WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code of Canada. This subsection and subsection 486.6 of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way;

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2021 03 31 COURT FILE No.: Toronto 18-15005243

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MARK MOORE

Before: Justice Patrice F. Band

Reasons for Sentence

March 31, 2021

Counsel: Ms. B. McCallum................................................................................. counsel for the Crown Ms. M. Martin........................................................................................ counsel for Mr. Moore

BAND J.:

I. The Guilty Pleas

[1] Mr. Mark Moore pleaded guilty to the following indictable Criminal Code offences on November 4, 2019:

• Possession of child pornography, contrary to s. 163.1(4);
• Distribute child pornography, contrary to s. 163.1(3);
• Arranging or agreeing with another person to commit the s. 271 offence of sexual assault on a person under 16 years of age, contrary to s. 172.2(1)(b).

II. Words of Caution

[2] The facts in this case are serious and disturbing. As I did in R. v. Marratt, 2019 ONCJ 618, I begin with a caution, as Chief Justice Strathy has also done on behalf of the Ontario Court of Appeal in R. v. J.S., 2018 ONCA 675:

It is unfortunately necessary to describe the offences and the circumstances surrounding them to some degree in order to have proper appreciation of the nature and gravity of the offences to which Mr. Moore has pleaded guilty.

III. The Mechanics of the Proceedings

Chronology

[3] The parties and I began discussing this matter in the context of judicial pre-trials in April 2019. The pleas were entered in November of that year, and it was agreed that the matter would go over for sentencing as Mr. Moore was undergoing assessments and counselling. Because he lives in Nova Scotia, the plan was that he would attend court again for sentencing submissions, and that he would remain in Ontario for a week or so, to give me time to render a decision. The COVID-19 pandemic intervened, and Mr. Moore’s sentencing hearing was adjourned. The pandemic made it difficult to reschedule the matter as expected, and the time got compressed out of respect for Mr. Moore’s need to travel, with the financial and logistical difficulties that entails.

[4] I heard sentencing submissions on March 29 and am to give my decision on March 31. The materials filed were voluminous. I received assessment and counseling reports, letters of support, a victim impact statement and numerous authorities (supported by charts), which I have reviewed. While I was critical of the fact that the defence filed more than 40 cases – in my opinion an all too common occurrence with materials filed electronically during the pandemic – I was greatly assisted by the parties’ submissions, which were well-prepared and focused. Also, I am grateful to the parties for having resolved certain issues (like the calculation of pre-sentence custody).

Procedure relating to sensitive material

[5] As I wrote in Marratt, I am concerned about the trauma that justice system participants can suffer by being repeatedly exposed to disturbing material like the kind of child pornography that is in issue in this case. I shared that decision and my concerns with the parties in this case. In particular, I urged counsel to do their best to agree to a mutually satisfactory verbal description of the contents of the material so as to protect courtroom participants (including themselves and me) from unnecessary (re-)exposure to potentially trauma-inducing raw material. As I indicated in Marratt, this approach is permissible in certain circumstances. Among the relevant considerations are the existence of an agreement between the parties as to the facts and whether, owing to his or her professional experience, the sentencing judge is able to “fully appreciate the sickening horror of such pornography”: see R. v. M.P., 2012 ONCA 162, [2012] O.J. No. 1148 at para. 34 (C.A.). For my part, I continue to be able to call to mind very disturbing imagery from a seconds-long video I viewed as defence counsel over 12 years ago. Of course, I have been exposed in other cases as well.

[6] The Crown took the following approach. In addition to the Agreed Statement of Facts, she prepared a document with a more detailed verbal description of a representative sample of the material seized in this matter. Defence counsel agreed that the description was accurate, and it was emailed to me as a password-protected document, which I then reviewed. The Crown also delivered a representative sample of the described raw material to my office on a thumb-drive. This had the virtue of making it unnecessary for court staff to be exposed to the material.

[7] Then, the Crown made submissions to assist me in deciding whether to view some of the material. She acknowledged that there is no blanket rule requiring that a judge do so. It is unnecessary when:

• there is a joint submission;
• the parties agree that it is not necessary as a result of a written description or input from a victim; or
• the sentencing judge has sufficient experience in the area.

[8] However, she submitted that it ought to be viewed when:

• the parties do not agree as to the fit sentence; or
• there is potential that the verbal description will be misconstrued in favour of one party or the other.

