ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
R.H.
PUBLICATION BAN
S.486.4
Before Justice Angela L. McLeod
CAMERON PETERS counsel for the Crown
LAHEEB AKBARZAD........................................................................................... counsel R.H.
McLeod J.:
OVERVIEW
1. PROCEDURAL HISTORY
1This matter was judicially pretried on January 17, 2025. At that time the parties advised that the matter was always and only on a path toward resolution. Sentencing positions were articulated in the range of 4 years to 7 years. A range that this court undertook to adhere to.
2Pleas were entered on April 7, 2025, and R.H. was then convicted of one court of sexual interference; and one count of making child pornography.
3A presentence report was ordered. R.H. additionally sought an adjournment to engage in a course of counselling and assessment.
4A sentencing hearing was held on January 23, 2026, and included the testimony of DC Van Lussen, a Detective in the child exploitation unit of the Barrie Police Service.
2. AGREED STATEMENT OF FACTS SUMMARY
5R.H. is the biological mother of the victim, E.A. who was 6 years of age at the time of the offences.
6R.H. was involved in a consensual, sexual relationship with R.L., aged 34 years at the time of the offences. He was also charged in relation to these events and is currently before the courts.
7Police executed a search warrant at the residence of R.L. and seized an iPhone from his hand. The phone contained three videos of E.A., taken within a few seconds of each other, and are described as follows:
(1) E.A. is recorded on her bed, naked and exposing her vaginal area. She can be heard to say “Mom”.
(2) This court viewed one of the videos during the evidence of Detective Van Lussen. It showed a young girl, fully naked, on top of her bed, on all fours. She is being directed to move or pose by R.H. The child says “Mom”, then “Momma”, in a concerned, questioning and frustrated tone.
8The videos were taken on August 21, 2022, between 11:31 am and 11:32am, with a GPS location in the area of R.H.’s residence.
9Also on the phone were chats between R.H. and R.L. which speak of child pornography and references E.A. as the daughter of R.H. There were discussions of recording E.A. urinating and R.H. potentially bringing E.A. over to the residence to have sex with R.L.
10Police executed a search warrant at the residence of R.H. and seized her iPhone. Located on the phone was a photo of E.A. taken in the backyard pool on August 21, 2022, as well as a photo of E.A. in her bedroom wearing underwear and a small top, taken on August 17, 2022. The same chats between R.H. and R.L. were located on this phone.
11R.H. turned herself into police. She gave an audio and videotaped statement. She advised police that:
(1) She met R.L. on Tinder and described their relationship as ‘friends with benefits’.
(2) In May or June 2022, R.L. request that she sexually assault her daughter and send him a video of same.
(3) R.H. subsequently attended her daughter’s bedroom, and while she slept, R.H. recorded herself with her iPhone performing oral sex on E.A. She then sent the video to R.L.
(4) R.H. admitted to taking nude photos of E.A. in the summer of 2022. She got E.A. to pose for the photos under the false pretense that she was checking her for rashes after being in the pool.
(5) R.H. admitted to taking a video of E.A. urinating and sent it to R.L. R.H. told her daughter that she wanted to see how her ‘pee’ was coming out.
(6) In total, approximately 10-20 pictures and videos were taken of E.A. that constitute child pornography, taken by R.H. and sent to R.L.
(7) In return, R.L. sent R.H. videos of children being assaulted and raped and would ask R.H. how E.A. tasted.
12It is important to note that only the 3 videos located on the phone of R.L. were ever located by police. The only source of the knowledge of the other videos, including the one in which R.H. performs oral sex upon E.A. , is the statement of R.H.
13R.H. told police that R.L. never met E.A. and never came to their house. She told police that R.L. never threatened her.
THE CHAT LOGS BETWEEN R.H AND R.L
14Sixty pages of chat logs between R.H. and R.L. were filed as Exhibit #4.
15I find the logs show that R.H. was a willing and assertive participant. This is contrary to her position that she was manipulated by R.L. I find that she was attempting to manipulate R.L. at times. This is exemplified in the following exchanges:
(1) R.L. “I don’t want anyone sorry working on myself and this shit not going to make it better just please stop”
(2) R.H. “Well it got you to fucking answer me instead of ignoring me. But at least now I know you do y want anything g to do with me, instead of saying that’s not what I said, when you should’ve just said exactly that. But I also know you going to keep ignoring me, even if I do stop”
(3) R.L. “ I cant block you. Just stop please”
(4) R.H. “I’m going to…”
16In another series R.L. writes, “should send me her in what’s app”. R.H. responds, “When I get pics of her. I will. But only if I can get what I want too… You know I will always give you what you want. I just like equality”.
17In another series R.L. writes “send her here .. jerking the of two u for”. R.H. responds, “hot mm that’s”.
18Finally, R.L. writes, “Mmm bath time”. R.H. responds, “Lol not yet”. R.L then says “common”, to which R.H. responds, “Patience is key, If I have to have patience, than so do you”. The next day R. L. writes, “waiting impatiently”, and R.H. responds, “waiting sucks doesn’t it….”.
