ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DOUG DUTCHESSION
PUBLICATION BAN S.486.4(3)
Before Justice Angela L. McLeod
Heard on January 22, 2021 and June 24, 2021
Reasons for sentence released on September 13, 2021
Paris Wildman-Sisk counsel for the Crown
Mark Kelly counsel for the accused
OVERVIEW
1This matter was judicially pretried before me and a guilty plea to one count of possession of child pornography, s. 163.1(4) of the Criminal Code, was entered thereafter.
2The Crown proceeded by summary conviction.
FACTS
3On Feb 3, 2019, an image of a naked female with legs splayed, who had slight breast development, along with a second girl who had no breast development and no pubic hair, was uploaded to an IP address. Police believed the girls to be under 13 years of age.
4The IP address was registered to the defendant. In May 2019, a search warrant was executed at his address. A laptop was seized. There was a total of 7537 images classified as child pornography; of which, 5605 were unique computer images. The majority of the images were of prepubescent female children, between 3 and 14 years of age.
AGGRAVATING AND MITIGATING FACTS (see R. v. Kwok 2007 CanLII 2942 (ON SC), [2007] OJ No 457)
5I find the following to be mitigating facts:
(1) The plea of guilt;
(2) The lack of prior criminal antecedents, which is enhanced by the defendant’s age;
(3) The otherwise good character and community involvement of the defendant, including service to his country and deployment to combat zones;
(4) Mr. Dutchession’s mental health issues, subsequent and on-going treatment for same;
(5) Mr. Dutchession’s genuine expression of remorse;
(6) Mr. Dutchession’s expression of insight into the damage caused by child pornography;
(7) The images accessed were limited to images and not videos;
(8) The collateral consequences suffered by Mr. Dutchession.
6I find the very young age of some of the depicted children to be an aggravating fact for consideration.
7I find the following to be neutral facts:
(a) The images were accessed on only one device.
MR. DUTCHESSION’S PERSONAL CIRCUMSTANCES
8Mr. Dutchession is a 51-year-old, first time offender. He lives alone. He has two children; a 15-year-old son and an 11-year-old daughter, for whom he pays $1000 per month in child support.
9Mr. Dutchession was a Warrant Officer in the military. He had been in the military since he was 16 years of age. He served in combat zones on three occasions (Bosnia 1997 and 2000, Afghanistan 2008). He was considered an exemplary member of the military. He was dismissed as a result of this conviction but has since garnered new employment with a local plumbing company.
10Mr. Dutchession was on bail; reported as scheduled, maintained a stable residency, and presented with a cooperative and positive attitude to the Salvation Army Bail Program from May 6, 2019 to today’s date (Exhibit #1).
11Mr. Dutchession began treatment with Dr. Leah Hartman, a clinical psychologist, on September 9, 2019. His treatment was covered by the military until March 2021, when he was dismissed. During that period, he attended 40 individual sessions on a bi-weekly basis. Thereafter, until present, he continued treatment as a private client, paying for the sessions personally. Dr. Hartman notes that “a strong therapeutic alliance has been established and maintained.” (Exhibit #3).
12Dr. Hartman penned a lengthy letter. The salient points are summarized below:
(1) Mr. Dutchession is highly motivated to understand his offence related behaviours and reduce the chance of this occurring in the future. He was engaged within sessions.
(2) While alcohol was not a factor in this offence, it is an area of vulnerability. Addiction treatment for alcohol should continue.
(3) He displays genuine signs of remorse.
(4) He is aware of factors that could increase future risk of offending and has developed a plan for ways to avoid those factors or cope with them when they arise. He has learned cognitive and behavioural strategies for responding to problematic sexual fantasies/urges and has also developed a plan for safe internet use.
(5) Dr. Hartman opines that factors specific to problematic sexual behaviour have been adequately addressed and that he could be successfully managed in the community.
13Mr. Dutchession was assessed by Dr. Sandra Jackson, a clinical psychologist. She authored a Psychological Risk Assessment Report (Exhibit #2). The salient points are summarized below:
(1) His first sexual experience was when he was 11 or 12 years of age when his father showed him pornographic movies.
(2) After the separation from his wife, he would often come home from work, drink alcohol and start to watch porn, often staying up until 3am, knowing that he had to go to work at 6 am. He would increasingly start to look for video’s that were more taboo in order to get “shock value”.
(3) He was diagnosed with Major Depressive Disorder and Post Traumatic Stress Disorder after he returned from Afghanistan in 2008. He took antidepressant medication from 2008 to 2013.
(4) He developed an “unhealthy relationship” with alcohol after he returned from Bosnia. He is currently involved in addictions treatment.
(5) There is no clinical psychopathology.
(6) In assessing trauma, Mr. Dutchession’s scores on some subscales indicated that he is presenting above average symptomology that suggest subclinical level of symptomatology.
(7) Mr. Dutchession scored 11 on the LSI-R which places him in the low risk/need category for general recidivism. This can be interpreted to mean that he has an approximate 11% chance of engaging in any criminal activity within one year of release.
