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(3) 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(3), read as follows:

486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

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.

CITATION: R. v. Tang, 2022 ONCJ 251

DATE: 2022·05·30

Court File 18-15009014

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

QUAN TANG

Before Justice David Porter

Heard on February 15 and March 8, 2022

Reasons for Sentence released on May 30, 2022

P. Santora............................................................................................... counsel for the Crown

S. Menzies............................................................................................. counsel for the accused

Porter J.:

OVERVIEW

[1] The accused Quan Tang (“Mr. Tang”) entered a plea of guilty to the charge that on or about the seventh day of February in the year 2018 he did, without lawful excuse make available child pornography contrary to section 163.1 subsection (3) of the Criminal Code.

[2] Pursuant to section 163.1(3) of the Criminal Code this is a pure indictable offence for which, upon conviction, an accused is liable to imprisonment “for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year”.

[3] As agreed with counsel in the course of submissions, pursuant to R. v. Sharma 2020 ONCA 478 leave to appeal to the Supreme Court of Canada granted January 14, 2021 1101, (appeal argued March 23, 2022 with judgment reserved) the prohibition on conditional sentences for offences for which a maximum term of imprisonment is 14 years or life, found in section 742.1(c) of the Criminal Code, was struck down as a breach of s. 12 of the Charter. In addition, in two Superior Court decisions R. v. Boodho 2018 ONSC 7207 and R. v. Walker 2021 ONSC 837 the mandatory minimum sentence of one year was also struck down for the offence under s. 163.1(3) of the Criminal Code. Accordingly, the sentencing hearing proceeded on the basis that a conditional sentence was available, if appropriate, for the offence of making child pornography available, and the mandatory minimum sentence was no longer in force.

The Facts

[4] An agreed statement of facts was filed as Exhibit 1 on the sentencing pursuant to s.655 of the Criminal Code.

[5] The agreed facts disclosed that on February 7, 2018, Mr. Tang uploaded an image of suspected child abuse to the bulletin board of a public website where the public can post comments and share images. Users do not need to register an account before participating in the exchange of material on this bulletin board.

[6] The image posted was accompanied by Mr. Tang’s comment “it took longer than a few days but well worth it”. The posting was a rectangular shaped screenshot type image which contained 28 video thumbnails and 2 partial video thumbnails arranged in two rows with titles underneath. Sixteen of the thumbnails had an image which appeared to be a preview of the video while the remaining ones had a generic picture indicating which type of media player would play the video.

[7] It was agreed that the thumbnails constituted child pornography and included, by way of example, images of a child’s vagina with the head of a penis touching the bottom of the vagina, a naked female on a bed with a hand touching her vagina, a smaller body wearing a plaid skirt on top of a larger body, a naked female facing away from the camera with her legs spread exposing her vagina, and a video entitled Daisy’s Destruction consisting of a video featuring a toddler engaging in a range of extremely serious examples of sexual abuse. Other examples showed digital penetration of the vagina of a young child.

[8] Upon identifying Mr. Tang’s residence as the source of the child pornography, a search warrant was executed locating 4 laptops containing 1126 images categorized as child pornography on the devices, along with 54 videos of the same classification. 953 images and 31 videos were in plain sight, and 355 images and 31 videos were unique files.

[9] The agreed statement of facts describing the child pornography stated at paragraph nine:

“The child pornography included children ranging in age from 2-11 years old. Activities included incest, anal penetration, object insertion, intoxication, intercourse, and bondage. The known series “Daisy’s Destruction” was located in the video files”

[10] Counsel for Mr. Tang advised that, upon his arrest, Mr. Tang gave a full confession to the police.

[11] It was agreed between counsel that this matter should be considered as an early plea, since the time spent since the first appearance in court involved a series of judicial pre-trials, in which extensive discussions occurred concerning the appropriate sentence in this case, and appropriate arrangements were made for an assessment and counselling for Mr. Tang to assist him in his rehabilitation, and to assist the court, in determining the appropriate sentence in this case.

Assessment of Mr. Tang by Dr. James Cheston

[12] Mr. Tang received an assessment, and ongoing treatment, from Dr. James Cheston a forensic psychologist highly experienced in the assessment and treatment of persons charged with sexual offences. Dr. Cheston is a forensic psychologist registered with the College of Psychologists of Ontario, and received his doctoral degree in 1991 in Applied Social Psychology. He was the chief psychologist at the Ontario Correctional Institute in Brampton from September 2008 to June 2020. In that position, he managed the psychology department at the Ontario Correctional Institute and supervised the treatment and assessments conducted by psychology staff and was engaged in optimizing the assessment and treatment of provincially sentenced offenders.

