Court File and Parties

Court File No.: Toronto

Date: 2017-05-23

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Tommy Jarmulowicz

Before: Justice Fergus O'Donnell

Heard on: 9 January and 2 February, 2017

Reasons for judgment released on: 23 May, 2017

Counsel:

Ms. P. Garcia for the Crown

Mr. A. De Marco for the defendant, Tommy Jarmulowicz

Reasons for Judgment

Fergus O'Donnell, J.:

Facts and Guilty Plea

[1] Tommy Jarmulowicz has pleaded guilty to a single count of possession of child pornography between 29 April, 2012 and 14 January, 2014. The history is that on 29 April, 2012 he made his interest in child pornography known on the internet. That fact became known to the Child Exploitation Section of the Toronto Police Service in December, 2013. Detective Constable Blackadar then downloaded two files from Mr. Jarmulowicz's computer and the ensuing investigation led to Mr. Jarmulowicz's mother's internet protocol address, to the discovery that Mr. Jarmulowicz lived in his mother's basement and to the conclusion that it was Mr. Jarmulowicz and not his mother who was involved. In the course of the investigation, the police seized seven devices containing tens of thousands of images. At the time of the search, Mr. Jarmulowicz was downloading child pornography and uploading it to file-share networks.

[2] On arrest, Mr. Jarmulowicz admitted his guilt. He gave a statement to the police in which he said that he would never abuse a child himself, that he wanted to avoid looking at child pornography and that he wanted to get help. He also reflected on the fact that he lives a lonely, isolated life and could never disclose his behaviour even to his best friend. I take it as a given that Mr. Jarmulowicz's mother, with whom he lives, had no idea at all about what Mr. Jarmulowicz was up to in the basement of the house they shared.

[3] D.C. Blackadar prepared a representative sample of what the police found on the various devices and presented that sample to me in court. The sample consisted of seventeen images and five video clips. I do not see any value in describing those images and videos in detail. It goes without saying that they were all vile. At least one exhibit was so horrific that it made the word "vile" seem inadequate. Overall, the child pornography possessed by Mr. Jarmulowicz covered the whole range from mildly depraved to seriously depraved.

Medical and Personal Background

[4] I was presented with medical information from Dr. Comper concerning Mr. Jarmulowicz, to which I shall return later in these reasons. I also heard from Mr. Jarmulowicz's mother about his medical condition, which arises from a traumatic brain injury he suffered as a four year old, and about his current status. She testified that her son continues to suffer from a particular seizure disorder that started about five years ago and that his neurologist is trying to address the issue with various medications before considering the need for surgical intervention. The medications have already changed three times. She said that almost all of Mr. Jarmulowicz's seizures occur during his sleep and that he will wake up bloody from biting his tongue during the seizures. She said that other than the impact of his illness on her life, her son does not cause her trouble and that he is helpful to both her and their neighbours. He has an income of $1,100 each month from the structured settlement arising out of the motor vehicle collision.

Sentencing Submissions

[5] In light of the report from Dr. Comper, Ms. Garcia for the Crown very fairly agreed to proceed by summary conviction despite the size of Mr. Jarmulowicz's collection. She asks that I impose a sentence in the range of twelve months' imprisonment plus the maximum period of probation and the usual ancillary orders. Mr. De Marco does not dispute the general tenor of Ms. Garcia's submissions about the factors to be considered in sentencing for child pornography offences, but places his emphasis on the unique nature of Mr. Jarmulowicz as an offender and to some extent as a prisoner. In light of those factors, he asks that I impose the mandatory minimum sentence that was in place at the time of the offence and allow Mr. Jarmulowicz to serve that sentence intermittently.

Sentencing Principles

[6] There are few areas in life that call for a more individualized approach than the sentencing of a defendant for a criminal offence. One must consider the nature of the offence, the details of its commission, the defendant's role in its commission and the defendant's background, including any issues that may affect his relative culpability and the impact of particular sentencing options on him or her. One must also consider the relative importance of each of the sentencing objectives set out in the Criminal Code, including specific and general deterrence, denunciation, protection of the public, rehabilitation and reparations. Jail is to be used only where necessary and only to the extent necessary. In this case, there is a mandatory minimum sentence of ninety days' imprisonment based on the nature of the offence and when it was committed.