(8) Mr. Dutchession did not receive a score for any of the seven risk factors on the CPORT known to occur among adult male offenders convicted of child pornography offences who then reoffend.
(9) Mr. Dutchession would have met criteria for a sexually deviant disorder at the time of his offending; however, it is unclear if his behaviour is reflecting a primary interest in youth or a more transient pattern of behaviours. Phallometric testing was not an option at the time of the interview.
(10) Dr. Jackson opines that “based on information available that his risk to sexually reoffend is estimated to be in the low range. Continued treatment will serve to maintain his low risk. He can be maintained successfully in the community with supervision and treatment.”
POSITION OF THE PARTIES
14The Crown seeks a sentence of 12 months custody, 24 months probation, a s. 161 order, a DNA order, a SOIRA order for 10 years, a s. 110 order for 5 years and a forfeiture order.
15The Crown acknowledges the mitigating factors of a guilty plea, some triable issues, and significant rehabilitative efforts made by Mr. Dutchession.
16The Crown submits that an aggravating factor is the age of the children depicted and the harm that flows from the possessor creating a demand for the creator of child pornography.
17The Crown argues that a conditional sentence, while available, is not appropriate as a custodial sentence is required to meet the sentencing principles of denunciation and deterrence.
18The defence seeks a 12-month conditional sentence order and agrees that a s. 161 order, a DNA order, SOIRA order and a forfeiture order are all appropriate. The defence submits that a s. 110 order is unnecessary.
19The defence argues that a CSO can meet the sentencing principles of denunciation and deterrence, and highlights the rehabilitative efforts made to date and the commitment to on-going treatment.
SENTENCING PRINCIPLES
20The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:
(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) deterring the offender and others from committing crimes;
(c) separating offenders from society where necessary;
(d) assisting in the rehabilitation of the offender;
(e) providing reparations for harm done to the victim or to the community;
(f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.
21The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
CHILD PORNOGRAPHY – SENTENCING – GENERAL CONSIDERATIONS
22Neither counsel provided any caselaw to support their respective positions.
23I have reviewed a number of sentencing decisions.
24The seminal case in Ontario is R. v. Inksetter, 2018 ONCA 474. Associate Chief Justice Hoy wrote:
22 Child pornography is a pervasive social problem that affects the global community and its children. In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (S.C.C.), the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis, 2012 ABCA 148 (Alta.C.A.), at para. 29, “possession of child pornography is itself child sexual abuse.” The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing, and making available this vast and terrible collection to others, the respondent participated in the abuse of thousands of children.
25In R. v. Rytel, 2019 ONSC 1014, Justice Harris wrote:
28 …child pornography is the exploitative sexualization of children by adults. It is a deeply disturbing aberration from the natural order of things. The damage to the children depicted is permanent and profound. Viewers and purchasers like Mr. Rytel fuel the market for producing this odious material. The victimization of children must be opposed with unremitting purpose. Condemnation through the imposition of harsh sentences is necessary to fight against the evil of child pornography.
26In R. v. P.T., 2019 ONCJ 664, Justice Speyer wrote:
25 It has long been recognized that in sentencing adult sexual predators, the paramount objectives are denunciation, both general and specific deterrence and the separation of the offender from society. Absent exceptional circumstances, these objectives must take precedence over other recognized sentencing objectives such as rehabilitation. This approach is required to protect children and to reflect the long-term damage done to them by offenders. Predators who abuse children to satisfy their own deviant sexual needs must know they will pay a heavy price. (see R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.) at paras. 33-35; R. v. J.S., 2018 ONCA 675, [2018] O.J. No. 4095 (Ont. C.A.) at para. 55). Similar objectives apply when sentencing offenders who possess, produce and distribute child pornography: R. v. Inksetter, 2018 ONCA 474 (Ont. C.A.), para. 16.
26 As I stated in R. v. M.M., 2017 ONCJ 733 (Ont. C.J.), the evil at the root of all child pornography offences is the hands-on sexual abuse and sexual exploitation of children by those who produce it. Child pornography captures this abuse in an electronic image, creates a record of that abuse, and permits the perpetrator to share that abuse with others throughout the world. By downloading these images, the offender also participates in and encourages the existence of a market for these terrible kinds of crimes. Chat-rooms and on-line discussions provide a forum in which purveyors and consumers of child abuse can exchange their stories and images. These forums encourage participants to believe that what they are doing is accepted and admired by others. This perpetuates and compounds the problem by fuelling the growth in creation and distribution of child pornography. See: R. v. Sharpe (2001), 2001 SCC 2, 150 C.C.C. (3d) 321 (S.C.C.); R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 (Ont. S.C.J.), at paragraphs 30 and 31; R. v. Dumais, 2011 ONSC 276, [2011] O.J. No. 116 (Ont. S.C.J. at para. 13; R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 (Ont. S.C.J.) at paragraph 50.
