Ontario Court of Justice

Date: 2021 07 30 Court File No.: Brampton 3111 998 17 1769

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

S.L.

Before: Justice G.P. Renwick

Sentencing Submissions Heard on: 26 July 2021 Reasons for Sentence released on: 30 July 2021

Counsel: C. Henderson, for the Crown J. Manishen, for the defendant S.L.

Sentencing Decision

RENWICK J.:

Introduction

[1] Following the release of my decision on the admissibility of evidence in this matter, the prosecutor led opinion evidence about the extraction of computer files (including images and videos) from devices seized by warrant from the Defendant. After two-full days of expert testimony, the Defendant conceded that there was a sufficiency of evidence to prove his possession of child pornography. On 01 May 2019, on the basis of the concession and the evidence heard until that point, I found the Defendant guilty of one count of possessing child pornography. Since that time, the matter has been adjourned several times over the past 14 months due to the Defendant’s health and his on-going cancer treatments.

[2] Prior to the sentencing hearing, the Defendant filed an Application to challenge the constitutionality of the mandatory minimum sentence of imprisonment for this offence. The federal Attorney General did not respond to the application. The provincially-appointed prosecutor did not oppose the application.

[3] The parties have jointly submitted that a sentence of 10 months imprisonment, served in the community, with ancillary orders, is appropriate in all of the circumstances.

General Sentencing Principles

[4] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[5] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [1]

[6] In R. v. Hamilton and Mason, 2004 ONCA 5549, Doherty J.A. of the Ontario Court of Appeal stated that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence…

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. [2]

[7] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest, 1996 ONCA 1381:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [3]

[8] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [4]

[9] In the circumstances of this case, where both parties submit that a sentence of imprisonment is warranted, it is trite to note that s. 718.2 provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances” and “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.” Obviously, as a sentencing tool, imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the offender.

[10] Our Supreme Court has instructed that section 718 requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. [5] Although the rehabilitation of the Defendant is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence), it is still a factor I must consider.

[11] The cases presented by the parties were helpful in reminding the court of the general sentencing principles in cases of this nature: R. v. Doucette, 2021 ONSC 371; R. v. John, 2018 ONCA 702; R. v. Jongsma, 2021 ONSC 796; and R. v. Kwok, 2007 2942 (ON SC), [2007] O.J. No. 457 (S.C.J.). I find that general and specific deterrence and denunciation are the primary goals in structuring a fit sentence for this offence.

[12] It is trite to note that the demand for child pornography is a serious problem in our society. This demand fuels the abuse of children for the basest desires of the depraved users of this material. As many other judges have noted, the only way to eradicate the on-going sexual abuse of children whose innocence is stolen during the production and distribution of child pornography is to eliminate the consumer market for these predatory peddlers of exploitation and misery.

[13] The impact of child pornography offences upon our community was compellingly captured by McLaughlin J. (as she then was), writing for the majority in R. v. Sharpe, 2001 SCC 2:

The very existence of child pornography, as it is defined by s. 163.1(1) of the Criminal Code, is inherently harmful to children and to society. This harm exists independently of dissemination or any risk of dissemination and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of children. It preys on pre-existing inequalities.

The Report on Pornography by the Standing Committee on Justice and Legal Affairs (1978) (MacGuigan Report), spoke of the effects of pornography as follows at p. 18:4):

The clear and unquestionable danger of this type of material is that it reinforces some unhealthy tendencies in Canadian society. The effect of this type of material is to reinforce male-female stereotypes to the detriment of both sexes. It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism, non-violence, consensualism, and mutuality are basic to any human interaction, whether sexual or other, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles.

