WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: June 20, 2018

Between:

Her Majesty the Queen

— and —

D.M.

Before: Justice K. Caldwell

Reasons for Judgment released on: June 20, 2018

Counsel:

• Ms. Lisa Henderson — counsel for the Crown
• Ms. Jennifer Penman and Ms. Karen Heath — counsel for the accused D.M.

Judgment

Caldwell J.:

[1] Introduction

Ms. D.M. pled guilty to four very serious offences: making child pornography, possessing child pornography, sexual assault and counselling for a sexual purpose a person under 16 years to touch her with an object. The charges involved her very young son, C.D. They also involved her estranged husband, Mr. J.D. He is charged in separate proceedings that I understand are still ongoing.

[2] Crown Application

The Crown has applied for a long-term offender designation for Ms. D.M. This judgment encompasses both my ruling on this issue and my finding on sentence.

[3] Stylistic Note

First, a few comments about the style of this judgment. This is a written judgment but I am reading it aloud given its import to Ms. D.M. and given that her mother is here today as she has been through the entirety of the proceedings. A stylistic issue with written judgments is that they are usually framed in the third person, leaving the most crucial player, the person being sentenced, removed from the delivery.

[4] Delivery Approach

My intention is to move back and forth between tenses. There will be times when I want to make sure I am speaking to you directly, Ms. D.M., but much of the time I will switch to the third person, particularly when dealing extensively with legal concepts as I think it will flow more smoothly in that form. I realize that this may make the judgment seem choppy when read by others but I think it will work better for you, Ms. D.M. I'll also provide you with a copy of this judgment when I'm finished.

Finding

[5] Sentence Conclusion

First, my conclusion. Ms. D.M., I find that six years is the appropriate sentence for the reasons I'll go through shortly. The time you've already served, your "dead time", will be deducted from that.

[6] Long-Term Offender Order

Further, I am not making the long-term offender order.

[7] Context

Before I outline my reasons, I will review the most important facts so that the context for these findings is clear.

Facts

[8] Marriage and Relationship Dynamics

Ms. D.M. and Mr. J.D. married in 2008. Ms. D.M. at 22 was considerably younger than Mr. J.D., aged 36. Their unusual sexual desires and practices clearly underscored their connection. A binder containing photos and a number of agreements, including a "breeding agreement" and a "slave contract", was found on their coffee table. These agreements, signed by both, outline terms including Ms. D.M.'s "ownership" by Mr. J.D., and the various humiliating acts that she had performed and was to perform at his direction.

[9] Psychiatric Diagnosis

Dr. Mark Pearce, a psychiatrist who works at Ontario Shores Centre for Mental Health Sciences ("Ontario Shores") and the Centre for Addiction and Mental Health ("CAMH") subsequently diagnosed Ms. D.M. with masochism, a sexual paraphilia. I don't know Mr. J.D.'s diagnoses, if any, but "sadism" must be a primary contender.

[10] Discovery and Investigation

This case arose as a result of cooperation between the American and Canadian authorities. The search engine Google in the United States became aware of suspected child pornography uploads from two email addresses later found to belong to Mr. J.D. Google reported these uploads to the National Centre for Missing and Exploited Children ("NCMEC"). A report was sent to the National Child Exploitation Coordination Centre ("NCECC"). These reports led police in Ontario to seek and obtain search warrants for Mr. J.D.'s and Ms. D.M.'s home. Over fifty electronic devices were found containing 25,066 child pornography images and 111 child pornography movies.

[11] Videos Involving Son

The police found four videos portraying sexual activity between Ms. D.M. and her son, C.D., who was just shy of eighteen months old, within that vast collection of child pornography. The first pictures Ms. D.M. inserting a baby bottle in and out of her vagina while she moans and her son watches. He has been placed between her legs. Finally he removes the bottle and drinks from it. The second shows Ms. D.M. licking her son's anus. The third shows Ms. D.M. masturbating her son's penis. He giggles and pushes her hand away, then plays with his penis. The fourth shows Ms. D.M. sucking on her son's penis. In all videos, Ms. D.M. looks toward the camera and shows signs of sexual pleasure such as smacking her lips or moaning. Her son seemed to think that these acts were a game and giggled throughout.