27In Rytell, supra, the defendant was diagnosed with schizophrenia. The Court held that incarceration would be substantially more onerous for him. He possessed 4000 movies and 10,000 images. A conditional sentence was imposed.
28In R. v. Schulz, 2018 ONCA 498, Mr. Schulz was a lawyer, and convicted of one count of possession child pornography. He had no criminal record. He possessed 45 images. The trial judge imposed a sentence of 45 days intermittent custody. The Court of Appeal was not asked to address that portion of the sentence, rather to focus on the ancillary orders.
29In R. v. King, 2020 ABPC 219, Mr. King possessed on several electronic devices a collection of child pornography containing 1112 images and 79 videos. He also possessed over 500 written child pornography stories. Mr. King was 40 years of age, and without a criminal record. The Crown sought 30 months incarceration; the defence a CSO. The Court considered Friesen, supra, and wrote:
27 In R. v. Friesen, supra, the Supreme Court of Canada had before it an appeal of a sentence imposed in relation to an offence of sexual interference with a young child. However, the Court gave general guidance on the subject of sentencing on all sexual offences involving children (paragraph 44). Indeed, possession of child pornography was one of the offences listed in the Appendix which the Court created to show that Parliament had increased maximum sentences for sexual offences involving children.
28 In my respectful view, the following comments by the Supreme Court of Canada are particularly relevant to the task before me:
"It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence." (paragraph 74)
"In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 (S.C.C.), at paras. 43-44). The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender. Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of "ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused" (R. v. Nasogaluak, 2010 SCC 6, [2010] CarswellAlta 268 (S.C.C.)], at para. 42)." (paragraph 75)
"Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities (see R. v. M. (C.A.) 1996 CanLII 230 (SCC), [1996 CarswellBC 1000 (S.C.C.)], at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 (S.C.C.), at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case." (paragraph 76)
"Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offence includes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity (R. c. M. (L.) 2008 SCC 31, [2008 CarswellQue 4417 (S.C.C.)], at paras. 24-25). The maximum sentence the Criminal Code provides for offences determines objective gravity by indicating the "relative severity of each crime" (M. (C.A.), at para. 36...." (paragraph 96). "Maximum penalties are one of Parliament's principal tools to determine the gravity of the offence...." (paragraph 96). "Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament "wanted such offences to be punished more harshly" (R. c. Lacasse 2015 SCC 64, [2015 CarswellQue 11715 (S.C.C.)], at para. 7). An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for an offence." (paragraph 97).
"Parliament has repeatedly increased sentences for sexual offences against children." (paragraph 98). "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." (paragraph 99).
"The text of s. 718.01 indicates that Parliament intended to focus the attention of sentencing judges on the relative importance of sentencing objectives for cases involving the abuse of children. The words "primary consideration" in s. 718.01 prescribe a relative ordering of sentencing objectives that is absent from the general list of six objectives in s. 718(a) through (f) of the Criminal Code...." (paragraph 102).
"Section 718.01 should not be interpreted as limiting sentencing objectives, notably separation from society, which reinforce deterrence or denunciation. The objective of separation from society is closely related to deterrence and denunciation for sexual offences against children (R. v. Woodward 2011 ONCA 610, [2011 CarswellOnt 9823 (Ont. C.A.)], at para. 76). When appropriate, as discussed below, separation from society can be the means to reinforce and give practical effect to deterrence and denunciation." (paragraph 103).
"Section 718.01 thus qualifies this Court's previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority (R. c. Rayo [2018 CarswellQue 4080 (C.A. Que.)], at paras. 103 and 107-8). However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality...." (paragraph 104).
"The appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts...." (paragraph 106). "Courts can and sometimes need to depart from prior precedents and sentencing ranges in order to impose a proportionate sentence. Sentencing ranges are not "straitjackets" but are instead "historical portraits" (Lacasse, at para. 57). Accordingly, as this Court recognized in Lacasse, sentences can and should depart from prior sentencing ranges when Parliament raises the maximum sentence for an offence and when society's understanding of the severity of the harm arising from that offence increases...." (paragraph 108).
"A second reason why upward departure from precedents may be required is that courts' understanding of the gravity and harmfulness of sexual offences against children has deepened, as we have sought to explain above. As Pepall J.A. observed in R. v. Stuckless 2019 ONCA 504, [2019 CarswellOnt 9580 (Ont. C.A.)], there has been a considerable evolution in Canadian society's understanding of the gravity and harmfulness of these offences (para. 90). Sentences should thus increase "as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims" (R. v. Scofield [2019 CarswellBC 24 (B.C. C.A.)], at para. 62). Courts should accordingly be cautious about relying on precedents that may be "dated" and fail to reflect "society's current awareness of the impact of sexual abuse on children" (R. v. Vautour, 2016 BCCA 497 (B.C. C.A.), at para. 52). Even more recent precedents may be treated with caution if they simply follow more dated precedents that inadequately recognize the gravity of sexual violence against children (R. v. V. (L.) [2016 CarswellSask 388 (Sask. C.A.)], at paras. 100-102). Courts are thus justified in departing from precedents in imposing a fit sentence; such precedents should not be seen as imposing a cap on sentences (see Stuckless, at paras. 61-62, per Huscroft J.A.)." (paragraph 110).