19Where R. L. sent R.H. an attachment, she responded by saying, “Loved a movie” and “Mmm so sexy”. Attachments were sent back and forth between the parties. In one exchange, R.H. writes, “I hope you enjoy it, I’m not sending anymore. Since you obviously don’t need me, want me, or see me, and always to ‘busy’ to talk…”. R.L. responded, “Of course I enjoy both of you”.
20I find that R.H. used her daughter as currency to exchange for her own sexual gratification. She offered up photos and videos of her child hoping that she would then gain sexual contact with R.L.
ADDITIONAL FACTS
21The Crown filed a summary of the allegations as against R.L. As of the date of this decision, his matters remain outstanding. The salient points of those allegations follow:
(1) The Barrie Police received 3 reports form the National Center for Missing and Exploited Children in the United States, indicating that child pornography had been uploaded to the Internet by a Snapchat user in 2020 and 2021.
(2) A search warrant was executed upon the residence of R.L. His iPhone was seized and analyzed. Located therein were:
(a) 26 images of child pornography.
(b) 33 videos of child pornography. One of those videos depicted a male having vaginal intercourse with a female child under the age of 6 years.
(c) 14 videos and 9 images of child pornography were distributed by R.L. to another person over the internet between December 8 – 14, 2022. He requested that person to perform sexual acts on young children. That person was ultimately interviewed by police and confirmed the chats with R.L.
(d) Police located 3 videos of E.A., that constitute child pornography, on the phone of R.L.
CIRCUMSTANCES OF E.A. and VICTIM IMPACT STATEMENT
22E.A.’s parents were never married. R.H. did not want children and had asked her doctor to perform a hysterectomy upon her, which was denied, twice. Unexpectedly, R.H. became pregnant. She experienced severe post partum depression and the family moved in with E.A.’s paternal grandmother for one year. The relationship ended soon after and R.H. and E.A. moved out and into a rooming house. They moved in with R.H.’s mother in 2020 and remained there until her arrest in 2023.
23E.A.’s parents coparented. They shared custody and got along well. E.A.’s father assumed primary care of her when R.H. returned to school in 2021. E.A. lived fulltime with her father during this time and visited R.H. throughout the week.
24E.A. returned to the care of her father upon the arrest of R.H. and has not had any contact with her thereafter.
25E.A.’s father filed a victim impact statement. He began by noting that “this crime has changed every part of our lives – mine and my child’s”. He added that, “this crime has taken away our sense of normal life. It’s changed how we see people, how we trust, and how we move forward. We’re trying to heal, but the impact continues to shape our lives in ways that may never fully go away”.
26It is unknown whether or not E.A. is aware of her mother’s crimes against her, or whether she will learn of those actions at some point in time.
CIRCUMSTANCES OF THE OFFENDER
27A presentence report was authored and filed as an exhibit. Additionally, several letters of support were filed. The salient points are summarized below:
(1) R.H. is now 40 years old.
(2) She was raised by her mother and father. She has two sisters. She described her upbringing as decent but noted that her father was an alcoholic who was abusive towards her mother. She had positive relationships with extended family members.
(3) She completed grade 12 and then entered the workforce.
(4) In 2021 she entered a deep depression, during which time she reported hearing voices urging her to self-harm and she struggled with feelings of profound despair.
(5) In 2022, she met R.L. She advised the PSR author that he “pressured her to provide photos of her daughter, which she initially refused, though he continued to exert control over her behaviour”. She claims to have mentally shut down and blacked out. She struggled to sever ties with him.
(6) In the summer of 2022, she sought medical assistance and was prescribed medication to manage depression and anxiety. She was put on suicide watch and was meeting with the doctor bi-weekly to monitor her mental health.
(7) Family doctor notes confirm that in May 2022, she was reporting loneliness, thought of self harm, and was prescribed Cipralex. In June 2022, she reported that her anxiety/mood was better and improving. In July 2022, she was prescribed Wellbutrin and declined the offer of counselling. In November 2022, she reported that her depression was stable. In March 2023, she began to taper off the Cipralex medication. Thereafter the doctor’s notes focus on smoking cessation.
(8) She advised the PSR author that she denied the requests of R.L. and “only grazed her daughter”. She advised “I was just tired of him telling me what I like so I just always said what I knew he wanted to hear”.
(9) The relationship between R.H. and R.L. ended briefly after the incidents in August 2022 and then resumed in December 2022. The relationship finally ended when the parties were arrested.
(10) She expressed remorse for her actions, attributing them to a severe mental health crisis. She expressed regret, disappointment in herself, deep shame and disgust for her behaviour. The PSR author noted that R.H. struggles with a deeper understanding of her behaviour.
(11) Her return to school in 2021 resulted in successful completion of an 88-week Massage Therapy Program. She has been employed in that field ever since.
(12) She does not have any substance abuse issues.
(13) She does not have any criminal record.