[13] Prior to that position Dr. Cheston worked as a consulting psychologist for Correctional Services Canada from April 1998 to March 2008 conducting risk assessments of federal inmates at several institutions, and providing individual counselling of federal parolees.

[14] Dr. Cheston is clearly experienced and well-qualified in the field of forensic psychology and the court benefited greatly from the 3 assessment reports filed in relation to Mr. Tang dated September 12, 2020, December 9, 2020, and June 27, 2021. In addition, Dr. Cheston testified at the sentencing hearing on February 15, 2022.

Personal Background of Mr. Tang

[15] As summarized in Dr. Cheston’s reports, Mr. Tang was born May 19,1995, and was therefore 22 years of age when he committed the offence. As summarized by Dr. Cheston, Mr. Tang was the sole child of his parents and was raised to the age of 15 years in the city of Dalian, China. He immigrated to Canada with his mother at 15 years of age. His mother was an assistant professor at a medical school in China, and his father was a successful businessman who died on July 31, 2012.

[16] According to Dr. Cheston, Mr. Tang did not have close enduring relationships when he was a boy, as the family moved frequently as a result of his father’s business activities. Mr. Tang described himself as obese and not having had close friends.

[17] The principal reason for coming to Canada was Mr. Tang’s desire to be educated in Canada to potentially pursue medical studies at the University of Toronto. When he arrived in Canada, he was unable to speak English, and this created significant challenges for him in developing friendships as a student in Canada.

[18] Mr. Tang and his mother moved from Markham to Barrie Ontario to improve his English by being required to attend school with a predominantly English-speaking peer group, which increased Mr. Tang’s social isolation. Mr. Tang entered the University of Toronto in 2015 and successfully completed his undergraduate degree in 2020. He was a good student at university. He also helped his mother in her financial investment business.

Employment Reference for Mr. Tang

[19] In January 2021, Mr. Tang began employment with Isabella Dan Professional Corporation, a law firm in Markham Ontario. He has been employed at that law firm as a law clerk since January 2021. In a letter marked Exhibit 6 on the sentencing dated July 31, 2021, Isabella Dan speaks glowingly of Mr. Tang as an employee. She states:

“My practice is to only hire full time after a three month period where we can have the opportunity to assess the skills and reliability of the candidate. Quan proved his abilities within only one week and was taken on as a member of the firm of 7 legal staff specializing in commercial real estate law.

He is responsible for opening files, gathering information from clients and agents, coordinating with banks, communications with clients, other law firms or municipal officials arranging couriers and preparing reporting letters.

We have found him to be a very quick learner and someone who pays attention to details and takes the initiative to solve problems.

I am aware of the criminal charges that are currently before the Ontario Court of Justice and write this letter of reference on his behalf. He has been a wonderful addition to my law firm, and I am more than happy to offer my own personal affirmation of his intelligence and work ethic and humility and pleasant personality.”

The Circumstances of the Offence

[20] As related in Dr. Cheston’s report dated September 12, 2020, Mr. Tang was interested in a variety of sexual stimuli, usually using erotic printed material for sexual gratification. He reported that on one occasion when surfing the Internet he saw a pop-up which read “Look at this – a type of sex you have never seen before” and this took him to a child pornography website. He reported to Dr. Cheston that he downloaded materials from that website which he subsequently viewed and used for the purposes of sexual gratification over a period of three or four months, at which point he stopped using these materials for sexual gratification.

[21] The incident of making the child pornography available occurred, according to Mr. Tang, when he was speaking in an Internet chat with someone who maintained that you had to access the Dark Web in order to find child pornography. Mr. Tang responded that he disagreed and that he had obtained child pornography on the regular Internet, not on the Dark Web. He sent the screenshots which were ultimately observed by the police, in an attempt to demonstrate that this material was located on the regular Internet.

[22] According to Dr. Cheston, Mr. Tang had a strong sex drive, and generally used adult written erotica for sexual stimulation. Mr. Tang expressed extreme regret and remorse over the fact that he ever got involved with child pornography. Mr. Tang does not use alcohol or other intoxicating substances.