[9] Defence counsel was of the view that it is unnecessary for me to view the material. She agreed that some of the material is of the “most extreme” nature, as described in the authorities. She agreed that the descriptions are accurate and representative. She saw no potential for me to misconstrue them (at least not in favour of Mr. Moore). For my part, I acknowledged that invoking a judge’s experience can raise a number of concerns, including transparency. I also acknowledged that judges should remain current, as the ways people commit these offences can change over time.

[10] I found this approach and the dialogue that followed to be of great assistance, and I thank counsel for engaging in it. After considering their submissions, I have decided that it is unnecessary for me to view the material for the following reasons:

• counsel agree that the verbal description is accurate and representative;
• counsel agree as to how the material should be characterized;
• based on counsel’s submissions, I have no concerns that I will misconstrue its nature;
• I have been exposed to similar material as a judge and counsel prior to that;
• I am aware that each viewing of child pornography is an instance of victimization of those portrayed in it; and
• based on my experience and the guidance provided by the Supreme Court of Canada and the Ontario Court of Appeal, I understand the horrors and devastating effects of this kind of offence on children, families and communities.

[11] It is true that this matter does not involve a joint submission. But the dispute is not about the gravity of the offence or the appropriate sentencing ranges. The main dispute surrounds the application of the various principles and objectives of sentencing and the cases I should turn to for guidance, including R. v. Friesen, 2020 SCC 9. Other issues I must resolve in this case are whether the sentences must be served consecutively and whether their ought to be credit to account for Mr. Moore’s bail conditions and the pandemic going forward. Viewing the material will not assist me in resolving these issues.

[12] For the sake of the record, the thumb-drive containing the representative samples will be filed as a sealed exhibit along with the detailed verbal descriptions.

IV. Brief Summary of the Facts

[13] The four-page Agreed Statement of Facts that was filed in this matter can be summarized as follows.

[14] Over a period of approximately five weeks between May and June 2018, Mr. Moore engaged in a series of on-line chats with a police officer (“Tanya”) he believed to be a single mother of two girls (ages 8 and 10) who ran a daycare. In these chats, Mr. Moore counseled Tanya to groom and sexually assault her daughters as well as an 18-month-old in her care. He encouraged Tanya to give her daughters alcohol or MDMA to loosen them up or make them unconscious. He told her that he wanted to fondle them and engage in oral and vaginal sex with them. When Tanya told him that she had sexually assaulted the toddler, Mr. Moore said that he wished he had been there too.

[15] The two discussed child pornography, and Mr. Moore sent Tanya 18 images, two of which met the definition of child pornography.

[16] Eventually, the conversations led to a plan for Mr. Moore and Tanya to meet in person, take her 10-year-old daughter shopping for a bra and then return to his apartment where a sexual assault of the girl would take place. While that arrangement was cancelled once by Tanya, the two arranged to meet approximately a week later. On June 11th, Mr. Moore set out to meet Tanya at Rosedale subway station, where he was arrested.

[17] Mr. Moore was cooperative with police and provided an inculpatory statement. A search of his iPhone and laptop revealed images and chats that met the definition of child pornography. In all, there were 274 images, 90 of which were duplicates and 58 appeared to be a series of stills taken from three different videos, for a total of 126 unique images.

[18] They involve children ranging in age from baby to teen. The sexual acts include oral, vaginal and anal penetration, as well as bondage, restraint, violence and bestiality. One described in the sample involves a child of six to eight years of age in a cage, crying as she performs fellatio on an adult male. Another involves a small girl being vaginally penetrated by one adult male as another one stands nearby, penis erect; the word “fuck me” has been written above her vagina.

[19] The images are extremely degrading, violent and horrifying.

[20] A series of chats found on Mr. Moore’s laptop involved conversations he had with someone appearing to be the mother of an eight-year-old girl in 2016. One chat involved Mr. Moore trying to show the girl his penis via webcam and counseling her mother to touch her. He also asked for photos of the girl. In the ensuing chats, Mr. Moore discusses his sexual interest in his own youngest daughter, then six years old. He suggested meeting in real life and the two discussed their shared sexual interest in having children together to abuse and to have others abuse.

V. The Positions of the Parties

[21] The Crown presented the sentencing ranges associated with the offences before the court. With one caveat, the Defence agreed. Those ranges are:

• Arranging a sexual offence against a child: 12 months to two years;
• Possession of child pornography: six months – three years; and
• Distribute child pornography: 12 months to three years.

