COURT FILE NO.: CR-22-00000082-000 DATE: 2024Feb21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – STEPHEN JOHN LECLAIR Defendant
COUNSEL: E. Foxton, for the Crown M. Rode, for the Defendant
HEARD: February 21, 2024 Lacelle J. (orally)
REASONS FOR SENTENCE
1Stephen LeClair is before me for sentencing following his guilty plea to two counts of possessing child pornography and one count of accessing child pornography.
2The Crown seeks a sentence of 4 years imprisonment. The defence argues that a conditional sentence of 2 years less a day is an appropriate sentence in all the circumstances.
3The issue to be decided by me is what is a fit sentence, having regard to the circumstances of the offence and the offender, and all the sentencing principles at play.
The Offences
4The offences occurred in October of 2021 and February of 2022. They were discovered after Kingston Police received a report from the National Child Exploitation Coordination Centre about the downloading of images constituting child pornography. The images had been downloaded on October 15th, 2021. Following an investigation, a search warrant was executed at Mr. LeClair’s address on February 16th, 2022, and several computer devices and printed photographs were seized.
5Police ultimately determined that the accused had 4333 images and 37 videos that were classified by investigators as “category 1” images/videos (while these figures form the basis for the plea, the redacted report of D/Cst. Murphy filed as an exhibit on sentencing indicates there were 4429 images). These images and videos meet the Criminal Code definition of child pornography. Mr. LeClair’s category 1 collection included images and/or videos of pubescent children, but the “vast majority” of the collection depicted pre-pubescent children under 10, including toddlers, engaging in sexual acts with other children or adults. Oral, anal and vaginal penetration were depicted, as well as children being urinated or ejaculated upon.
6Mr. LeClair also had 8900 images and 107 videos that constituted “category 2” images (again here, the figure in the redacted report is higher – 9846 images and 124 videos). Category 2 encapsulates images of “investigative interest” and include images depicting child nudity which do not fit the definition of “child pornography” in the Criminal Code, and images where the ages of the persons depicted is not clear. In Mr. LeClair’s case, there were also cartoon images.
The Victim Impact
7Eight community victim impact statements have been presented to the court. It is saddening that some of the images possessed by Mr. LeClair are so widely distributed that it has been possible for law enforcement authorities to identify the children who are depicted. Community victim impact statements are from some of these individuals, or their parents, and they describe the impact that the offence of possessing child pornography causes. They are extraordinary in the pain and suffering they describe.
8As noted by Crown counsel, there are consistent themes in the victims’ statements. For instance, many describe the “crippling insecurity” that the offence causes. Victims do not feel safe so long as they know their images continue to circulate. Some victims have been contacted by people who have accessed their images, while others worry that this will happen to them. They worry when they are in public that they will be recognized by persons unknown to them who have accessed images of the worst experience of their lives. Further, the continued existence and sharing of the images causes them to relive their abuse. That the images remain on the internet has also robbed some victims of the “motivation to get well” and has contributed to self-harming behaviours and suicidality.
9It is difficult to adequately summarize the catastrophic effects the continued proliferation of these images has had on these victims. The statements are gut-wrenching and heartbreaking.
The Offender
10Mr. LeClair is 62 years old. He lives alone and has retired from work. He has no children.
11A number of reports were prepared in respect of this hearing that provide a great deal of information about Mr. LeClair.
The Pre-Sentence Report
12The PSR indicates that Mr. LeClair grew up in a home with loving parents, even though his father was also described as using corporal punishment and as drinking too much. He grew up with three sisters. He has relationships with two of them still.
13Both sisters (Ms. Burt and Ms. Breault) describe Mr. LeClair as a good brother and a loving family member who was protective and supportive. Both indicate they were shocked by the offences. Ms. Burt has daughters, who she reports have not rejected their uncle. However, they will not leave their children alone with him. Regardless of the outcome of the case, Ms. Burt believes Mr. LeClair would benefit from mental health counselling.
14Mr. LeClair is highly educated. He pursued PhD studies in economics but did not complete his dissertation. He was subsequently employed with various governments in a number of cities. He retired in 2021.