Moral Culpability for Child Pornography Possession

[7] There was no particular controversy over the general propositions for sentencing in cases of this nature. Many are the adjectives that have justly been heaped on depraved, palpably criminal behaviour that is rooted in the exploitation, violation and often brutalization of vulnerable young victims and on those who perpetuate and renew that victimization every time they download and/or pass on child pornography images and videos. I suspect that many people hope that hell exists and that a special corner of it is reserved for those who are directly involved in the manufacture of child pornography and who are involved in the direct victimization of the children involved. But however evil the creators of child pornography are, significant responsibility also lies with the consumers of this repugnant commodity. I am reminded of appearing as a young drug prosecutor before a cantankerous judge at Toronto's Old City Hall, in a courtroom that overlooked what was then the Simpsons department store. When sentencing defendants for simple possession of narcotics the judge would often point out the window to the store and ask the defendant what would happen to Simpsons if nobody ever bought anything from them, the obvious answer being that they would go out of business rather quickly. Particularly for drug users who were not addicted, this was a powerful way of demonstrating the moral responsibility of the drug consumer for the higher-end criminality (and often violence and corruption in Canada and elsewhere) generated by the drug trade. The point is all the more powerful in relation to an offence such as possession of child pornography, which is not only legally wrong but is also indisputably morally wrong and which involves the direct and ongoing victimization of children, often brutally so. While the creators of the pornography are rightfully at the zenith of public opprobrium, every single share and even every single download involves a morally despicable choice by the offender.

Leading Authority: R. v. Kwok

[8] Over the past decade, the decision of Molloy, J. in R. v. Kwok, [2007] O.J. No. 457 (S.C.J.) has deservedly taken on the status of a go-to compendium of sentencing considerations in child pornography cases. Although Molloy, J.'s discussion of the appropriateness of a conditional sentence for possession of child pornography has been overtaken by the intervening imposition of a mandatory minimum sentence, her judgement has aged very well. Amongst other things, it makes it clear that general deterrence and denunciation should play the primary role in sentencing for child pornography possession, which makes perfect sense given the pernicious and predatory nature of the offence.

Aggravating Factors

[9] Kwok also sets out a series of aggravating factors for consideration in the imposition of sentence for possession of child pornography including the following, which I have annotated with my observations about the present case:

(a) The existence of any previous criminal record and the nature and extent of that record. Mr. Jarmulowicz has no previous record.

(b) Evidence of any production or distribution of child pornography. The agreed facts here suggest that Mr. Jarmulowicz was sharing child pornography through share software, not just accumulating it.

(c) The size of the collection. The collection here is very large.

(d) The nature of the collection including the children's ages, the depiction of violence and relative depravity. In the present case, the children's ages span a broad range and include some very young children, which is aggravating. When it comes to the issue of violence and "relative depravity", I note that the images and videos here go beyond naked, sexually suggestive images of children to include the depiction of sexual acts by adults and the one horrific rape scene, complete with audio, to which I adverted indirectly earlier.

(e) The extent to which the offender is seen as a danger to children. There is no evidence of Mr. Jarmulowicz having acted on any impulse to harm children and he is an adult offender who appears to have been involved in the accumulation of his collection for a few years at least. Mr. De Marco points out that his home is in close proximity to a number of public schools.

[10] There is no evidence that Mr. Jarmulowicz purchased child pornography, which would be aggravating because that would involve him giving financial support to the actual creators and distributors of the product.

Mitigating Factors

[11] Kwok, supra, goes on to recognize mitigating factors, which include:

(a) An offender's youth. Mr. Jarmulowicz was chronologically a young adult, 27-29 years old at the time of the offence, although his medical condition, to which I shall refer in more detail later, is also relevant.

(b) An offender's good character other than the offence before the court. There is no suggestion of Mr. Jarmulowicz having engaged in any other criminality or misconduct.

(c) An offender's insight into the problem. It appears that Mr. Jarmulowicz's cognitive limitations allow him to know that child pornography is wrong but not to explain why it is wrong. I believe, however, that his comments to the police at the time of his arrest do reflect insight that offers some hope for a different outcome in the future. At the same time, without appropriate counselling, Mr. Jarmulowicz presents as a risk for re-offending.

(d) Any demonstration of genuine remorse. I believe that what I have said about insight also plays into this factor, as does Mr. Jarmulowicz's plea and his decision to forego any Charter applications, addressed below.