Defence counsel pointed out that in R. v. Woodward, 2011 ONCA 610 at para. 58, the Ontario Court of Appeal indicated that the range regarding luring offences discussed in R. v. Jarvis, 2006 ONCA 27300 (ON CA), [2006] O.J. NO. 3241 (C.A.) required revision due to the 2007 amendments.

[22] The Crown seeks a global jail sentence of three years in the penitentiary, and ancillary orders including DNA, SOIRA (for life), a s. 161 order (for 20 years) and a s. 109 order (for 10 years). She would apportion that time as follows:

• Arranging a sexual offence against a child: 20 months;
• Possession of child pornography: 16 months (consecutive); and
• Distribute child pornography: 16 months (concurrent).

Regarding the totality of the charges, the Crown argued that the cases of R. v. Lynch-Staunton, 2012 ONSC 218 and R. v. Freeman, 2019 ONCJ 721 are most similar. Regarding the possession count, the Crown pointed to R. v. Enosse, 2019 ONSC 6521 and R. v. Kwok, 2007 ONSC 2942 (ON SC), [2007] O.J. No. 457 (S.C.J.). Regarding the arranging count, the Crown pointed to R. v. Parks, 2019 ONCJ 478, emphasizing the breach of trust element noted in that decision. Overarching her submissions was the argument that post-Friesen, sentences for cases of this nature need to be higher than they have been, and that caution must be had regarding authorities that pre-date the amendments (or that rely predominantly on such cases).

The Crown argues that s. 718.3(7)(a) of the Code requires that the child pornography sentence be served consecutively to the one for arranging.

[23] Defence counsel recommends a global sentence of 15 months to be followed by a probationary period. She would apportion it as follows:

• Arranging a sexual offence against a child: 15 months;
• Possession of child pornography: 12 months (concurrent); and
• Distribute child pornography: 15 months (concurrent).

[24] She asks that I recommend that Mr. Moore be permitted to serve the custodial portion of his sentence at OCI. She fairly acknowledges the impact of Friesen. In fact, her sentencing chart states that “an upward departure from prior precedents and sentencing ranges could be required to impose a proportionate sentence.” The majority of the cases in her Book of Authorities are post-Friesen. Many of them involve reformatory sentences. Likewise, she filed cases in which sentences like the one the Crown seeks were imposed and seeks to distinguish them as more serious than Mr. Moore’s.

[25] She relies on Freeman, supra, for the proposition that s. 718.3(7)(a) does not mandate that the sentences be imposed consecutively in this case. She accepts that the DNA, SOIRA and s. 109 orders should issue. If the sentence is a reformatory one followed by probation, Ms. Martin argues that a s. 161 order would be redundant. If the sentence is greater than two years, she submits that the terms ought to be tailored to respond to Mr. Moore’s particular circumstances, pursuant to R. v. K.R.J., 2016 SCC 31.

VI. Mr. Moore’s Circumstances

[26] Mr. Moore is 48 years old. He suffered from sexual abuse at the hands of his uncle as a very young child. He struggled in school. After a brief attendance at George Brown College, he joined the workforce. His employment history is rocky, but he managed to stay afloat. Leading up to the time of his arrest, he operated a fish store in Toronto. That business fell apart in 2019 and Mr. Moore may now be facing bankruptcy.

[27] Mr. Moore’s mother passed away in 2009. He currently lives with and supports his father, who is unwell. He has the support of some older people in his community, including his father, his aunt and a retired social worker who knew him as a child. They are aware of these proceedings and Mr. Moore’s efforts regarding his rehabilitation. It does not appear that he has a strong network of friends. Mr. Moore was married and had a daughter in 2009. He also has a daughter from a prior relationship. The marriage broke down in approximately 2015, partly due to his sexual issues.

[28] Mr. Moore has been diagnosed with a pedophilic disorder (non-exclusive type), as well as generalized and social anxiety disorders. He attempted to commit suicide in October 2018, shortly after his arrest.

[29] For most of his life, Mr. Moore has had a deviant sexual appetite, fantasizing about children, rape, animal sex and domination. A high sex-drive and frequent masturbation has accompanied these fantasies for decades. According to one report, that deviance increased in the years leading up to his offences.

[30] Mr. Moore has completed a 30-week Forensic Sexual Behaviour Program, and is taking medication, including a SSRI that has been prescribed in significant enough doses to cause a reduction in his libido. He has been assessed as representing a low risk to re-offend if he maintains his medication and treatment. Without those, however, Mr. Moore does not pose a high likelihood of managing his risk: see the Report of the Forensic Sexual Behaviour Program, dated June 29, 2020.

