody was interested in making new friends. He said a website called Omegle was very popular for making connections and that it was also a target for people involved with child pornography, which he did not have any idea about at the time. He said that one day he received a link and clicked on it and it was child pornography. He said this was not discussed back home; indeed, for sex education back home his teachers in grade ten had simply had the students read the textbook chapters on their own. He had no prior experience with this and said it disturbed him, although he said he did not know about its legality, thinking that it must be legal if it was being distributed on the internet.
In his testimony in chief, J.G. initially said that his period of accessing the child pornography was limited to two weeks. However, faced in cross-examination with the question of what an analysis of his computer usage would demonstrate, he agreed that he had gone back to the material over several months, blaming that on his immaturity at the time. He agreed that he had tried to minimize his involvement in his original testimony because of the implications for his sentence. He had earlier agreed on his plea that he had also uploaded some of the material or made it accessible.
It is clear that J.G. sought to downplay the extent of his interaction with the child pornography in his possession and this does not reflect well on him. I am satisfied, however, that otherwise his testimony, both about how he was first introduced to child pornography randomly and about his life experience before his arrival in Canada, since his arrival and since the prosecution is reliable. Some of what he says is notorious in the community and other parts are supported by external materials filed.
J.G. broke down during his testimony while describing what a supportive life he had had with his parents back home and how guilty he was that his parents now faced shame at home because of his "unethical and illogical decisions". He said that he himself had "completely broken down emotionally", but that, in addition, when he was arrested somebody took his photo from his internet profile and published it in the newspaper in his home country, resulting in people going to his parents' house and portraying him as a pedophile. Sadly, the internet is not an environment dominated by accuracy, subtlety or restraint and for some offenders the Wild West vigilantes of the internet will impose consequences on offenders (or even suspects) far beyond what a court would impose, or in many cases would even consider appropriate.
J.G.'s pre-sentence report recites a positive, abuse-free upbringing, and confirms J.G.'s otherwise good character through information from a family friend from back home who has known J.G. since he was a baby, from a long-term room-mate who describes the offence as out of character and who characterizes J.G. as "genuine and helpful" and from his bail supervisor who describes him as being compliant, hard-working, quiet and kind. The probation officer found him to be suitable for community supervision.
J.G. was assessed by Andrea Bevan, MSW RSW and subjected himself to phallometric testing conducted by Ms. Bevan's colleague. No issue was raised with respect to Ms. Bevan's qualifications or her report. She is well known in the local court community, having spent decades in the Ministry of the Solicitor General and rising to the top ranks of the Niagara Detention Centre before taking on her current career as a registered social worker, where her reports are often tendered in criminal proceedings, with a heavy emphasis on issues of sexual deviancy.
Ms. Bevan reviewed J.G.'s family and personal background, along with his sexual history, which has never involved another person and which involved a brief period of dependence on adult pornography coincident with his greater access to the internet after he came to Canada and which was in part a means of coping with loneliness and boredom. J.G.'s phallometric testing was conducted by a clinician with thirty-nine years of experience in the field and showed a highest preference for adult females, with, "no indicators of arousal to prepubescent or pubescent children." J.G. has had one brief girlfriend relationship back home, which did not involve sexual contact and which was cut off by the girlfriend's father, who told J.G.'s father that he did not want his daughter dating anyone. Since coming to Canada, J.G. has focused on school and work. He believes that sex should be reserved for committed relationships.
J.G. initially manifested some of the typical false beliefs about child pornography and the role of those who possess or access child pornography in the victimization of children (I am satisfied that he no longer holds any such beliefs). Ms. Bevan outlined the distinct risk profiles raised by offenders whose child victimization is limited to child pornography as contrasted with those offenders whose offences involve actual contact with child victims and the very low recidivism rates for the former category.