(14) R.H.’s mother attributed her daughter’s criminal behaviour to the “manipulation of a ladies man ... preying on her vulnerabilities by providing her the attention and affection she craved”. She stated, “that this man was persistent, controlling, and ultimately coerced her daughter into complying with his demands”. She expressed her unwavering support for her daughter.
(15) R.H.’s sister “expressed shock upon learning of the offences and stressed that this behaviour is entirely out of her sister’s character [and believes] her sister was targeted due to her vulnerability, low self-esteem and desire for love and attention, which made her susceptible to the manipulations of a predatory individual”. She is firm in her resolve to support her sister.
(16) Since her arrest she has completed a risk assessment with Dr. Liam Marshall, a psychologist. Additionally, R.H. has had some therapy sessions with Ryley Contois, a Registered Psychotherapist, focussing on addressing trauma related issues.
28Dr. Marshall authored a report on October 20, 2025, it was a brief update to a risk assessment completed in 2024. He had minimal contact with R.H. since the assessment. Of importance, he noted:
(1) He referred her to Ms. Contois for therapy, noting however, that she does not specialize in sexual offender issues.
(2) His report is largely based on discussions that he had with Ms. Contois.
(3) He rescored her risk and found:
(a) Her score on “Lack of Concern for Others” was reduced “due to her lack of understanding of the impact of her offending behaviour on her daughter”.
(4) Her overall risk level remains Moderate-Low, however, when including more recent risk categories provided by the developers of the Statis-99 and Stable-2007, she is assessed at an “Average Risk”:
Individuals placed in Level III are considered Average Risk using the standardized risk level framework. They often have multiple criminogenic needs —varying in severity—in psychological, interpersonal, and lifestyle domains. These needs are likely to be barriers to effective use of any available prosocial resources and strengths. The rate of reoffending for individuals in Level III is generally equivalent to the average rate of sexual reoffending* in the overall population of individuals convicted of sexually motivated offences. It is expected that about half the individuals at Level III will transition down to a Level II, Below Average Risk, within a year or two after a sufficient dosage of treatment or positive life changes. All will eventually transition to Level II or Level I should they remain offence-free in the community for 10 to 15 years.
*Note: the rate of reoffending amongst females who offend sexually is known to be significantly lower than it is in males.
(5) She is a good candidate for future therapy and appears to be able to profit from participation.
(6) It is important to note that “these measures and risk levels were developed on males and have been used in this assessment on a female as an indication of risk and treatment needs, but the results should be interpreted with extreme caution. In the absence of any other method of assessing risk in females who offend sexually, this approach, informed by empirical evidence, is taken in the hope that it will assist in management and treatment decision making”(emphasis added).
29Ryley Contois authored a scant 2 ½ paragraph letter. She noted:
(1) She cannot opine on any problematic emotional issues or trauma R.H. was facing in and around the time of the offence.
(2) She cannot opine regarding risk or recommendations related to the prevention of further offending, as these matters fall outside the scope of her practice.
(3) R.H. began psychotherapy sessions on July 24, 2024. They met on a bi-weekly basis for a total of 23 sessions.
(4) The sessions focused on anxiety, depression, coping skills, childhood trauma, relationships, self-esteem, grief, emotion regulation, birth trauma, communication, anger management and boundaries.
(5) R.H. would greatly benefit from continued therapy.
POSITION OF THE PARTIES
30The Crown submits that a sentence of 9 years custody is available; 5 years for the sexual interference and 4 years consecutive for the CSAEM. Nonetheless, the Crown seeks a sentence in the range of 6-7 years, given the mitigating factors.
31The Crown submits that the caselaw supports a longer sentence (mid to upper single digits), given that the facts establish a number of aggravating factors such as distribution of the child pornography, conspiring with R.L. to commit sexual offences against E.A., along with possession of child pornography. However, the Crown relies upon the guilty plea, the admissions made by R.L. during her police interview and lack of a criminal record.
32Additionally, the Crown seeks a s. 743.21 order, forfeiture of the device seized, DNA, a s.109 order for life, a SOIRA order for 20 years, and a s.161 order for 12 years (or 20 years with reduced restrictions).
33The defence seeks a custodial sentence of 4.5 years; 3 years for sexual interference and 1.5 years consecutive for making child pornography and submits that R.H. was suffering from a severe mental health crisis at the time of the offences. I disagree. While she was reporting anxiety and depression to her health care provider, and was prescribed medication therefore, she was otherwise noted to be supported by friends and family and was engaged in the day-to-day activities of regular life, including education. Additionally, she was offered counselling and declined same.
34The defence declined the opportunity to prove on a balance of probabilities that R.H. was coerced by R.L. to establish a mitigating factor. As noted above, relying upon the Chat Logs, I found that R.H. was not coerced and was in fact an active participant. Furthermore, as highlighted by the Crown, R.H. decided what images to send and when to send them, depending on what she could negotiate for her own sexual interests and attention.
AGGRAVATING AND MITIGATING FACTORS
35I find the following factors to be considered mitigating on sentence:
(1) The pleas of guilt.