[12] Video with Husband and Dog

A further video shows Ms. D.M., Mr. J.D., and their dog. The dog licks Ms. D.M.'s vagina while she masturbates and Mr. J.D. tells her various acts that he would like to do with the children including raping their daughter. Ms. D.M. continues to masturbate throughout.

[13] Daughter Not Involved

No videos or photos were found involving their daughter, A.D., who was one year old when Ms. D.M. and Mr. J.D. were arrested. Ms. D.M. was extremely cooperative with the police and provided statements post-arrest. In these she expressed relief that they were apprehended before her daughter became involved. I accept that this relief was genuine.

[14] Disturbing Indications Regarding Daughter

Still, there were very disturbing overtones suggesting that the daughter's involvement was a foregone conclusion if they had not been arrested. The "breeding agreement" allegedly gave full "rights" to Mr. J.D., including his "right" to sell any children into slavery to "another Master". Further, a photo of a very pregnant and naked Ms. D.M. was seized which had the words "new slave inside" scrawled across her stomach and "my daughter will serve her father" written across her chest.

[15] Complexity of Relationship

The nature of Ms. D.M.'s and Mr. J.D.'s marriage was very complex. It is clear that a very strong sado-masochistic element drove the connection, with Ms. D.M. in the masochistic role. This does not mean, however, that Ms. D.M.'s actions all took place under duress. There were times when she clearly drew the line at certain activity and Mr. J.D. complied. She willingly provided him with a certain amount of the child pornography and also provided him with a "snuff" story that Mr. J.D. said went beyond what even he could handle.

[16] Extreme Participation

On the other hand, it is clear that Ms. D.M. at times participated in activity that was far more extreme than she had anticipated. I have attached as Exhibit A an excerpt of Ms. D.M.'s rendition of the events between them that unfolded at a "summer camp" that I am told involved individuals who participate in the BDSM lifestyle. It is clear from this excerpt that Mr. J.D.'s behaviour went far beyond what was tolerable to the other participants. Exhibit A is extremely graphic however I felt that it was important to append it to this judgment as it helps to explain their very complicated relationship and also adds to the context of my decisions regarding both sentence and the LTO order.

[17] BDSM Community Distinction

I emphasize that the relationship between Ms. D.M. and Mr. J.D. should not be viewed as exemplifying the practices of the BDSM community. My understanding is that the police received a number of communications from individuals within that community who were very upset by the facts in this case and any suggestion that they exemplify the community's practices. For example, it is clear from the description contained in Exhibit A that the dynamics of Ms. D.M's and Mr. J.D.'s relationship were devoid of many of the safeguards that I understand are put into place such as "safe words".

Position of the Parties

[18] Crown and Defence Positions

Ms. Henderson for the Crown argues that a six to eight year sentence and a ten year long-term offender order are appropriate. Ms. Penman for Ms. D.M. contends that a five-year sentence is sufficient, with no long-term offender order.

[19] Long-Term Offender Order Analysis

First I will outline my reasons for denying the long-term offender order as this was the most contentious aspect of the hearing.

Long-Term Offender Order

The Law

[20] Statutory Test

Section 753.1(1) of the Criminal Code states that a long-term offender designation may follow if (1) the offender is sentenced to two years or more, (2) there is a substantial risk that the offender will reoffend; and (3) there is a reasonable possibility of eventual risk control in the community.

[21] Conceded Conditions

Both pre-conditions (1) and (3) are conceded. Both parties agree that a sentence in excess of two years is warranted, and that there is a reasonable possibility of eventual risk control. The only issue is whether Ms. D.M. poses a substantial risk to reoffend.

[22] Presumptive Criteria

Section 753.1(2) outlines a set of criteria that, if met, mean there is a presumption that the offender is at substantial risk to reoffend. The section is presumptive as it states that the court "shall be satisfied" of substantial risk if the criteria are met. Most of the offences for which Ms. D.M. was convicted satisfy one aspect of the criteria as outlined in 753.1(2)(a). Ms. Henderson stated that she is not relying on this section, however. I am not going to examine whether the further criteria outlined in section 753.1(2)(b) have been met given this concession.

[23] HIV Cases Argument

Ms. Henderson argued that the HIV cases are instructive on the issue of substantial risk.

