COURT FILE NO.: CR-22-30000123-0000 DATE: 20240202

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SHEKH INSANALLY

COUNSEL: P. Rutherford, for the Crown S. Morcos, for Mr. Insanally

HEARD: January 9, 2023

REASONS FOR SENTENCE

SCHRECK J.:

[1] Shekh Insanally liked to download files from the Internet using peer-to-peer software. He downloaded approximately five million files, which included music, graphics and pornography. Some of the pornography, approximately 2500 files, included sexually explicit depictions of children.

[2] The files on Mr. Insanally’s computer were available to be downloaded by others. The police learned of them and downloaded child pornography from his computer. They later executed a search warrant on his devices, arrested Mr. Insanally, and charged him with a number of offences. Mr. Insanally eventually pleaded guilty to possession of child pornography (Count 1) and making child pornography available (Count 3). This court must now determine the appropriate sentence.

I. FACTS

A. The Offence

[3] In April 2019, members of the Toronto Police Service Child Exploitation Section became aware that files suspected to be child pornography were being made available by a person using a specific internet protocol (“IP”) address. Between May 1 and 2, 2019, a police officer downloaded videos from that individual using a file sharing network and found them to contain child pornography. The IP address was associated to a specific municipal address in Toronto which was later determined to be the residence of Mr. Insanally. A search warrant was executed there on May 16, 2019 and a number of electronic devices were seized.

[4] The electronic devices were examined and found to contain approximately five million downloaded files, including music, graphics and pornography. Some of the pornography depicted adults, but 2369 unique images and 222 videos met the definition of child pornography. The children depicted in the images and videos ranged in age from infancy to the early teens, although most appeared to be between four and eight years of age. The images and videos depicted explicit sexual content, including anal, vaginal and oral penetration as well as erotic posing. A few contained images of bondage.

[5] Mr. Insanally was arrested and provided an inculpatory statement in which he admitted to having downloaded the images and videos.

B. The Offender

(i) Background and Personal Circumstances

[6] Mr. Insanally is 65 years old and has no criminal record. He came to Canada from Guyana with his family when he was 17 years old. He has a B.Sc. degree and a consistent employment history. He has been on bail since May 16, 2019 and has abided by all of his conditions.

[7] For many years, Mr. Insanally was the primary caregiver for his elderly parents and aunt who suffered from a number of serious health issues. He is currently the primary caregiver for his older brother, who underwent spinal surgery and has difficulty walking and who relies on Mr. Insanally for much of his daily routine.

(ii) Health Issues

[8] Mr. Insanally suffers from a number of health issues himself. He has cardiomegaly, diverticulitis, high blood pressure, high cholesterol, gastroesophageal reflux disease, and is prone to developing kidney stones. He also has damage to his pancreas and a fatty liver, although the cause of these conditions is unknown.

(iii) Counselling

[9] After pleading guilty to these offences, Mr. Insanally completed eight hours of individual counselling with Stephanie Swayne, a social worker. During these sessions, Mr. Insanally and Ms. Swayne discussed the impact child pornography has on the victims depicted in it, their families and society as a whole. According to a report prepared by Ms. Swayne, Mr. Insanally takes the position that he has no sexual interest in children but that he has an “addiction” to “downloading” a variety of material from the internet, including music, graphics and legal pornography. He engaged in this conduct as a diversion from the mental stress caused by his caregiver responsibilities. He has since developed alternative strategies for coping with stress.

[10] It is Ms. Swayne’s opinion that “[b]ased on available information, Mr. Insanally presents as low risk to reoffend in any capacity.” However, the basis for that opinion is not made clear in her report.

II. ANALYSIS

A. General Sentencing Principles

[11] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing 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 ….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718 (a) to (f), including denunciation, general and specific deterrence and rehabilitation. The individualization of the sentencing process requires that these different objectives be blended and prioritized so as to properly reflect the seriousness of the offence and the responsibility of the offender: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 58.

[12] Where, as in this case, the offence involves the sexual abuse of children, the objectives of denunciation and deterrence must be prioritized: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 102-105; R. v. Snowden, 2023 ONCA 768, at para. 65; R. v. Rule, 2023 ONCA 31, at para. 9. This principle applies to the possession of child pornography, which is a form of child abuse: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 22. The harm caused by this type of offence cannot be overemphasized. Not only are children harmed in the creation of child pornography, the fact that the child’s abuse is recorded and disseminated causes additional ongoing harm: Snowden, at paras. 59-64; Friesen, at para. 48.