Ms. Bevan makes the following observations:
a. "To summarize, when assessing CSEM [child pornography]-only offenders [as opposed to child-pornography-and-child-contact-offenders], evaluators are encourage to look at an individual's unique personality features which can make them more or less likely to engage in maladaptive behaviour (i.e. antisociality), sexual interests including arousal, fantasy and masturbatory practices, as well as criminogenic variables linked to both general and sexual offending....
b. Some of what [J.G.] provided also included his experiences transitioning to Canadian life, which, in my view, is a relevant consideration given he was 18 when he arrived and only 20 when the offences occurred. The stress he encountered with his move to Canada combined with immaturity are a part of the overall picture.
c. The only relevant dynamic risk factors from the Stable 2007 include the absence of a healthy romantic relationship which is known to be protective against future risk for sexual offending. In my view this has more to do with age and circumstance rather than an actual deficit, which impacts the weight this is given in the overall assessment of risk. In other words, [J.G.] possesses the requisite skills to attract a partner and engage in a relationship but his young age and circumstances and more recently his criminal charges have impacted his dating practices."
d. From a general criminogenic risk perspective, [J.G.] falls into the lowest risk category according to the LSI-R. General criminogenic factors include.....None of these are relevant factors for [J.G.].
e. Overall, there are very few risk factors present, aside from perhaps his young age, relationship status and having now been arrested for a sexually based crime, at least by definition and title.....[J.G.'s] illegal conduct was isolated and out of character for him and does not reflect significant underlying issues that are more commonly seen in these types of cases. It is reasonable to conclude that his risk for further sexual or general offending is low.
f. Lastly, in my opinion the need for overt measures of control such as limiting access to public parks etc. or the internet are unnecessary given the absence of meaningful risk factors, and may make prosocial functioning more difficult, particularly for someone of his age."
- Mr. Singh filed a book of support letters in relation to J.G. These included:
a. A letter of remorse and a statement from J.G. in which he expressed his acceptance of responsibility, his appreciation of the harm visited upon victims of child pornography and his regret for having let down the community and his family. Having seen J.G. in court and having heard his testimony I accept that letter unreservedly. The statement also sets out how J.G.'s father suffered skull and rib fractures and a subdural haematoma while J.G. has been in Canada and that J.G. had paid for his father's medical costs. He has worked full-time since the charges, navigating the world despite his lack of access to a smartphone (as a term of his bail).
b. A letter from Niagara Life Centre Counselling reflecting his attendance for counselling for how to deal with negative emotions, self-care and anxiety concluded that J.G. has made significant progress in those areas.
c. A letter from the proprietor of two well-known local restaurants, who employed J.G. for three years. With the benefit of thirty years as a restaurant owner, she said the following about J.G.:
This brings [me] to talk about one individual, [J.G.] who I am so proud to have on my team. [J.G.] started working at the [name of restaurant] three years ago at an entry level kitchen position and has climbed his way to the top to assistant kitchen manager. Whether it's inventory, placing food orders, creating new dishes, or training others he has proven himself to be a very talented cook and key employee. He has a very patient and calm demeanor and respects all his fellow colleagues. Even when others are making mistakes at critical times you will never see him get mad or lose the smile from his face. He will just tell people not to worry and he will fix it.
I have come across a lot of employees in my career but have never had one quite like [J.G.] on my team. [He] always shows up early for his shift and is willing to give a hand to anyone who needs help before he starts his shift. He is always there for others that need help or just an ear to listen to them. I can't think of a time where he has called in sick to his shift. [He] works around 44 hours a week and sometimes more. I can always count on him to pick up a shift if I am short staffed. [He] is so well liked and in fact he is loved here at the [name of restaurant]. I feel I am truly blessed to have him on my team....
d. A letter from J.G.'s elder sister (by five years), who has since come to Canada and who now lives with J.G. and other house-mates. She reflects on her brother's kind and supportive nature, to her and to their parents, including both emotional and significant financial support. She also describes her brother's social isolation as a result of his shame and the charges and the impact that the publicity in India has had on him and their family as well as the impact it will have on her brother's future in terms of employment and social integration.
The Arguments of the Crown and Defence
I have reviewed the two dozen sentencing precedents presented to me by the parties in the course of their submissions. As I have said in the past of fentanyl sentencing precedents, another category of offences that has mushroomed over recent years, the cases presented to me for this offence are also depressingly familiar. I have no intention of getting into the nitty-gritty of all of them here.
Sentencing precedents serve a number of functions.
One is that they demonstrate the applicable principles of sentencing, both of a general nature and of particular relevance to particular types of crimes. By way of example only, these would include general principles such as the relative weight to be given to particular sentencing objectives for particular types of crimes, ranges of sentence and their development (particularly important here in light of increasing sentence maximums established by Parliament and growing knowledge of the impact of contact-based sexual offences and of child pornography on young victims), aggravating and mitigating circumstances, and more specific factors such as the limited extent of mitigation provided by an offender's good reputation when the offence occurs in secret and is entirely at odds with the offender's projected public reputation, the approach to be taken to youthful first offenders, collateral consequences and the like.