[24] Crown's Analogy

In a nutshell, Ms. Henderson argues that the analysis used to determine if there is a "significant risk of serious bodily harm" in such cases should be used to determine if there is a "substantial risk of re-offence" in the long-term offender context. I find that the parallel should not be drawn though the argument is both interesting and novel.

[25] HIV Cases Context

The Supreme Court of Canada faced a very specific issue in the HIV cases that carried public policy implications. The courts were struggling with the degree of criminal liability that should be imposed on those with HIV who had sexual intercourse with others without informing those individuals of their disease. Furthermore, the courts were grappling with this issue as our understanding of transmission potential and the availability of treatment options changed over time.

[26] HIV Cases Development

The potential criminal ramifications further complicated the issue. The Supreme Court easily concluded that the appropriate offence was aggravated sexual assault given that the disease endangers the lives of those who contract it. The Court first addressed the issue in 1998 in R. v. Cuerrier when the maximum penalty was fourteen years. By the time the issue was readdressed by the Court in 2012 in R. v. Mabior, the maximum penalty for aggravated sexual assault had been increased to life. The Court was live to the penalty issue, noting the insistence of moral blameworthiness given the severe ramifications.

[27] Cuerrier Fraud Analysis

In Cuerrier, the Court found that appropriate modifications to fraud in the commercial context provided a basis for the fraud in the HIV context that vitiated consent and led to a conviction for aggravated sexual assault. Such a fraud requires deprivation. The deprivation in the sexual assault context consists of harm or risk of harm. The Court was concerned about casting too wide a net, however, and found that the harm could not be a trivial one – the risk of catching a cold was used as an example. Instead, the harm must constitute a "significant risk of serious bodily harm" in order to lead to a deprivation amounting to fraud and thus vitiating consent.

[28] Lower Court Struggle

The lower courts struggled with the concept's application. The struggle was evident in Mabior as the trial court held that any risk of HIV transmission constituted "significant risk of serious bodily harm" while the Court of Appeal held that there must be a high risk of transmission.

[29] Quantitative Analysis

The nature of the potential bodily harm was used to inform the definition of "significant risk". "Significant risk", standing alone, suggests a quantitative analysis based upon the percentage likelihood of a manifestation of the risk. In other words, if it is 90% likely that a certain outcome will occur, arguably the risk is significant. If there is only a 10% likelihood, the risk is minimal.

[30] Severity of Consequences

In the HIV cases, however, the courts were struggling with the impact of the "serious bodily harm". People could die because someone refused to tell them that they could become infected by HIV as a result of having intercourse. The severity of the consequences were used by the courts to assess the degree of risk that would be tolerated before criminal liability applied and that in turn defined "substantial risk".

[31] Cuerrier Middle Ground

The Supreme Court in Cuerrier settled on the middle ground between "no risk" and "high risk", stating that "a realistic possibility of transmission" constituted the correct risk balance when taking into consideration the nature of the harm, the rights of the unsuspecting complainants, and the need to prevent criminal sanctions from an overly broad application. An assessment of "reasonable possibility" depended upon various case specific facts such as the accused's viral load at the time of intercourse.

[32] Application to Long-Term Offender Context

Ms. Henderson argues that the same form of analysis should be applied in the long-term offender context. Obviously the type of re-offence of concern in this case is the further commission of child sexual offences and arguably the most serious of those would be using one's own child to make child pornography given the enhanced vulnerability and trust relationship. No one is concerned about Ms. D.M. reoffending by shoplifting.

[33] Logical Argument

It is a logical argument. Shouldn't the nature of the potential offences inform "substantial likelihood" in the same fashion that the degree of harm informed "substantial risk" in the HIV cases? Shouldn't we tolerate a lower likelihood of reoffending as the seriousness of the potential offences increases?

[34] Different Tensions

The tensions that the courts have struggled with in the HIV context are very different, however, than the tensions present in the long-term offender regime. The courts were dealing with the very nature of what encompassed criminal liability in the HIV cases. The considerations are very different in the longterm offender context.

[35] Parliamentary Intent

As pointed out by Ms. Penman, Parliament drew upon The Report of the Federal/Provincial/Territorial Task Force on High Risk Offenders, Strategies for Managing High-Risk Offenders. That Report emphasized the narrow classes of offenders toward which any legislation should be targeted. Those to be included were offenders "who have a high likelihood of committing further violent or sexual crimes".