[23] In his written reports, and in his evidence in court, Dr. Cheston stressed in emphatic terms the substantial and sincere remorse exhibited by Mr. Tang in his dealings with Dr. Cheston. Dr. Cheston was clearly impressed with the intelligence and candour of Mr. Tang. He indicated that Mr. Tang was at no time defensive or rationalizing about his behaviour and, in discussing the incident with Dr. Cheston, he became extremely distraught saying that “what he did was immoral and that he was a hypocrite because he always thought of himself as a moral person yet he had done this.” Dr. Cheston found Mr. Tang to be at all times sincere and honest in his expressions of remorse in relation to this conduct.

[24] In Dr. Cheston’s initial assessment dated September 12, 2020, at p.11, he found Mr. Tang to be “in the very low risk range for committing a criminal offence generally” and “in the low range for committing a sexual offence”. He concluded that Mr. Tang would “benefit from therapy to address several personal attributes which have been shown to be related to sexual re-offence in individuals who have been convicted of sexual offending.”

[25] Dr. Cheston indicated at page 11 of his September 12, 2020 report:

“Through the clinical interviews it was evident that he would benefit from engaging in individual psychotherapy to enhance his social relatedness, to gain better self-management capabilities of his sexual urges, to improve his ability to access and express emotions, and to enhance his self-esteem and social confidence”.

[26] Dr. Cheston began to treat Mr. Tang in October 2020 and had seen him in 21 therapy sessions by the time of his June 27, 2021 report. As of February15, 2022, Dr. Cheston had seen Mr. Tang for 34 sessions since October 2020 and he continues to see him every 2-3 weeks for counselling for issues not related to child pornography as he considers his rehabilitation to be complete.

[27] In his report dated June 27, 2021, Dr. Cheston states at page 2:

“As noted in my initial assessment of Mr. Tang, he presents as a very bright and capable young man who has been very forthcoming in this assessment process as well as throughout our therapeutic contacts. He has consistently been very engaged in therapy and has accordingly achieved notable improvements in multiple domains of personal and interpersonal functioning.”

With respect to his risk of reoffending, Dr. Cheston concluded at p. 5 of his June 27, 2021 report, that, after engaging in the therapy conducted, Mr. Tang’s risk of criminal behaviour is at Level 1 of the “Five - Level Risk and Needs System” “no different from the rate of spontaneous, first time offending for people without a criminal record which is estimated at 1-2% per year among 18 to 25-year-old males, with an upper limit of 5% over five years. Custody (placement in prison or jail) will be counterproductive in reducing recidivism for people grouped in Level I. The base rate of offending is low enough that prison may worsen recidivism outcomes.”

[28] Dr. Cheston concluded that,

“Any period of time in correctional custody is considered to be counterproductive to public safety in Ontario and most definitely deleterious to this young man who is now, through therapeutic guidance and support, beginning to recognize and actualize his positive contribution to society” (June 27, 2021 Report, at page 5).

[29] In his testimony in court, Dr. Cheston repeated that Mr. Tang posed an extremely low-level risk of reoffending, and that his rehabilitation in respect of the offence committed, was essentially complete. In Dr. Cheston’s opinion, for a person such as Mr. Tang, who has a very low risk of re-offending, society is best protected by continued therapy in a non-custodial context. In Dr. Cheston’s opinion, to place such an individual in jail would be both harmful to Mr. Tang and society, in actually creating a greater risk of recidivism than is the case if Mr. Tang received a sentence which did not involve a period of actual incarceration.

The Sentencing Positions of the Parties

[30] The Crown’s position, which counsel for the Crown described as “lenient” at the “very bottom of the reasonable range for this offence” is a custodial term of 12 months, a period of probation of 18 months, a SOIRA order for 20 years, a s.161 order for 5 years, a DNA order for a primary designated offence, a forfeiture order of the electronics used to commit the offence, and a victim fine surcharge of $200.

[31] The defence position did not contest the appropriateness of some period of probation and the ancillary orders requested by the Crown.

[32] However, the defence submitted that this is an exceptional case, having regard to the facts of the case, the personal attributes of Mr. Tang, and the uniquely favourable report concerning Mr. Tang from Dr. James Cheston, noting his strong opinion that Mr. Tang would actually be harmed by a period of incarceration, and his strong recommendation for a disposition in the community which could involve a conditional sentence.