B. Sentencing Range for Child Pornography Offences

[13] While the applicable sentencing principles are well established, the Ontario Court of Appeal recently observed in R. v. M.V., 2023 ONCA 724, at para. 94, that the sentencing range for possession of child pornography is “uncertain.” Some courts have endorsed a range of six to 18 months, while others have suggested that the range is six months to three years: M.V., at paras. 94-95. The Court described conditional sentences for this offence as “not uncommon”: M.V., at paras. 97. However, the Court had earlier stated in R. v. M.M., 2022 ONCA 441, at para. 16, that “[c]onditional sentences for sexual offences against children will only rarely be appropriate” and should only be imposed in exceptional circumstances where incarceration is inappropriate.

[14] In this case, the Crown submits that three years is the appropriate sentence and has cited cases in support of that submission: R. v. Walker, 2021 ONCA 863; R. v. Brown, 2022 ONCA 516; R. v. Carlos, 2016 ONCA 920. Counsel for Mr. Insanally submits that a conditional sentence is appropriate. As noted, there is some precedent for this, but it will “only rarely be appropriate.”

C. Aggravating and Mitigating Factors

[15] In R. v. Kwok, [2007] O.J. No. 457 (S.C.J.), which was cited with approval in M.V., at para. 89, the court provided a helpful list of relevant factors to be taken into account in determining the appropriate sentence in a child pornography case. Applying those factors, the aggravating factors in this case are that Mr. Insanally’s collection of child pornography was relatively large and the children depicted were very young. Other aggravating factors listed in Kwok, such as a related record or having purchased the material, are absent. Also absent is any evidence that Mr. Insanally is a diagnosed pedophile who has acted on his impulses by assaulting children or that he is likely to do so. I note, however, that this is the absence of an aggravating factor. It is not a mitigating factor.

[16] The mitigating factors are that Mr. Insanally has no prior criminal record and has accepted responsibility for his actions by pleading guilty. While the fact that he has undertaken counselling is also mitigating, the effect of this is limited since Mr. Insanally appears to have little insight into his problem. I do not accept that he has no sexual interest in children and was merely “addicted to downloading.” While I have not viewed the images or videos in this case, I am unfortunately all too familiar with their nature based on past experience in other cases. The sight of children being sexually abused is soul-destroying and traumatic to witness. I cannot accept that anyone would collect thousands of images of this nature unless he had an interest in it. The fact that Mr. Insanally has failed to recognize this is troubling. That said, this is the absence of a mitigating factor, not an aggravating factor.

[17] Mr. Insanally is not only charged with possessing child pornography, but he is also charged with making it available. Sentences for this offence tend to be higher than sentences for simple possession because it contributes to further offences by others and exacerbates the victimization of the children depicted in the images: R. v. Hughes, 2023 ONSC 5927, at para. 64; R. v. Murty, 2021 ONSC 2801, at para. 28; R. v. Tremblay, [2023] O.J. No. 436 (C.J.), at para. 31. In this case, the charge of making child pornography available is made out by the fact that the police were able to download videos from Mr. Insanally’s computer using a file sharing network. It is unclear whether the availability of the files for download was simply incidental to his own downloading of them. In any event, there is no evidence of any concerted effort to disseminate the material: Hughes, at paras. 65-66.

D. A Conditional Sentence is Not Appropriate

[18] A conditional sentence is not appropriate. As noted earlier, such sentences are only imposed in exceptional cases where incarceration is inappropriate such as, for example, where it would give rise to medical hardship that could not be adequately addressed within the correctional facility (M.M., at para. 16), where the accused is himself the victim of childhood sexual abuse (R. v. Jonsgma, 2021 ONSC 796, at paras. 56-57; R. v. S.B., 2022 ONCJ 536, at para. 25), where the offender has a serious mental illness affecting his degree of moral culpability (R. v. Prendivoj, 2022 ONCJ 257, at paras. 36-39), or where there has been inordinate delay between the offence and sentencing through not fault of the offender (R. v. Cusick, 2022 ONCJ 590, at paras. 52-53; R. v. Doucette, 2021 ONSC 371, 478 C.R.R. (2d) 292, at paras. 54-55). No such exceptional circumstances exist in this case. Although Mr. Insanally suffers from a number of medical conditions, there is nothing to suggest that they could not be treated in a correctional facility: Rule, at para. 8.

E. The Appropriate Sentence in This Case

[19] Although the range for this type of offence is uncertain, the three-year sentence sought by the Crown certainly falls within it, as demonstrated by the cases the Crown relies on (Walker, Brown and Carlos). That said, there are some aspects of those cases that are distinguishable from the case at bar.