[36] Exceptional Nature

The Supreme Court in R. v. M.(L.) also noted the "exceptional nature" of a long-term offender finding, stating that the "strictness and precision" of the mechanism's regime limit the number of people to whom it can apply.

[37] Widening the Net

The net would be greatly widened if Ms. Henderson's Mabior analogy argument was accepted. Dr. Pearce, the forensic psychiatrist agreed upon by both parties, said that it is impossible to designate someone at absolutely no risk as it is impossible to predict risk with that degree of precision. If "substantial likelihood" were assessed on a sliding scale tied to the seriousness of the potential offences which an offender is theoretically most likely to commit, then the long-term offender net would be cast very broadly.

[38] Murder Hypothetical

Child pornography charges are extremely serious. Arguably, however, the most serious offences in the Criminal Code are those that involve the death of another human being, such as murder. If a sliding scale is adopted, then arguably every individual convicted of murder would be designated a long-term offender. The risk will at best be "low risk", given that it is impossible to find that a person has no risk to reoffend. Adopting the Mabior analogy would result in such individuals constituting a substantial risk because they are at low risk to commit the most serious offence in the Code and thus the "sliding scale" would result in a "substantial risk" finding.

[39] Definition of "Substantial"

I find that "substantial" in this context is as defined in the Merriam-Webster dictionary, "considerable in quantity: significantly great" or as defined in the Collins dictionary, "means large in amount or degree." The risk itself must be "considerable", "significantly great", "large in amount", regardless of the nature of the offences.

Is Ms. D.M. at Substantial Risk to Re-Offend?

[40] Expert Evidence

Ms. D.M., I find that you are not at substantial risk to re-offend, and I base that finding on Dr. Pearce's report dated November 27, 2017, the addendum to his report dated February 12, 2018, and on his testimony in court on this hearing.

[41] Low Risk Finding

Dr. Pearce has found you at low risk to re-offend. Ultimately, the decision as to risk is one for me, as the judge, to make; however, I accept Dr. Pearce's finding and I base that acceptance on the logic of that finding.

[42] Expert Credibility

He was very thorough in his analysis in his first report, straightforward in his answers in court and in his addendum report, and I found him to be upfront about the limitations of his predictions.

[43] Nature of Concern

Obviously the concern here is with re-offending by committing sexual offences involving children. I include in that both so-called "hands on" offending involving your own or other children, and child pornography offences. The phrase "substantial risk to re-offend" doesn't limit the nature of the re-offending to offences for which you've already been convicted but I find that there is no realistic reason to be concerned about other types of offences given your lack of a criminal record and your otherwise pro-social lifestyle, combined with Dr. Pearce's diagnosis.

[44] Diagnosis and Evidence

I also accept that the diagnosis of masochism applies and that pedophilia does not apply. I have considered the same factors that Dr. Pearce considered and his conclusion makes sense in the context of the entirety of what occurred. I am aware that you were the one who initiated at least one of the videos involving your son, that you masturbated while watching child pornography and that you were aware of the huge collection in your home. I also note that there is some evidence, though very limited, of you obtaining child pornography from two men with whom you had contact with online. In his evidence in court, Dr. Pearce said that he was not aware that you had obtained child pornography and that this fact could impact his view but I infer that he was referring to obtaining the larger collection as opposed to a limited number of materials.

[45] Motivation Analysis

I accept Dr. Pearce's conclusion that it was not the sexual acts with children that you found stimulating but instead the extreme humiliation of this involvement and how that in turn fed into your masochism which Dr. Pearce described as on the moderately severe end.

[46] Female Paraphilia Research

Additionally, Dr. Pearce testified that the current research suggests that women do not suffer from paraphilic disorders apart from masochism. This fact lends further weight to the conclusion that pedophilia does not apply to you. Ms. Henderson rigorously challenged Dr. Pearce concerning this fact and I agree that at first blush it appears illogical that women do not suffer from other paraphilic disorders. Sometimes, however, that which appears reasonable is anything but and vice versa. I accept the doctor's evidence on this point. He did agree that this conclusion might change in the future as psychiatry continues to develop but I cannot base my conclusions on speculative potential changes that have yet to develop.

[47] Risk Assessment Testing

I also am aware that there was very little risk assessment testing done and I accept that this is because such testing simply hasn't been validated as being accurate in predicting risk with female, as opposed to male, sex offenders. Dr. Pearce testified that this is because there are so few female sex offenders thus researchers have largely ignored them. He did testify that the limited testing done gave you a PCL-R score that is very low.

