COURT FILE NO.: 209/22 DATE: 20230602
RESTRICTION ON PUBLICATION By court order made under subsection 486.4(1) of the Criminal Code, any information that could identify the person described in these reasons as the complainant or victim, K.A., shall not be published in any document, or broadcast or transmitted in any way. Every person who contravenes the order is guilty of an offence punishable on summary conviction.
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – CHRISTOPHER NOONAN
Counsel: H. Donkers, for the Crown L. Ellis, for the Defendant
Heard: April 5, 2023
REASONS FOR SENTENCE
Grace J. (Orally)
A. Introduction
[1] On October 13, 2022, the defendant entered a plea of guilty to four of the eleven counts set forth in the indictment that was filed in this court. Based on an agreed statement of facts, findings of guilt were made and convictions entered in relation to: (i) communication with a person believed to be under the age of sixteen years, for the purpose of facilitating the commission of the offence of sexual interference (count three). This offence is commonly referred to as child luring; [1] (ii) unlawfully possessing child pornography in the form of a digital file (count five); [2] (iii) unlawfully accessing child pornography in the form of a digital file (count six); [3] and (iv) unlawfully distributing child pornography in the form of a digital file (count seven). [4]
[2] A pre-sentence report was ordered and the matter adjourned to January 3, 2023, for submissions on sentence. At the request of Mr. Noonan and with an express s. 11(b) Charter waiver, the sentencing hearing was adjourned to April 5, 2023, so that he could complete some sex offender counselling. Submissions on sentence were made on the rescheduled date. Decision was reserved until today.
[3] I start with a brief summary of the circumstances of the offences as drawn from the agreed statement of facts. [5]
B. The Circumstances of the Offences
[4] A single image constituting child pornography was uploaded on December 12, 2020. With the benefit of information obtained from Kik Interactive and a report from the National Child Exploitation Coordination Center, the London Police Service (“LPS”) obtained a Production Order for an IP address owned by Carry Telecom Inc.
[5] The information received from the carrier lead the police to an address on Craig Street, London, Ontario.
[6] On June 15, 2021, the LPS received authorization to search the residence located there. The search warrant was executed the following day.
[7] The accused was found in the upper unit. After being cautioned, Mr. Noonan: (i) admitted using the Kik Messenger application; and (ii) provided information concerning his e-mail address, user and screen names that connected him to the uploaded image.
[8] Mr. Noonan’s iPhone was located. Images meeting the definition of “child pornography” were found in a folder labelled “Recent” when the device was previewed by members of the LPS’s Digital Forensic Unit.
[9] The iPhone was more closely examined after Mr. Noonan was arrested and processed. A sexually charged electronic conversation with a person identified to Mr. Noonan as K.A. was located there. In one of the messages, K.A. said:
I’m really young. I just turned 13.
[10] Excerpts from the conversation that followed included a request that K.A. remove her “shirt … for daddy” and a question concerning K.A.’s desire to engage in sexual activity. Later, Mr. Noonan sent K.A. a photograph of his erect penis.
[11] It was also determined that Mr. Noonan sent images of child pornography to and received them from an individual named Edrick Nacasio.
[12] A total of 88 videos meeting the definition of child pornography were found on Mr. Noonan’s iPhone, with a run time of over 96 minutes. As explained in the agreed statement of facts:
The majority of the videos show children self-exploiting, though there were also 9 videos of children engaged in explicit sexual acts with adults and other children.
[13] Several still images meeting the definition of child pornography were also found on Mr. Noonan’s electronic device.
[14] The agreed statement of facts includes a narrative briefly describing a representative sample of the digital files found on the iPhone. Children in an age range of as young as 3 – 5 years were depicted. Activities captured on video range from posing with private areas exposed, to fellatio and sexual intercourse.
[15] I turn to Mr. Noonan’s personal circumstances. Much of the information is drawn from a December 28, 2022 pre-sentence report prepared by probation and parole officer Danyelle Kuhl.
C. The Circumstances of the Offender
[16] The offender is currently 34-years-old. He has no dependents and does not seem to be involved in an intimate relationship.
[17] Mr. Noonan’s parents have been together since high-school. They have two children. Mr. Noonan has an older sister.
[18] Historically, Mr. Noonan’s father worked long-hours in the auto manufacturing industry. His mother worked in the home and on occasion, provided daycare services for other families in the neighbourhood.
