His Majesty the King v. Gordon Kaardal, 2022 ONCJ 441

ONTARIO COURT OF JUSTICE

CITATION: R. v. Kaardal, 2022 ONCJ 441

DATE: September 27, 2022

COURT FILE No.: 20-38100723

BETWEEN:

HIS MAJESTY THE KING

— AND —

GORDON KAARDAL

Before Justice Angela L. McLeod

Judicially pretried December 21, 202; Guilty plea March 10, 2022;

Sentencing submissions July 21, 2022

Kristine Staats..................................................................................... counsel for the Crown

Mark Ertel.......................................................................................... counsel for the accused

McLeod J.:

OVERVIEW

1Mr. Kaardal has been convicted of one count of possession of child pornography, section 163.1(4) of the Criminal Code of Canada.

2In August 2020, Facebook authorities alerted police to a concern. An image of child pornography had been uploaded by the defendant. The image was of a female who was bound by the wrists, ankles and neck. She was naked; her anal and vaginal regions were exposed. A purple object was inserted into her anus. She was assessed to be under the age of 10 years.

3A production order was garnered. A search warrant was thereafter issued and was executed on January 16, 2020. Several devices were seized, including a laptop, and 2 USB drives.

4A total of 276 unique images were located on the devices. The laptop images were contained within a folder entitled users/gord/download. There were no videos.

5Some of the images were described as follows:

1. Female under the age of 10 years, legs in the air, erect penis depicted, ejaculate on the female’s mouth;

2. Female under the age of 10 years, vaginally penetrated by an erect penis;

3. Female under the age of 3 years, anally penetrated by an erect penis;

4. Female infant child with an adult female performing oral sex upon her;

5. Male child 6 years old, shown inserting a vibrator into an adult nude female.

6The police created a categorization report noting that the images were mainly of female children, aged from infants to 12 years old, engaged in vaginal intercourse with adult males, or oral sex with adult males, or having sexual ‘toys’ used upon them by adult males.

7The defence does not take issue with the categorization nor the level of intrusiveness.

8Mr. Kaardal sent the image of the bound, naked female child with the purple object inserted into her anus to an adult woman that he had been dating and wrote, “I want to do that to you.”

9The Crown proceeded by way of Indictment.

NECESSITY OF THE JURIST TO VIEW A SAMPLING OF THE IMAGES

10This court recently addressed this issue in R. v. Wickramasinghe, 2022 ONCJ 331. I adopt the same reasoning and apply it to the case at bar:

29In 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.

30The 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.

31The 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 CanLII 2942 (ON SC), [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).

32P.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.).

33I 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.

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

POSITION OF THE PARTIES

11The Crown seeks a custodial sentence in the range of 15 – 18 months, to be followed by 24 months probation, a DNA order, a SOIRA order for 20 years, a s. 110 order for 10 years, a s. 161 order for 10 years and a forfeiture order.

12The Crown filed as Exhibit #3, a Statistics Canada report released in May 2022, which concludes that “the number of police-reported online child sexual exploitation and abuse incidents has generally been on an upward trend. These incidents involved online sexual offences against children, where a victim has been identified, as well as incidents of child pornography, where the actual child victim has not been identified by police.” Of note is the fact that “[i]n 2020, during the first year of the COVID-19 pandemic, cybercrime in general was on the rise with 31% more police-reported cybercrime incidents than in 2019. In 2020, the rate of police-reported online child pornography […] was 35% higher than in 2019…”

13The Crown is strongly opposed to the imposition of a conditional sentence order.

14The defence seeks a conditional sentence order and argues that denunciation and general deterrence are the primary sentencing principles to consider. The defence highlights the ebb and flow of the COVID pandemic and the potential impact of incarceration upon the defendant who is 70 years of age and has asthma. The defendant’s wife is reliant upon him to drive her to medical appointments. Additionally, the defence underscores the ‘otherwise sterling background’ of the defendant and his family support all of which supports a basis to conclude that this is a case of exceptional circumstances.

15The defence advised that phallometric testing was completed and that the result was that the defendant was not diagnosed as a pedophile. The defence elected to not file the report which was different than the Independent Medical Evaluation report discussed below.