(e) An offender's pursuit of and/or openness to counselling and/or treatment. Mr. Jarmulowicz has been assessed but not treated since his offences. It seems that financial limitations play a role in nothing having been done to date. It also seems from the evidence that Mr. Jarmulowicz is open to counselling and that his mother will be engaged in ensuring his adherence to any counselling recommendations and that she will enforce any limitations on his access to the internet as a means of access to child pornography.

(f) Whether or not the defendant has pleaded guilty. Mr. Jarmulowicz did plead guilty and, in doing so, did forego possible arguments in relation to the validity of the search warrant for his home and the existence of a mandatory minimum penalty. I am not in possession of enough information to assess how viable a s. 8 Charter of Rights challenge to the search warrant would have been. However, without saying whether or not a challenge to the mandatory minimum sentence would necessarily or likely have succeeded, a challenge based on a "reasonable hypothetical" similar to Mr. Jarmulowicz's actual circumstances would not have been frivolous. The plea was not chronologically an early plea, but the time taken to get to the plea was required because of Mr. Jarmulowicz's unique background and the importance of all parties having comprehensive insight into his medical history and condition. Mr. Jarmulowicz's financial situation is such that obtaining the insight of a professional assessment required a court order under s. 21 of the Mental Health Act. In that light I think that his plea was the earliest plea that responsible counsel could have advised.

(g) The existence of any extra-judicial sanction suffered by the defendant, "for example, in his family, career or community". Mr. Jarmulowicz was subject to a bail order from mid-January, 2014 until the time of his sentencing in mid-May, 2017. That bail order was not particularly onerous. It required him to live at home, with his mother, who was also his surety. Realistically, given Mr. Jarmulowicz's medical condition, living at home with his mother was almost certain to be his reality for as long as his mother is capable of housing him. The impositions on his behaviour were limited to a ban on him being in the company of minors unless with his mother, which is a minor imposition because the material makes it clear that Mr. Jarmulowicz has tended to live an insular lifestyle. I accept that the ban on him having access to the internet, while entirely appropriate given the nature of the offences alleged, would have some heightened impact on him especially because of the insular nature of his life. There was no impact on Mr. Jarmulowicz's employment because he was not working and his mother's evidence suggests that he was not likely to have been working, whether he was charged or not.

Sentencing Range

[12] In terms of the appropriate, general range of sentence for an offence of this nature, namely a first offender with a significant collection, both Molloy, J. in Kwok, supra, and Henderson, J. in R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 (S.C.J.) agree that the general range is from six to eighteen months' imprisonment. At the same time, I also keep in mind the comments of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at p. 1118 that sentencing ranges are not "averages" or "straitjackets", but rather "historical portraits for the use of sentencing judges, who must still exercise their discretion in each case." I note also the comments of the Supreme Court in Lacasse, supra, that:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of facts that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit.

Unique Circumstances of the Offender

[13] The nature of the offence of child pornography and the particular details of the offence Mr. Jarmulowicz pleaded guilty to are such that I would normally have no difficulty whatsoever imposing a sentence in the range sought by the Crown, which falls solidly within the range determined by the authorities. It is Mr. Jarmulowicz's personal circumstances that I consider to be determinative in my conclusion that the sentence sought by Mr. De Marco is the sentence that I should impose. Mr. Jarmulowicz's personal medical history and his day-to-day reality are so divergent from the norm that no person considering descending into the moral bankruptcy that is inherent in the possession of child pornography should imagine that a "slap on the wrist" awaits them upon apprehension. To the contrary, the average offender should anticipate that the life-changing consequences of a mid-range reformatory sentence await even the otherwise presentable possessor of child pornography.

Medical History and Neuropsychological Assessment

[14] I have referred to Mr. Jarmulowicz's medical history at various points in these reasons. I was provided with a copy of a neuropsychological assessment done on Mr. Jarmulowicz in early 1994, just before he turned ten years old, a report outlining Mr. Jarmulowicz's experience of seizures in recent years and two reports by Dr. Paul Comper, a clinical neuropsychologist, commissioned by the court at Mr. De Marco's request.

[15] When Mr. Jarmulowicz was four years old he was struck by a car, either while riding his bicycle or when in a stroller, depending on which medical report one refers to. The first neuropsychological report, completed about five years after the motor vehicle collision, recognized that he had clearly suffered, "a significant invasive brain injury", but was generally quite positive about his recovery to that point, although it did note certain changes in Mr. Jarmulowicz from before the accident and did caution that his prognosis had to remain guarded, including in areas such as self-control and reading comprehension, especially as he headed into adolescence.