15The PSR indicates that the use of alcohol has been a problem for Mr. LeClair at various times. He reports feeling euphoric when he consumes it. He suggested that he had not been able to complete his PhD dissertation because he was “so drunk”. He has a criminal record for impaired driving offences, the first dating from 1993, the second from 2019. At the time of the report, he continued to use alcohol and said he drank to intoxication about once per month. He said he believed that he may have been under the influence of alcohol “some of the time” when he was offending.
16Mr. LeClair has also had other health issues. He was diagnosed with depression and said he had been diagnosed as “borderline bi-polar” at one point. In 2016 and 2017 he attended a rehabilitation centre for an acquired brain injury after falling and hitting his head. He subsequently suffered two seizures while at work.
17Mr. LeClair expressed his remorse for the offences. He described the impact of reading the victim impact statements on his understanding of the effects of the offences. He described being ashamed of what he had done and being worried that people will find out about the charges. This has impacted on his participation in organized activities, such as joining a seniors’ club. He suggested the experience of being charged has been traumatic for him. He said that “he can not compare his life to the victim’s [sic] lives but he is also “affected similarly but to a much lower degree””.
18Mr. LeClair expressed his readiness to engage in counselling and treatment. The author of the PSR concluded that it appeared he was suitable for community supervision.
Psychiatric/Psychological reports
19At his own initiative, Mr. LeClair has been assessed by two mental health professionals.
Dr. Hassan
20Dr. Hassan is a forensic psychiatrist. In his report, he indicates that he was asked to complete an assessment of Mr. LeClair’s moral culpability for his offences. To do so, he reviewed various medical records relating to Mr. LeClair’s brain injury, he interviewed the offender, he spoke with the offender’s sister, and reviewed police disclosure.
21Dr. Hassan reviewed the events leading to Mr. LeClair’s head injury. He reportedly sustained it after falling down a flight of stairs at a party in October 2016. He was intoxicated. CT scans showed brain damage to the frontal and temporal lobes, which are known to regulate behaviour. He required months of rehabilitative therapy. After going back to work, he experienced seizures and behavioural issues.
22Dr. Hassan stated that there was a clear change in Mr. LeClair’s mood, perception and executive functioning immediately following his brain injury. While certain perceptual difficulties resolved, there was a change in his personality. Mr. LeClair reported that prior to the injury, he was “more of a hermit”, whereas now he felt more outgoing and open with other people and less inhibited.
23Mr. LeClair stated that he did not exactly remember when he first started downloading child pornography. He said he did know it began within months after his discharge from hospital and that he knew what he was doing was illegal. He took steps to mask his internet identification by using a Virtual Private Network (“VPN”). He reportedly accessed the material easily and would do so once a week, if not a few times a week. He reported not being overly preoccupied with the need to download the images and that his pattern in downloading them was not affected by his social circumstances. He said he did not feel he was harming anyone, though he knew what he was doing was wrong. He reasoned that the events had already occurred to the children in the images. He said viewing the images became a bit of a habit. He denied using them for sexual arousal. His arrest has been a “wake-up call”.
24Mr. LeClair also reported that after reading the victim impact statements, he realized the immense trauma that survivors relive when such images are accessed. He has not viewed any child pornography since and has no urge to do so. He would like to understand, at some point, why this happened and continued the way it did. He wants to know what he should be doing “moving forward”. However, he is clear it will not happen again.
[25] Dr. Hassan considered the impact of Mr. LeClair’s head injury on his behaviour in committing the offences. He opined that: a. There was a clear change to Mr. LeClair’s personality following the brain injury; b. Brain injuries can affect various aspects of an individual’s cognitive and emotional functioning, which in turn can influence their sexual behaviours and preferences; c. Damage to specific regions or circuits of the brain can result in alterations in personality, impulse control, and emotional regulation, all of which can play role in the development or exacerbation of paraphilia; d. Not everyone who experiences a brain injury will develop paraphilia, and the relationship between brain injury and paraphilia is not well-established nor is it well-understood; e. While brain injuries can sometimes lead to changes in sexual behaviour and preferences, it’s challenging to pinpoint a single specific brain region responsible for the development of paraphilia “but the literature does identify importantly the frontal lobe and temporal lobes in this regard”’; f. In Mr. LeClair’s case, “it is evident that his brain injury played a role in reducing his inhibitions, leading to his involvement in accessing child pornography. Subsequently, it appears that he developed a habit of engaging in this behavior despite being aware of its wrongful and illegal nature”.