[33] In particular, on behalf of Mr. Tang, Mr. Menzies submitted that a conditional sentence totaling 18 months would be appropriate, with the period of house arrest (with usual exceptions) for 12 months, a curfew for six months, and probation for a period of two years to continue his treatment with Dr. Cheston. On behalf of Mr. Tang, Mr. Menzies submitted that, if a period of actual incarceration was required, it should be short and sharp, namely, a 90-day intermittent sentence. He submitted that if actual incarceration near the statutory minimum was required, he urged that a sentence of 9 months be imposed, to be served at Brampton Ontario Correctional Institute, which would allow for continued counselling and treatment.

The Defence Submissions

[34] In his submissions, Mr. Menzies placed significant reliance on the decision of the Supreme Court of Canada in R. v. Proulx 2000 SCC 5.

[35] As Mr. Menzies noted, Lamer C.J. stated, in his review of the conditional sentence provisions:

“Section 742.1 does not exclude any offences from the conditional sentencing regime except those with a minimum term of imprisonment. Parliament could have easily excluded specific offences in addition to those with a mandatory minimum term of imprisonment but chose not to”: R. v. Proulx, supra, at para. 79.

As the Court noted, “a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied”: R. v. Proulx, supra, at para.79.

[36] Mr. Menzies submitted that, pursuant to R. v. Proulx, there is no presumption that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce an unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction: R. v. Proulx, supra, at para. 81

[37] Mr. Menzies submitted that this is an exceptional case, for the reasons noted above, and emphasized that sentencing is an individualized process in which the trial judge has considerable discretion in fashioning a fit sentence. As noted by Lamer C.J. in R. v Proulx, supra, at para. 82:

“The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.”

Mr. Menzies submits that, in accordance with R. v. Proulx, supra, at para.90:

“it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met. Failure to advert to the possibility of a conditional sentence in reasons for sentence where there are reasonable grounds for finding that the first three statutory prerequisites have been met may well constitute reversible error.”

[38] He notes that, as stated by the court in R. v. Proulx, at para.92, citing R. v Gladue at para. 40:

“The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in section 718.2 (e) must be construed and applied in this light.”

[39] Mr. Menzies states that it would be contrary to sound sentencing principles to impose actual incarceration, when it would, on Dr. Cheston’s evidence, be harmful to Mr. Tang. Mr. Menzies submits that a conditional sentence can satisfy principles of denunciation and general deterrence in this case: R. v. Proulx, supra, at paras.102 and 107.

The Legislative History of Section 163.1(3)

[40] In the 22 years since the Supreme Court’s decision in R. v. Proulx, Parliament, and the courts, have developed an increased awareness of the seriousness of the victimization of children as a result of the commission of sexual offences involving children, including in all child pornography offences.

[41] This has been reflected in Parliament’s ongoing amendment to the Criminal Code provisions in relation to child pornography in which there has been a systematic increase in the available sentence for, in particular, making child pornography available.

[42] In 2002 in the Criminal Law Amendment Act 2001, S.C 2002, c.13 the offence of making available child pornography was punishable as an indictable offence by 10 years in jail, or alternatively as an offence punishable on summary conviction.

[43] In 2005 in S.C. 2005, c. 32, s.7(3) a minimum sentence of 1 year was added when the offence was an indictable offence, and when prosecuted summarily, to a maximum sentence of 18 months, and a minimum sentence of 90 days.

[44] In s. 24 of S.C. 2005, c. 32 s. 718.01 of the Criminal Code was added, which stated:

“When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”

[45] In 2012, the summary conviction sentencing range for the offence of making child pornography available was amended to create a maximum of 2 years less a day, and a minimum sentence of 6 moths: Safe Streets and Communities Act, S.C. 2012, c.1, s.17(1).

[46] In 2015 in the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s.7(1), the sentences were increased again by Parliament. The offence under s. 163.1 (3) became a pure indictable offence with an increased maximum of 14 years and a minimum sentence of imprisonment for 1year.

Sentencing Jurisprudence

[47] Appellate jurisprudence in Ontario has confirmed that the primary sentencing principles of denunciation and general deterrence frequently require very lengthy periods of incarceration to give proper effect to these principles.

[48] In R. v. Inksetter, 2018 ONCA 474, the Court of Appeal granted a Crown appeal from a sentence of 2 years less a day for a 51-year old first offender who plead guilty to possession of child pornography and making child pornography available. On the facts of that case, he had “amassed one of the largest and worst collections of child pornography that the Ottawa Police Service had ever uncovered:” R. v. Inksetter, supra, at para 1.