Another function in looking at sentencing precedents is to aim for parity in how different judges treat similar cases, a key objective of any legal system because the imposition of dramatically different consequences on two offenders whose backgrounds and offences are the same is prone to undermine confidence in the justice system.
A third objective, closely related to the second, is to find a case that is on all fours with the case before the court. This, of course, is often a bit of a fool's errand because the permutations and combinations of offence details and offender characteristics is close to infinite. But the closer a case is in its various details to the case to be decided, there is real value in its use as a benchmark to identify or validate the ideal sentence.
Certain cases stand out among the sentencing cases presented to me. Central among these are the decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, the defining judgment on the appropriate approach to sentencing for offences involving the sexual abuse of children and the decision of the Court of Appeal for Ontario in R. v. Scott, 2024 ONCA 608, [2024] O.J. No. 3530, a landmark decision of this province's highest court applying the Friesen principles to child sexual violence as manifested specifically in child pornography offences. Despite its age, the landmark decision of Justice Molloy in R. v. Kwok, 2007 CanLII 2942, remains of significant value.
There are, of course, other relevant sentencing cases of more general application that must count in the analysis I undertake here. Among those is the now dated, but ever-enduring, decision of the late Rosenberg, J.A. in R. v. Priest, 1996 CanLII 1381 (ON CA), which establishes that when dealing with a youthful first offender like J.G. a court's focus should be on specific deterrence and rehabilitation, with jail being relied on only as a last resort and, even then, as briefly as possible. More recently, the Supreme Court of Canada's decision in R. v. Lacasse, 2015 SCC 64, cemented proportionality as the "cardinal" principle to be applied in determining a fit sentence, proportionality meaning the balancing of the seriousness of the crime and the moral blameworthiness of the offender. Proportionality is a sentencing principle that rises to constitutional status and the principle of parity cannot be used to impose a sentence that falls outside a perceived appropriate range of sentence if that divergent sentence is right for the specific offences and offender. R. v. Proulx, 2000 SCC 5 is a seminal decision of the Supreme Court of Canada, holding clearly that conditional sentences are capable of addressing denunciation and deterrence in a significant way, although there will be cases in which a conditional sentence is not sufficiently deterrent.
Mr. Sokolski calls for a sentence of real jail in the range of twelve to fifteen months, followed by three years of probation. He roots this submission in the objective seriousness of J.G.'s offences and the precise nature of J.G.’s collection (neither of which can be gainsaid).1 In taking that position, Mr. Sokolski places substantial emphasis on the judgment of the Chief Justice of Ontario in R. v. Scott, referred to earlier and on the Supreme Court judgment in Friesen. His submissions appear to assert--or come perilously close to asserting--that any role for what he calls "exceptional circumstances" to justify non-real-jail sentences for crimes of this nature is a feature of a bygone, pre-Friesen era. This position seems to be extremely close to, or at the point of, asserting that a conditional sentence could never properly be imposed for an offence of this nature.
Mr. Scott was a 76 year-old first offender, found guilty after trial of possession and importation of approximately three thousand files of child pornography consisting of text, images and videos. This had been a vicious predilection of Mr. Scott's for three decades. Mr. Scott had been granted a twenty-three-month conditional sentence after trial. The Court of Appeal found Mr. Scott’s conditional sentence to have been unfit, a conclusion that seems indisputable in light of the underlined elements above.