[19] Approximately, fourteen-years ago, Mr. Noonan’s parents opened a restaurant in a nearby community. Their children have been involved in the business in various capacities too. Mr. Noonan’s employment there seems to have started after high school.
[20] In time, Mr. Noonan made the decision to pursue a college offered theatre arts program but his participation ended prematurely as a result of a significant leg and ankle injury. A difficult five-year period of unemployment followed and was perpetuated, it seems, by ongoing medical complications. For a period of time, he qualified for disability support payments.
[21] By the fall, 2021, the offender was able to return to the workforce. He has been working for a food pick up and delivery service since that time.
[22] The abuse of alcohol or drugs has not featured, although Mr. Noonan told the probation and parole officer that he regularly smokes marijuana.
[23] Mr. Noonan enjoys a small social circle. Apparently, his closest friends are unaware of the offences that bring him before the court.
[24] Close relationships with parents and Mr. Noonan’s older sibling are reported. His parents have expressed concern about their son’s mental health. Both of them said their son had shown signs of regret and remorse. Embarrassment was another descriptor Mr. Noonan’s mother provided.
[25] When speaking with the author of the pre-sentence report, Mr. Noonan expressed a feeling of helplessness and admitted to thoughts of self-harm.
[26] Notably, there is no prior criminal record.
[27] Mr. Noonan has self-funded counselling sessions his counsellor, Jennifer Holt, describes as “sexual abuser specific treatment … designed to assist clients with effectively managing thoughts, fantasies, feelings, attitudes, and behaviors [sic] associated with their potential to sexually abuse.”
[28] In a March 29, 2023, letter to Mr. Noonan’s counsel, Ms. Holt said, in part:
To his credit, Mr. Noonan has consistently engaged actively and openly in the counselling which has been offered to him. He has begun to make significant strides in beginning to understand why he engaged in behaviour which is so mismatched with how he views himself as a person. However, … to date Mr. Noonan has only participated in five (5) counselling sessions, and as such is very much at the beginning of his counselling journey.
[29] If a custodial sentence is imposed, she asked the court to consider a recommendation that Mr. Noonan serve it in an institution which offers sex offence specific counselling. [6]
[30] When given the opportunity, Mr. Noonan addressed the court. He said he was deeply embarrassed. Self-loathing was evident. He attributed his actions to sexual inexperience and emotional immaturity. I interpreted his comments as a promise that he would never physically harm a child. Ensuring the safety of young cousins while in his past care was clearly a source of pride.
D. Letters of Support
[31] Several letters of support were filed. Mr. Noonan’s father provided some biographical information. He spoke of the difficulties Mr. Noonan faced following the accident to which I have briefly referred. There were medical complications that affected his son’s mobility and independence. A move to London with a high school friend did not work out well. The pandemic was particularly isolating. Poor decisions followed. In part the offender’s father wrote:
A day doesn’t go by without him feeling remorse over all this and apologizing to me and his mother because of the intense stigma surrounding anything or anybody to do with [child pornography].
[32] His sister agreed. She said that Mr. Noonan is barely able to look his family members in the eye. She expressed shock at the charges because it simply doesn’t “sound like my little brother”.
[33] A long-time friend commended Mr. Noonan for loyal friendship and a solid work ethic. She said he was “truly caring and helpful to those around him.”
E. Victim Impact
[34] The Crown addressed the impact of the crimes Mr. Noonan has committed from the perspective of the community.
[35] Two affidavits of Monique St. Germain, general counsel for the Canadian Centre for Child Protection Inc. (C3P), were filed. She deposed that in 2021 alone, C3P managed more than 3,000 requests for support from or on behalf of individuals whose child sexual abuse material is or is believed to be online.
[36] She explained that several adults from Canada and the United States who had been victimized by child sexual abuse material, met in Phoenix, Arizona in 2018. They have become known as the Phoenix 11.
[37] They participated in the creation of a videotaped community impact statement that was played during the sentencing phase of this proceeding.
[38] They confirmed what every citizen should already know: that making, accessing and distributing still images or videos of pornography involving children is not a victimless crime. No matter how much time passes, the length and quality of assistance from family, friends or professionals and even if the victim is a person of particular mental strength or resolve, digital files constitute a permanent record that can, sadly, see the light of day anywhere and at anytime.