[16] The third and fourth reports (by Dr. Comper), completed two decades later, provide a much more current assessment. In the report Mr. Jarmulowicz's mother repeats the concerns she had raised twenty years earlier about her son's ability to focus. His high school marks showed a respectable but highly-variable average other than in his OAC credits, where he averaged 35 per cent. He also failed a significant number of courses in secondary school. The report also recounted that Mr. Jarmulowicz had been a loner in school and that he had been subjected to bullying in high school as a result of his looks, which includes a, "prominent bicoronal (i.e. ear to ear) scar across the top of his head, the result of neurosurgical intervention related to the traumatic brain injury sustained when he was five years of age." He did work intermittently as a labourer but for the past several years the onset of severe seizures have left him essentially unable to work, according to his mother, who both spoke with Dr. Comper and testified on sentencing. Those seizures have increased in frequency to several times a month.

[17] A battery of tests were administered to Mr. Jarmulowicz as part of his assessment with Dr. Comper. One test confirmed his mother's view of his attentional difficulties. That was the Wechsler Adult Intelligence Scale-4th Revision ("WAIS‑IV") test, which places, "Mr. Jarmulowicz's overall intellectual ability...in the borderline-impaired range, as indicated by a FSIQ that places at only the third percentile. This means that 97 percent of same age peers would be expected to score higher on the same battery of tests." There was some variation in the individual subject area scores that make up the WAIS-IV test, but Mr. Jarmulowicz tested in the moderate to mild to borderline-impaired or low-average range. Various other cognitive tests placed Mr. Jarmulowicz in the impaired range. His arithmetic scores placed him at the grade 5.6 level.

[18] Dr. Comper's report is obviously far more comprehensive and detailed than the foregoing summary gives credit for, but his conclusion, which appears well-rooted in his detailed analysis, is highly relevant for the purpose of sentencing this particular defendant, even in light of the various aggravating factors inherent in his offence. I have excerpted the following from Dr. Comper's conclusion:

...on the balance, it is my opinion that it is both plausible and probable (my emphasis) that Mr. Jarmulowicz is intellectually unsophisticated, with a much lower than average level of intelligence (probably in the very-low-average to 'borderline' range) and that in all likelihood he has a pervasive wide-spectrum neurocognitive disorder mainly affecting frontal lobe systems that relates directly to his remove, severe TBI [traumatic brain injury] suffered as a child. In addition to the presence of plausible neurocognitive and behaviours disturbance and impairments, there is also indication of psychological and emotional disturbance consistent with a self-awareness of lifelong social isolation, with little apparent prospect of improvement as he ages.

The frontal lobes of the brain control all aspects of executive functioning, including motor functions, speech and language production and comprehension, planning and organization, social judgment, complex problem-solving and much more. The frontal lobes also mediate a person's mood, personality and emotions....

In Mr. Jarmulowicz's case, it is a fact he was severely brain-injured as a child. There is also evidence that, he was -- at least in his in his (sic) high school years -- a marginal, apathetic student who struggled the more he was required to function outside of a structured curriculum. There is also indication that as he grew into adolescence and adulthood he became increasingly socially isolated to the extent he essentially became a 'loner'. This type of psychosocial/behavioural 'picture', including marginal academic achievement, little or no vocational direction, apathy or 'motivation', is consistent with the long term sequelae of severe traumatic brain injury. All of this is not to say that Mr. Jarmulowicz is bereft of reasoning or judgement, although his judgement is likely impaired in the normal sense. Therefore -- as noted in the narrative -- although Mr. Jarmulowicz in my view can acknowledge that what he has done is wrong, he appeared to be unable to fully elaborate as to why it is wrong.

[19] Dr. Comper goes on to recognize that there is a danger of Mr. Jarmulowicz re‑offending in light of his assessment, given that his brain injury impairs his impulse control, but also sets out a strategy for managing the risk, which includes minimizing Mr. Jarmulowicz's historic isolation and maximizing his opportunities for socialization.

[20] I am of the view that a possible interpretation of Dr. Comper's first report as suggestive of a risk of malingering on Mr. Jarmulowicz's part is reliably disposed of in light of the clarifications in his second report.