(2) The relatively small quantum of photographs and videos (10-20).
(3) The admission of the most serious aspect of the allegations during the interview with police, without which the case would be much less serious.
(4) The lack of criminal record.
(5) To a lesser degree, the mental health struggles, anxiety and depression that R.H. was seeking treatment for at the time of the offences (see para.33 above). There is no evidence proffered by either mental health practitioner in support of a “severe mental health crisis” at the time of the offences.
(6) That R. H. sought a risk assessment, and that the result is that she is a moderate to low risk to reoffend. This is minimally mitigating as the risk assessment was conducted using tools developed for male offenders, and as such cannot be heavily relied upon.
(7) That R.H. engaged in 23 sessions of counselling, although not for sexual offending behaviour.
36I find the following factors to be considered aggravating on sentence:
(1) The unfathomable breach of trust.
(2) That the child was victimized to satisfy the sexual needs of her mother; not directly, but rather indirectly, as currency to be exchanged with R.L.
(3) The child pornography captured the sexual assault of the child.
(4) The child pornography was videos.
(5) The child pornography was distributed to R.L., who is alleged to have shared it across the Internet.
(6) The very young age of the child.
(7) The profound harm to the child:
(a) Her image is believed to have been released to the Internet, shared and traded.
(b) She has lost contact with her mother. She will, in time, seek answers as to why, and what happened. When she finds out, which is inevitable, the impact is almost unimaginable.
(8) While at some points in the process R.H. claims to be remorseful, and regretful, she minimized her actions when speaking to the author of the presentence report, stating that she only ‘grazed’ her daughter. To be clear, she is speaking about the action of performing cunnilingus upon her sleeping 6 year old daughter. This, coupled with Dr. Marshall’s report wherein he noted that she lacked an understanding of the impact of her actions upon her child.
SENTENCING LAW, PRINCIPLES AND CASELAW
37I adopt and replicate much of the Crown’s written materials herein. I begin with the legislative prescriptions:
Section 718.01 of the Criminal Code:
When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances
718.3 (7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct:
(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1
38Parliament recently repealed mandatory minimum sentences for a number of offences. However, it did not repeal the mandatory minimum sentences for online child sexual exploitation offences, including luring and child pornography. This is a clear signal from Parliament that Canadians believe that these types of offences are serious and that they require the imposition of at least the minimum sentences prescribed by law.
39In Friesen, supra, the Supreme Court of Canada emphasized the overarching goals of sentencing for sexual offences against children and urged sentencing judges to take heed of the following:
- Sentencing Principles
Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected. The protection of children constitutes one of the essential and perennial values of Canadian society. Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society.
The guidance we provide is focused on sentencing principles of the offence of sexual interference and closely related offences such as invitation to sexual touching, sexual exploitation, incest, and sexual assault. However, the principles that we outline also have relevance to sentencing for other sexual offences against children, such as child luring.
Courts should thus draw upon the principle that we set out in this case when imposing sentences for such other sexual offences against children.
- Technology
Because protecting children is so important, we are very concerned by the prevalence of sexual violence against children. This pervasive tragedy that has damaged the lives of tens of thousands of Canadian children and youths and continues to harm thousands more children and youth each year. In Canada, both the overall number of police-related sexual violations against children and police-reported child luring incidents more than doubled between 2010 and 2017. Courts are seeing more of these cases. New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children. Online child luring can be both a prelude to a sexual assault and a way to induce or threaten children to perform sexual acts. Parliament has attempted to keep pace with these developments by amending sentencing provisions for sexual offences against children. Courts too have been on a “learning curve” to understand both the extent and the effects of sexual violence against children and sentencing has evolved to respond to the prevalence of these crimes.
- Harmfulness
To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important. The failure to recognize or appreciate the interests that the legislative scheme of offences protects can result in unreasonable underestimations of the gravity of the offence. Properly understanding the harmfulness will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process.
- Personal Autonomy
Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. Personal autonomy refers to a child’s right to develop to adulthood free from sexual interference and exploitation by adults. Legislative developments are connected to a larger shift, as society has come to understand that the focus of the sexual offences scheme. The focus on sexual integrity enables greater emphasis on violations of trust, humiliation, objectification, exploitation, shame, and loss of self-esteem.
- Relationships
Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. The violence is often accompanied by breach of a trust relationship. The ripple effects can cause children to experience damage to their other social relationships.
- Children Hold a Weaker Position in Society
In reforming the legislative scheme governing sexual offences against children, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity. Yet instead of relating to children as equal persons, offenders treat children as sexual objects whole vulnerability can be exploited by more powerful adults. There is an innate power imbalance between children and adults that enables adults to violently victimize them. To resist detection, offenders perpetrate sexual violence against children in private, coerce children into not reporting, and rely on society’s false belief that sexual violence against children is an aberration.
- Violence Against Females
The intersecting inequalities of being young and female thus make girls and young women especially vulnerable to sexual violence. Sexual violence against children this perpetuates disadvantage and undermines gender equality because girls and young women must disproportionately face the profound physical, emotional, psychological, and economic costs.