30Justice Fradsham found that the appropriate sentence for Mr. King would be less than two years, and that a sentence served in the community would not endanger the safety of the community; however, he ultimately determined that the principles of deterrence and denunciation would not be met by a CSO.
31Nonetheless, Justice Fradsham wrote:
36 I wish to be clear: I am not saying that a CSO is never an appropriate sentence for possession of child pornography; such a statement would constitute an error in law. An example of a CSO being imposed for a charge of possession of child pornography, with the learned sentencing judge specifically considering the decision in R. v. Friesen, supra, is R. v. Nepon, 2020 MBPC 48 (Man. Prov. Ct.). The sentencing principles to be applied remain constant; it is varying circumstances amongst the cases which cause differing sentencing outcomes.
32In R. v. Nepon, 2020 MBPC 48, Justice Devine sentenced the defendant to 12 months CSO followed by two years of probation. He was partially blind, was on the Autism Spectrum Disorder scale, and had been assessed to be a low risk to reoffend.
33After a thorough review of the applicable caselaw, Justice Devine concluded:
108 Notwithstanding the particular circumstances of this offence and this offender, the sentence I impose must express society's condemnation of the possession of materials that involve the abuse of children. None of the cases discussed above are so similar that they dictate I impose a similar sentence. But the consistent principle in all the cases is that a jail sentence is warranted, unless there are exceptional circumstances.
109 This is a case where the circumstances of the offender make it the exception to the rule.
RANGE OF SENTENCES FOR POSSESSION OF CHILD PORNOGRAPHY
34In R. v. Branco, 2019 ONSC 3591, Justice Stribopoulos reviewed the caselaw regarding the range of sentences for possession of child pornography. He wrote:
78 I turn then to review the sentencing authorities for possession of child pornography from the past nine years.
79 In R. v. Woolf, 2019 ONCJ 376 (Ont. C.J.), the offender pled guilty to possessing child pornography. The material consisted of 65 images. Most of the images were of partially undressed or completely naked girls. One of the images was of a prepubescent girl engaged in a sexual act with an adult man. The offender was 66 years of age, had no prior criminal record, and was previously of good character. He was a college instructor at the time of his arrest, but after being charged, he was suspended from work and took early retirement. The charge led to the end of his marriage. The offender was assessed as a low-risk to reoffend and had undergone treatment. The offender was genuinely remorseful. The court sentenced the offender to 90 days imprisonment, followed by probation.
80 In R. v. Scattolin, 2019 ONCJ 357 (Ont. C.J.), the offender pled guilty to one count of possession of child pornography. The materials consisted of nearly 8000 images and 64 videos. The vast majority of the photos were of unclothed girls, aged seven to eight, exposing their genitals to the camera. The videos showed adult males having intercourse with young girls. The offender was 50 years of age, had no prior criminal record, was married, and gainfully employed. Before sentencing, the offender had attended four counselling sessions and was remorseful. The court imposed a sentence of seven months imprisonment, followed by three years of probation.
81 In R. v. Morrison, 2019 ONCJ 262 (Ont. C.J.), the offender pled guilty to possessing 11 images of prepubescent boys that met the definition of child pornography. On three separate occasions, the offender shared one of these images on Facebook, which led to his arrest. The offender was 58 years old and had no prior criminal record. He was an alcoholic who sought treatment after his arrest. The court imposed a sentence of 100 days imprisonment, followed by three years of probation.
82 In R. v. Schacter, 2019 ONCJ 154 (Ont. C.J.), the offender was found guilty of possessing child pornography after a trial. The material consisted of 148 photos of boys between the ages of eight and 12, in various stages of undress, that were found to meet the definition of child pornography. The offender was 58 years old, had no prior criminal record, and was of previous good character. He had health issues that would make his time in custody difficult. The offender expressed no remorse nor insight. The court imposed a sentence of six months imprisonment, followed by three years of probation.
83 In Inksetter, the offender amassed one of the "largest and worst" collections of child pornography that the Ottawa Police Service had ever uncovered. It included over 28,052 images and 1,144 videos. The collection likely included even more, but there was so much material that the police stopped cataloguing it with more than 1.2 million images, and 40,000 videos still outstanding for review. Nearly ninety-five percent of the material depicted actual penetration and other explicit sexual activity. Some of the images included children as young as one year of age, as well as acts of bondage and bestiality. The offender pled guilty, was employed, and posed a low-risk to reoffend. He also demonstrated insight and remorse. The Court of Appeal allowed the Crown's appeal against a sentence of two years less a day imprisonment, concurrent on one count of possessing child pornography and one count of making child pornography available, followed by three years of probation. It substituted sentences of three and one-half-years imprisonment concurrent on both counts.