26Ultimately, Dr. Hassan concluded that
[i]n the absence of the brain injury, it is unlikely that Mr. LeClair would have engaged in these offences. He had previously demonstrated an ability to prevent other unconventional sexual interests from negatively impacting his social, occupational, and personal life. In my professional opinion, the presence of the brain injury has had a discernible impact on his level of moral culpability concerning the aforementioned offences.
Dr. Loomen
27A sexual behaviour assessment was done by a psychologist, Dr. Jan Loomen. In addition to administering actuarial tests and conducting phallometric testing, Dr. Loomen reviewed various reports related to Mr. LeClair’s brain injury, as well as the report of Dr. Hassan.
[28] Dr. Loomen concluded that: a. The results of the phallometric testing were uninterpretable; b. Other tests indicated a lack of interest in deviant sexuality generally, and in children specifically; c. Actuarial tools suggest Mr. LeClair is at low risk to reoffend; d. The risk assessment tools in conjunction with the dynamic risk assessment place him in a group of offenders who offend at a rate of 6.1% over 5 years; e. Mr. LeClair scores in the well-below average risk range in actuarial measures and presents with few dynamic risk factors related to sexual offending; f. Of the dynamic risk factors, with the exception of the scoring for deviant sexual preference (which scoring was based on his offence behaviour), his scores were highest as they related to impulsivity. It was noted that he has a significant problem with alcohol and that this contributed to his head injury. He was also noted to have some deficiencies with problem-solving; g. Mr. LeClair’s low risk to reoffend could be managed on a supervised release. He has supports in the community and the skills to access treatment.
29Dr. Loomen noted that in a clinical interview, Mr. LeClair indicated that his possession of child pornography started after his head injury. However, Dr. Loomen also wrote: “He admitted that he viewed some prior to the injury, but that after he started looking at it “all the time”, indicating that he would do so a few times a week”. Mr. LeClair said he was not sure why he collected it or downloaded it. He did not know why he had printed it. He stated that he “may have liked” some of it.
30Dr. Loomen noted that Mr. LeClair had suffered a significant brain injury prior to the commission of the offences. As for its causal role in Mr. LeClair’s behaviour, he wrote: “it is possible that the disinhibition noted in the Neurospychological Report played a role in the commission of his offences. However, overall, he is responsible for his behaviour and admitted that he used a VPN in order to hide his behaviour”.
Letters of support
31Mr. LeClair’s sisters, Ms. Breault and Ms. Burt, and his brother-in-law Mr. Breault, have all provided letters of support for him. All express their view that the offences are out of character for Mr. LeClair, and their belief that his behaviour was caused by the brain injury. They urge the court to consider a sentence to be served in the community.
32Two friends of Mr. LeClair’s have also provided a letter which describes him as intelligent, well-read, articulate, kind and gentle. He has supported other members of their social group in times of need and hardship.
Positions of the Parties
33The Crown seeks a sentence of 4 years in addition to various ancillary orders. Counsel emphasizes that the primary sentencing principles at play here are denunciation and deterrence, as well as the fact that Friesen requires that sentences for these types of offences must increase. The Crown argues that a four year sentence is fit having regard to the severe harm caused to the victims, the immense volume of the collection, and the nature of the collection. The Crown submits that the report of Dr. Hassan is of no assistance, since it is the court’s role to determine moral responsibility. As for the idea that Mr. LeClair’s brain injury played a causal role in his behaviour, counsel argues that even if the science permitted the court to draw such a conclusion, it is undercut by the fact that Mr. LeClair told Dr. Loomen he had viewed some images prior to his injury. Counsel also emphasizes that Mr. LeClair told Dr. Loomen that he “may have liked” some of the images, and that he took steps to hide his conduct by using a VPN, which shows he understood what he was doing was wrong. As I understand the Crown’s argument, to the extent the court is inclined to accept that the brain injury played a role in the offender’s conduct, this would contribute to the need for a sentence that specifically deters Mr. LeClair since he remains brain injured. In any event, a conditional sentence is not available because the appropriate sentence here exceeds two years.