- Other Vulnerable Groups
Children who belong to other groups that face discrimination or marginalization in society are also especially vulnerable to sexual violence.
R. v. Friesen, at paras. 42-73.
40The Supreme Court of Canada urged courts to impose sentences that recognize and reflect both the harm caused to children and the wrongfulness of sexual violence, and to weigh these harms in a manner that reflects society’s deepening and evolving understanding of their severity. The Court repeatedly emphasized that the moral blameworthiness of the offender increases when offenders intentionally target children who are particularly vulnerable, including children who belong to groups that face discrimination or marginalization in society. The Court emphasized that all forms of sexual violence, including those against adults, are morally blameworthy; but the fact that the victim is a child increases the offender’s degree of responsibility and is highly morally blameworthy conduct due to the child’s vulnerability. R. v. Friesen, supra, at paras. 74, 89-90.
41In Friesen, supra, the Supreme Court stated:
95 Parliament has recognized the profound harm that sexual offences against children cause and has determined that sentences for such offences should increase to match Parliament's view of their gravity. Parliament has expressed its will by increasing maximum sentences and by prioritizing denunciation and deterrence in sentencing for sexual offences against children.
98 Parliament has repeatedly increased sentences for sexual offences against children. These increases began in 1987 with Bill C-15. By abolishing the historic offences of indecent assault on a female and acts of gross indecency and creating the sexual interference offence, Parliament effectively doubled the maximum sentence from five to ten years for sexual offences against children that did not involve vaginal or anal penetration (see L. (J.-J.), at pp. 240-41; Bill C-15, s. 1). Parliament has repeatedly signalled society's increasing recognition of the gravity of sexual offences against children in the years that followed. In 2005, Parliament tripled the maximum sentences for sexual interference, invitation to sexual touching, and sexual exploitation in cases in which the Crown proceeds summarily from six months to 18 months by enacting Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32. Finally, in 2015, Parliament enacted the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23. This statute increased the maximum sentences of these three offences and sexual assault where the victim is under the age of 16 from 10 to 14 years when prosecuted by indictment and from 18 months to 2 years less a day when prosecuted by way of summary conviction (ss. 2-4). This statute also increased the maximum sentences for numerous other sexual offences against children as indicated in the Appendix to these reasons.
99 These successive increases in maximum sentences indicate Parliament's determination that sexual offences against children are to be treated as more grave than they had been in the past. As Kasirer J.A. (as he then was) reasoned in Rayo, the legislative choice to increase the maximum sentence for child luring "must be understood as a sign of the gravity of this crime in the eyes of Parliament" (para. 125). We agree with Pepall J.A.'s conclusion in Stuckless (2019) that Parliament's legislative initiatives thus give effect to society's increased understanding of the gravity of sexual offences and their impact on children (paras. 90, 103 and 112).
100 To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament's view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in "toughened sanctions" (para. 175; see also Woodward, at para. 58). Sentencing judges and appellate courts need to give effect to Parliament's clear and repeated signals to increase sentences imposed for these offences.
114 D. (D.), Woodward, S. (J.), and this Court's own decisions in M. (C.A.) and M. (L.). make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament's statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.), "judges must retain the flexibility needed to do justice in individual cases" and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and M. (L.). In addition, as this Court recognized in M. (L.), maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).
116 While sexual violence against either a child or an adult is serious, Parliament has determined that sexual violence against children should be punished more severely. First, Parliament has prioritized deterrence and denunciation for offences that involve the abuse of children (Criminal Code, s. 718.01). Second, Parliament has identified the abuse of persons under the age of 18 as a statutory aggravating factor (Criminal Code, s. 718.2(a)(ii.1)). Third, Parliament has identified the abuse of a position of trust or authority as an aggravating factor; this is more common in sexual offences against children than in sexual offences against adults (Criminal Code, s. 718.2(a)(iii); V. (L.), at para. 66). Fourth, Parliament has used maximum sentences to signal that sexual violence against persons under the age of 16 should be punished more severely than sexual violence against adults. The maximum sentence for both sexual interference and sexual assault of a victim under the age of 16 is 14 years when prosecuted by indictment and is 2 years less a day when prosecuted summarily. In contrast, the maximum sentence for sexual assault of a person who is 16 years or older is 10 years when prosecuted by indictment and 18 months when prosecuted summarily (see Criminal Code, ss. 151(a) and (b), and 271(a) and (b)). This is a clear indication in the Criminal Code that Parliament views sexual violence against children as deserving of more serious punishment. These four legislative signals reflect Parliament's recognition of the inherent vulnerability of children and the wrongfulness of exploiting that vulnerability.
42In R. v. Pike, 2024 ONCA 608 applying Friesen, supra, Chief Justice Tulloch explained at paras. 143- 156, that:
Child pornography has become a global cancer that Canada has international duties to combat.