84 In John, the Court of Appeal, after declaring unconstitutional the minimum sentence of six months imprisonment on an indictable election, introduced as part of the 2012 amendments, affirmed a sentence of imprisonment for 10 months imposed on an offender convicted after a trial of possessing child pornography. The collection consisted of 50 images and 89 videos of child pornography. It involved children as young as two to four years of age, subject to anal and vaginal penetration with sex toys and adult penises. The offender was 31 years old at the time of sentencing. He had mental health problems and had been suicidal in the past but was pursuing psychotherapy to address his mental health issues. The offender was employed. He was also remorseful. The horrendous abuse documented weighed heavily in the court's reasoning, as did the extensive efforts of the offender towards his rehabilitation.
85 In R. v. Schulz, 2018 ONCA 598 (Ont. C.A.), the offender was sentenced after trial for possessing 45 images and 111 videos of child pornography (the decision does not detail the nature of these materials). He received a sentence of 45 days imprisonment, to be served intermittently, followed by three years of probation. The Court of Appeal dismissed the offender's conviction appeal, as well as his appeal against sentence in which he challenged some of the terms included in the probation order and the s. 161 prohibition order.
86 In R. v. Zhang, 2018 ONCJ 646 (Ont. C.J.), the offender pled guilty to possessing seven images and one video that constituted child pornography. The video showed the penetration of a seven to nine-year-old girl, with an object and then a penis. The offender was a 19-year-old first offender who was in Canada attending university and risked deportation. He encountered the material while searching the Internet and decided to download it. The offender was remorseful. The court imposed a sentence of four months imprisonment, followed by probation for 18 months.
87 In R. v. Speers, 2017 ONCJ 922 (Ont. C.J.), the offender pled guilty to possessing child pornography. His collection consisted of 71 images and four videos, characterized as falling within category four of the scale developed in R. v. Oliver(https://nextcanada.westlaw.com/Link/Document/FullText?findType=Y&serNum=2002734607&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)), [2002] EWCA Crim 2766 (Eng. C.A.). This category involves penetrative sexual activity. The sentencing judge acceded to a joint submission for six months imprisonment and one year of probation.
88 In R. v. Lysenchuk, 2016 ONSC 1009 (Ont. S.C.J.), the offender was found guilty of possessing child pornography following a trial. He possessed 5920 images and 588 videos. The offender was 65 years of age and retired. Before his retirement, he had a positive work history. The offender was a person of previously good character, including an exemplary parent. He posed a low risk to reoffend, was remorseful and open to seeking treatment. The court imposed a sentence of imprisonment for nine months, followed by three years of probation.
89 In R. v. Wang, 2016 ONSC 5610 (Ont. S.C.J.), the offender was convicted of possession of child pornography following a trial. The collection consisted of 38 images and 5 videos that depicted graphic sex between children and adults. One of the video recordings included simulated rape and bondage. The offender was 26-years at the time of sentencing, but only 20-years old at the time of the offence. He had no prior criminal record, was employed, and was of previous good character. The offender had good rehabilitative prospects and was willing to take treatment. Six years had passed since the commission of the offences, and the offender had matured in the interim. The court imposed a sentence of imprisonment for nine months, followed by three years of probation.
90 In R. v. Garcia, 2016 ONCJ 550 (Ont. C.J.), the offender pled guilty to possessing 41,888 images and 630 videos of child pornography. The collection mainly consisted of pubescent children or children in early adolescence posing naked or partially clothed in a sexually provocative manner. Many of the images and video recordings featured the same children, with multiple images and videos of the same child spliced from a single recording. As a result, the number of files was not reflective of the actual number of children victimized. There were a few depictions of explicit sexual activity. The offender was 29 years old, had no criminal record, a positive work history, and was assessed as a low-risk to reoffend. The offender was sentenced to eight months imprisonment, followed by two years of probation.
91 In R. v. Covert, [2015] O.J. No. 3488 (Ont. C.J.), the offender pled guilty to possessing 27 still images and 256 videos of child pornography. Thirty percent of this collection consisted of prepubescent children, including some children as young as five or six years old. Almost half of the material consisted of explicit sexual activity, including vaginal and anal sex, oral sex, and masturbation. The offender was 58 years of age, had a prior unrelated criminal record, had undergone treatment, and posed a low risk to reoffend. The court sentenced the offender to six months imprisonment, followed by 12 months of probation.
92 In R. v. Butters, 2014 ONCJ 641 (Ont. C.J.), aff'd on other grounds 2015 ONCA 783 (Ont. C.A.), the offender was found guilty of two counts of possessing child pornography following a trial. The collection consisted of 49 still images. It mainly involved prepubescent children, and some of the images were sexually explicit. The offender was 56 years of age and had no prior criminal record. He was a photographer and had personally taken some of the photographs, a seriously aggravating factor. He was assessed as a low risk to reoffend. Although the offender was taking treatment by the time of sentencing, he was reportedly not initially receptive to the idea. The court imposed a sentence of eight months of imprisonment, followed by two years of probation.