[49] The Court of Appeal described the collection as follows at paras. 4 – 5:

“[4] The police identified 28,052 unique images and 1,144 unique videos of child pornography on the respondent's computer and various devices. At that point, they halted their investigation, even though there were still 1.2 million other images and 40,000 other videos left to review and categorize. Detective Carr testified that the respondent's collection -- which was amassed over several years -- was among the top one or two most difficult collections she has ever had to review. Ninety-five per cent of the material depicted actual penetration and other explicit sexual activity. Some of the images of explicit sexual activity involved children as young as one-year old. The images included bondage and bestiality. The respondent organized his collection in hundreds of folders, named in a manner consistent with their contents.

[5] The material that the respondent downloaded was available to others via the Internet so long as it remained in the “shared” folder on his computer. On March 8, 2016, this folder contained 75 unique files which were child pornography. On April 18, 2016, it contained 167 unique files”.

[50] The accused in that case entered a plea at the first reasonable opportunity, and was found to have a low risk to re-offend. He showed real remorse and insight and accepted full responsibility for what he had done: R. v. Inksetter, supra, at paras.7-9.

[51] In allowing the Crown’s sentence appeal from the sentence of 2 years less a day and imposing a sentence totalling 3.5 years, the Court of Appeal emphasized the significant victimization caused to children by both the possession and making available of child pornography, and the significant period of incarceration required to give proper effect to principles of denunciation and deterrence. The Court of Appeal allowed the appeal on the basis that the trial judge’s sentence in which a reformatory sentence was imposed, to allow for a lengthy period of probation, placed too much weight on rehabilitation and not enough on denunciation and general deterrence. The Court stated at paras 15-17:

[15] “In his focus on probation, the trial judge gave primary effect to the objective of rehabilitation rather than the objectives of denunciation and general deterrence. The trial judge's reasons demonstrate that this error in principle resulted in the imposition of a shorter term of imprisonment than would otherwise have been imposed.

[16] By enacting s. 718.01 of the Criminal Code, Parliament made clear that denunciation and general deterrence must be primary considerations for any offence involving the abuse of a child. Further, this court has repeatedly stated that denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography: R. v. F. (D.G.) (2010), 98 O.R. (3d) 241, [2010] O.J. No. 127, 2010 ONCA 27, at paras. 21-22, 30; R. v. Nisbet, [2011] O.J. No. 101, 2011 ONCA 26, at para. 3; R. v. O. (E.), 2003 2017 (ON CA), [2003] O.J. No. 563, 169 O.A.C. 110 (C.A.), at para. 7; R. v. Stroempl, 1995 2283 (ON CA), [1995] O.J. No. 2772, 85 O.A.C. 225 (C.A.), at para. 9. [page166]

[17] The courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence: R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at para. 6.”

[52] The Court recognized the increasing prevalence of child pornography, its obvious harm to children, and the seriousness of the offence of making child pornography available, due to its dissemination of these images to other members of the public.

[53] The Court stated at paras. 22-25, and para. 27:

“[22] Child pornography is a pervasive social problem that affects the global community and its children. In [page167] R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 2001 SCC 2, the Supreme Court described how possession of child pornography harms children. As Fraser C.J.A. wrote in R. v. Andrukonis, [2012] A.J. No. 481, 2012 ABCA 148, at para. 29, “possession of child pornography is itself child sexual abuse”. The children depicted in pornographic images are re-victimized each time the images are viewed. In amassing, viewing and making available his vast and terrible collection to others, the respondent participated in the abuse of thousands of children.

[23] Over the past decade, Parliament has increased the legislated range of sentence for child pornography related offences. Most recently, in 2015, it amended the Criminal Code to increase the minimum sentence for possession of child pornography to one year and the maximum sentence to ten years, in all cases where the Crown proceeds by indictment. At the same time, the maximum sentence for make child pornography available was increased to 14 years. (The minimum sentence remains at one year.)

[24] I am aware that there is an appeal pending in this court in R. v. Cristoferi-Paolucci, [2017] O.J. No. 4341, 2017 ONSC 4246 (S.C.J.), challenging the constitutionality of the mandatory minimums for possession of, and making available, child pornography. However, even if the mandatory minimums are declared of no force and effect, Parliament's legislative initiatives signal Canadians' concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewed with some caution.