The Internet has transformed offending dynamics by enabling perpetrators to produce, distribute and acquire child pornography more quickly and easily, and with much less risk of detection. The current state of technology has increased the number of people who possess child pornography, and incentivized producers to victimize more children in more extreme ways to satisfy their demand for new material and made it harder to identify victims.
Recordings of children’s victimization remain online forever once posted, and as a result the Internet intensified the harms victims suffer and extended those harms in adulthood.
People who possess child pornography violate children’s dignity.
People who possess images of the abused and exploited children directly invade children’s privacy. This privacy violation is extreme.
People who possess child pornography inflict severe emotional harm on children.
People who possess child pornography make children feel powerless, leading to fear that perpetrators will recognize them in person and target them for additional abuse and that perpetrators pleasure in the recording of their victimization.
People who possess child pornography instigate the production and distribution of child pornography and thus the sexual abuse of children.
Possessing and viewing child pornography can incite perpetrators to commit and facilitate their commission of other sexual offences against children.
People who possess child pornography and participate in the child pornography subculture expose children to heightened risk.
People who possess child pornography perpetuate pernicious messages that attack children’s humanity and equality.
Possessing child pornography is a grave offence because it causes these wrongs and harms.
43At paragraph 160 of Pike, supra, Justice Tulloch wrote:
Courts must follow Parliament's direction by placing children and the wrongs and harms that people who possess child pornography inflict on them at the centre of the sentencing process. Courts can give significant weight to the personal circumstances and mitigating factors of people who possess child pornography, and to sentencing objectives such as rehabilitation. But it is all too easy for those considerations, which focus on the people being sentenced, to overshadow the wrongs and harms they inflict because their victims are all too often invisible. The police struggle to identify the producers of these images and the children they victimize because the producers abuse and exploit those children in private homes or in countries oceans away. Courts must overcome this invisibility by making child victims the central focus. That is why courts can neither prioritize other objectives to the same degree as or higher than denunciation and deterrence, nor use the personal circumstances and mitigating factors of people who possess child pornography to avoid grappling with the wrongs and harms they cause. Friesen, at para. 104; R. v. Porte, [2015] NSWCCA 174, 252 A. Crim. R. 294 (New South Wales C.C.A.), at paras. 88, 128.
44At paragraphs 166-173 of Pike, supra, Tulloch J summarized the aggravating and mitigating factors to be considered in sentencing for possession of child pornography:
166 Ontario courts use the non-exhaustive list of aggravating and mitigating factors that Justice Molloy established in 2007 to sentence people who possess child pornography. She recognized the following six aggravating factors: (1) criminal record, (2) production and distribution, (3) size of the collection, (4) nature of the collection (including the age of the children and the degree of depravity and violence depicted), (5) the perpetrator's risk to children, and (6) payment for child pornography. She also mentioned youth, good character, insight, remorse, treatment, guilty pleas, and stigma and collateral consequences as mitigating factors: Kwok (2007), at para. 7. I clarify and update this list of factors to reflect Friesen and other subsequent developments in the law.
167 First, the size of the collection is not determinative and should be considered together with the number of real child victims, the degree of organization, and the ratio of videos to still images. In general, the number of different children depicted is more aggravating than large collection size because people who victimize more children should expect to receive "significantly higher sentences": Friesen, at para. 133. Indeed, large collection size matters in large part because courts infer from it that the collection contains many victims: R. v. Gent, [2005] NSWCCA 370, 162 A. Crim. R. 29, at para. 99. The level of organization is also aggravating because it shows that people who possess child pornography have more interest in the material: R. v. Martineau c. Ministre du Revenu national [2014] NSWCCA 283, 246 A. Crim. R. 477(S.C.C.), at paras. 50, 59. Further, videos are more aggravating than still images because, by adding more realistic and graphic detail, they are more invasive and harmful privacy violations: Alisdair A. Gillespie, Child Pornography: Law and Policy (New York: Routledge, 2011), at pp. 255-256; Jarvis (2019), at para. 62. For all these reasons, stricter sentences for smaller-size collections are appropriate if other aggravating factors demand it: R. v. McCaw 2023 ONCA 8, 165 O.R. (3d) 179, at paras. 31-33.
168 Second, the seriousness of the collection's nature turns on the depicted activity's degree of harmfulness and wrongfulness. Thus, material depicting more physically intrusive activities that feature additional violence beyond that inherent in sexual offences against children is aggravating because those features may cause additional harm: Warner, at p. 386; Friesen, at paras. 139, 152. Some sentencing judges use image ranking tools to account for this, as in R. v. Jonat, 2019 ONSC 1633. But judges who do so must recognize that the harms and wrongs of such recordings do not depend on penetration, and that other forms of exploitation can cause severe emotional harm, even absent additional violence and even if victims appear to participate. For instance, recordings of sexualized posing are serious because they show horrifying and profoundly harmful sexual exploitation: Friesen, at paras. 140-146, 152; Snowden, at para. 102; D.P.P. v. Watson[2016] VSCA 73(2016), 259 A. Crim. R. 327 (Australia Vic. C.A.), at paras. 41-46.
