Court File and Parties

ONTARIO COURT OF JUSTICE DATE: July 20, 2022 COURT FILE No.: 20-38102356

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NUWAN WICKRAMASINGHE

PUBLICATION BAN S.486.4

Before: Justice Angela L. McLeod

Judicially pretried January 18, 2021 Guilty Plea March 3, 2022 Sentencing Hearing April 27, 2022

Counsel: CAMERON PETERS........................................................................... counsel for the Crown BERNARD CUGLEMAN.............................................................. counsel for the defendant

McLeod J.:

Overview

[1] Mr. Wickramasinghe plead guilty to and has been convicted of:

(1) Possession of child pornography, contrary to section 163.1(4) of the Criminal Code; (2) Communication with a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 of the Criminal Code, contrary to section 172.1(1)(b) of the Criminal Code (relating to victim E.B.); and, (3) Communication with a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 of the Criminal Code, contrary to section 172.1(1)(b) of the Criminal Code (relating to victim M.W.)

[2] The Crown proceeded by Indictment.

[3] An agreed statement of facts was filed as Exhibit #1.

[4] To summarize briefly, in 2019, Mr. Wickramasinghe came to the attention of the authorities when a female high school student notified her principle that he had been communicating inappropriately with young female students on social media. He would advise the students that he was in his 30’s, wasn’t concerned about their young age, and would seek photographs of the girls.

[5] There are three identified victims, D.F., E.B, and M.W.

[6] M.W. sent photographs of herself in various states of dress, some with exposed breasts.

[7] M.W. agreed to meet with the defendant. He picked her up in his car and drove to a near by city. He parked behind a store. They engaged in sexual activity, including kissing and fellatio.

[8] The defendant was arrested a few weeks later. Police seized and analyzed a number of devices from his residence. Child pornography was found. A detailed report was filed as Exhibit #2. A total of 184 images (57 unique) and 292 movie clips (196 unique), identified as child pornography, were located on the seized devices. The main focus of 62% of the images was the sexual organs of a female child. The images showed “explicit sexual activity such as masturbation, object insertion, fellatio, cunnilingus, anal and vaginal penetration. The images collection is aged approximately 4-13 years old. The level of intrusiveness is 7.5 out of 10 … The video collection is of an infant – 13 years old and contains both male and female children. The level of intrusiveness is 9 out of 10 due to the sexual abuse of an infant who cries out as the adult male attempts to penetrate her.”

Position of the Parties

[9] The Crown seeks a custodial sentence of 12 months in relation to the possession of child pornography, a consecutive 2.5-year custodial sentence in relation to the luring of M.W. and a consecutive 6 month custodial sentence in relation to the luring of E.B.

[10] The Crown seeks a DNA order, a SOIRA order for life, a forfeiture order, a s. 109 order for 10 years, a s. 743.21 order and a s. 161 for 10 years.

[11] The Crown submissions highlighted the sentencing principles of denunciation, deterrence, totality, proportionalism, the high degree of moral culpability and the devasting consequences to M.W. Furthermore, the Crown underscored the ‘proportionate and contemporary understanding of the seriousness of these offences’ as per R. v. Friesen, 2020 SCC 9. Cases establishing a sentencing range were also referenced. The Crown is opposed to any Downes credit.

[12] The defence seeks a conditional sentence of 2 years less one day and highlights that the defendant was arrested 3 times throughout the investigation and has been on strict house arrest bail for more than 3 years, has engaged in counselling and is employed. He has a total of 12 days presentence custody.

[13] Specifically, the defence submits that the appropriate sentence is a 9-month CSO in relation to M.W., a concurrent and shorter CSO in relation to E.B. and finally a concurrent 2 years less one day CSO in relation to the possession of child pornography. The defence seeks Downes credit.

[14] The defence argues that the need for denunciation is not greater as a result of Freisen, supra, as the “law is not black and white, child abuse is not new, the repugnance of normal average people to child abuse isn’t a new thing”. Furthermore, that the defendant never applied any force or coercion to the young girls, rather the “young person(s) [were] always willing to chat and responsive to the way the relationship was unfolding”.

The Defendant’s Personal Circumstances

[15] Mr. Wickramasinghe was 33 years of age at the time of the incidents. He was married, with one young child. His marriage ended abruptly when he was arrested. He has no prior criminal record. He is employed and has been working while on release.