34The defence points to the availability of a conditional sentence and argues it would meet the relevant principles of sentencing, particularly coupled with a 3 year probation order. Counsel emphasizes that Mr. LeClair has been forthcoming with the doctors who have assessed him. He has taken steps to understand the issues that led him to offend so that the court might have some insight into his behaviour. Counsel submits that while Mr. LeClair is not blaming his brain injury for his actions, it does “play a factor”. This is because his inhibitions have been reduced. Counsel acknowledges that Mr. LeClair had a “relatively large collection”, but also emphasizes the opinion that Mr. LeClair poses a low risk to reoffend. Further, Mr. LeClair has demonstrated remorse and has shown insight into the harm he has caused. In the event that the court is not satisfied that a conditional sentence is appropriate, the defence submits that a “short sharp” jail sentence of 12 months, followed by 3 years probation, would be fit.
The Legal Principles
The Criminal Code of Canada
35The Criminal Code is the first point of reference for principles that apply to sentencing for this kind of offence. In addition to setting out the fundamental principles that apply in sentencing any offender, Parliament has made clear that in offences that involve the abuse of children, denunciation and deterrence must be given “primary consideration” [emphasis added] when imposing sentence: s. 718.01. It is not open to sentencing judges to elevate other sentencing principles, such as rehabilitation, to an equal or higher priority. Sentencing judges may, however, accord significant weight to other factors in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality: Friesen at para. 104; see also R. v. McCaw, 2023 ONCA 8 at para. 28.
R. v. Friesen
36The case of R. v. Friesen has modernized this country’s approach to sentencing for sexual offences against children, including offences relating to child pornography.
37Friesen has sent a clarion call to lower courts telling judges that sexual offences against children are violent crimes that cause profound harm to children, families and communities, and that sentences for these crimes “must increase”: at para. 5. Friesen emphasizes that this message had also been clearly sent by Parliament, which has repeatedly increased maximum sentences for sexual offences against children as society’s recognition of the gravity of sexual offences against children has grown: see paras. 95-100. For instance, the maximum sentence for the offences at issue here (possession of child pornography and accessing child pornography) were doubled in 2015 from 5 years to 10 years. Friesen directs that an upward departure from prior precedents and sentencing ranges may be required to impose a proportionate sentence: at para. 107.
38In respect of offences involving child pornography, Friesen recognized the harm caused by the nature of these offences. It acknowledged that online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since 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: at para. 48.
39Friesen explained that courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle, as they both impact on the gravity of the offence and the degree of responsibility of the offender: at para. 75. It held 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]. 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 may vary from case to case. [emphasis added]
40The Friesen court also discussed the impact of an offender’s guilty plea and remorse. Where the Crown’s case against an offender is overwhelming (for instance, because the conduct was recorded), a guilty plea is entitled to less weight. Nevertheless, the plea does have other advantages that count in mitigation, including saving court resources and providing finality to victims: at para. 164. As for an offender’s remorse, which may be a mitigating factor, it “gains added significance when it is paired with insight and signs that the offender has “come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending”: at para. 165.
The principles and directives from the Court of Appeal
41The Court of Appeal for Ontario has also provided guidance about how to assess a fit sentence for these types of offences.
42R. v. M.M., 2022 ONCA 441 required the court to address the sentence imposed for child pornography offences. The Court reinforced the message from Friesen, which it said “could not be clearer”. The court held: “sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance … Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow”.
43In the subsequent case of R. v. M.V., 2023 ONCA 724, however, Pacciocco J. cautioned at para. 92 that “[p]ossession of child pornography is always disturbing and dangerous, inviting strong social censure. But some offences are more disturbing and dangerous than others, as are some offenders. It would be contrary to the principles of sentencing to treat every case of possession of child pornography as worthy of the highest range of sentence without regard to the relative seriousness of the offence, and the relative moral fault of the offender”. The court further noted that the sentencing range for possession of child pornography is “uncertain”: see para. 94.
44In a pre-Friesen case, R. v. Inksetter, 2018 ONCA 474, the court noted that it had “repeatedly stated that denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography”: at para. 16. It also held that a longer sentence was appropriate for the offence of making child pornography available, such as with peer-to-peer file sharing platforms, since in those cases, the offender contributed to the further victimization of the children depicted: at para. 27.