169 Third, courts should consider whether the collection depicts real children. Some people who possess child pornography collect stories or virtual images and videos that do not depict real children. Possessing this material is unlawful and serious because, like real child material, it incites and facilitates sexual offences against children, spreads lies about children that normalize sexual activity between adults and children, and may act as a gateway that leads people who possess it to seek material depicting real children: Sharpe, at para. 38; R. v. Mahannah, [2013] O.J. No. 6330 (S.C.), at paras. 11-15; Ontario (Attorney General) v. Langer, (1995 CanLII 7422 (ON CTGD)), 123 D.L.R. (4th) 289 (Ont. S.C.), at p. 303. However, the possession of recordings of virtual or fictional children is less serious than recordings depicting the abuse of real children because the former's production does not victimize real children: Snowden, at para. 99; R. v. D.L. 2012 ONSC 2791, at para. 43.
170 Fourth, I would add duration, frequency, collaboration with other offenders, planning, organization, sophistication, and participation in the child pornography subculture as additional aggravating factors. The duration of possession and the frequency of downloading and viewing images increase the moral blameworthiness of people who possess child pornography by showing that their conduct is entrenched and increasing the number of times they victimize the depicted children: Friesen, at paras. 131-133; Hammond, at para. 12; Inksetter, at para. 22. Collaboration, planning, organization, and sophistication are aggravating and trigger a greater need for deterrence because perpetrators who employ these methods can cause greater harm and avoid detection more easily: Clayton C. Ruby, Sentencing, 10th ed. (Markham, Ont.: LexisNexis, 2020), at 5.4, 5.12, 5.97; D.G.F., at para. 25. Participation in the child pornography subculture is also aggravating because, by reinforcing the offending behaviour of people who possess child pornography and encouraging them to graduate to even more serious offending, it increases the risk to children: D.G.F., at para. 25.
171 Fifth, the absence of aggravating factors like the actual production and distribution of child pornography, the depiction of very young children, or payment to acquire child pornography is not mitigating. Courts must still address the distinct wrongs and harms inherent in the possession of child pornography and avoid the trap of imposing disproportionately low sentences in cases involving older preteen and teenage children. Courts must also recognize that people who do not pay for the child pornography they possess still motivate those producers of child pornography who seek to win respect rather than money: Friesen, at para. 136; Kwok (2007), at paras. 8, 50; Porte, at para. 66; De Leeuw, at para. 72(i).
172 Sixth, good character, employment, and stigma are less significant factors in sentencing people who possess child pornography and cannot function as disguised class discrimination. Prior good character and employment receive only limited weight because many perpetrators are people of otherwise good character who secretly commit the offence, and possession usually involves repeated conduct over a significant period rather than an out-of-character isolated act, and it is very blameworthy for people of otherwise prior good character to fail to appreciate the wrongfulness of their actions: R. v. M.V. 2023 ONCA 724, 169 O.R. (3d) 321, at para. 69.; R. c. S.V. 2021 QCCQ 7297, at paras. 58-59.; R. v. Spiller, 1969 CanLII 950 (BC CA), [1969] 4 C.C.C. 211 (B.C.C.A.), at p. 214. Stigma also receives less weight because it is a predictable consequence of conviction: R. v. H.S. 2014 ONCA 323, 308 C.C.C. (3d) 27, at para. 39. Finally, courts cannot misuse these factors to discount sentences for well-off perpetrators with professional careers because they supposedly have better character and employment and stand to lose more and face greater stigma than people who already face disadvantage. Such class bias violates the rule of law principle of equality under the law by giving preferential treatment to the rich, privileged, and powerful: R. v. Carr 1937 CanLII 130 (ON CA), [1937] O.R. 600 (C.A.), at pp. 603, 605; R. c. Marchessault, (1984), 1984 CanLII 5684 (QC CA), 41 C.R. (3d) 318 (Que. C.A.), at pp. 321-322; Ruby, at 6.29.
173 Finally, courts assessing remorse and insight should focus on whether people who possess child pornography recognize and express remorse for wronging and harming real children. Conversely, these factors are entitled to less weight if the people being sentenced continue to engage in distorted thinking and minimize or excuse their actions as harmless fantasies: Lynch-Staunton, at paras. 50-53, 55; Kwok (2007), at paras. 35-37, 39.
45The aggravating factor of a breach of trust was addressed by the Ontario Court of Appeal in R. v. T.J., 2021 ONCA 392:
31 Friesen also re-emphasized the importance of certain aggravating factors in sexual offences involving a child. It noted that abuse of a position of trust or authority should usually result in a higher sentence than one of an offender who is a stranger to the child, and that the age of the victim is a significant aggravating factor because of the length of time they must endure the consequential harm of sexual violence: at paras. 130-34.
46The court noted that the balancing of factors cannot lose sight of the guidance and direction of Friesen, supra:
32 In my view, the reasons as a whole do not give the inherent wrongfulness of the conduct, its highly morally blameworthy nature, and the extent of harm caused to C.M., the centrality that Friesen demands in sentencing. Nor do the reasons give paramountcy to the principles of denunciation and deterrence. Those errors impacted the sentence and justify appellate intervention.