[25] As Feldman J.A. wrote in F. (D.G.), at para. 21, “[o]ver the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the internet and to address the problem appropriately”. Even before these amendments, this court signalled that more significant sentences for child pornography-related offences were appropriate: R. v. H. (R.), [2012] O.J. No. 4230, 2012 ONCA 593; R. v. Saliba, [2013] O.J. No. 6002, 2013 ONCA 660…..

[27] A longer sentence on the count of “make available” child pornography than for the count of "possession" is warranted because by making images and videos he downloaded available to others via the Internet, the respondent contributed to the further victimization of the children depicted in the pornographic images. In my view, a sentence of three years' imprisonment on the count of “possession” of child pornography and three and one-half years' imprisonment on the count of “make available” child pornography, to be served concurrently, is fit in these circumstances, which include the early guilty plea and other mitigating factors identified by the trial judge.”

[54] In R. v. Friesen 2020 SCC 9, the Supreme Court of Canada provided clear guidance to trial judges that sentences for sexual offences involving the victimization of children should generally increase to give effect to the protection of children from exploitation. The Court stated at paras.42,43, 44, and 47:

“[42] Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected (Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 67). As Otis J.A. stated in R. v. L. (J.-J.) (1998), 1998 12722 (QC CA), 126 C.C.C. (3d) 235 (Que. C.A.), [translation] “the protection of children constitute[s] one of the essential and perennial values” of Canadian society (p. 250). Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society (R. v. Mills, 2019 SCC 22, at para. 23).

[43] This case presents an opportunity for this Court to consider the sentencing principles for sexual offences against children. Sentencing is one of the most important and “most delicate stages of the criminal justice process” (Lacasse, at para. 1). It is at this stage that the judge must weigh the wrongfulness of sexual violence and the harm that it causes and give effect to both in imposing a sentence (C. L. M. Boyle, Sexual Assault (1984), at p. 171). It is important for this Court to provide guidance so that sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim (see P. Marshall, “Sexual Assault, The Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216, at p. 219). To do otherwise would improperly permit myths that Parliament and this Court have striven to drive out of the law of evidence and substantive criminal law to simply re-emerge at the sentencing stage (R. P. Nadin-Davis, “Making a Silk Purse? Sentencing: The ‘New’ Sexual Offences” (1983), 32 C.R. (3d) 28, at p. 46). This result could undermine the credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large (see Lacasse, at para. 3).

[44] Given the facts of this case, the guidance we provide is focused on sentencing principles for the offence of sexual interference and closely related offences such as invitation to sexual touching (Criminal Code, s. 152), sexual exploitation (Criminal Code, s. 153(1)), incest (Criminal Code, s. 155), and sexual assault (Criminal Code, s. 271). However, the principles that we outline also have relevance to sentencing for other sexual offences against children, such as child luring (Criminal Code, s. 172.1).^[2] Courts should thus draw upon the principles that we set out in this case when imposing sentences for such other sexual offences against children. Courts may also draw upon these principles when imposing sentences for child abduction and human trafficking offences where the victim is a child and the factual foundation for the conviction involves sexual violence or exploitation.^{[3] ….}

[47] New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children. Social media provides sexual offenders “unprecedented access” to potential child victims (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 102). The Internet both directly connects sexual offenders with child victims and allows for indirect connections through the child’s caregiver. Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera (see R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81; R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193). The Internet has also “accelerated the proliferation of child pornography” (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 114, per Deschamps J.).”

[55] The Court in R. v. Friesen, supra, referred to the consistent increase in the sentences for sexual offences against children, including in the 2015 amendments referred to above, and stated at paras 96-97:

“[96] Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offence includes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity (L.M., at paras. 24-25). The maximum sentence the Criminal Code provides for offences determines objective gravity by indicating the “relative severity of each crime” (M. (C.A.), at para. 36; see also H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (2nd ed. 2016), at pp. 51-52). Maximum penalties are one of Parliament’s principal tools to determine the gravity of the offence (C. C. Ruby et al., Sentencing (9th ed. 2017), at § 2.18; R. v. Sanatkar (1981), 1981 3323 (ON CA), 64 C.C.C. (2d) 325 (Ont. C.A.), at p. 327; Hajar, at para. 75).