45In R. v. Walker, 2021 ONCA 863, the court rejected the offender’s argument that his sentence should be reduced because the size of the collection of materials in his possession as compared to the materials held by other defendants, was less. The court held at para. 8: “[s]entencing for child pornography offences is not done by means of a strict mathematical formula tied solely to the quantity of pornographic materials without regard to other factors. Such an approach overlooks the importance of the content of the materials and other relevant considerations”. The court saw no error in the trial judge’s focus on the “egregiousness” of the materials in the appellant’s possession as a significant factor in her sentencing decision.
The availability of a conditional sentence
46A conditional sentence may be imposed where: 1) the appropriate sentence is of less than 2 years custody; 2) the offender does not pose a risk to the safety of the community; and 3) the principles of sentencing at issue may be satisfied by the imposition of a conditional sentence: R. v. Proulx, 2000 SCC 5.
47In R. v. Ali, 2022 ONCA 736, a case involving a violent offence, the Court of Appeal reiterated that even in cases where deterrence and denunciation are paramount sentencing objectives, a conditional sentence may be appropriate: at para. 31, citing R. v. Sharma at para. 171. In considering whether a conditional sentence is appropriate, it is important for judges to consider the restraint principle, which requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders: at para. 40. Trial judges must determine whether a custodial sentence or one served in the community would better serve all of the relevant sentencing objectives at play, which may also include the offender’s rehabilitation: see para. 28.
48The Court of Appeal for Ontario in M.M. was clear, however, that a conditional sentence for a sexual offence against a child “will only rarely be appropriate”. Further, the court has said that “their availability must be limited to exceptional circumstances that render incarceration inappropriate”: M.M. at para. 16 [emphasis added]. While the court declined to enumerate what might constitute “exceptional circumstances”, it provided the example of a case involving an offender with a medical hardship that could not be adequately addressed within a correctional facility.
49Even so, Paciocco J. observed in M.V. (without reference to M.M.) that conditional sentences for possession of child pornography were “not uncommon” in the Ontario Court of Justice where summary prosecutions were more common: see paras. 96-97. The cases cited in support of this observation were all decided after Friesen.
Cases demonstrating the appropriate range of sentence
50As noted by our Court of Appeal in M.V., the sentencing range for possession of child pornography is “uncertain”: see para. 94. Accordingly, both parties have submitted cases for my consideration in determining a fit sentence. The cases provide examples of sentences for offenders who have committed similar offences, even if they do not set out a clear range.
51In R. v. Olivetti, 2022 ONCA 142, the 77-year-old offender had pleaded guilty to possessing and accessing child pornography. The trial judge accepted the joint submission for a 4 year sentence. The sentence of 4 years was upheld on appeal. There was evidence the offender had some health issues, but the Court of Appeal confirmed these were best left to the parole board. Aggravating factors in this case included that the offender had a “very large collection” of images (11 000 images and 88 videos, primarily of prepubescent girls), and a history of sexually offending against children for which he had received a sentence of over 10 years. The offender had a history of employment and had expressed remorse for his actions.
52The offender in R. v. Brown, [2022] O.J. No 3096 was convicted after a trial of accessing, possessing, and making available child pornography. His sentence of 3 years was upheld on appeal. The offender reportedly had 2,517 files that were categorized as child pornography, but as they had been deleted at the time the offender’s computer was seized, the findings of guilt were based on 500 files containing images and videos. The children were, for the most part, 10 years old or younger. The content of the collection was described as “severe” and depicted sexual violence against children. Even though the trial judge erred in assessing the size of the collection, the Court of Appeal found that the sentence remained fit because “500 files is also a very large quantity warranting a significant sentence” (at para. 14) which was also justified because the content of the files was aggravating.
53The 35 year old offender in R. v. Subia, 2022 ONSC 1693 received a sentence of 3 years. He had entered guilty pleas to various offences including possessing and accessing child pornography. The pleas were entered following a ruling on a pre-trial motion. While the offender had a related criminal record for accessing child pornography, he was said to have “no violent tendencies”, and had attended a number of sessions with a psychotherapist prior to sentencing. He had pedophilic tendencies and was described as a moderate risk to re-offend. The size of the collection of images (3396 unique images, no videos) was “relatively large and would have taken some time to collect”. The nature of the collection was at “the high end of abusive material”.