[16] The defendant has been engaged in a course of counseling for over 18 months, commencing in November 2020. He underwent phallometric testing at the Centre for Addiction and Mental Health Sexual Behaviours Clinic in Toronto on October 7, 2020. The outcome of that was a diagnosis of pedophilia and hebephilia. In a letter, filed as Exhibit #10, Stephanie Swayne, MSW RSW, opined that it is important for Mr. Wickremasinghe to participate in treatment to “address the issues related to this diagnosis in order to ensure that he would adequately manage any potential risk of reoffending”. However, he “has numerous protective factors in his situation from a dynamic risk perspective, including absence of mental illness, nor prior criminal history, a prosocial and supportive family, he is well educated and gainfully employed, a stable relationship history and the fact that he has demonstrated the ability to abide by fairly restrictive bail terms for nearly three years”.

[17] When the defendant was engaged in assessment with Dr. Rootenberg he was not forthcoming or honest about his child pornography collection. However, Ms. Swayne found that he “presented as engaged in our sessions, and receptive to feedback. He expressed deep shame and remorse of his actions and their impact on his family and the victims, and on society”.

Victim Impact Statements

[18] M.W.’s father provided a victim impact statement. He outlines the rippling effects upon his family. As a parent, he struggles with his responsibility to provide a safe, protective space for his daughter. He identifies that the impact will be long lasting, and he will need to assist his daughter in the future with feelings of doubt and mistrust. He notes that “her life right now is purgatory; she can’t move forward, she’s spiraling out of control, and has lost any and all ambition to better herself … [she] is a shell of who she once was … [she] has continued to spiral; she was caught skipping classes, she medicates through marijuana and alcohol; she can’t sleep, she can’t get out of bed, all of her wanting to be around others has been lost. She is terrified; of others, of trusting, of doubting herself … she’s contemplated suicide, and thinks of it regularly”.

[19] The impact upon him is profound. He writes, “this has rocked the foundations of every part of who I am”.

[20] M.W.’s mother filed an impact statement. She writes about the rippling effect of trauma, “this person, this event, this tragedy has flipped our family life completely upside down and has changed the lives of every single member of my family”. She writes about her pain, as a mother, noting that “my daughter has been stolen from me, destroyed by a man. She never got the chance to be actually happy, or to become who she wanted to be. My daughter is gone”.

[21] M.W. filed a victim impact statement. She wrote, in part, that she is frustrated with the justice system and how she has been dealt with. She highlighted the ongoing trauma, “[i]t is even traumatizing and terrifying for me because it feels like my entire life story is now out in the open, and people can make do with it as they please”. Moreover, “I am the one that has to hide in the shadows afraid of my every move and having to be afraid of where I am, and where I go, to be able to so much as be close to being ’safe’, but no matter what, no matter how much I hide, I won’t actually be safe.”

[22] M.W.’s impact statement underscores the message in Friesen, supra, wherein she wrote, “but because I was naïve then that doesn’t mean some 30+ year old man gets the right to violate me, ruin me, and scar me for the rest of my life … I feel like I have been hiding so deep within myself for the past two years that I have forgotten who I am, who I want to become, and that I am simply empty now”.

[23] M.W.’s impact statement is 14 pages long. It is difficult to read, to comprehend the magnitude of the trauma that she is dealing with. It is raw, emotional, and frankly heart breaking.

[24] Victims D.F. and E.B. declined to file victim impact statements.

Analysis

Mitigating and Aggravating Factors

[25] I find the following to be mitigating factors for consideration on sentence:

(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; (4) Mr. Wickramasinghe’s engagement in assessment on-going treatment for same; (5) Mr. Wickramasinghe’s expression of remorse;

[26] I find the following to be aggravating facts:

(1) the child pornography collection was comprised of both images and videos; (2) the very young age of some of the depicted children, including an infant; (3) the images were contained on multiple devices; (4) the images and videos were assessed to be at a very high level of intrusiveness; (5) the multiple victims of luring behaviour; (6) the profound impact upon M.W. and her family.

Case Law

[27] In a R. v. Clement [2021] O.J. No. 1829, Justice Boxall addressed sentencing for offences involving the sexual abuse of children:

18 In my opinion, the main principles of sentencing offenders in cases involving sexual abuse of children have been made very clear by repeated appellate jurisprudence, including R. v. Woodward, 2011 ONCA 610 and decisions of the Supreme Court of Canada, including R. v. Friesen, 2020 SCC 9.