[31] It must be said that his level of engagement and follow-through were problematic to the point that the treatment providers sent him a warning letter. Also, he has been described as egocentric, with a “victim stance and grievance thinking.” As I understand it, this relates to his thinking about the way the charges came about and the role the abuse he suffered as a child plays in his offending.

[32] Nonetheless, Mr. Moore appears motivated to change. Ms. Earle, the social worker whom he has been seeing for support, says as much and is willing to support him for two more years.

VII. Applicable Legal Principles

[33] The parties rightly agree that the principles of deterrence and denunciation occupy the predominant role in cases like this. It seems to me that because of the evidence of the chats in July 2016, and the powerful and long-standing sexual paraphilias at play, specific deterrence also plays a role here. Restraint, parity, totality and rehabilitation are also relevant.

[34] In R. v. Lacasse, 2015 SCC 64, 2015 S.C.J. No. 64, the Supreme Court of Canada affirmed that, ultimately, a fit sentence is one that is proportional. That is, it must reflect the gravity of the offences and the moral blameworthiness of the offender.

[35] Like other sexual offences involving children, child pornography offences are abhorrent offences of the utmost gravity. Friesen (and other cases from the Ontario Court of Appeal) tell us this in the clearest terms and explain why. These offences do real and significant, long-term harm to children, families and communities. For these reasons, protecting children is the overarching objective of these provisions of the Criminal Code.

[36] Whether or not an actual child is involved in a luring type offence, it is not a victimless crime. An accused person who is caught in a “sting” operation like this one remains morally culpable. That person, who intended to facilitate the commission of a serious sexual offence, cannot “take credit” for the absence of an actual child: see Friesen, at paras. 93-94.

[37] Friesen tells us that imposing proportionate sentences for sexual offences against children “will frequently require substantial sentences”: at para. 114.

[38] In determining a fit and proportionate sentence for child pornography offences, it is useful to consider the factors listed in Kwok, supra.

• whether the accused has a record for similar offences;
• whether there was also production or distribution of the material;
• the size of the collection;
• its nature, including the age of the children and the relative depravitiolence depicted;
• the extent to which the offender is seen as a danger to children – including whether he is diagnosed as a pedophile who has harmed children in the past;
• whether the downloads were purchased or downloaded for free; the former having the effect of fueling the profit derived from the victimization of children;
• the age of the offender;
• The otherwise good character of the offender;
• Whether the offender is willing to undergo treatment or has begun to do so;
• The extent, if any, of the offender’s insight into his problem; and
• The extent to which the offender has already suffered for his crime – for example, in his family, career or community.

[39] Additional factors are listed in Friesen at paras. 121-154. Based on the submissions of the parties, in this case they are the likelihood to reoffend, duration or frequency of the offending and abuse of a position of trust or authority.

[40] I turn now to the aggravating and mitigating factors in this case.

VIII. Aggravating Factors

[41] The Crown submits that Mr. Moore’s collection of child pornography is “medium” in size. I disagree. The authorities do not support such a finding. While it is not a small collection, I would place it on the lower end of the spectrum in terms of quantity, relatively speaking. However, its extreme nature is a serious aggravating factor. This includes the age of the children depicted, ranging form baby to teens.

[42] With respect to the arranging offence and the 2016 chats, the conversations and behaviour are aggravating by their nature, as described above. At issue were girls aged eight to 10 years, and an 18-month-old. Mr. Moore attempted to expose himself to one of them. It is also aggravating that Mr. Moore went to meet Tanya at Rosedale Station.

[43] While Ms. Martin is correct that I may not assume that Mr. Moore engaged in this type of conduct in the intervening years, the charges before the court are not isolated incidents. What’s more, they lasted for over a month.

[44] It is also aggravating that Mr. Moore provided two images to Tanya during the chats. Aside from propagating the images online, this also constituted an attempt to normalize the abhorrent depicted behaviour in her eyes in order to facilitate the commission of one of the enumerated offences. It was part of behaviour that constituted grooming.