[97] Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament “wanted such offences to be punished more harshly” (Lacasse, at para. 7). An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for an offence.”

Principles of Sentencing

[56] The fundamental principle of sentencing is proportionality. The Criminal Code states in s.718.1:

“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[57] Section 718 of the Criminal Code states the purpose of sentencing as follows:

718 “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

• (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

• (b) to deter the offender and other persons from committing offences;

• (c) to separate offenders from society, where necessary;

• (d) to assist in rehabilitating offenders;

• (e) to provide reparations for harm done to victims or to the community; and

• (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.”

Other sentencing principles include ss 718.2 (b) – (e) which state:

“(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[58] As previously noted, s.718.01 has particular application to this case. It states:

“718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct”.

Aggravating and Mitigating Circumstances

[59] In R. v. Kwok 2007 2942 at para.7, Molloy J. helpfully summarizes the relevant aggravating and mitigating factors in sentencing for child pornography offences:

“Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).”

[60] Applying these factors to the case at bar, Mr. Tang has no prior criminal record. Mr. Tang did not produce child pornography, and with respect to the facts of the “making available” offence, it is significant that the child pornography was only made available on one occasion.

[61] The size of the collection is accurately described by the Crown as moderate, it is not a massive collection, as was the case in R. v. Inksetter, supra, but it was of a significant size. The content of the child pornography was relatively serious as including children ranging in age from 2 to 11 years of age and the significant victimization of those children associated with the sexual activity portrayed which included incest, anal penetration, object insertion, intoxication intercourse and bondage.

[62] There is no evidence of pedophilia or other paraphilia which would expose actual children to the risk of sexual assault by Mr. Tang. He did not purchase the child pornography in his possession but downloaded it from the Internet for free. However, as acknowledged in Dr. Cheston’s report, he used this child pornography for his own sexual gratification, over the course of several months. Dr. Cheston explained this as conduct to achieve “tension release” at a time when Mr. Tang was absolutely socially isolated. However, the fact that child pornography, which by definition involves the obvious victimization of children, was viewed and used for these purposes by an intelligent young man is aggravating and adds to the moral blameworthiness of Mr. Tang. Mr. Tang reported to Dr. Cheston that he assumed the material was legal, as it was on the internet, and it was only after doing research that the wrongfulness of his conduct was apparent to him.

[63] There are significant mitigating circumstances in this case. Firstly, there is the early guilty plea and strong evidence of remorse as documented by Dr. Cheston. The accused is of prior good character, with no prior criminal record, and a good academic and employment record. As indicated, it is mitigating that he only made the child pornography available on one occasion. Dr. Cheston has assessed him to be at a very low risk of re-offence. Mr. Tang has done everything he could reasonably do to seek and obtain therapy to address the circumstances which gave rise to this offence, in order to ensure that it will not be repeated. Dr. Cheston found Mr. Tang to be a thoughtful intelligent person with a sincere interest in philosophy and moral principles who is deeply ashamed of what he did.

A Review of Comparable Cases

[64] Section 718.2(b) states “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

[65] Although the mandatory minimum sentence of 12 months for an offence under s 163.1(3) has been struck down by the Superior Court in 2 decisions R. v. Boodhoo, 2018 ONSC 7207 and R. v. Walker, 2021 ONSC 837, in each case it was based on reasonable hypotheticals that were significantly different than the facts of this case. The fact that a minimum sentence is struck down may have little effect on the appropriate sentence in a particular case.

[66] In R. v. John, 2018 ONCA 702, the mandatory minimum sentence of 6 months for possession of child pornography, in effect at the time of the offence, was struck down as violating s.12 of the Charter based on a reasonable hypothetical of an 18-year old who fails to delete a “sext” from a friend’s 17 year old girlfriend sent to him without her knowledge: R. v. John, supra at paras. 38-39.

[67] However, the fact that the mandatory minimum was struck down had no impact on the appropriate sentence for Mr. John who was in possession of 89 unique videos and 50 unique images of child pornography with images of children as young as 4 showing the “terrible abuse of young children”: R. v. John, supra, at para.45.

[68] The Court stated at para. 41:

“[41] The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter (2018), 141 O.R. (3d) 161, [2018] O.J. No. 2702, 2018 ONCA 474, at para. 16. In another recent decision, R. v. S. (J.), [2018] O.J. No. 4095, 2018 ONCA 675, this court upheld a sentence of 18 years for sexual abuse of young children, making child pornography depicting that abuse and distribution of that material.”