54The offender in R. v. Walker, 2021 ONSC 837, upheld on appeal, 2021 ONCA 863 was found guilty after a trial of accessing and possessing child pornography, in addition to making it available. The offender had collected 43 videos and 17 images. Three of the images were accessible in a peer-to-peer file sharing platform. The content of the collection was described as “particularly heinous” and involved children between 3 and 14 years old. The 46-year-old offender was remorseful (though he was found not have insight into the seriousness of the offences), had no prior record and had been steadily employed since he was 22 years old. He had support from his family and friends, who expressed concern about how he would fare if incarcerated given his health issues. The offender was sentenced to 2 years incarceration for possessing child pornography and 3 years concurrently for making child pornography available. The sentence was upheld on appeal.
55R. v. Murty, 2021 ONSC 2801 involved an offender who pleaded guilty to possessing and making available child pornography. He was sentenced to 3 years. The size of the collection was “significant”. He had collected 746 images and 801 videos. The contents involved boys under age 12 or 13 with an emphasis on babies (some described as a few days or a few weeks old) and toddlers and involved invasive sexual conduct “at the higher end of relative depravity”. The offender was 49 years old, had no prior record, and had a history of employment. He had difficult personal circumstances which included being rejected by his parents because he was gay. He had become a recluse, suffered from anxiety and depression, and had attempted suicide. He abused narcotics to cope. He was found to be a moderate risk to re-offend by committing a future child pornography offence. In arriving at this sentence, the trial judge rejected the suggestion that a conditional sentence was fit since it would not properly address the principles of denunciation and deterrence. However, in fixing the length of sentence, she noted the principles in R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.) and R. v. Borde, (2003), 172 C.C.C. (3d) 225 (Ont. C.A.) to the effect that a “first penitentiary sentence should be as short as possible”.
56In M.M., the offender was convicted of possessing and making child pornography. The 15 year old victim was known to the offender, who was in a position of trust toward her. Text messages between them “became sexually charged”. The complainant sent images of herself to the accused which met the definition of child pornography. The offender was sentenced to a 15 month conditional sentence. On appeal, the court held that a conditional sentence was not appropriate in that case because no exceptional circumstances were present. It accepted the Crown’s submission that a 15 month sentence plus 12 months’ probation would have been appropriate, “albeit at the low end of the range”: at para. 19.
57In R. v. Cusick, 2022 ONCJ 590, the offender pleaded guilty to possession of child pornography. He was sentenced to 6 months in custody, which he was permitted to serve in the community on a conditional sentence order given “the unique circumstances” in that case. The offender had collected 130 unique images and 24 unique videos (see para. 44). The offender was 59 years old and the primary caregiver to his elderly mother. He had been molested when he was a child and reportedly turned to the internet and child pornography “to overcome his grief and depression from his sexual abuse”. He suffered from various health issues, including depression. The offender had been before the court for 9 years on strict bail terms, a factor which the Crown considered in submitting that a conditional sentence was appropriate in this case.
58R. v. McCaw, 2023 ONCA 8, involved an offender who had received a conditional sentence, notwithstanding that he had two prior convictions for child pornography offences. The Court of Appeal overturned that sentence and imposed a sentence of three years’ imprisonment. On this occasion, the offender possessed seven unique images and three unique videos, but he admitted to accessing child pornography almost daily. Trotter J.A. described the collection as “shockingly vile”, and reasoned that consequently, “the relatively small size of the respondent’s collection of child pornography had no mitigating value”: at para. 33. The children depicted were between one and twelve. The offender was 47 years old and had a number of mental health challenges. He reportedly used child pornography to cope with his loneliness. He had been diagnosed with pedophilia and paraphilia. The offender was remorseful and apologized to the children he had harmed by his use of pornography. Given that he posed a real risk of re-offending, and a sentence of under 2 years was not appropriate, a conditional sentence should not have been imposed.
Pre-Friesen cases
59In R. v. Carlos, 2015 ONSC 6070, affirmed on appeal, 2016 ONCA 920, an offender with a collection of 12 complete videos and 38 incomplete videos was sentenced to 3 years after a trial. The contents of the videos depicted intercourse between adults and children. The offender had been assessed by a psychiatrist and was found to be a very low to low risk for re-offending. He had no prior record and had been steadily employed. The Court of Appeal rejected the argument that a reformatory sentence was sufficient for a first offender who was a low risk to reoffend and held that the sentence imposed was “within the range for these offences”, which included making the images available.