[45] Whether Mr. Moore’s conduct constituted an abuse of trust is a more difficult question, given that he did not occupy a position of trust in relation to any of the children. I agree with Ms. Martin that Friesen does not answer this question. However, I find that encouraging a mother to sexually abuse her own child (or one in her care), or to offer them up for abuse by another is an aggravating factor. Mr. Moore would have understood the special position of trust parents hold. That said, because this aspect is tightly intertwined with the conduct constituting grooming, it should not receive undue weight in this case.

[46] Mr. Moore is afflicted with a serious sexual disorder (pedophilia) accompanied by decades of deviant fantasies and a high sex drive. His risk is low if he maintains medication and treatment. He is motivated to do so, but that may not be enough. The risk is real and in my view of the materials, the prognosis is guarded.

[47] Ms. Martin concedes that it is an aggravating factor that Mr. Moore has sexual thoughts about his own daughter and that they formed part of the chats. This has had a significant impact on her mother, who provided a Victim Impact Statement. While the harm that Mr. Moore’s daughter will experience is currently unknown, it is reasonable to expect that she will have to contend with some throughout her life, as her mother explains.

[48] Ms. Martin also concedes that it is an aggravating factor that Mr. Moore breached his recognizance by attending near his daughter’s school. He had decided to commit suicide and wanted to see her one last time. (He was charged for that offence, but not prosecuted.)

IX. Mitigating Factors

[49] The mitigating factors are the following:

• Mr. Moore gave an inculpatory statement to police;
• Mr. Moore intended to plead guilty and accept responsibility from the outset; despite the delays in this case, his guilty plea should count as an early one;
• Mr. Moore is remorseful for his offending and is ashamed of his behaviour;
• Mr. Moore has no prior criminal record and has a history of employment as well as volunteer work;
• Mr. Moore has support in the community;
• Mr. Moore has undertaken significant counseling and therapy and is willing to continue; and
• Mr. Moore spent the equivalent of 79 days in pre-sentence custody.

[50] Ms. Martin argues that Mr. Moore’s bail conditions preventing him from accessing the internet ought to have a mitigating impact on his sentence, pursuant to R. v. Downes, 2006 ONCA 3957 (ON CA), 2006 O.J. No. 555 (C.A.). She argues that they made it difficult for him to find volunteer opportunities and affected his ability to participate in some aspects of counseling. She also cites the pandemic, and the reliance that our society has placed on the internet for maintaining social ties.

[51] The Crown disagrees, largely because Mr. Moore never sought a variation. Ms. McCallum explained that she would have given it real consideration, especially in relation to counseling, as she has done in similar cases.

[52] Ms. Martin acknowledged that there is no evidence that volunteer positions would have been available to Mr. Moore during the pandemic. To the contrary, Ms. Craig-Nauss, who provided a support letter, wrote that Mr. Moore had been volunteering at a local food bank before the pandemic; however, the pandemic reduced that opportunity. It must also be stated that by his own admission, Mr. Moore suffers from a social anxiety disorder that acts as an obstacle to venturing out.

[53] This kind of condition was appropriate in this case, given the facts and risks. Despite it, Mr. Moore was able to participate in a demanding course of counseling and benefit from his other supports. In these circumstances, I am unable to see it as stringent bail condition warranting credit.

X. Collateral Consequences

[54] Ms. Martin argues that the demise of Mr. Moore’s business and loss of contact with his daughter constitute collateral consequences that should have an attenuating effect on sentence.

[55] The Crown cross-examined Mr. Moore on the affidavit he filed regarding Duncan credit. He acknowledged that his business was not going well before his arrest, but added that he had been having discussions with a new potential partner. Based on the evidence before me, I am unable to find on a balance of probabilities that this matter was to blame for the demise of his business.

[56] Nor do I find that his estrangement from his youngest daughter constitutes a collateral consequence as that term has been explained in R. v. Suter, 2018 SCC 34, 2018 S.C.J. 34. Mr. Moore’s sexual attraction to his daughter figured in the 2016 chats and is an aggravating factor in this case. His separation from her “is so directly linked to the nature of his offence[s] as to be almost inevitable;” in these circumstances, if it has any role as a mitigating factor, it is greatly diminished: see para. 49.

XI. Gravity of the Offences and Moral Culpability

[57] The offences are undeniably very serious and Mr. Moore’s degree of moral culpability is high.

XII. Consecutive vs. Concurrent

[58] The Crown argues that a reading of Friesen commands a different interpretation of s. 718.3(7)(a) than was given by Justice Rahman in Freeman in 2019. She points to paras. 93 and 94, in which the Court discusses the moral culpability of an offender even in the absence of a specific victim.