[48] Comprehensive Assessment

Dr. Pearce spent extensive time with you and factored into his assessment the likelihood that you undoubtedly were being overly virtuous as most people are during such assessments given what is at stake. He watched numerous videos that were seized by the police including those involving your son and read numerous chat exchanges between you and your ex-husband. He was aware of the size of the pornography collection. He spoke to numerous collateral sources including your mother and your previous treating psychiatrist, Dr. Finkelstein. He reviewed your extensive police statements and evidence that Mr. J.D. gave under oath in 2017 involving your participation.

[49] Risk Categorization

He viewed you in the low risk category for sexual recidivism after considering all of this material and upon weighing your risk enhancing and risk reducing features. In his oral evidence, he said that female sex offenders on a whole are at a low risk to reoffend; he places you towards the lower end of that low risk spectrum.

[50] Risk Reducing Factors

The risk reducing factors listed by the doctor were your very low PCL-R score, your lack of criminal history, your lack of pedophilia, the availability of some supports including strong family support particularly from your mother, your strong work history, the presence of only one "hands on" victim (your son), your intelligence and your willingness to participate in treatment. His low risk conclusion is based upon the current state of affairs with limited treatment. Further treatment will further reduce your risk.

[51] Risk Enhancing Factors

The risk enhancing features he listed were your masochism diagnosis, mild substance use disorder, current tendency still to project some blame on your ex-husband, and limited coping skills.

[52] Greatest Risk Factors

I understood him to view your masochism diagnosis and your tendency to project some blame on Mr. D.M. as the greatest risk factors.

[53] Masochism and Insight

The masochism diagnosis increases risk because it increases the possibility of your future involvement with a sadistic and pedophilic male, pedophilic because paraphilias tend to cluster in men. Counteracting that risk is your increased insight that Dr. Pearce viewed as "fairly good". I note that you state your primary focus is on re-connecting with your children, that you are determined to remain disengaged from the BDSM community and do not want to become involved in relationships within the community. I infer that these factors reduce your risk of becoming involved with a high-risk male.

[54] Conclusion on LTO

So, to repeat, I find you at low risk and thus you do not meet the criteria that the Crown must establish for a long-term offender designation. Before I leave this area, however, I will make a couple of final comments regarding both masochism and insight.

[55] Treatment Encouragement

I strongly encourage you to continue to get whatever treatment is available to you both within the jail and through CAMH once you are released. I am confident that you intend to pursue that but I am adding my encouragement. It stands to reason that it will only help you in your end goal of having contact with your children. Further, it will help you manage your masochism. No one chooses their sexual preferences but what you can choose is how to manage them. Your preferences direct you towards a certain type of partner and certain types of activities; it is clear that you need help in learning to manage those in a pro-social way.

[56] Insight Development

Secondly, insight. It was very clear to me that Dr. Pearce was trying to emphasize to you and to your mother the role that you played in what unfolded. On the one hand, you cast yourself as a victim – it is clear that your mother definitely sees you as one – but that is an overly simplistic assessment and you have also acknowledged in your many statements your willingness to participate in many activities with your ex-husband. My sense from Dr. Pearce's testimony is that he thinks it is in your best interests if this insight continues to grow and I agree with him. I realize that there were strong elements of coercion and dominance on Mr. J.D's part but on the other hand there are numerous examples of times when you convinced him to limit various activities and when you simply refused to do certain acts. I encourage you to work on self-reflection as that awareness will help you benefit to a greater degree from your future treatment.

Sentence

[57] Sentence Imposed

I have already said that I am sentencing you to six years. Credit for pre-trial custody and any extra orders, such as prohibitions on attending parks, will be discussed after I finish this judgment.

[58] Sentencing Factors

The factors that have to be weighed in determining a sentence are outlined in the Criminal Code. Which factors are emphasized in any given case depend upon the specific offences and the particulars of the person being sentenced.

[59] Sentencing Objectives

Section 718 outlines the objectives. They are:

• Denunciation;
• General deterrence;
• Specific deterrence;
• Rehabilitation;
• Separating the offender from society where necessary;
• Making reparations to the victim or to the community;
• Promoting a sense of responsibility in the offender, and acknowledging the harm done to the victim or the community.