60Inksetter also pre-dates Friesen, and also involved the additional conviction for making child pornography available. In that case, the collection consisted of 28,052 images and 1,144 videos. It involved children as young as a year old and images depicting bondage and bestiality. The offender had entered an early guilty plea. He had shown remorse and started seeing a psychologist immediately upon being charged. The trial judge’s sentence of 2 years less a day and three years probation was overturned on appeal. The offender was ultimately sentenced to 3 years for the possession offence, and 3.5 years for making available child pornography.
Analysis
61I begin with an assessment of the aggravating and mitigating circumstances here.
The aggravating factors
a. The victims are children (s. 718.2(a)(ii.1) of the Criminal Code): that this is self-evident given the offences charged does not detract from this as an aggravating factor. b. The victim impact (s. 718.2(a)(iii.1) of the Criminal Code): I accept that the offences committed by Mr. LeClair have caused immense harm to the physical and psychological health of many children and their families. The harm is not academic. It impacts the everyday life of real people. Eight identifiable victims were impacted in this case, but I accept that harm was caused to many others. This is a very significant aggravating factor in this case. c. The size of the collection: Mr. LeClair possessed a very large number of images and videos. This is highly aggravating. d. The nature of the images: The collection can be characterized, like others in the reported case law, as “shockingly vile”. It includes depictions of toddlers and pre-pubescent children, and all manner of penetration. It includes degrading scenarios with children being urinated or ejaculated upon. The nature of the images is aggravating. e. The prior record: Mr. LeClair has a criminal record for offences arising from his abuse of alcohol. Given that Mr. LeClair describes some of his offending occurring when he was drinking, this record has some relevance as an aggravating factor. In any event, Mr. LeClair’s prior record does distinguish him from other offenders who came before the court with no prior record at all.
62There are mitigating factors as well and I turn to those now.
The mitigating factors
a. The guilty plea: while it appears this was an overwhelming case for the Crown, the guilty plea has saved court time and resources. I also accept that it is an indication of Mr. LeClair’s remorse. b. The offender’s insight and remorse: I accept that Mr. LeClair has developed some insight into the harm he has caused. He has read the victim impact statements for this case and reflected upon them, which is to his credit. I believe he is willing to learn from his behaviour. At the conclusion of the sentencing hearing, he also apologized to the victims and expressed that he now understands that he has affected the life of real people, something which did not occur to him as he committed the offences. I accept his apology as sincere. However, while I accept Mr. LeClair is sincerely remorseful, his insight is tempered by the suggestion to the author of the PSR that the impact of being charged has resulted in trauma to him which has affected him similarly to the victims of the offences. While I do not doubt that being charged with these offences has had a significant impact on Mr. LeClair, the suggestion that this is in any way akin to the experience of the victims is plainly wrong, and lacking in insight. So, while I accept that Mr. LeClair’s insight has grown since he committed the offences, in my view, he has more work to do. c. The offender’s prior good character: Mr. LeClair has a history of serving various governments in his employment. He has been a valued member of his family, and a valued friend.
63There are other issues which impact the sentence to be imposed, and I address them now.
The risk to reoffend
64The Crown argues that Dr. Loomen’s opinion that Mr. LeClair is at a low risk to re-offend should not be given any weight since the phallometric testing gave rise to uninterpretable results. Risk is therefore an open issue.
65Dr. Loomen provided his risk assessment despite the uninterpretable results from the phallometric testing. His assessment reflects both actuarial tools and clinical factors. I accept that he was able to form an opinion even without interpretable results from the phallometric testing. I accept his opinion that Mr. LeClair is a low risk to reoffend.
The impact of the acquired brain injury
66There is no doubt that Mr. LeClair has suffered a significant brain injury. It appears to have affected his personality to some extent.
67The defence argues the brain injury has been a factor in Mr. LeClair’s offending because it has reduced his inhibitions. The defence relies on the opinion of Dr. Hassan in support of its position. The Crown argues that the evidence, considered globally, does not support this conclusion. In assessing this issue, I consider that pursuant to s. 724(3)(d) of the Criminal Code, the court must be satisfied on a balance of probabilities of any disputed fact before relying on it in determining sentence.