In a similar manner, child pornography creates a type of attitudinal harm which is manifested in the reinforcement of deleterious tendencies within society. The attitudinal harm inherent in child pornography is not empirically measurable, nor susceptible to proof in the traditional manner but can be inferred from degrading or dehumanizing representations or treatment. [citations omitted] [6]

Discussion

The Offence and the Offender

[14] The Defendant was found guilty of possessing 316 videos and 453 photographs of female and male children ranging in age from toddlers to teenagers depicted in sexual ways and having sexual relations with other child victims and adult males. The sexual acts involved oral, vaginal, and anal sex, which was described as “aggressive at times,” and involving “facial ejaculation.” Some of the images were taken as, or staged to represent, sleeping victims, as if the child victims were inert sexual toys. Exhibit 3 on the sentencing hearing included this description from one of the investigating officers in reference to the images found on the Defendant’s devices:

The collection as a whole, I found to be disturbing, particularly the youngest of the victims captured in video. Not only the fact they are victimized, but the aggressive nature in which the offender(s) carried out these horrific acts.

These types of images are truly alarming. [7]

[15] The summary/description of the material appears factual, the parties have not contested it, and I accept it as accurate.

[16] I need not describe the material that warranted these convictions in any further detail. Suffice it to say, the images and videos possessed by the Defendant are extreme. Many of the images in the offender’s possession are distressing, disturbing, and despicable. They involve the humiliation and degradation of children, overt violence or simulated violence during sexual activity involving children, and every manner of sexual behaviour with children. In terms of the content and quantity of this material, there can be few offenders who are similarly situated to or worse than this one, except those with larger collections.

[17] This Defendant is a 36 year old, first-offender. He was raised by loving parents who adopted him privately. His father was a lawyer before retirement. His mother was a teacher. In 2016, his father passed away from cancer. The Defendant has always been close with his parents and has no relationship with those to whom he was born.

[18] The pre-sentence report details a difficult childhood for the Defendant. He had Tourette’s Syndrome and obsessive compulsive disorder. He was bullied. As a result, he completed high school at home over an extended period of time.

[19] The Defendant has worked steadily in the automotive industry since 2015. Currently, he is a parts manager at a car dealership. However, since July 2019, the Defendant has been on medical leave due to his diagnosis and treatments.

[20] The Defendant is married, since 2018. They have no children. The Defendant’s family support him and they do not believe that he committed this offence. Similarly, the Defendant has steadfastly denied involvement in this offence.

[21] There was no pre-trial custody served by this offender.

[22] I find that the following are mitigating circumstances in this case:

i. The Defendant has no prior criminal record and he is otherwise of good character; ii. During his trial, the Defendant admitted that the material in question meets the Criminal Code definition of child pornography; iii. The Defendant agreed that the court did not have to view any of the images or videos comprising child pornography to determine guilt or innocence, or for the purpose of sentencing; iv. The Defendant agreed that the police summary of the images could be relied upon by the court and this evidence was not rebutted or challenged in any way; v. The Defendant has the support of his employers, his spouse, and his family; and vi. Given the Defendant’s medical needs, any period of imprisonment in a custodial facility will be a hardship for him and may further jeopardize his health.

[23] On the basis of the evidence I accepted at trial and during the sentencing hearing, the following are the aggravating features which have been proven beyond a reasonable doubt:

i. The volume of child pornography possessed by the Defendant is significant and may represent a collection amassed over a period of time; ii. The content of the child pornography is extreme in terms of the age of children involved, the range of sexual activities depicted, and the level of brutality which involves actual, simulated, and psychological abuse; iii. The manner of possession of child pornography on multiple devices, including 69 movies on the Defendant’s iPhone, put the community at a greater risk of exposure to this material than if it were possessed on a single stand-alone table-top computer or in hard copy; and iv. The Defendant’s activity exposed the other occupants of his dwelling to police suspicion and investigation.

The Constitutionality Question

[24] In light of the Ontario Court of Appeal decision in R. v. John, 2018 ONCA 702, respecting the mandatory minimum penalty of imprisonment, the prosecutor does not oppose a finding that s. 163.1(4)(b) of the Criminal Code violates s. 12 of the Charter, is not saved by s. 1 of the Charter, and is therefore of no force and effect in this case.