[20] First, in all three cases the accused were found guilty after trial while Mr. Insanally pleaded guilty. The Crown points out that Mr. Insanally did not plead guilty at an early opportunity and the extent to which he has accepted responsibility is unclear, and submits that his guilty plea has less of a mitigating effect as a result. The Crown is correct that the mitigating effect of a guilty plea will vary with the circumstances of each case: R. v. C.L., 2023 ONCA 691, at para. 11; R. v. Gamble, 2013 ONSC 7615, 62 M.V.R. (6th) 107, at paras. 107-110. However, a guilty plea is nonetheless a mitigating factor. As pointed out in Gamble, at para. 107, “even where a plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide finality to the proceedings.” In a jurisdiction such as this facing a backlog of cases, this is a factor that must be accorded some weight.

[21] Second, while the condition of Mr. Insanally’s health is not such that incarceration is not appropriate, it is nonetheless a factor to be taken into account in determining an appropriate sentence: R. v. Drabinsky (2009), 246 C.C.C. (3d) 214 (Ont. S.C.J.), at para. 34, aff’d 2011 ONCA 582, 274 C.C.C. (3d) 289, at para. 170; R. v. Scott, 2023 ONSC 3023, at para. 66-68; Rule, at paras. 3, 8.

[22] In my view, both the guilty plea and Mr. Insanally’s health condition justify the imposition of a sentence somewhat below that sought by the Crown. In my view, the decision in Rule, where a 22-month sentence was upheld, is a useful comparator. That case also involved a guilty plea by a first offender with health issues. I recognize that the offender in Rule was five years older than Mr. Insanally and that his health conditions, which included cancer and an ostomy bag, were more serious. Also, unlike Mr. Insanally, he was not convicted of making child pornography available. On the other hand, the offender in Rule possessed over 100,000 child pornography images, far more than Mr. Insanally had.

[23] Having considered the relevant sentencing principles and the circumstances of this case, I have concluded that the appropriate sentence is imprisonment for two years less a day, which is similar to but slightly higher than the sentence imposed in Rule.

III. DISPOSITION

[24] For the foregoing reasons, Mr. Insanally is sentenced to a term of imprisonment for two years less a day on Count 1 and Count 3, to be served concurrently.

[25] In accordance with s. 487.051(1) of the Criminal Code, Mr. Insanally is ordered to provide such samples of bodily substances as may be required for forensic DNA analysis and inclusion in the national databank.

[26] As required by ss. 490.012(1) and 490.013(2) of the Criminal Code, Mr. Insanally is ordered to comply with the Sex Offender Information Registration Act (“SOIRA”) for a period of 20 years. [2]

[27] Pursuant to s. 161 of the Criminal Code, for a period of 10 years, Mr. Insanally is prohibited from the following:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless he does so under the supervision of the child’s parent or legal guardian, or under the supervision of a person authorized by the child’s parent or legal guardian;

(d) using the Internet or other digital network, except in accordance with the following conditions:

(i) only while using a device for which he is the sole owner and user or which is provided by his employer;

(ii) only connecting to the Internet through a subscription to an Internet Service Provider in his own name or that is provided through his employer or an educational institution at which he is a registered student and not by using public Wi-Fi services, internet cafés, or via shared public computers;

(iii) except as expressly authorized or required by his employer for legitimate employment purposes, he may not use any encryption software or security program designed to prevent access to the contents of his Internet capable devices, take independent action to encrypt any digital storage devices in his possession, use or permit to be installed on any device in his possession any program or service designed to allow anonymous use of the Internet or any scrubbing software or software that saves files in an encrypted fashion or which is designed to defeat forensic analysis of the Internet capable device;

(iv) he may not use or access any peer-to-peer file sharing networks directly or indirectly (including, but not limited to Motherless, LimeWire, Gnutella, BearShare, Shareaza, or similar programs); and

(v) he may not use any telecommunication device to access the Internet or other digital networks for the purpose of possessing, accessing or making available to others any content that violates any provision of the Criminal Code.

Justice P.A. Schreck Released: February 2, 2024

COURT FILE NO.: CR-22-30000123-0000 DATE: 20240202 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – SHEKH INSANALLY REASONS FOR SENTENCE P.A. Schreck J. Released: February 2, 2024

[1] An abbreviated version of these reasons was delivered orally in court. In the event of any disagreement between those oral reasons and these written reasons, the written reasons should be taken as correct.

[2] Section 490.13(2.1), which would have required a lifetime SOIRA order, was declared inoperative in R. v. Ndhlovu, 2022 SCC 38, 474 D.L.R. (4th) 389, at para. 142.