68I have carefully considered the evidence before me. Having regard to the evidence as a whole, I prefer the opinion of Dr. Loomen that it is possible the brain injury has impacted Mr. LeClair’s behaviour. Possibility is not probability, however. The evidence does not permit me to conclude, on a balance of probabilities, that Mr. LeClair’s brain injury caused or was a factor in his offending behaviour.
69As for Dr. Hassan’s opinion, I agree with the Crown that it is not the province of a forensic psychiatrist to provide an opinion on moral blameworthiness, which is an issue distinct from criminal responsibility. To the extent that Dr. Hassan’s opinion is admissible because it assists in determining the narrower issue of whether the brain injury contributed to Mr. LeClair’s offending behaviour, I do not find the opinion to be well-supported.
70It does not assist that the opinion is set out in a letter and has not been amplified by viva voce evidence. Nor has Dr. Hassan’s opinion been tested in cross-examination.
71On the record before me, I cannot reconcile Dr. Hassan’s seemingly firm opinion with the limits of the science that he describes. I am not sure how he can say that “in the absence of the brain injury, it is unlikely that Mr. LeClair would have engaged in these offences” when he also says that the relationship between brain injury and paraphilia is not well-established nor well-understood. Given the limits of the science, and given that Mr. LeClair acknowledges having sought out similar material before his brain injury, I prefer Dr. Loomen’s opinion that it is possible the brain injury had an impact.
72In any case, there is no doubt that Mr. LeClair is criminally and morally responsible for his conduct. I am fully satisfied that Mr. LeClair understood that what he was doing when he downloaded these images and videos was wrong. This is confirmed by the fact that he tried to hide his behaviour by using a VPN. There is no suggestion that the brain injury would have impacted Mr. LeClair’s ability to understand that he was downloading images depicting the sexual abuse of children. I am not persuaded that the brain injury is a factor which reduces his moral fault for his offences.
Conclusion
73Sentencing a person for an offence is a difficult task. There are no precise formulas that apply. A judge must fashion an appropriate sentence for the individual person before her. This is a profoundly individualized process driven by the unique factors of every offence and the unique characteristics of every offender.
74Mr. LeClair comes before the court having largely lived a responsible life. He has contributed to his community and his family. He has never been sentenced to a jail sentence, and the principle of restraint is engaged in determining what sentence is appropriate. He has family support and rehabilitative potential and is not likely to become a repeat offender.
75However, by possessing the thousands of images and many videos that he did, Mr. LeClair has contributed to the ongoing victimization of children. His conduct in possessing these images and videos is part of what produces a market for these images and videos in the first place. His conduct has also harmed children whose vulnerability could not be more clear. The gravity of the offences and Mr. LeClair’s moral blameworthiness for them is high. The harm he has caused is significant. And as Parliament has directed, the principles of denunciation and deterrence must be given the primary consideration in imposing sentence for an offence involving the abuse of children.
76A jail sentence must be imposed here to reflect society’s absolute denunciation of these offences and to deter others. As for the length of that sentence, having regard to all the circumstances, I find that a sentence in the upper reformatory range is insufficient, notwithstanding this is Mr. LeClair’s first offence of this kind and he is a low risk to reoffend: see Carlos, 2016 ONCA 920 at paras. 8-9.
77The size of Mr. LeClair’s collection, the nature of the images, and the victim impact are all very weighty aggravating factors. The mitigating factors present in this case do not pull as heavily. Giving my best assessment to all the principles and circumstances I must consider, including the sentences that have imposed in other cases, and the clear directions given in Friesen, I conclude that a fit sentence here is one of 3.5 years in custody.
78Given that the appropriate sentence is outside the two year range, a conditional sentence is not available. In any event, I find that this is one of those cases where the need for denunciation and deterrence is so pressing that incarceration is the only suitable way to express society’s condemnation of the offender’s conduct: see Proulx at para. 106. Further, there are no exceptional circumstances that would make a conditional sentence appropriate: M.M. at para. 16.
79Pursuant to Kienapple, the “accessing” count (count 3) is stayed. This leaves two counts of possessing child pornography – count 2 (on October 15th, 2021) and count 4 (on February 16th, 2022).
The sentence imposed
80In the result, the sentences will be for 3.5 years on each of counts 2 and 4, to be served concurrently.
81In addition, there shall be a DNA order; a SOIRA order for twenty years; a s. 161 order for 10 years.
Lacelle J.
Handed down (orally): February 21, 2024