[60] Paramount Objectives

Denunciation, general deterrence, and acknowledging the harm done to both the victim and the community are paramount given the offences in this case.

[61] Rehabilitation and Deterrence

Individual rehabilitation and specific deterrence are particularly important given that you are a first time offender, Ms. D.M., however these factors don't outweigh denunciation and general deterrence.

[62] Aggravating Factors

The Code also deems as aggravating offences involving people under the age of 18 and offences involving people in a position of trust or authority – both of these factors apply here given the child pornography charges and given your son's very young age.

[63] Parental Abuse

Numerous cases have emphasized the very serious nature of offences committed by parents upon their children, and of child pornography in general. In R. v. Magoon the Supreme Court of Canada spoke of the total dependence of children on their parents, and the helplessness of children without that protection and care.

[64] Child Pornography Victimization

In R. v. D.G.F. the Ontario Court of Appeal spoke of the "horrendous" victimization of children that occurs in child pornography cases, particularly when one's own children are involved.

[65] Perpetual Harm

Further, the courts have defined the abuse in child pornography cases as never ending. This is because the images live on via the Internet. Dealing with the videos of your son, I appreciate that they were not posted online however I find that the same principle applies in this case. You stated to Dr. Pearce and to the police officers that one of your justifications to yourself at the time you made the videos is that your son was so young that he would not remember. One very serious factor that this reasoning ignored is what happens when he grows up. Any search he makes of the Internet when he is older will quickly bring up the existence of this case. It wouldn't take much detective work on his part to locate this judgment despite the ban on identifiers. It is inevitable that he will find out about what occurred. He also will know that many others aside from his parents viewed those videos even if those individuals consisted only of police and members of the justice system. Obviously I don't know what your relationship will be with your son will be once he is old enough to conduct such searches and I don't know if you, your mother or someone else will inform him before he finds out through his own means. I do encourage you, however, to get professional help in dealing with this issue as it would be daunting for any parent to navigate.

[66] Aggravating and Mitigating Factors

I now turn to the specific aggravating and mitigating factors in this case. The primary aggravating factors are your son's young age and the trust relationship you have. The size of the collection is aggravating regarding the child pornography charges. In terms of mitigation, I have considered your lack of any criminal history, your steady work history, your social supports, your insight and motivation for treatment, the remorse you spoke of in your very moving letter and as demonstrated by your guilty plea and in your statements to the police. I have also considered all the work you have done and programs you have participated in while at Vanier.

[67] Sentence Apportionment

I reach the conclusion that a six-year sentence is appropriate in light of the nature of the offences and the mitigating and aggravating factors. The sentence is to be apportioned as follows:

• 3½ years for sexual assault;
• 3½ years concurrent for invitation to sexual touching;
• 2½ years consecutive for making child pornography;
• 2 years concurrent for possession of child pornography.

[68] Contact with Mother

It was brought to my attention that the federal institution could interpret this judgment and the ancillary orders as recommending that Ms. D.M. not have contact with her mother given that her mother has custody of her children. This is not the intention of the judgment or the ancillary orders. Ms. D.M.'s mother is one of her primary supports and at this point is vital for her rehabilitation.

Released: June 20, 2018

Signed: Justice Kathleen Caldwell

Appendix A: Video Transcript Excerpt

Date: April 27, 2017

Excerpt:

D.M.: We did have a core group of friends.

Officer 2: Yeah.

D.M.: So basically like, okay, so we were master slave.

Officer 2: Yeah.

D.M.: And then there were a couple other people, um, you know, across Ontario that were also in similar relationships. So like in terms of master slave relationships, right? So like those are sort of, you know, we would get together, those would be the people that we would camp with.

Officer 1: Mm-hmm.

D.M.: Um, you know, they were also-, like just-, it's just people that we could sort of be ourselves…

Officer 2: Yeah.

D.M.: …with in a way, you know? It's normal for me to be kneeling down and serving a drink that way or-, 'cause they're-, they do the same kind of things, right?

Officer 1: Mm-hmm.

D.M.: It was just, you know, we gravitated towards people that were sort of-, lived a similar lifestyle in that way, but they weren't into any of the child stuff.

Officer 2: None of that would come up in conversations…

D.M.: Oh, no, no, no…

Officer 2: …or?