There is an omnipresent risk whenever there is a “transformative” development in the criminal law (and the Supreme Court decision in Friesen fits that label, even if many of its component parts were previously known). The risk is that the new development is treated as a tsunami, largely sweeping aside large swathes of what existed before, even things that the development does not actually touch upon or necessarily change. But the criminal law in general and the law of sentencing in particular are both made up of many component parts, developed over years, decades and centuries, by Parliaments and by courts, optimally to serve the law’s and society’s purposes. That sentencing superstructure ought not lightly to be demolished in the absence of clear and binding authority, whether from the Supreme Court or from Parliament. Conditional sentences have been part of that superstructure for almost thirty years and the reality is that there is nothing in Friesen to change the general question of whether or not a conditional sentence is available for child-pornography offences.2 The law was already clear that conditional sentences can, in appropriate circumstances, deliver denunciation and deterrence which must be the central foci of the sentencing judge’s analysis for child pornography cases. When such offences justify sentences in the reformatory range, it is still the sentencing court’s role to assess whether or not a conditional sentence is fit for purpose in the context of the specific offence and the specific offender. To presume or suggest a ban or near ban on conditional sentences runs counter to both the law of conditional sentencing and the principles of individualized sentencing and of proportionality in sentencing, which is the cardinal principle.3 Indeed, paragraphs 179-182 of Scott make it clear that this province's highest court fully recognizes that conditional sentences will, in appropriate circumstances permit conditional sentences for child pornography offences. See, in particular, paragraphs 180-182, where Tulloch C.J.O. made the following observations:
180I must reconcile the “exceptional circumstances” term that M.M. used to express this point with the Supreme Court’s decisions in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, and Parranto. At first glance, M.M.’s use of this term might seem contrary to these cases, which respectively hold that appellate courts can neither create presumptions that conditional sentences are inappropriate for specific offences (Proulx, at paras. 80-83), nor require exceptional circumstances to depart from a range (Parranto, at para. 40).
181But in my respectful view, M.M. did not and could not have intended to depart from Proulx by creating an offence-specific presumption against conditional sentences. Rather, it used the “exceptional circumstances” term to convey that, since 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-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 Proulx was decided more than two decades ago.
182Nor, in my view, did M.M. intend to depart from Parranto by requiring exceptional circumstances to impose a conditional sentence. Rather, M.M. used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate, as in R. v. Padda, 2019 BCCA 351, at para. 36. Not only is there no closed list of such circumstances and factors (M.M., at para. 16), but multiple seemingly non-exceptional factors taken together, such as being a young first offender with family support who poses little risk and takes responsibility for his actions, can collectively render a conditional sentence proportionate: R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1, at para. 99. This is consistent with Parranto’s holding that sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories: at para. 40; see R. v. Ellis, 2022 BCCA 278, 417 C.C.C. (3d) 102, at para. 118.
(emphasis mine)
I must also position the sentence sought for J.G. relative to other sentencing positions for child pornography offences. I do that in relation to the cases the Crown and defence counsel have provided me in advance and have referred to in their sentencing submissions. I also consider my own experience in cases of this nature and the position adopted by the Crown in those cases as reference points, although every case is captive to its own facts.
A few months before these proceedings an offender named David Gomes appeared before me and, like J.G., pleaded guilty to two charges of possession of child pornography, with the Crown likewise proceeding by indictment. Mr. Gomes's offences involved over one-thousand unique and accessible child-pornography images, over three-thousand similar images in the "age-difficult" category and over seven hours of video involving penetrative activity including bondage. He had no criminal record. He had a "promising" report from Ms. Bevan. He lost his job as a paramedic. For his offences, I was presented with a joint submission for sixteen-months' imprisonment plus probation, i.e. one month above the upper end of the range proposed by the Crown for J.G. He was, however, fully adult--much older than J.G. and thereby in a totally different universe from the moral responsibility perspective--and had a much larger collection.
On the same day, coincidentally, Brandon Muhlbeier pleaded guilty to two counts of possession of child pornography for which the Crown proceeded by indictment. He was also twenty-eight years old. His offences involved fifty-eight images and no videos, although there had been a video upload as of the original access date that was not present at the time of the search warrant. There were seven "age-difficult" videos and twelve-hundred "age-difficult" images. One description, which I shall not outline here, was of an entirely different and especially disturbing nature compared to any description I heard in J.G.'s or Mr. Gomes's cases. There was reference to a family history of schizophrenia and psychosis, but no personal diagnosis of Mr. Muhlbeier directly as of the time of the plea and sentencing. Yet, as a mature adult, the joint position on sentence for Mr. Muhlbeier was nine-months' imprisonment plus probation, materially lower than the position advanced in relation to J.G.4
Apart from the material difference in age and maturity between those offenders and J.G., neither of them demonstrated any features comparable to the unique circumstances of J.G., having arrived here at the age of eighteen, adapting to a new culture, living in an unfamiliar and unsafe environment and being thrust into the maw of Covid 19, where his entire degree programme was conducted virtually and where the only realistic socialization he had was in his workplace, which was racially toxic, at least from the perspective of a number of his patients at the care home. Despite this, however, the supporting material filed by J.G. is surprisingly positive, a very promising factor in terms of his potential for rehabilitation and the minimization of future risk to the public.