[39] Victims are acutely aware of that reality. They are constrained by and often captive to it. Social relationships – particularly close or intimate ones - are avoided. Educational and professional opportunities are not pursued. The ability to engage, to relax, to rest, to trust and to enjoy is compromised, if not lost.
[40] For many, the crimes exact a lifetime toll: economically, socially, physically and psychologically. In short, the crimes that are before this court cruelly but understandably stop many of their victims from realizing their potential. Unfortunately, many sink into unimaginable depths and for an inestimable time.
F. The Applicable Principles
[41] As noted, convictions have been entered in relation to: (i) child luring; (ii) unlawful possession of; (iii) unlawfully accessing; and (iv) unlawfully distributing child pornography in the form of a digital file.
[42] The maximum sentences range from ten (10) to fourteen (14) years. [7]
[43] The statutory purpose and principles of sentencing are set forth in the Criminal Code.
[44] The fundamental purpose of a penalty imposed is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions: CC, s. 718.
[45] The punishment imposed is to have one or more of the listed objectives. They include: (i) to denounce unlawful conduct and the harm caused to victims or to the community; (ii) to deter the offender and others from committing offences; (iii) where necessary, to separate offenders from society; (iv) to assist in rehabilitating offenders and (v) to promote a sense of responsibility in offenders and acknowledgement of the harm done: CC, s. 718.
[46] Several legislated principles apply. I will mention four of them that are of general application. First, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: CC, s. 718.1. Second, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances: CC, s. 718.2. Third, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: CC, s. 718.2(b). Fourth, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh: CC, s. 718.2(c).
[47] Another is fact specific. Section 718.01 of the Criminal Code directs the court to give primary consideration to the objectives of denunciation and deterrence when imposing a sentence for an offence that involved the abuse of a person under the age of eighteen.
[48] Proportionality is the fundamental principle of sentencing. As the Supreme Court of Canada explained in R. v. Ipelee, 2012 SCC 13, at para. 37:
Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality…First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system….
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [8]
[49] The process is highly individualized. The sentence imposed must be “tailored to the individual offender and the specific offence.” [9]
[50] In 2020, the Supreme Court of Canada released its reasons in R. v. Friesen, 2020 SCC 9. Writing on behalf of a unanimous court, Wagner C.J. and Rowe J. said, at para. 43:
Protecting children from becoming victims of sexual offences is…vital in a free and democratic society.
[51] At para. 90, they added:
The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable.
[52] While different offences were in issue there, the principles outlined by the Court were expressly stated to “have relevance to sentencing for other sexual offences against children”. Child luring and crimes involving child pornography were specifically included in the list the decision contains. [10]
[53] Throughout these reasons I have borne in mind this passage from R. v. Inksetter, 2018 ONCA 474, at para. 22. Hoy A.C J.O. (as she then was) wrote in part:
Child pornography is a pervasive social problem that affects the global community of children…As Fraser C.J.A. wrote in R. v. Andrukonis, 2012 ABCA 148, at para. 29, “possession of child pornography is itself child abuse.” The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing, and making available his…collection to others, the respondent participated in the abuse…of children.
[54] The seriousness of the problem cannot be overstated. In Friesen, at paras. 47 and 48, the Supreme Court said, in part:
The Internet has … “accelerated the proliferation of child pornography” ...
Technology can make sexual offences against children qualitatively different … For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence because the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time.
[55] At para. 51, the Court added:
… [T]he 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…Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity and gravely wounds their dignity… [Citations omitted]
[56] The implications should be obvious. As Wagner C.J. and Rowe J. added at para. 76:
…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. [Citations omitted]
[57] In fact, that decision sent a “strong message” that sentences for sexual offences against children must increase because they are crimes that wrongfully exploit their vulnerability and cause immense damage to them, their families and the community at large. [11]
G. Position of the Parties
[58] The ancillary orders sought by the Crown are not in dispute. I will return to them later. The difference in position relates to the length of the custodial term the court is being asked to impose.
[59] The Crown seeks a global sentence of four (4) years allocated as follows: (i) to the child luring charge (count three), two (2) years; (ii) to unlawfully distributing digital child pornography (count seven), two (2) years consecutive; (iii) to unlawfully possessing digital child pornography (count five), one (1) year concurrent; and (iv) to unlawfully accessing digital child pornography (count six)), one (1) year concurrent.