[25] I recognize that John was a case where the prosecutor had proceeded by indictment, rather than summarily, unlike the case before me. [8] In my view, given the finding by the Ontario Court of Appeal that the six month mandatory minimum sentence was excessive and could not be saved by s. 1 of the Charter for indictable offences, perforce this would be the case today where the same sentence (six months imprisonment) is now required for a summary conviction proceeding.

[26] On the strength of the reasoning in John, I find that the mandatory minimum jail sentence (six months when prosecuted summarily) violates s. 12 of the Charter. On this basis, I am prepared to exempt the Defendant from the applicability of the mandatory minimum sentence.

The Applicability of a Conditional Sentence

[27] The parties have suggested that a conditional sentence is warranted for the following reasons:

i. The Defendant has been on terms of release since his arrest in February 2017 without incident; ii. The Defendant is a first-offender; iii. The Defendant is considered a low risk to re-offend; iv. The Defendant is considered a low risk to harm children; v. The pre-sentence report is favourable; vi. The Defendant has family support and the support of his employers; vii. The Defendant’s medical treatments require him to attend at a hospital every two weeks; and viii. As recently as 29 June 2021, the Defendant’s treating physician has said, “Estimating survival for individuals is difficult, but survival is likely to be measured in the range of several months to a year.” The parties submit that any sentence of imprisonment in a facility is essentially a life sentence.

[28] This is an awful crime. My sympathies are with the children who are victimized by the images possessed by this offender. However, in the very unusual circumstances of this case and on compassionate grounds, I will accede to the joint submission for the following reasons:

i. The sentence proposed is not outside the bounds of a fit and proportionate sentence for this offence and this offender; ii. It would not shock the conscience of the community to learn that the Defendant would receive a conditional sentence given his personal health circumstances; iii. The terms of a Conditional Sentence Order can address and mitigate the risks to our community posed by this Defendant; and iv. We are still in the midst of a global health crisis (Covid-19 pandemic) and the Defendant is immuno-compromised.

Sentence

[29] The Defendant is sentenced to a conditional sentence of imprisonment for 10 months upon the following terms:

1. Keep the peace and be of good behaviour;
2. Appear before the court when required;
3. Report to a Conditional Sentence Supervisor by 20 August 2021 at 4:00 p.m. in person or by calling 905-457-6887, and thereafter as required, in the manner directed, and not less than once per month for the duration of the Conditional Sentence Order;
4. Reside where approved by your Conditional Sentence Supervisor;
5. Remain in Ontario unless prior written permission to go outside the jurisdiction is obtained from the court or your Conditional Sentence Supervisor;
6. Notify the court or your Conditional Sentence Supervisor in advance of any change of name or address, and promptly notify the court or your Conditional Sentence Supervisor of any change of employment or occupation;
7. For the first five months of this conditional sentence you will observe a condition of house arrest, to be in your residence at all times except: i. For the purpose of travelling to, from, and while at your place of employment; ii. For the purpose of travelling to, from, and while attending your personal medical appointments; iii. For the purpose of travelling to, from, and while attending a place of worship, on a day designated by your supervisor; not to exceed twice per week; iv. For the purpose of seeking emergency medical treatment for yourself, your spouse, or your mother; and v. For any other purpose approved in advance and in writing by your Conditional Sentence Supervisor;
8. For the remaining five months of your conditional sentence you will observe a curfew to be in your residence from 10:00 p.m. until 6:00 a.m., daily, except for any absence approved in advance and in writing by your Conditional Sentence Supervisor;
9. For the entire duration of the Conditional Sentence Order, you are prohibited from using the internet or other digital network, unless for legitimate employment purposes while actually engaged in lawful employment or for the purpose of seeking employment or medical treatment, in accordance with the following terms: A. On your own personal telecommunications device: i. Unless you have provided to your Conditional Sentence Supervisor in writing the make, model, serial number and service provider as well as any telephone number connected with the device; ii. Unless the device is equipped with software or hardware that blocks access to peer-to-peer file sharing networks, Usenet, or freenet; and iii. Unless the device does not have scrubbing software installed and does not save files in an encrypted fashion; B. At your place of work, for business purposes only and in accordance with your employer’s IT unit and other policies at your place of work; C. On any non-employment related telecommunications device under the direct and constant supervision of any person approved of in advance and in writing by your Conditional Sentence Supervisor; and D. You may not use any telecommunication device to access the Internet or any other digital network in order to: i. Access child pornography; or ii. Access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children, or other child exploitation material;
10. When inside your residence for the entire duration of this Order, you will present yourself to the front door within 10 minutes, upon the request of any peace officer;
11. When outside of your residence for the entire duration of this Order, you must carry a copy of the Conditional Sentence Order and any written exceptions approved by your Conditional Sentence Supervisor and produce these documents to any peace officer who requests your identification; and
12. When outside of your residence for the entire duration of this Order, you are not to possess any amount of Canadian or American currency (i.e. cash) beyond a reasonable amount to travel from and return to your residence.