I do accept the Crown's observation that Covid 19 affected everyone greatly, but it did not even remotely affect everyone to the same extent. The extent to which Covid 19 impacted people varied enormously in light of a host of factors including economic status, nature of employment, loss of employment, familial and non-familial emotional support networks and age. Other than those who were seriously afflicted with or died from Covid or whose family members suffered those outcomes, few would have been as affected as J.G. who quite literally landed in Canada, continents away from his home, with no local support network, mere months before Covid 19 landed with a fury.
The Appropriate Sentence for J.G.
- To summarize, the offences to which J.G. has pleaded guilty are not statutorily excluded from the conditional sentence scheme established by Parliament. It is not a joint submission. Defence counsel has asked for a conditional sentence.5 Section 742.1 of the Criminal Code provides as follows:
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
None of the subsequent subsections of s. 742.1, which disqualify particular types of offences from the conditional sentence regime is relevant here. Accordingly, the questions for me to determine are whether imposing a conditional sentence on J.G. would:
(a) Endanger the safety of the community;
(b) Be consistent with the fundamental purpose and principles of sentencing.
In doing this, I must follow the guidance of cases such as R. v. Lacasse 2015 SCC 64,6 Friesen and Scott.
There is no disputing that J.G.’s offences are very serious. Any other characterization would be perverse. As with every user of child pornography, his offences perpetuated the severe, sickening and trauma-inducing abuse of very young, vulnerable victims, damage the consequences of which will likely resonate for years or decades. Yet, the reality of the criminal courts is that we are in the business of measuring the most horrible and the least horrible and everything in between when it comes to determining a fit sentence. J.G.’s “collection” was smaller than most, larger than some. His period of engagement, while not as short as he initially claimed, was, I am satisfied, measured in months rather than years.7
J.G. fits in the category of a young adult first offender, being twenty years old at the time.8 Like a great many other people, he had travelled many thousands of kilometres to an unfamiliar culture to pursue an education and personal betterment that were very likely unavailable to him in his homeland. He ended up in an area where addiction, deprivation and mental health challenges are, shamefully, a large part of the everyday reality. He did that at the age of eighteen, with no support network in this country. Almost immediately upon his arrival, Covid 19 turned the planet upon its head and the unique opportunity of social and cultural development offered by post-secondary education evaporated, replaced by an online existence where external socialization for someone with no established ties here was effectively limited to minimum-wage work in an at-times toxic environment.
J.G. has pleaded guilty. He has expressed his shame and remorse clearly and I accept them both as genuine. His sister’s letter speaks to his and his family’s reputational damage at home and its likely consequences, reputational damage he has incurred at a very young age. He has presented evidence that he has a low likelihood of reoffending, of his character beyond these offences and of a work ethic of which any parent would be proud.
The sentence imposed upon J.G. must denounce his crimes and serve to deter both him and any other person in the community from committing similar offences. For this category of crimes those are the predominant emphases in sentencing; that much is very, very clear.9 However, “real jail” does not have a monopoly on deterrence and denunciation. The Supreme Court of Canada has stated that clearly. In addition, in the circumstances of this case, I am of the view that the need for specific deterrence, i.e. in relation to J.G. personally is extremely low.10 The sentence imposed on J.G. must also contribute to his rehabilitation because an offender’s rehabilitation is likely the most certain protection for society in the future.
I am satisfied that imposing a fifteen-month conditional sentence on J.G. would properly reflect the magnitude of his offences and of his personal circumstances. I am satisfied that on these facts a conditional sentence would neither endanger the safety of the community nor would it conflict with the “fundamental purposes and principles of sentencing.” His age, background, circumstances, general character, remorse, counselling and minimal future risk all contribute to this conclusion and are not overwhelmed by the seriousness of his offences. Not only do I consider a conditional sentence to be within the appropriate range of sentences, I am of the view that a sentence of real jail for him would, on all of the facts of this case, be inconsistent with his offences and his level of moral responsibility and would be injurious to public safety.