[60] The defence submits that a concurrent eighteen (18) month custodial sentence is appropriate in relation to each of the four counts. Mr. Noonan’s counsel asks that the court consider a recommendation that the sentence be served at the Ontario Correctional Institute or “OCI” in the hope that Mr. Noonan will receive further sex offence specific counselling.
H. Analysis and Decision
[61] The disagreement concerning the appropriate length of the custodial term is based on the fact counsel submit the various factors relevant in the determination of a sentence should be weighed differently. There is no debate concerning the legal principles that are generally applicable to offences of the kind before the court.
[62] Counsel for the parties also conducted a search for cases involving comparable offences, offenders and circumstances. Their efforts yielded different results. I will have more to say on that topic shortly.
[63] Several mitigating circumstances are present. They are: (i) the guilty plea; (ii) the absence of a prior criminal record; (iii) heartfelt remorse; (iv) the prospect of rehabilitation as demonstrated by Mr Noonan’s employment history, the support of his family, acknowledgement of the need for and commencement and self-funding of counselling in an effort to identify and address the underlying cause or causes of Mr. Noonan’s conduct; a positive pre-sentence report and letter from counsellor, Jennifer Holt. I accept that Mr. Noonan’s behaviour seems completely out-of-character and beyond mystifying to those who know him best.
[64] There are aggravating circumstances too. As noted earlier, in addition to several still images, 88 videos meeting the definition of child pornography were found on Mr. Noonan’s device. The playing time of the videos is slightly more than 96 minutes. The collection is mid-range in size.
[65] I have already mentioned, in general terms, the range of activities recorded in the representative sample of videos described in the agreed statement of facts. I need not restate them. Bluntly, they make one’s skin crawl.
[66] As noted earlier. children of various ages were portrayed, including some who appeared to be in the range of three to five years old. That is an aggravating factor. So, too, is the fact more than one child is featured: R. v. Snead, 2021 ONSC 7017 (S.C.J.), at para. 34.
[67] The investigation in this case started with the uploading of an image on December 12, 2020. Mr. Noonan was arrested on June 16, 2021. He communicated with K.A. in April or May 2021. The agreed statement of facts closed that chapter of the narrative with the following:
To Mr. Noonan – Show me your sexy lil body…
No response.
To Mr. Noonan – Still want this daddy dick?
No response
Mr. Noonan then sent K.A. a photograph of his erect penis and asked if she was “still looking for fun with older guys?”
[68] While not a factor in my decision, one cannot help but wonder what would have happened had K.A. not gone silent.
[69] Mr. Noonan’s dialogue with Mr. Nacasio occurred sometime in the latter part of May 2021. Seemingly, the actions of the police ended the offending conduct, not any decision on the part of the offender to stop. To be crystal clear, the offences were not the result of a momentary lapse of control or judgment. Digital files were accumulated over time. An attempt was underway to groom a person Mr. Noonan believed to be thirteen years old.
[70] The fact K.A. provided encouragement is not a mitigating factor. As was said in Friesen, supra, at para. 154:
Adults, not children, are responsible for preventing sexual activity between children and adults…
[71] Insofar as the child pornography offences are concerned, I recognize that Mr. Noonan did not produce the various images or videos. Consequently, he was not a direct participant in the abuse of the young children depicted. However, he was another willing and appreciative member of the audience that fuels the demand for something that should not be available to anyone.
[72] The commission of the admitted crimes statutorily requires that the court give primary, although not exclusive, consideration to the objectives of denunciation and deterrence of such conduct: Criminal Code, s. 718.01.
[73] I have reviewed and considered the cases cited by the Crown [12] and the defence [13] and some of the decisions referred to in them. [14] I agree with the observation made by Stribopoulos J. in R. v. Kavanagh, 2023 ONSC 283, that divergent lines of authority seem to have developed in Ontario since the release of Friesen.
[74] R. v. Moolla, 2021 ONSC 3702 (S.C.J.) involved the offence of child luring using the internet. When addressing the state of the law in Canada insofar as appropriate custodial sentences are concerned, Code J. said, in part, at para. 21:
… In 2020, the Supreme Court decided Friesen and held that “child-luring incidents more than doubled between 2010 and 2017”, that repeated increases in the maximum sentence mean that “courts need to give effect to Parliament’s clear and repeated signals to increase sentences”, and that the new range suggested in [R. v.] Woodward was to be “commended.” In all these circumstances, I am satisfied that three to five years is now the appropriate range …
[75] Stribopoulos J. expressed a contrary view in R. v. Kavanagh, supra. After considering several authorities, including Friesen, he wrote at para. 77:
… I do not read the Supreme Court’s comments in Friesen as endorsing the three-to-five-year sentencing range that Moldaver J.A. tentatively suggested as a future possibility for the child luring offence in Woodward.