D.M.: No, no, no, never, ever, ever, ever.

Officer 1: Mm.

Officer 2: Okay.

D.M.: Ever, ever. So I don't know what-, I don't know what they mean by dark.

Officer 2: I, I don't know either.

D.M.: Yeah.

Officer 1: Mm-hmm.

Officer 2: But I just…

D.M.: I mean, there were, there were a lot of things that happened at camp, um, that people walked away from, like things that happened to me.

Officer 2: Okay.

D.M.: So, you know, that triggered other people's abuse histories and they couldn't-, or like it was so horrific they couldn't watch it, then they would-, they would have to walk away, uh, because the things he was doing to me were so awful that they couldn't stand it, right? Or they didn't wanna be near it or-, you know?

Officer 1: Mm.

D.M.: I don't know about dark discussions.

Officer 2: Okay.

Officer 1: Yeah.

D.M.: I don't know.

Officer 2: I just-, I-, it, it was brought to our attention so I just-, I had to…

D.M.: Yeah, there was…

Officer 2: …ha-, had to ask…

D.M.: …like a-, there was definitely like a more like core group…

Officer 2: Yeah.

D.M.: …for sure. I mean we knew a lot of people.

Officer 2: Yeah.

D.M.: We knew a lot of people. Like a lot of-, you know, we were sort of, you know, popular in the-, in the lifestyle. Everybody sort of knew us, we knew a lot of people, you know? But there was sort of this like core group, but like I think they would probably be more shocked and appalled than everybody else that any of this happened.

Officer 2: Yeah.

D.M.: They never knew anything, they weren't involved in anything, like it was just strictly this master slave kind of, you know, where we could kind of-, that was normal, right?

Officer 1: Mm-hmm.

D.M.: But I mean there were a lot of things that happened to me at camp, like I said, like, um, like there was a time, you know, he, he built-, he got, um, a friend of his, one of the, the other masters to-, I don't know if you found it in the house, the head box.

Officer 2: I don't know if we found it.

Officer 1: I-, yeah, I never actually went to your house.

D.M.: Oh, no?

Officer 1: I didn't, yeah.

D.M.: Yeah, so it's-, it was like, he got him to build this like, I guess like a b-, a box that you stuff someone's head in and lock it closed and, you know, he put me in that and was beating me and I was screaming so loud that like, like the people that owened the campgrounds had to come and tell me to s-, like tell us to stop and, you know, like people were-, like I was just…

Officer 1: Mm-hmm.

D.M.: …like freaking out and in, uh, agony and just screaming no, stop. Like screaming at the top of my lungs. And I'm thinking in this little box no one can hear me, right? But it was actually amplifying the…

Officer 1: Yeah.

D.M.: …um, you know? So that was one of the incidents where people like walked away. And then one year I decided I wanted to do-, I wanted to sort of embrace this whole humiliation thing and try to get over the shame of it, so I wanted to do like a public humiliation scene. And, um, so I got like whipped cream and, you know, like sort of playful things and I wanted-, you know, I wanted him to kind of like push me and, and stuff like that. So he came up with this idea of collecting everybody's urine from the campsite, and he collected it in this giant-, like I'm talking tub (indicates) like this, for four days.

Officer 1: Mm.

D.M.: Um, and then he was like getting me to go over to ot-, the other people's campsites and collect their buckets of urine and throw it in there and add to it, and it was just like-, after four days, you could just imagine the smell of that. So-, and I guess he built up this whole thing, he kind of had to do something with it, right?

Officer 1: Mm-hmm.

D.M.: Or else he'd look kind of stupid, right? And I'm like-, I never asked for that. I never in a million years would have e-, you know, thought of something like that. So, so the day comes for this, it was, they called it humiliate dollathon. So the first half of it was fun, you know, it was people throwing, you know, uh, cream pies in my face and with whipped cream and, you know, writing over-, all over me and-, just-, it was like-, it was fun.

Officer 1: Mm.

D.M.: It was like, you know, it was humiliating but it was kind of like, you know, like town square kind of…

Officer 1: Mm.

D.M.: …you know, rotten vegetables kind of thing, right?

Officer 1: Yeah.

D.M.: And then the second half, so then-, and then there was probably like 56 people watching this.

Officer 1: Oh, wow.