93 In R. v. Stoddart, [2014] O.J. No. 2674 (Ont. C.J.), the offender pled guilty to possessing child pornography that consisted of 1,320 images and 66 videos. The videos depicted children involved in sexual activity with other children and adults. The offender was previously of good character, had a loving and supportive family and was gainfully employed. He had also been taking counseling to address his deviant sexual interests. The offender was subject to bail conditions that mirrored a s. 161 prohibition order. The court imposed a sentence of six imprisonment and 12 months of probation.
94 In R. v. K. (T.), [2014] O.J. No. 4155 (Ont. C.J.), the offender pled guilty to possession of child pornography. The collection consisted of 600 images and over 700 videos, featuring boys between the ages of six and 12 involved in various sexual acts. The offender was assessed as a low risk to reoffend. He was actively engaged in treatment. The offender received a 90-day sentence of imprisonment, to be served on an intermittent basis, and two years of probation.
95 In R. v. Ward, 2012 ONCA 660 (Ont. C.A.), the judgment of the Court of Appeal dealt with the constitutionality of accessing subscriber information without a warrant. However, there is some description of the circumstances and the sentence. The offender was found guilty of accessing and possessing child pornography, consisting of 30,000 images and about 373 videos. He was sentenced to 11 months of imprisonment and two years of probation. Although he initially appealed his sentence, he abandoned that appeal. The Court of Appeal's decision does not include a description of the nature of the materials in the offender's very large collection; nor is the original sentencing decision available through any electronic databases.
96 In R. v. Burke, 2012 ONSC 6997 (Ont. S.C.J.), aff'd on other grounds 2013 ONCA 424 (Ont. C.A.), the offender was found guilty of possession of child pornography. Following an unsuccessful Charter application, he invited a finding of guilt. There were 17 photos and 24 videos. The child pornography involved young girls engaged in explicit sexual acts with adult males. The offender had no prior criminal record and a positive work history. He had also been assessed as posing a low risk to reoffend and was receiving treatment. The court imposed a sentence of six months imprisonment and 18 months of probation.
97 In R. v. Yau, 2011 ONSC 1009 (Ont. S.C.J.), the offender was found guilty of possession of child pornography following a trial by jury. He possessed approximately 479 images, 11 Anime drawings, and four videos. Although some of the materials depicted young girls involved in explicit sexual activity, most of the materials consisted of naked prepubescent girls not engaged in sexual activity. The offender, who was 57 years old, had no prior criminal record. He was married and had three adult children. The sentencing judge concluded that absent credit for time spent in pre-trial detention, the appropriate range of sentence would have been ten months incarceration.
98 In R. v. Dumais, 2011 ONSC 276 (Ont. S.C.J.), the offender pled guilty to possession of child pornography. The collection consisted of 170 images and 44 videos depicting young females involved in explicit sexual acts. The offender had no prior criminal record and a positive work history as a school teacher, a position he lost as a result of being charged. He was assessed as a low risk to reoffend and was taking treatment. The court imposed a sentence of imprisonment for nine months followed by one year of probation.
99 In R. v. Nisbet, [2010] O.J. No. 6258 (Ont. S.C.J.), aff'd 2011 ONCA 26 (Ont. C.A.), the offender pled guilty to possessing child pornography. There were 28 images and 43 videos. The materials involved children between the ages of four and 14 engaged in various sex acts with other children and adults. The court imposed a sentence of six months imprisonment, followed by 18 months of probation.
100 In R. v. Hutchings, 2010 ONCJ 214 (Ont. C.J.), the offender pled guilty to possessing 62 images of child pornography involving children ranging in ages from toddlers to teens. Many of the photos depicted children engaged in explicit sexual activity. The offender was 41 years old and had no prior criminal record. He came from a loving and supportive family. The offender lost his job because of his arrest. The offender had begun treatment. The court imposed a sentence of 4 1/2 months imprisonment, followed by three years of probation.
101 This review of the case law demonstrates that the range of sentences varies widely, from intermittent sentences at the low end, to penitentiary sentences as long as 3 1/2 years at the upper end. Ultimately, with the exception of some outliers, where a particular case falls within the overall range of sentences is a function of its specific aggravating and mitigating factors.
105 The offenders in three of these cases pled guilty, evidencing their remorse. Although Mr. Branco pled not guilty, for reasons already explained, despite proceeding to trial, I am also satisfied that he too is genuinely remorseful.
106 Importantly, in three of these cases, the offenders had been assessed as posing a low-risk to re-offend and were taking counselling. Such assessments, along with upfront counselling, are significant mitigating factors not present in this case.