[76] The debate concerning the existence and length of any range of custodial sentence seems likely to continue. For all of the offences before the court, reformatory sentences have been imposed by some judges and a period of time in a penitentiary by others.
[77] Of course, the most essential task is the determination of a sentence that is fair and appropriate in all of the circumstances. Even where presumptive custodial terms are suggested, “[u]ltimately … sentencing ranges are primarily descriptive rather than prescriptive”. [15]
[78] In determining the global sentence to be imposed in this case, I have borne in mind section 718.3(7)(a) of the Criminal Code. It applies where, as here, an accused is sentenced at the same time for an offence under s. 163.1 and another sexual offence committed against a child. In that situation, the court shall direct that a sentence of imprisonment for an offence under s. 163.1 of the Criminal Code be served consecutively to a sentence of imprisonment imposed for another sexual offence involving a child. [16]
[79] In the absence of that section, general principles apply. A sentencing judge has the discretion to impose consecutive sentences where offences concern different legally protected interests: R. v. R.B., 2014 ONCA 840, at para. 7. I agree with the Crown that the sentence imposed with respect to child luring should be consecutive to those involving child pornography.
[80] Whether a consecutive sentence is required by statute or imposed as a result of the exercise of discretion, the court must always be mindful of and respect the totality of sentence principle to which I have already referred: CC, s. 718.2(c). The overall sentence must be a fair one: R. v. R.B., supra, at para. 7.
[81] I have carefully considered all that I have written so far.
[82] I complete my analysis with these words. Immaturity, sexual inexperience, isolation, loneliness and feelings of despair might well explain the actions of Mr. Noonan if the subject of his interest had been adult pornography and an online contact who was of the age of majority.
[83] However, there is a complete disconnect between those factors individually or collectively and Mr. Noonan’s decision to access, possess and distribute child pornography and his deeply disturbing attempt to exploit and cultivate a relationship with a person he thought was only 13 years old.
[84] The actions which bring this first-time offender to the court are so patently and terribly wrong. Optimism for Mr. Noonan’s ultimate rehabilitation is warranted. There are nascent signs. Counselling has commenced. A desire to do better is evident. A perplexed and dejected family has demonstrated resilience and fortitude. Support for Mr. Noonan from its members seems to be unwavering. I commend each one of them for that. Their continued assistance will be crucial. Ultimately, however, it will take Mr. Noonan’s commitment, time, introspection and perseverance.
[85] I have not ignored any of that. However, legislatively and in accordance with sound and binding authority, considerations relating to rehabilitation mused yield to the objectives of denunciation and deterrence.
[86] These kinds of crimes must stop. Our children deserve to be protected and nurtured.
[87] After careful consideration of the nature and circumstances of the offences, their gravity, Mr. Noonan’s legal responsibility for his actions, their impact on the community, the personal history, present situation and prospect of rehabilitation of the offender, applicable mitigating and aggravating circumstances and the purpose, objectives and principles of sentencing as drawn from the authorities and the Criminal Code, I have concluded the shortest global custodial sentence that is fit, proportional and just is three (3) years. Bluntly, but for the many mitigating circumstances, I would have accepted the Crown’s position and would have imposed a four (4) year term.