D.M.: Like a lot of people, right? And then he decided to bring out the tub. And he filled super soakers with it and started spraying me down with it. And literally the smell was so overpowering and disgusting that like all but like maybe five people left like that (snaps fingers). You know? And I don't-, and like I was just-, literally I'm just-, I'm sitting there in this little kiddy pool covered in four-day-old strangers' urine that's been sitting in the sun. And like I cannot even describe the smell of it to you. Um, and I'm just literally-, like I'm bawling my eyes out and I'm just totally, absolutely broken, you know? And it's-, and it's pretty obvious, and I think a l-, you know, (a) it was the smell, but (b) it was just like, you know, pretty hard to watch.

Officer 1: Mm.

D.M.: I can-, I can imagine. Um, so I don't know if that's kind of the-, it's not really a discussion, but those are the kind of…

Officer 2: Mm-hmm.

D.M.: And then like af-, and then like afterwards, I was just-, I was just a wreck. Like he was-, like he-, we-, I was just-, like literally I was just standing there, you know, covered in all this stuff and I'm just-, I'm heaving and I'm sobbing and I'm like, will someone please just hug me, you know? And he's like I'm not touching you. (Crying) And, um, this other girl comes up to me and she had-, like previously before she had done sort of a scene like that but with garbage, and she kind of felt for me and, and she hugged me and she didn't care if she got whatever on her. And she took me to the shower and she got me cleaned up. And he even made me clean up like the pool and everything, right? And, and I've never been so raw in my whole life. Like I was just-, I was just like a raw nerve after. I didn't know what to do with myself. I didn't-, like, I mean, normally, normally BD-, even a normal BDSM scene you get aftercare, right? Where you're like, you know, you're given a nice warm blanket to cuddle or nice little chocolate bar, like something to like bring you back, you know, from the hard stuff you had just gone through. There was nothing, you know? And it's like I didn't, I didn't wanna be with people, but I didn't wanna be alone in my tent. And it's just like I was just-, literally for like 12 hours after that I was just-, I've never been so stripped or raw in my life. And like I remember one of the, the other slaves that was in our sort of core group there coming up to me and she's like, you look so lost. And she just, you know, she sat me down and she just petted my hair and tried to bring me back. But, you know, like there were people that, you know, definitely witnessed stuff like that and saw him not-, definitely cross the line and, and not really take care of me afterwards, you know? And, um, I don't know. I mean nobody ever stepped up to say anything really. Like I don't know if they just felt like they couldn't or they didn't wanna intrude, but it's like I always felt like why does nobody ever come to save me, you know? And I know a lot of people-, like you said, a lot of people called in and were really upset from the community and, you know, part of me wants to be like where were you?

Footnotes

[1] Clearly demonstrated by the emphasis on viral loads and antiretroviral therapies in Mabior, both unmentioned in Cuerrier, and by the Court's comment in para. 92 of Mabior that a future cure for HIV may remove failure to disclose from the criminal realm.

[2], [1998] 2 S.C.R. 371

[3] 2012 SCC 47, [2012] S.C.J. No 47

[4] Ibid, at para. 24.

[5] Supra at para. 117.

[6] Supra, at paras. 83-89

[7] Victoria: The Task Force, 1995 as cited in R. v. Weasel, 2003 SKCA 131 at para. 11.

[8] R. v. M.(L.), 2008 SCC 31 at para. 39.

[9] Merriam-Webster Dictionary, definition of "substantial", 3(b)

[10] Collins Dictionary, definition of "substantial"

[11] Psychopathy Checklist-Revised (PCL-R), not a risk assessment tool per se but still useful as it measures psychopathy, the personality dimension most related to criminal offending. See Dr. Pearce's November 27, 2017 report at page 37.

[12] Stated in both Dr. Pearce's oral testimony and in his November 27, 2017 report at pg. 34.

[13] See Dr. Pearce's November 27, 2017 report at pgs. 22-23.

[14] Criminal Code, sections 718.01 and 718.2

[15] R. v. Magoon, 2018 SCC 14

[16] R. v. D.G.F., 2010 ONCA 27, [2010] O.J. No. 127 at paras. 25 and 27.

[17] R. v. Bauer, [2002] O.J. No. 3564 (Ont. CA) affirming [2002] O.J. No. 1135 at para. 42