19 I will list what I believe are the relevant principles:

1. Protection of children from harm is a fundamental value. Denunciation and deterrence are the primary sentencing objectives in child sexual offences;
2. There is an upward trend in sentencing for all offences involving sexual abuse of children. This includes possession, making available or making of child pornography, as well as child luring;
3. Parliament has increased the maximum penalties twice in the last 15 years, and this is further indication that sentences are increased in offences involving sexual abuse of children;
4. Cases that predate amendments to the Criminal Code and that are dated have limited to no value in determining the appropriate sentence for these offences in 2021;
5. Sexual offences against children cause profound harm. The harm can be physical and/or psychological. The harm may be present at the time of sentence, but there is also the potential for long-term harm that may manifest itself in adulthood;
6. Although the ultimate reduction of offences involving sexual abuse of children will only occur by a multifaceted societal approach, nevertheless, lengthy prison terms have a significant role to play in combatting these horrendous crimes. It is not enough for courts simply to denounce the activity. The sentences must reflect the seriousness. Words alone are not enough;
7. In the case of child pornography offences, the most important factors to determine the range of sentence are: the size of the collection; the nature of the pornography depicted; and the accused's background, including if he has a record for similar offences;
8. Possession of child pornography is an offence that involves actual abuse of children in two ways. First, the users or possessors of child pornography create a demand which involves actual abuse to children in its production. Furthermore, to the victims, the offence is ongoing when the images of their abuses are continually circulated and viewed;
9. In offences of child luring, the fact that the recipient of the messages was not a child is not a mitigating factor. However, in the case of luring that occurs with a young child, the harm done by this type of offence is not theoretical but real and can be an important aggravating factor in determining the sentence. Luring children involves a high level of moral blameworthiness, regardless of whether there is or is not hands-on criminality.

[28] In Friesen, supra, the Court wrote about the harm caused by sexual violence to children:

56 This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, [1991] 3 S.C.R. 72, "may often be more pervasive and permanent in its effect than any physical harm" (p. 81).

57 A number of this Court's decisions provide insight into these forms of harm. In R. v. L. (D.O.), [1993] 4 S.C.R. 419, L'Heureux-Dubé J. emphasized the emotional trauma that the nine-year old complainant experienced from sexual violence (pp. 439-42). Similarly, in McDonnell, McLachlin J. (as she then was) stressed the emotional harm of "the violation of the child victim's integrity and sense of self-worth and control over her body" that the child victim experienced as a result of being sexually assaulted while sleeping (para. 111). The likely result of the sexual assault would be "shame, embarrassment, unresolved anger, a reduced ability to trust others and fear that ... people could and would abuse her and her body" (para. 113).

58 These forms of harm are particularly pronounced for children. Sexual violence can interfere with children's self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity (Sharpe, at paras. 158, 184-85 and 188, per L'Heureux-Dubé, Gonthier and Bastarache JJ.; G. Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at s. 12.64). For this reason, even a single instance of sexual violence can "permanently alter the course of a child's life" (Stuckless (2019), at para. 136, per Pepall J.A.). As Otis J.A. explained in L. (J.-J.), at p. 250:

[TRANSLATION] The shattering of the personality of a child at a stage where [the child's] budding organization as a person has only a very fragile defensive structure, will result -- in the long term -- in suffering, distress and the loss of self-esteem.

59 In emphasizing the harmfulness of sexual offences against children, we do not intend to stereotype child victims of sexual violence as forever broken. To the contrary, it takes great "strength and courage" to survive sexual violence as a child (R. v. J.R.G., [2013] B.C.J. No. 1401 (QL) (Prov. Ct.), at para. 26). Frequently, child victims make "valiant and repeated efforts to have someone believe their allegations" (I. Grant and J. Benedet, "The 'Statutory Rape' Myth: A Case Law Study of Sexual Assaults against Adolescent Girls" (2019), 31 C.J.W.L. 266, at p. 292 ("The 'Statutory Rape' Myth")). Many victims go on to live healthy and meaningful lives with fulfilling and loving relationships. Offenders cannot rob children of their "strength, compassion, love for others and intelligence" and "resolve to take back their lives" (R. v. Stuckless, 2016 ONCJ 338, at paras. 50 and 53, rev'd 2019 ONCA 504, 146 O.R. (3d) 752).