35In R. v. Cayabyab, 2019 ONCJ 772, Justice O’Donnell wrote:
33 As I noted earlier, the imposition of a sentence of real jail is almost a given in cases of possession of child pornography. This is a common thread in the authorities, including the decisions of the Court of Appeal for Ontario in cases such as R. v. Inksetter, 2018 ONCA 474 (Ont. C.A.) and R. v. John, 2018 ONCA 702 (Ont. C.A.). The British Columbia Court of Appeal in R. v. Swaby, supra, at paragraph 96, noted that, "incarceration is almost always the inevitable sentence for such offences...", but went on to note that there would be situations where real imprisonment would be entirely unfit as a sentence for such an offence.
34 It is, however, also a given that even where general deterrence and denunciation are primary considerations, sentencing must be specific to the offender and the offence. This concept of proportionality is the cardinal principle of sentencing and all other considerations, however important, are subordinate to it. That is not to say that sentences imposed for "comparable" offences by "comparable" offenders are irrelevant; to the contrary they are very important factors for a sentencing judge to consider, especially those that come from appellate courts. The same is true with respect to general sentencing principles and their application to specific types of offences. The questions, however, are often (a) to what extent either the offence or the offender is truly comparable from one case to the next, and, (b) to what extent the objectives of sentencing should be weighted in a particular case and how the tools of sentence can address those objectives in each instance.
35 The seriousness of Mr. Cayabyab's offence cannot be gainsaid. Within the spectrum of child pornography offences, however, the present offence ranks towards the very low end given the number of images and videos, the mental health issues and the unique circumstances leading to Mr. Cayabyab's apprehension. I consider the factors and the thoughtful and balanced analysis set out by Molloy J. in R. v. Kwok 2007 CanLII 2942 (ON SC), [2007 CarswellOnt 671 (Ont. S.C.J.)], 2007 CanLII 2942, to have aged well, although the range of sentence has trended higher since that time. In the present case, the six still images involve female children around the ages of eight to ten years old, five of them wearing underwear but with the vaginal area as the focus of all of the pictures. The videos are of female children aged six to twelve years old engaged in various sexual acts short of intercourse. There is no element of bondage or violence such as would take these images and videos to the extreme end of the range of seriousness, but the youth of the various victims is definitely troubling. The unusually small number of images and videos, by contrast, places the seriousness of the offence towards the lower end of the range for offences of this nature.
36By way of a single comparison, Mr. Cayabyab's mental health issues and commitment to treatment appear to be somewhat in line with the personal circumstances of the defendant in R. v. John, supra. It is there, however, that the similarities end. Mr. John had almost ten times as many images/videos in his collection, with some involving children even younger than those in Mr. Cayabyab's collection and with more egregious sexual abuse involved. Mr. John had a trial and an appeal; Mr. Cayabyab pleaded guilty. The fact that Mr. Cayabyab not only pleaded guilty, but that he would never have come to the attention of the police if he had not turned himself in is a consideration of tremendous importance in the determination of sentence. There could no clearer manifestation of remorse or of the diminished future risk in this case. It is clear that he is taking these charges and his mental health treatment regimen seriously and that he has done so reliably in the two years since his arrest.
37I am satisfied based on all of the material before me, including the St. Joseph's forensic psychiatry report and the letter from the psychiatrist who has cared for Mr. Cayabyab since his self-reporting to the police, that while Mr. Cayabyab's mental health illness does not exempt him from criminal liability, that same mental illness was a material contributing factor to the commission of the offence and is a relevant factor on sentence.
38I have concluded that the present case is one of those extremely rare cases in which a sentence other than real jail can adequately respond to all of the relevant objectives of sentencing including denunciation and general deterrence insofar as the overall fact situation is atypical. The Criminal Code says that jail should be used only when necessary and to the extent necessary. It is not necessary here. The need for specific deterrence is very low in the present case and the objectives of rehabilitation and reparations can more fully be achieved by a conditional sentence than by a carceral sentence. A conditional sentence of sufficient length, combined with the maximum period of probation and a substantial amount of community service will best serve the needs of continued monitored rehabilitation and reparations, while containing a significant, measured and fact-specific punitive component. A conditional sentence for Mr. Cayabyab would not endanger the safety of the community. A sentence of real jail for him would, in these circumstances, be counterproductive and likely inconsistent with the objective of creating a safe society.
39I have concluded that the appropriate sentence for Mr. Cayabyab is a twelve month conditional sentence, nine months of which will be served under house arrest with the balance served on an 8 p.m. to 7 a.m. curfew, the whole monitored by electronic supervision. He will thereafter be placed on probation for three years, including a requirement that he perform one hundred hours of community service.
CONDITIONAL SENTENCE ORDER – LAW AND GENERAL PRINCIPLES
36Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:
(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
(2) the court must impose a term of imprisonment of less than two years;
(3) the safety of the community would not be endangered by the offender serving the sentence in the community; and,
(4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
37The first three criteria establish whether a CSO is available; the last whether it is appropriate.
38A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:
22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.
39Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:
41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,
in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.
A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.