THE DEFENDANT’S PERSONAL CIRCUMSTANCES

16A presentence report was authored and filed as Exhibit #4. The salient facts are summarized below:

1. The defendant is 70 years of age, married for 50 years, and without a criminal record;

2. He “reported a loving and supportive upbringing characterized by the absence of any form of emotional, sexual or substance abuse.”;

3. He has strong family connections;

4. He has one biological son and two step children;

5. He was in the military for 32 years;

6. He has ‘extensive involvement as a volunteer’;

7. He reported physical disabilities relating to age. His stepson noted that the defendant is an active person who plays golf regularly;

8. He has no addiction or other mental health issues;

17Mr. Kaardal underwent an Independent Medical Evaluation in 2021, and Dr. Brad Booth (Forensic Psychiatrist) produced a 21-page report which was filed as Exhibit #5. Therein, Dr. Booth noted:

1. General family and personal background information for the first 12 pages (including that the defendant did not see active combat during his military career);

2. The defendant expressed remorse for the criminal offence, however, “[t]here was some reluctance to talk about the offences and he likely was minimizing some issues in part due to a lack of insight, in addition to some impression management.”

3. The defendant denied any sexual arousal to any under-aged individuals. Dr. Booth concluded that “[i]t is plausible that his self report is true. Alternatively, he may have some arousal to these types of images, and is embarrassed and does not want to hurt his current legal situation or look bad in the eyes of society or his family …Unconscious arousal can drive a person to collect these images even if they do not masturbate to them or fantasize about them.”

4. The defendant’s risk to reoffender is likely lower, noting that “there are no well-validated risk assessment tools for individuals with child pornography offences.” Ultimately, “on the whole, Mr. Kaardal would be considered to be a very low risk of future pornography offences and extraordinarily low risk of hands on offences.”

5. Diagnoses of:

(a) Likely generalized anxiety disorder with eosyntonic features

(b) Likely childhood ADHD traits

(c) Rule out pedophilic disorder, heterosexual non-exclusive type

(d) Relationship stress with spouse

(e) Possible neurocognitive disorder, mild

18Mr. Kaardal addressed the court and remarked, “I am a friggin’ idiot, I didn’t realize that child abuse was so bad, so prevalent and getting more so, the ramifications for the rest of their lives, I didn’t think about my facilitating, viewing this was instigating that, all my fault, ignorant of the fact of what was going on. I accept all responsibility.”

ANALYSIS

19I find the following to be mitigating factors for consideration:

1. Plea of guilt and acceptance of responsibility – which is mitigated by the lack of insight and sincere remorse or understanding of the impact of the offence;

2. Lack of criminal antecedents;

3. The child pornography collection did not contain any videos;

20I find the following to be aggravating factors for consideration:

1. the number of images was not insignificant;

2. The level of intrusiveness was very high, including bondage, anal intercourse, use of object insertion, inclusion of adult interaction and nudity, toddlers and infants as victims;

3. That the defendant sent one of the more disturbing images to an adult companion and expressed a desire to replicate the actions;

4. That the defendant denies arousal by the images, in spite of having sent an image to an adult companion and expressed sexual arousal and desire;

5. The images were located on multiple devices;

CASELAW

6. In Wickramasinge, supra, this court identified the considerations for sentencing:

27In 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.

28In 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 CanLII 29 (SCC), [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 CanLII 46 (SCC), [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), 2002 CanLII 44915 (ON CA), 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)

DETERMINING THE APPROPRIATE SENTENCE

21In Wickramasinghe, supra, this court identified the sentencing principles noted within the caselaw:

35Again, 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

22In R. v. Ereault, 2022 ONCJ 270, this court outlined the sentencing principles in the Criminal Code generally, in the caselaw specifically in relation to possession of child pornography, and in consideration of a conditional sentence order:

SENTENCING PRINCIPLES

27The 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.

28The 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

29What follows is a replication of this court’s decision in R. v. Dutchession, 2021 ONCJ 480, a case which is strikingly on all four points to the current case at bar.

30The 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.

31In 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.

32In 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.

33In 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.

34In 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.

35In 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:

1. "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)

2. "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)

3. "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)

4. "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).

5. "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).

6. "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).

7. "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).

8. "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).

9. "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).

10. "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).

36Justice 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.

37Nonetheless, 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.

38In 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.

39After 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

40In 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, [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.

41In 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.

36 By 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.

37 I 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.

38 I 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.

39 I 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

42Section 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.

43The first three criteria establish whether a CSO is available; the last whether it is appropriate.

44A 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.

45Furthermore, 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

46In 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.

41 A 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

23Given the aggravating factors noted above, I find that a conditional sentence would not meet the principles of sentencing identified. The risks of COVID have meliorated. The courts have taken active steps to reduce the need for protection, including removing of plexiglass barriers, and instituting a policy that in person attendance is the norm. The defendant’s complete and utter lack of insight into the harm caused by the sexual abuse of children is incomprehensible and gives rise to a real concern that the public would be endangered should he be permitted to serve his sentence in the community.

24Mr. Kaardal is sentenced to custody for 400 days, to be followed by 24 months probation, a DNA order, a SOIRA order for 20 years, a s. 110 order for 10 years, a s. 161 order for 10 years and a forfeiture order.