[59] I am not persuaded by this argument. In those paragraphs, the Supreme Court was not engaging in statutory interpretation. Moreover, I find Justice Rahman’s reasoning persuasive. More importantly, I do not need to determine this issue on the facts before me. Under ordinary principles of criminal law, the sentence for the arranging/agreeing offence should be imposed consecutively. While Mr. Moore distributed some of his child pornography in the commission of that offence, the conversations were distinct in nature and time. His larger child pornography collection existed independently. I note that in Freeman, the conversations that constituted the arranging/agreeing were the (written) child pornography. In any event, as Ms. Martin conceded, little turns on this question in this case.

XIII. Discussion and Sentence

The Fit Sentence

[60] In view of the authorities, I find the Crown’s global position of three years disproportionately harsh. The cases that attracted sentences of that order predominantly involved more serious and aggravating conduct. In R. v. Inksetter, 2018 ONCA 474, the accused had very large collection that he had amassed over years. In Enosse, supra, the accused had an enormous collection and a related record; he also posed a moderately high risk of reoffending. In Lynch-Staunton, the accused’s collection was much larger than Mr. Moore’s, he distributed it over a period of four months and had an extensive history of participation in chat rooms and encouraging child pornography. I acknowledge that, in R. v. Carlos, 2015 ONSC 8085, a three-year sentence was imposed in what can be seen as a less serious matter. While it was upheld on appeal as being within the range, I find it difficult to square with other authorities including Inksetter, Enosse, and R. v. M.B., 2020 ONSC 7605.

[61] Likewise, I find that the sentence proposed by Ms. Martin is well below what is required to pay tribute to the primary principles in this case. It would not reflect the gravity of the offences and aggravating factors, and would place too much emphasis on rehabilitation.

[62] I find that proportionate sentences for the offences of possessing child pornography and making it available fall within the range of 14 to 16 months and the appropriate sentence for the arranging/agreeing offence is in the range of 12 to 18 months.

[63] I find that a fit and proportionate “global” sentence is one of 29 months. As such, and in consideration of the principle of totality, I would impose the sentences as follows:

• Possession of child pornography – s. 163.1(4): 14 months
• Distribute child pornography – s. 163.1(3): 14 months (concurrent)
• Arranging to commit sexual assault on a child – s. 172.2(1)(b): 15 months (consecutive).

[64] That sentence will be reduced by 79 days to reflect pre-sentence custody.

“COVID Credit”

[65] Even in the absence of a particular susceptibility, the pandemic can constitute a collateral consequence on sentence going forward: R. v. Morgan, 2020 ONCA 279. Of course, it cannot be used to reduce a sentence to the point that it is no longer proportionate. The Crown relies on an Information Note about the efforts being made in the Ontario detention centres, in combination with the roll-out of vaccines at this time. While we are in the midst of a “third wave”, it is hoped that this is the beginning of the end of the pandemic. As such, credit in this case should not be granted.

[66] I disagree. Time spent in custody during the pandemic is harsher than it otherwise would be, all things being equal. To me, that is an inescapable truth, if only with respect to one’s mental health. The courts have taken judicial notice of the fact that one’s ability to maintain social distance and proper hygiene is seriously hampered if not rendered impossible in the jail setting. Courts have also stated that the risk of infection is higher in custody. While I have no evidence before me about the vaccine roll-out in the Federal system, and I may not speculate about it, inmates cannot be forced to accept a vaccine. It was recently reported in the media that the majority of inmates at the Maplehurst jail declined to be vaccinated. Lastly, we are seeing alarming numbers during this “third wave.” The B.C. government has been prompted to take renewed action, and Ontario appears poised to do so again before Easter.

[67] For these reasons, modest credit is reasonable. The sentence will be further reduced by 40 days.

The Sentence to be Served

[68] The sentence to serve will be 29 months less 120 days, for a total of 25 months.

Ancillary Orders

[69] Mr. Moore will provide a sample of his DNA. He will be bound by a s. 109 order for 10 years. He will be ordered to comply with the requirements of the SOIRA for life.

[70] I have also decided to impose a s. 161 order. My reasons for doing so include the mechanics of Mr. Moore’s offending, such as the use of the internet to engage in the offences and share child pornography, as well as the risk he continues to pose to children. It will be crafted with reasonable exceptions in consultation with the parties.

Released: March 31, 2021 Justice Patrice F. Band