42 Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.)(1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33).
‘EXCEPTIONALLY RARE CASES’ AND THE IMPACT OF THE PANDEMIC
40In R. v. Doucette, 2021 ONSC 371, Justice Schreck considered the current global pandemic in assessing ‘exceptionally rare cases’. He wrote:
(i) Sentencing in Child Pornography Cases: General Principles and The Range
39 The fact that the MMP is unconstitutional does not mean that a six-month sentence is necessarily unfit in this case. In most cases, sentence of that length or longer will be entirely appropriate. Children are "our most valued and our most vulnerable assets": R. v. D. (D.)(2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (Ont. C.A.), at para. 35. Child pornography of the type accessed by the appellant in Count 2 is produced by subjecting them to unspeakably horrendous and harmful abuse which is perpetuated every time the pornography is viewed. Possessing or accessing child pornography is an "abhorrent crime" of "enormous gravity": R. v. Nisbet, 2011 ONCA 26 (Ont. C.A.), at para. 1; R. v. O. (E.), 2003 CanLII 2017 (ON CA), [2003] O.J. No. 563 (Ont. C.A.), at para. 7. Because of this, the primary sentencing objectives in child pornography cases are denunciation and deterrence, as was explained in John, at para. 41:
The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter, 2018 ONCA 474, at para. 16.
Given the emphasis on general deterrence and denunciation, non-custodial sentences for child pornography offences are rare, even in cases involving first offenders and relatively small volumes of child pornography: Inksetter, at para. 17.
40 In R. v. Branco, 2019 ONSC 3591 (Ont. S.C.J.), Stribopoulos J. conducted a comprehensive review of Ontario sentencing decisions in possession and accessing cases and drew the following conclusion (at para. 101):
This review of the case law demonstrates that the range of sentences varies widely, from intermittent sentences at the low end, to penitentiary sentences as long as 3 1/2 years at the upper end. Ultimately, with the exception of some outliers, where a particular case falls within the overall range of sentences is a function of its specific aggravating and mitigating factors.
41A helpful list of the common types of aggravating and mitigating factors in cases of this nature can found in R. v. Kwok, 2007 CanLII 2942 (ON SC), [2007] O.J. No. 457 (Ont. S.C.J.), at para. 7:
Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).
53 The appellant requests that he be permitted to serve his sentence in the community pursuant to a conditional sentence order. Given that denunciation and deterrence are the primary sentencing objectives in child pornography cases, conditional sentences are rare. However, they are not unheard of in exceptional cases: R. v. Rytel, 2019 ONSC 5541 (Ont. S.C.J.), at paras. 82-83; R. v. Canning, [2019] O.J. No. 4846 (Ont. C.J.), at para. 34; R. v. Cayabyab, 2019 ONCJ 772 (Ont. C.J.), at para. 38; R. v. S. (H.), 2014 ONCA 323, 308 C.C.C. (3d) 27 (Ont. C.A.), at para. 58; R. v. Polanco, 2019 ONSC 3073 (Ont. S.C.J.), at paras. 53-55.
54 At the time of the initial sentencing, this was not an exceptional case and a conditional sentence would not have been appropriate. However, the various circumstances outlined earlier, while not justifying a stay of the sentence, are in my view exceptional. In addition to the passage of time, the appellant has completed his three-year probationary term, has continued to make rehabilitative efforts, and is in poor health. The latter circumstance is all the more important because of the ongoing COVID-19 pandemic. As the Ontario Court of Appeal recently observed, "[t]he pandemic certainly renders incarceration more difficult and potentially more dangerous than it was" when the sentence was initially imposed: Fairbarn, at para. 57.
55 In the unique circumstances of this case, I am prepared to order that the remainder of the appellant's sentence be served in the community on a conditional sentence order. In addition to the statutory conditions, he is to observe a curfew between 9:00 p.m. and 8:00 a.m. each day except while attending or going to or from a place of employment or for medical emergencies, and he is to attend and actively participate in any counselling or rehabilitative program as recommended by his supervisor.
CONCLUSION
41I take judicial notice that were Mr. Dutchession to be incarcerated, he would not receive any treatment or counselling in a provincial institution. If he remains in the community, he will continue with his mental health treatment. This serves to address the safety of the community in the long run.
42This is a difficult case to assess. The volume of images is significant and beyond most of those noted above. It is, however, not the largest collection ever seized.
43The pandemic, the extensive rehabilitative steps taken by Mr. Dutchession, his service to this country and the resultant mental health issues all lead me to conclude that these unique circumstances lead to a finding that this is an extremely rare case and that a conditional sentence is appropriate and can meet the sentencing principles.
44The sentence, to meet the denunciatory principle will be 729 days (2 years less one day) to be served conditionally in the community, to be followed by 24 month term of probation, a s.161 order, a DNA order, a SOIRA order for 10 years and a forfeiture order. I decline to make a s.110 order.
Released: September 13, 2021
Signed: Justice Angela L. McLeod