Relational Harm: Damage to Children's Relationships With Their Families and Communities

60 Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship (R. v. D.R.W., 2012 BCCA 454, 330 B.C.A.C. 18, at para. 41). If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim (see "The 'Statutory Rape' Myth", at p. 292). Children who are or have been in foster care may be particularly vulnerable since making an allegation can result in the end of a placement or a return to foster care (see R. v. L.M., 2019 ONCA 945, 59 C.R. (7th) 410). Even when a parent or caregiver is not the perpetrator, the sexual violence can still tear apart families or render them dysfunctional (R. v. D. (D.) (2002), 58 O.R. (3d) 788 (C.A.), at para. 45). For instance, siblings and parents can reject victims of sexual violence because they blame them for their own victimization (see Rafiq, at para. 38). Victims may also lose trust in the ability of family members to protect them and may withdraw from their family as a result (Rafiq, at paras. 39-41).

61 The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know. They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities (C.-A. Bauman, "The Sentencing of Sexual Offences against Children" (1998), 17 C.R. (5th) 352, at p. 355). This loss of trust is compounded when members of the community take the side of the offender or humiliate and ostracize the child (R. v. Rayo, 2018 QCCA 824, at para. 87; R. v. T. (K.), 2008 ONCA 91, 89 O.R. (3d) 99, at paras. 12 and 42). Technology and social media can also compound these problems by spreading images and details of the sexual violence throughout a community (see R. v. N.G., 2015 MBCA 81, 323 Man.R. (2d) 73).

Harm to Families, Communities, and Society

62 The Criminal Code recognizes that the harm flowing from an offence is not limited to the direct victim against whom the offence was committed. Instead, the Criminal Code provides that parents, caregivers, and family members of a sexually victimized child may be victims "in their own right" who are entitled to present a victim impact statement (B. Perrin, Victim Law: The Law of Victims of Crime in Canada (2017), at p. 55; see also Criminal Code, ss. 2 ("victim") and 722).

63 The ripple effects of sexual violence against children can make the child's parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents and caregivers' trust in friends, family, and social institutions and leave them feeling powerless and guilty (R. v. C. (S.), 2019 ONCA 199, 145 O.R. (3d) 711, at para. 6; Rayo, at para. 39; D. (D.), at para. 13). The harm to parents' relationship with their children can also be profound. For instance, children can react to the sexual violence by shutting their parents out of their lives (Rafiq, at para. 40). Parents and caregivers may also bear the financial, personal, and emotional costs of helping their children recover and cope with emotional and behavioural challenges (see D. (D.), at paras. 11-13). In the words of one mother of a child victim, the sexual violence "has taken many years from my son's life and I know this will hurt me for the rest of my life" (D. (D.), at para. 11).

64 Beyond the harm to families and caregivers, there is broader harm to the communities in which children live and to society as a whole. Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering (see Hajar, at para. 68; R. v. Goldfinch, 2019 SCC 38, at para. 37; United Nations, Report of the independent expert for the United Nations study on violence against children, U.N. Doc. A/61/299, August 29, 2006, at p. 12). In particular, children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood (D. (D.), at paras. 37-38). Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community (Standing Senate Committee on Human Rights, The Sexual Exploitation of Children in Canada: the Need for National Action, November 2011 (online), at pp. 10, 30 and 41). In short, the costs that cannot be quantified are also profound. Children are the future of our country and our communities. They deserve to have a childhood free of sexual violence (Hajar, at para. 44). When children become victims of sexual violence, "[s]ociety as a whole is diminished and degraded" (Hajar, at para. 67).

79 In addition to the inherent wrongfulness of physical interference and exploitation, courts have recognized that sexual violence against children inherently has the potential to cause several recognized forms of harm. The likelihood that these forms of potential harm will materialize of course varies depending on the circumstances of each case. However, the potential that these forms of harm will materialize is always present whenever there is physical interference of a sexual nature with a child and can be present even in sexual offences against children that do not require or involve physical interference. These forms of potential harm illustrate the seriousness of the offence even absent proof that they have materialized into actual harm (see McDonnell, at paras. 35-36).