33 Where the overall focus of a sentencing decision is on the personal circumstances of the offender and the need for restraint, so as to underestimate the gravity of the offences and their harm, the sentencing decision is not consonant with Friesen's message. As Spivak J.A. stated in R. v. S.A.D.F. 2021 MBCA 22:
The sentencing judge stated that the offending behaviour was serious, and referred generally to the harmful consequences of this type of abuse, and the need to send a message to protect children. However, as indicated in Friesen, it is not sufficient to simply state that sexual offences against children are serious; sentences imposed must reflect the normative character of the offender's actions and the consequential harm. The sentencing judge spoke, at some length, about the accused's background and the principle of restraint. Yet, there was little comment on the specifics of these offences and the circumstances under which they were committed, beyond saying that the children were very young and the accused was in a position of trust. In my view, the sentencing judge's focus on the personal circumstances of the accused, rather than the circumstances of the offences, led her to unreasonably underestimate the gravity of the offences and the paramount principles of denunciation and deterrence: at para. 34.
36 The trial judge relied on the respondent's circumstances including that he was a first offender who was supportive of and supported by his family. He also expressed a desire not to impose a sentence that would prevent the respondent from being a contributing member of society and considered the effect of the pandemic.
37 The trial judge was entitled to give "significant weight" to the sentencing principles those circumstances engage, but he was not entitled to give them priority, or even equal weight, to denunciation and deterrence: Friesen at paras. 101-4; Lis at paras. 47-48. He was also entitled to consider the pandemic as a collateral consequence, because it bears on the impact of the sentence on the offender. He was not, however, entitled to permit it to reduce a sentence to one that is disproportionate to the gravity of the offence or the moral blameworthiness of the offender: R. v. Morgan, 2020 ONCA 279, at paras. 10-11. As this court noted in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 76, the focus of sentencing an adult who has exploited an innocent child should be on the harm caused to the child and the offender's conduct; the effects of the sentence on the offender and his prospects for rehabilitation, while warranting consideration, cannot take precedence.
SIMILAR CASES
47There are no two identical cases. I have reviewed each of the cases filed by the parties, which include: R. v. T.L., 2018 ONCJ 107; R. v. M.S., 2019 ONCA 894 and 2017 ONCJ 3762; R. v. Reid, 2022 ONCJ 76; R. v. R.W., 2023 ONCA 261; 2021 ONSC [unreported] ; R. v. D.L., 2024 ONCJ 660; and, R. v. M.R., 2025 ONSC 5200. The facts and sentences are broad.
48The case of R. v. P.S., [2024] O.J. No. 1738, is closest factual to the matter herein. In P.S., supra, the accused, the victims’ mother, pled guilty to one count each of possess child pornography, making child pornography, distributing child pornography Additionally, she pled to three counts of agree/arrange to commit sexual assault and sexual interference, a count of sexual interference and one count of procure to commit sexual offences. Each of the offences involved her two daughters aged 9 and 12.
49P.S. was of a similar age to R.H. and was involved in a sexual relationship with a man with whom she shared child pornography. She too made significant admissions in her statement to police. She was in possession of a small quantum of pornography files. She discussed via text the possibility of the man engaging in sexual activities with her children. At the request of the man, while one daughter slept in her bed, she touched her daughter on the vagina, above and below her underwear.
50P.S. was supported by her mother and family. She had strong rehabilitative prospects. She expressed remorse and shame. She had no prior criminal antecedents. During the time of the offences, she felt bored and depressed and her engagement with the man offered her a “feeling of comradery”.
51The court found that it was “most disturbing” that P.S. videotaped her daughter as she sexually abused her” and found this to be an “extreme breach of trust”.
52The court imposed a global sentence of 9 years custody for all 8 offences.
CONCLUSION
53The moral blameworthiness of R.H. is high. The need for denunciation and deterrence is great and forefront. The harm to E.A. is immeasurable and will continue so long as the internet exists and purveyors of child pornography seek, view and exchange images and videos. The impact upon her is difficult to imagine. She will grow and wonder why her mother is not present, why she cannot turn to her for advice as she develops, begins to menstruate, needs her first bra, goes on a first date, gets married, or has her own children. If she learns what her mother has done to her, it will surely impact her own intimate life, and how to develops healthy relationship with people that she should be able to trust. She was a sleeping child, a little girl who needed the protection of her mother. She became currency, an object, something to be traded, something to be used to fulfill the perverse sexual desires of others.
54In all of the circumstances, the appropriate sentence is 4 years (1460 days) custody for the count of sexual interference, and 2 years (730 days) custody for the count of making child pornography to be served consecutively. The total sentence is 2190 days custody. This is in addition to the few days of presentence custody already served. There will be a SOIRA order for 20 years, a DNA order, a s. 743.21 order, and a s.161 order for 20 years.
Released: March 9, 2026.
Signed: Justice Angela L. McLeod