Sentencing Decision: Mandatory Minimum and Inflationary Floor Principle

[21] I have concluded that the appropriate sentence for Mr. Jarmulowicz is a combination of the mandatory minimum sentence and the maximum available probation period. In reaching that conclusion I appreciate the sentencing perspective that, "a rising tide raises all boats", namely that the existence of a mandatory minimum sentence will generally mean that the mandatory minimum sentence will only be available to a defendant in the optimal position, in relation to both the nature and details of his offence and his own personal background. In the present case it must be recognized that Mr. Jarmulowicz's offence reflects a number of aggravating factors, such as the size of the collection and the relative depravity and violence of at least some of it, so in that sense he would not typically be a candidate for the mandatory minimum sentence. At the same time, while Mr. Jarmulowicz appreciates that his behaviour was wrong, his neuropsychological report makes it clear that he lacks the sophistication to understand why it is wrong, which places him far apart from the vast majority of offenders.

[22] The "inflationary floor" principle is discussed in some detail by Paciocco, J. in R. v. Butters, [2014] O.J. No. 5778 (O.C.J.), which provides a concise summary of the principle, along with (a) judicial recognition that the inflationary floor principle must be applied with some flexibility and, (b) the argument that the inflationary floor principle may conflict with the concept of "cardinal proportionality" set out in s. 718.1 of the Criminal Code, namely, that, "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." While I believe that the inflationary floor principle ought generally to govern sentencing when there is a mandatory minimum sentence (because it would be unfair to the "best offender committing the least serious offence" to ignore the inflationary floor principle insofar as it would subject him to the same penalty as a worse offender/worse offence and thus violate ordinal proportionality and because it might be seen as manifesting judicial rejection of Parliamentary authority to legislate mandatory minimum sentences), where there is a conflict between the inflationary floor principle and the need to recognize the infinite permutations of offence and offender and thereby to impose a just sentence on the specific offender before the court, then, and only then, should the inflationary floor principle yield. This case, it seems to me, is one such case.

[23] In accepting that a ninety-day sentence is appropriate for Mr. Jarmulowicz, I take into account, to a limited extent, the fact that any sentence of incarceration would be substantially more difficult for Mr. Jarmulowicz than it would be for a person without Mr. Jarmulowicz's history and challenges. It is perhaps ironic that prison populations, like child pornographers, prey upon the vulnerable and while there would be some steps that the authorities could take to protect Mr. Jarmulowicz in prison, those steps could themselves exacerbate the effect of his incarceration.

Intermittent Sentence

[24] I am satisfied that it is appropriate for Mr. Jarmulowicz to serve his sentence intermittently. I reach that conclusion for two reasons. First and foremost, I think it is important that Mr. Jarmulowicz start as soon as possible to access the supervision and counselling that will become accessible to him through his probation officer, thereby to begin to address his underlying issues. Secondly, the character of the intermittent prison population is sufficiently different from the general prison population that I believe that the impact of incarceration on Mr. Jarmulowicz, and his vulnerability arising from his cognitive limitations, can significantly be mitigated by the use of an intermittent sentence.

Sentence

[25] Accordingly, the sentence I impose on Mr. Jarmulowicz is as follows.

[26] He shall serve a sentence of ninety days' imprisonment, to be served intermittently. He shall be taken into custody and released today after processing. I shall address the precise details of his surrender to serve the balance of his sentence with counsel at the end of these reasons.

Probation Orders

[27] Mr. Jarmulowicz shall be bound by two probation orders, one while serving his intermittent sentence, the other after completing his intermittent sentence. I shall deal with the terms of those two orders out of sequence as the intermittent probation order borrows heavily from the subsequent, full-term order.

[28] After the completion of his intermittent sentence, Mr. Jarmulowicz shall be bound by a probation order for three years. I am satisfied that while this case calls for the minimum possible jail sentence, it equally calls for the maximum possible period of supervision. These are serious offences that require particular and ongoing diligence to ensure that Mr. Jarmulowicz's likelihood of re-offending is reduced as much as possible. The extent and degree of supervision must reflect the particular and ongoing challenges Mr. Jarmulowicz faces. I have also given much consideration to the issue of requiring Mr. Jarmulowicz to perform community service. It goes without saying that a significant number of community service opportunities will not be open to Mr. Jarmulowicz because of the nature of this conviction. It also goes without saying that there is a tremendous breadth of community service placements available, many of which would not raise concerns from the nature of his offence. Both common sense and Dr. Comper's report make it clear that increasing Mr. Jarmulowicz's engagement in society would be good for him and would enhance the likelihood of his rehabilitation and his fullest possible integration into society. That increased integration would also improve his socialization and prospects for future employment. I am of the view that a substantial period of community service is both an important part of the rehabilitative aspect of an overall fit sentence and a form of reparation for the harm his offence has done to society. I have imposed a substantial amount of community service in both the probation order during his intermittent sentence and the probation order that follows the completion of his jail term. For the post-jail probation order I am imposing the maximum possible amount of community service, namely two hundred and forty hours. By law that community service must all be completed within the first eighteen months of the probation order. While that is the maximum permitted by law, it amounts to approximately three hours per week, an amount that should be entirely feasible in addition to Mr. Jarmulowicz's counselling and probation requirements.