[30] The final condition of the Conditional Sentence Order is to remind the Defendant that he is serving a sentence of imprisonment, albeit in the community, for the next 10 months. Offenders in jail do not get to carry cash and this term can approximate a similar deprivation. Possessing currency is a liberty that the Defendant will only be permitted to enjoy in an amount that is reasonable for the mode of transportation he uses to leave home for the purposes granted by his Conditional Sentence Supervisor, or in accordance with this Order.

Ancillary Orders

[31] Pursuant to section 164.2 of the Criminal Code, your MacBook, your Antec Computer Tower (HDD2), your Antec Computer Tower (HDD3), and your Apple iPhone, all seized by Peel Regional Police on 09 February 2017 are forfeited to Her Majesty the Queen in Right of Ontario to be disposed of by the Attorney General of Ontario in accordance with the law.

[32] Pursuant to the provisions of ss. 490.012 and 490.013 of the Criminal Code, you are required to comply with the Sex Offender Registration Act for 10 years.

[33] Pursuant to the provisions of ss. 487.04 and 487.051 of the Criminal Code you are required to submit to the taking of the number of samples of your bodily substances that is reasonably required for the purpose of forensic DNA analysis. These DNA samples will be taken under hygienic conditions, while reasonably respecting your privacy and bodily integrity, while you are in custody to process the Conditional Sentence Order, or no later than 5:00 p.m. on 31 August 2021, by attending Peel Regional Police Sir Robert Peel Centre at 7750 Hurontario Street, Brampton.

[34] Pursuant to the provisions of s. 161(1)(d) you are prohibited for 10 years from using the internet or other digital network, unless for legitimate employment purposes while actually engaged in lawful employment or for the purpose of seeking employment or medical treatment, in accordance with the following terms:

A. On your own personal telecommunications device: i. Unless the device is equipped with software or hardware that blocks access to peer-to-peer file sharing networks, Usenet, or freenet; and ii. Unless the device does not have scrubbing software installed and does not save files in an encrypted fashion; and B. You may not use any telecommunication device to access the Internet or any other digital network in order to: i. Access child pornography; or ii. Access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children, or other child exploitation material.

[35] For the sake of our community, I wish the Defendant well with his rehabilitation.

Released: 30 July 2021 Justice G. Paul Renwick

[1] R. v. Hamilton and Mason, 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.) at para. 102. [2] Hamilton, supra, at paras. 90-91. [3] R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 (C.A.) at para. 26, as quoted in Hamilton, supra, at para. 92. [4] See subsection 718.2(b) of the Code. [5] R. v. Gladue, 1999 679 (SCC), [1999] S.C.J. No. 19 at paras. 43 and 48. [6] R. v. Sharpe, 2001 SCC 2, [2001] S.C.J. No. 3 at paras. 158-160. [7] The parties agreed that the court could rely upon the investigator’s description of the images and videos in lieu of actually viewing this material. [8] Ironically, at the time when that case was decided, the mandatory minimum sentence for this offence, when prosecuted by indictment, was six months. On 17 July 2015, the mandatory minimum sentence for this offence when prosecuted summarily was increased to six months imprisonment: Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 7(2)(b).