I. Disposition
[88] For the reasons given:
a) In respect of count three (child luring) Mr. Noonan shall serve a custodial sentence of eighteen (18) months;
b) In respect of count seven (unlawfully distributing digital child pornography), Mr. Noonan shall serve a consecutive custodial sentence of eighteen (18) months;
c) In respect of count five (unlawfully possessing digital child pornography), Mr. Noonan shall serve a concurrent custodial sentence of twelve (12) months; and
d) In respect of count six (unlawfully accessing digital child pornography) Mr. Noonan shall serve a concurrent custodial sentence of twelve (12) months. [17]
[89] In addition, the following ancillary orders are hereby made:
a) Mr. Noonan has been convicted of primary designated offences. Consequently, an order in Form 5.03 is hereby made authorizing the taking of the number of samples of Mr Noonan’s bodily substances that is reasonably required for the purpose of forensic DNA analysis;
b) Having been convicted of designated offences, Mr. Noonan is ordered to comply with the Sex Offender Information Registration Act for a period of twenty (20) years; [18]
c) Pursuant to s. 161(1)(a) of the Criminal Code and for a period of five (5) years following the end of his custodial sentence, Mr. Noonan is prohibited from attending a public park, public swimming area, daycare centre, schoolground, playground or community centre, where persons under the age of 16 years are present, unless in the constant presence of an adult who is at least 21 years old and is aware of the offences for which convictions have been entered;
d) Pursuant to s. 161(1)(b) of the Criminal Code and for a period of five (5) years following the end of his custodial sentence, Mr. Noonan is not to seek, obtain or continue any employment, whether or not remunerated, or become or be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years;
e) Pursuant to s. 161(1)(c) of the Criminal Code and for a period of five (5) years following the end of his custodial sentence, Mr. Noonan is not to have any contact, including communicating by any means, with a person who is under the age of 16, unless in the constant presence of an adult who is at least 21 years old and is aware of the offences for which convictions have been entered;
f) Pursuant to s. 161(1)(d) of the Criminal Code and for a period of five (5) years following the end of his custodial sentence, Mr. Noonan is not to use or permit to be installed on any device in his possession any program or service designed to allow anonymous use of the internet;
g) An Order for the disposition of property is to issue once signed by me;
h) Any victim surcharge is waived;
i) Counts one, two, four and eight through eleven of the indictment are marked withdrawn.
[90] I end with a strong recommendation that Mr. Noonan be assigned to an institution that would allow him to quickly commence and continue receiving sex offence specific counselling. Integration Correctional Program Models were specifically referred to by the author of the pre-sentence report in the context of federal institutions.
[91] A copy of the pre-sentence report and the March 29, 2023 letter from Holt Counselling & Consulting Services will be sent by the court to the correctional authorities.
“Justice A.D. Grace”
GRACE J.
Delivered: June 2, 2023
[1] Contrary to s. 172.1(2) of the Criminal Code. [2] Contrary to s. 163.1(4) of the Criminal Code. [3] Contrary to s. 163.1(4.1) of the Criminal Code. [4] Contrary to s. 163.1(3) of the Criminal Code. [5] It was made exhibit 1 during the October 13, 2022 attendance. [6] The Ontario Correctional Institute, a provincial institution, was the one she identified. [7] Fourteen (14) years for counts three and seven. Ten (10) years for counts five and six. [8] See, too, para. 61. [9] R. v. Morris, 2021 ONCA 680, at para. 56. [10] Child luring is mentioned in the body of para. 44 of the decision. Distributing, possessing and accessing child pornography were listed in footnote 2. [11] See para. 5. [12] R. v. A.P., 2011 ONCJ 305; R. v. Inksetter, 2018 ONCA 474; R. v. John, 2018 ONCA 702; R. v. Friesen, 2020 SCC 9; R. v. Messier, [2021] O.J. No. 884 (S.C.J.); R. v. Clement., [2021] O.J. No. 1829 (S.C.J.); and R. v. Moolla, 2021 ONSC 3702. [13] R. v. Faroughi, 2020 ONSC 780 (S.C.J.); R. v. M.B. 2020 ONSC 7605; R. v. Collier, 2021 ONSC 6827 (S.C.J.); R. v. Razon, 2021 ONCJ 616; R. v. Tang, 2022 ONCJ 251; and R. v. Kavanagh, 2023 ONSC 283 (S.C.J.). [14] For example, R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (Ont. C.A.), at paras. 27 and 31; R. v. Woodward, 2011 ONCA 610; and R. v. Morrison, 2019 SCC 15. [15] R. v. Kavanagh, supra, at para. 77. [16] In preparing these reasons, I noted that in R. v. Vera Camacho, 2021 QCCA 683, the Quebec Court of Appeal concluded the subsection offends s. 12 of the Charter and is of no force and effect. The constitutionality of the subsection was not raised before me. Nonetheless, I have addressed the issue on an alternative basis in case I should not have relied on the statutory provision. [17] A longer custodial sentence is appropriate for the distributing charge because it contributes to the further victimization of the children depicted in the pornographic images and videos. [18] See, R. v. Ndhlovu, 2022 SCC 38.