The fifteen-month sentence is broken down into twelve months of house arrest, followed by three months of curfew, each with the “usual” exceptions. The entire conditional sentence will require electronic monitoring. J.G. shall attend for counselling as required by his supervisor and shall perform one-hundred-and-eighty hours of community service at a placement approved of by his supervisor.11
Released: 2025.12.30
Footnotes
- Tulloch, C.J.O. deals with the history and development of the guiding sentencing principles in relation to child pornography offences in great detail in paragraphs 143-193 of the Scott decision. That analysis includes the deep, corrosive and enduring harms imposed on direct victims of such offences, the links between child pornography offences and child pornography users progressing to hands-on sexual violence in relation to children and the predominance of victims’ interests in sentencing analysis, leading to denunciation and deterrence taking on a particularly prominent role in sentence calculations.
- The principal impact Friesen may have on conditional sentences for child-pornography offences is this: to the extent that individual sentences or sentence ranges may increase under Friesen (which was largely the point of the case in light of the damage to victims discussed therein), more sentences for child-pornography are likely to fall within the penitentiary range and thus be statutorily ineligible for a conditional sentence.
- With respect, the decision of the Court of Appeal for Ontario in R. v. M.M., 2022 ONCA 441 is an example of this phenomenon. Although the facts of the case undoubtedly excluded a conditional sentence as an appropriate outcome, the panel’s language on the availability of conditional sentences for child pornography offences (paragraphs 15-16) seems to create a near absolute exclusionary zone for such offences, an exclusionary zone by which at least one of the Crown’s sentencing authorities was engulfed. Although the Court of Appeal in Scott diplomatically seeks to downplay or row back from the language in M.M., M.M. continues to serve as an example of the phenomenon to which I have referred and there is a danger that someone relying on the language of the Court of Appeal in M.M., but unaware of the more measured (and more accurate) language in Scott could easily fall into error in disqualifying future offenders from conditional sentences. That is not to say that conditional sentences will be “normal” or “routine” in child pornography cases, but the analysis needs to be gone through in every case in which such an outcome is sought.
- Both the Gomes and Muhlbeier cases were joint submissions and thus governed by the rules set out in R. v. Anthony-Cook 2016 SCC 43. In neither case was a conditional sentence even mentioned as a sentencing option.
- Given all of the information presented to me, had defence counsel not sought a conditional sentence, I would have asked both parties to address me on whether or not such an outcome should be considered.
- Proportionality, which involves measuring the seriousness of an offender’s crimes and his or her moral blameworthiness is the cardinal principle of sentencing.
- I do not repeat here, but have followed in my deliberations the guidance set out by Chief Justice Tulloch (in Scott), updating (with the benefit of almost two intervening decades of additional court experience in dealing with child pornography offences) Justice Molloy’s analysis of mitigating and aggravating circumstances first set out in Kwok in 2007.
- Being a young adult offender, standing alone, will not necessarily suffice to bring about a conditional sentence.
- This comes from s. 718.01, s. 718.04 and s. 718.2(ii.a) of the Criminal Code and from judgments such as Friesen and Scott.
- The other form of deterrence is general deterrence, i.e. sending a message to the broader world, people other than the offender, who might be inclined to offend or not offend depending on what they consider to be their level of exposure to punishment for their offence. There is an understandable concern that if sentences for child pornography offences were routinely low or routinely involved “house arrest” rather than “real jail”, some potential offenders might be more likely to take the risk of getting caught and sentenced. However, that theoretical risk cannot obliterate the relevance of individualized sentencing and effectively write conditional sentences out of the Criminal Code as an available sentence for these offences. The question, properly phrased, is whether the average person considering offending would look at all of the details of J.G.’s offences and background and other cases for other offenders and say: “You know, I’ll take a chance; it’s worth the risk.” Given that conditional sentences are in real life rare for child pornography offences, the risk of offenders taking that chance based on a conditional sentence being imposed on J.G. is extremely low (assuming potential offenders are even aware of sentence ranges, which is probably unlikely other than in medium-sized communities with an active press presence in the courts, of which Niagara is one).
- Despite the abhorrent nature of his offences, I do not consider that those offences truly reflect who J.G. is or who he can be. His references and work ethic show him to have substantial promise and, these offences aside, to be prosocial and a positive influence. Those attributes would be of value to him in performing community service and would achieve one of the objectives of sentencing set out in the Criminal Code, namely making reparations to the community for the damage offences like his cause to society.