Three-Year Probation Order (Post-Intermittent Sentence)

[29] The conditions of the three year probation order shall be as follows:

(a) Report to your probation officer within seven days of completion of your intermittent sentence and thereafter as required by probation.

(b) Live at an address approved of by your probation officer. Do not change that address without the prior, written approval of your probation officer.

(c) Attend for, actively participate in and complete any assessment and/or counselling directed by your probation officer including but not limited to the following:

(i) any group counselling with a recommended doctor or his or her designate,

(ii) any counselling at or recommended by CAMH including the CAMH sexual behaviours clinic.

(d) Attend with your family doctor or specialist not later than 21 July, 2017 and obtain a referral for individual counselling with a psychiatrist or psychologist and attend for and actively pursue counselling with that person as directed by probation.

(e) While serving the three year probation period you shall perform two hundred and forty hours of community service at a placement approved of in advance by your probation officer and on a schedule approved of by your probation officer. All of the community service hours must be completed within the first eighteen months of the order.

(f) Provide proof of participation in any programme required by this order or directed by your probation officer and sign releases to allow probation to monitor your compliance.

(g) You shall under no circumstances:

(i) Live in any place unless access to any of the devices described in this order is at all times controlled by a password, unless any such password is unknown to you and unless any such device is programmed to time out and lock out users who do not know the password after no more than one minute of disuse.

(ii) Use any electronic device or medium to communicate with a person under the age of eighteen years.

(iii) Use any electronic device or medium to access internet "chat rooms", social networking sites.

(iv) Possess or have access to any images of children who are or appear to be under the age of eighteen years and who are naked or are portrayed in a sexual manner.

(v) Enter into a romantic or sexual or dating relationship with, or live with any person who has a child under the age of eighteen years.

(h) Unless under the immediate and ongoing supervision of your mother or a person approved of in writing by your probation officer you shall not:

(i) Possess or use any device capable of storing images or video in a digital format, including but not limited to: computers, tablets, iPads, mobile phones, digital cameras or digital video cameras;

(ii) Use or access any device capable of accessing the internet or subscribe to any internet or similar communication service.

(i) You shall advise your probation officer of any romantic, sexual or dating relationship you engage in and provide your probation officer with the name and contact information for any such person.

(j) You shall not have any contact or communication with any person under the age of eighteen years (a) unless in the direct and immediate company of your mother or of that person's parent or guardian, and, (b) unless the parent or guardian of the person under eighteen years of age is fully informed of your sexual offences before any such contact, and, (c) unless your probation officer has approved any such contact in writing in advance. This prohibition does not apply to any incidental contact with persons under the age of eighteen years that arises in the course of any volunteer activity or employment if that activity or employment has been approved of in writing by your probation officer.

Intermittent Sentence Probation Order

[30] While serving his intermittent sentence, Mr. Jarmulowicz shall be bound by a probation order, the terms of which shall be as follows:

(a) Attend at the jail to serve your sentence on time, sober and not in possession of or under the influence of controlled substances.

(b) During the time between the commencement of your intermittent sentence and the completion of your intermittent sentence, you shall comply with all of the terms of the order made under s. 161 of the Criminal Code as if the effective date of that order had been 23 May, 2017.

(c) Report to probation not later than 30 May, 2017 and thereafter as required by probation.

(d) Live at an address approved of by your probation officer. Do not change that address without the prior, written approval of your probation officer.

(e) Attend for, actively participate in and complete any assessment and/or counselling directed by your probation officer including but not limited to the following:

(i) any group counselling with a recommended doctor or his or her designate

(ii) any counselling at or recommended by CAMH including the CAMH sexual behaviours clinic

(f) Attend with your family doctor or specialist not later than 21 July, 2017 and obtain a referral for individual counselling with a psychiatrist or psychologist and attend for and actively pursue counselling with that person as directed by probation

(g) While serving the probation order that accompanies your intermittent sentence you shall perform community service at a placement approved of by your probation officer at a rate of three hours per week, starting not later than 4 July, 2017.