80 We wish to focus courts' attention on the following two categories of harm: harm that manifests itself during childhood, and long-term harm that only becomes evident during adulthood. During childhood, in addition to the inherent wrong of interference with their bodily integrity, children can experience physical and psychological harm that persists throughout their childhood (Woodward, at para. 72; Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 123, per Iacobucci J.). These forms of harm can be so profound that children are "robbed of their youth and innocence" (D. (D.), at para. 10). The following list of recognized forms of harm that manifest themselves during childhood makes this clear:

These effects include overly compliant behaviour and an intense need to please; self-destructive behaviour, such as suicide, self-mutilation, chemical abuse, and prostitution; loss of patience and frequent temper tantrums; acting out aggressive behaviour and frustration; sexually aggressive behaviour; an inability to make friends and non-participation in school activities; guilty feelings and shame; a lack of trust, particularly with significant others; low self-esteem; an inability to concentrate in school and a sudden drop in school performance; an extraordinary fear of males; running away from home; sleep disturbances and nightmares; regressive behaviours, such as bedwetting, clinging behaviour, thumb sucking, and baby talk; anxiety and extreme levels of fear; and depression.

(Bauman, at pp. 354-55)

81 Sexual violence against children also causes several forms of long-term harm that manifest themselves during the victim's adult years. First, children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another adult as a result of the sexual violence. Second, children may be more prone to engage in sexual violence against children themselves when they reach adulthood (Woodward, at para. 72; D. (D.), at paras. 37-38). Third, children are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adults (Bauman, at p. 355; Goldfinch, at para. 37; R. v. L.V., 2016 SKCA 74, 480 Sask.R. 181, at para. 104, citing D. Todd, "Sentencing of Adult Offenders in Cases Involving Sexual Abuse of Children: Too Little, Too Late? A View From the Pennsylvania Bench" (2004), 109 Penn. St. L. Rev. 487, at pp. 509-10).

82 We would emphasize that courts should reject the belief that there is no serious harm to children in the absence of additional physical violence (Benedet, at p. 299). As we have explained, any manner of physical sexual contact between an adult and a child is inherently violent and has the potential to cause harm. Even in child luring cases where all interactions occur online, the offender's conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm (see Rafiq, at paras. 44-45; Rayo, at paras. 172-74; L.M., at para. 26).

83 In many cases, it will be impossible to determine whether these forms of harm have occurred at the time of sentencing. If the victim is an adult at the time of sentencing, the court may be able to conclude that these forms of potential long-term harm have materialized into actual harm. However, as Moldaver J.A. (as he then was) recognized in D. (D.), if the victim remains a child at the time of sentencing, "[t]ime alone will tell" whether that child will experience particular forms of harm as an adult (para. 38). It may also be impossible to determine the nature and extent of the harm that the victim will experience during childhood, since particular forms of harm may materialize following the date of sentencing.

84 As a result, courts must consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence. Even if an offender commits a crime that fortunately results in no actual harm, courts must consider the potential for reasonably foreseeable harm when imposing sentence (A. Manson, The Law of Sentencing (2001), at p. 90). When they analyze the gravity of the offence, sentencing judges thus must always take into account forms of potential harm that have yet to materialize at the time of sentencing but that are a reasonably foreseeable consequence of the offence and may in fact materialize later in childhood or in adulthood. To do otherwise would falsely imply that a child simply outgrows the harm of sexual violence (see Wright, at p. 88)

The Viewing of a Sampling of the Child Pornography by the Sentencing Jurist

[29] In R. v. P.M. 2012 ONCA 162, leave to appeal dismissed, [2012] S.C.C.A. No. 242, one of the issues on appeal was whether the trial judge was required to view a disc containing images of child pornography tendered by the Crown as evidence of the commission of several offences. The trial judge had refused the Crown’s request to view a sampling of the images in court. In this case, the victim was present and did not want the video viewed.

[30] The trial judge did not find it necessary to view the video to properly understand and comprehend the impact of the acts of the offender, given his prior experience as counsel and as a judge in viewing countless videos of a similar nature. The trial judge also considered that the accused had admitted his behaviour and accepted the facts as alleged by the Crown. In the trial judge’s view, the prejudicial effect of viewing the images far outweighed the probative value to the court given the victim’s position and the Court’s awareness of the nature and circumstances of the contents of the video. The trial judge concluded as follows:

[16-17] In my view, it would not serve the ends of justice in the totality of my considerations for me to necessarily view the contents of that CD in open court, even were I to exclude most of the public. I am satisfied that the Court is properly apprised of the nature and circumstances of the impact, bearing in mind, particularly, the reports that have been prepared for pre-sentence purposes and having read both the letters from the victim and her mother as well.