(h) Provide proof of participation in any programme required by this order or directed by your probation officer and sign releases to allow probation to monitor your compliance.

(i) You shall under no circumstances:

(i) Live in any place unless access to any of the devices described in this order is at all times controlled by a password, unless any such password is unknown to you and unless any such device is programmed to time out and lock out users who do not know the password after no more than one minute of disuse.

(ii) Use any electronic device or medium to communicate with a person under the age of eighteen years.

(iii) Use any electronic device or medium to access internet "chat rooms", social networking sites.

(iv) Possess or have access to any images of children who are or appear to be under the age of eighteen years and who are naked or are portrayed in a sexual manner.

(v) Enter into a romantic, sexual or dating relationship with, or live with any person who has a child under the age of eighteen years.

(j) Unless under the immediate and ongoing supervision of your mother or a person approved of in writing by your probation officer you shall not:

(i) Possess or use any device capable of storing images or video in a digital format, including but not limited to: computers, tablets, iPads, mobile phones, digital cameras or digital video cameras;

(ii) Use or access any device capable of accessing the internet or subscribe to any internet or similar communication service.

(k) You shall advise your probation officer of any romantic, sexual or dating relationship you engage in and provide your probation officer with the name and contact information for any such person.

(l) You shall not have any contact or communication with any person under the age of eighteen years (a) unless in the direct and immediate company of your mother or of that person's parent or guardian, and, (b) unless the parent or guardian of the person under eighteen years of age is fully informed of your sexual offences before any such contact, and, (c) unless your probation officer has approved any such contact in writing in advance. This prohibition does not apply to any incidental contact with persons under the age of eighteen years that arises in the course of any volunteer activity or employment if that activity or employment has been approved of in writing by your probation officer.

Ancillary Orders

[31] It is ordered that the sample disk of child pornography images and videos that was presented by D.C. Blackadar during the sentencing hearing and that was filed as Exhibit 1 is to be sealed and is not to be opened other than by the order of a court of competent jurisdiction on an application made on not less than fifteen days' notice to the Attorney General of Ontario.

[32] Since Mr. Jarmulowicz has been found guilty of a primary designated offence, there shall be an order pursuant to s 487.04 of the Criminal Code requiring that Mr. Jarmulowicz provide a sample of his DNA for inclusion in the DNA data bank.

[33] There shall be an order pursuant to s. 161 of the Criminal Code for a period of ten years prohibiting Mr. Jarmulowicz from:

(a) attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, unless you are in the immediate and continuous presence of your mother or of a person approved of in writing by your mother (or during your probation period a person approved of in writing by your probation officer), if that person is aware of the nature of your offence;

(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 sixteen years;

(c) having any contact — including communicating by any means — with a person who is under the age of sixteen years, unless such contact arises incidentally in the course of any volunteer activity or employment that has been approved of by your probation officer or unless you do so under the supervision of a person approved of in writing by your mother (or during your probation period a person approved of in writing by your probation officer), if that person is aware of the nature of your offence or another person who has been approved of upon application to the court; or

(d) using the internet or other digital network, unless you do so under the immediate and direct supervision of your mother or of a person approved of in writing by your probation officer. While you are bound by your probation order, your access to and use of the internet must comply with all of the terms of your probation order.

Pursuant to s. 161(2) of the Criminal Code, the ten years shall run from the date on which Mr. Jarmulowicz completes his intermittent sentence. I have incorporated the terms of the s. 161 order into Mr. Jarmulowicz's intermittent-sentence-probation order by reference.

[34] There shall be an order pursuant to s. 490.012 of the Criminal Code requiring Mr. Jarmulowicz to comply with the Sex Offender Information Registry for ten years.

[35] There shall be an order pursuant to s. 490(9) of the Criminal Code forfeiting all devices seized from Mr. Jarmulowicz that contain child pornography insofar as the possession of child pornography is not lawful and Mr. Jarmulowicz cannot lawfully have been in possession of those devices. Where no lawful owner is known, such devices are forfeit to the Crown to be disposed of as directed by the Attorney General of Ontario.

[36] There is a mandatory victim surcharge of $100 in light of the end date of Mr. Jarmulowicz's offence. He shall have three months to pay the surcharge.

Released: 23 May, 2017