[31] The Court agreed that ordinarily a judge should view this kind of evidence if asked to do so (R. v. Hunt, 2002 ABCA 155 at para. 16). The Court also agreed with the views expressed by Justice Molloy in R. v. Kwok, [2007] O.J. No. 457 “regarding the need for the court to understand the nature of the offence committed and the contribution that actually viewing the material can lend to that function.” Nonetheless, in this case, although the material was relevant, the trial judge was presented with a difficult issue given the competing considerations at play and had to consider the probative value of the proposed evidence. The facts were not in dispute, the contents of the disc had been described in detail and the judge had extensive experience in this area to appreciate the seriousness of the offence (paras. 31-35).

[32] P.M. supra, was released a decade ago. The impact of sexual abuse is much better understood today. Friesen, supra, released in 2020, highlighted the importance of considering the underlying interests in the current legislation:

51 The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. This Court recognized the importance of these interests in Sharpe in the context of the production of child pornography. As this Court reasoned, the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime (para. 92, per McLachlin C.J., and para. 185, per L'Heureux-Dubé, Gonthier and Bastarache JJ.). Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity (see Sharpe, at paras. 172, 174 and 185, per L'Heureux-Dubé, Gonthier and Bastarache JJ.).

[33] I find that it is not only unnecessary for the sentencing jurist to view a sampling of the seized child pornography, but also potentially a revictimization of the children depicted, when:

(1) the facts are not in dispute; (2) a fulsome, descriptive report is produced by the police, that contains: (a) specification of whether the items are photos or videos; (b) specification of the sexual acts depicted; (c) specification of the ages of the children depicted; (d) specification of the inclusion of adult parties in the images; (e) specification of a determined level of intrusiveness.

[34] In the case at bar each of these factors are present; as such, I declined to view the sampling proffered by the Crown.

Determining the Appropriate Sentence

[35] Again, in Friesen, supra, the Court provides guidance with respect to the need to proceed with a contemporary understanding of the harm of sexual violence towards children:

74 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. In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the "life-altering consequences" that can and often do flow from the sexual violence (Woodward, at para. 76; see also, Stuckless (2019), at para. 56, per Huscroft J.A., and paras. 90 and 135, per Pepall J.A.). Courts should also weigh these harms in a manner that reflects society's deepening and evolving understanding of their severity (Stuckless (2019), at para. 112, per Pepall J.A.; Goldfinch, at para. 37).

Harmfulness and Wrongfulness and Proportionality Assessment

75 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, 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" (Nasogaluak, at para. 42).

Gravity of the Offence

76 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 M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, 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.

Conclusion

[36] Defence counsel submitted that the victims were fully willing to engage with the defendant. This submission requires comment. It is well understood and well supported in case law that victims of sexual offences do not respond in a homogeneous manner. Trauma is individualized. Children, who are naïve, without experience, without guidance and preyed upon by adults, are not willingly participating in their abuse. They are being manipulated. M.W. and E.B. were not willing participants.

[37] Defence counsel submitted that child sexual abuse and child pornography are nothing new and that the public shock and dismay is nothing new. All of us, all community members are learning more and more about the trauma caused by childhood abuse, sexual or otherwise. Pornography involving children, infants, is nothing less than shocking, abhorrent and we all must work to ensure that it never becomes normalized, or that we become numb to the impact of the resultant trauma.

[38] In all of the circumstances, I find that a conditional sentence order would not properly address the sentencing principles and principles identified in Friesen, supra. The multiple victims, the profound harm caused to the victims, the elevated level of intrusiveness found in the child pornography all found this conclusion.

[39] The sentence will be as follows:

(1) Possession of child pornography – 365 days custody, SOIRA order for life, DNA order, s.109 order for 10 years, s. 161 order for 10 years and a forfeiture order; (2) Luring re victim E.B. – 180 days custody consecutive to the first count, SOIRA for life, DNA order, s. 109 order for 10 years, a s. 743.21 order and a s. 161 order for 10 years; (3) Luring re victim M.W. – 910 days custody consecutive to the first and second counts, SOIRA order for life, DNA order, s. 109 order for 10 years, a s. 743.21 order and a s. 161 order for 10 years.

[40] The total custodial sentence is 1455 days, plus ancillary orders.

Released: JULY 20, 2022. Signed: Justice Angela L. McLeod