[69] And at paras 44-47, the Court upheld the 10-month sentence imposed at trial:

“[44] The appellant was 29 years old at the time of the offence and 31 years old at the time of sentencing. He has suffered from serious mental health problems for which he was inadequately treated. At times he was suicidal. He has pursued a course of psychotherapy with a view to dealing with his problems. The appellant is employed and is continuing counselling. He is remorseful, and no risk factors have been identified requiring further treatment.

[45] Despite these mitigating factors, the size and nature of the appellant's collection is a seriously aggravating factor. The appellant had possession of 89 unique videos and 50 unique images of child pornography. He actively sought out these images and videos. His collection included images of children as young as four years old, and some perhaps as young as two or three years old, subjected to anal and vaginal penetration with sex toys and adult penises. This is terrible abuse of young children. In R. v. Lynch-Staunton, [2012] O.J. No. 313, 2012 ONSC 218 (S.C.J.), at para. 57, Ratushny J. pointed out that

It is to be understood by those trolling the Internet for child pornography that these pictures are acts of violence against children, that viewing and possessing them perpetuates the original violence, that viewing and possessing them encourages new child victims, and that as a consequence, jail terms will result.

[46] But for the appellant's very considerable efforts at rehabilitation, the sentence imposed could have been much higher.

[47] The sentence imposed was fit and proportionate to the gravity of the offence and the degree of responsibility of the offender without regard to the mandatory minimum. I would dismiss the appeal from sentence.”

[70] In the case at bar, while counsel for Mr. Tang, Mr. Menzies, forcefully submits that a conditional sentence would be appropriate he has not cited any cases under s.163.1(3) with similar facts where a conditional sentence was imposed.

[71] The Crown places significant reliance upon the summary conviction appeal decision in R. v. Snead 2021 ONSC 7017. In that case, O’Marra J. allowed the Crown appeal from an 8 month conditional sentence for possession of child pornography in relation to conduct in March and November 2018. He held that the conditional sentence “failed to reflect the well established need for general deterrence and denunciation for such offences”: R. v. Snead, supra, at para.19.

[72] Justice O’Marra stated at paras. 20-22, and 26:

“[20] The possession of child pornography harms children. It is itself child abuse: R. v. Sharpe, 2001 SCC 2; R. v. Inksetter, 2018 ONCA 474 at para. 22.

[21] Viewers and purchasers of child pornography fuel the market for producing “this odious material”. The victimization of children must be opposed with unremitting purpose. Condemnation through the imposition of harsh sentences is necessary to fight against the evil of child pornography: R. v. Rytel, 2019 ONSC 5541 at para. 28.

[22] The primary focus for sentencing in such cases has long been general deterrence and denunciation: Inksetter at para. 16; John at para. 41…..

[26] Parliament has recognized the profound harm of sexual offences against children and has determined that sentences for such offences should be increased. The enactment of s. 718.01 of the Criminal Code relating to offences against children confirms that the paramount consideration shall be to the objectives of denunciation and deterrence. This calls for more severe sanctions for such offences: R. v. Friesen, 2020 SCC 9 at paras. 95, 101-105.”

[73] In R. v. Snead, a custodial sentence of 12 months for the offence of possession of child pornography was imposed on appeal, having regard to the principles of denunciation, general and specific deterrence, and rehabilitation: R. v. Snead, supra, at paras 35-36.

[74] In the case at bar, the plea was to the single offence of making child pornography available, with the agreed-upon possession of the child pornography relied upon by the Crown as an aggravating circumstance to be taken into account on sentencing. The offence of “making available” is generally more serious than the offence of “possession” of child pornography because by making the child pornography available to others via the Internet the conduct contributes to the further victimization of children: R. v. Inksetter, supra, at para. 27.

[75] In R. v. Schock [2017] O.J. No.7242, the accused pled guilty to both making child pornography available, and possession of child pornography. The offences were committed June 27, 2015. At the time, both offences carried a minimum sentence of one year in jail.

[76] The making available offence occurred on only one occasion, June 27, 2015, when a single image of child pornography was uploaded by the accused, with the result that it was shared with over 100 IP addresses within two days.

[77] Upon the execution of a search warrant at the accused’s residence the police found 204 videos of child pornography, of which 142 were unique videos, 4506 images of which 1544 were unique images of child pornography on four different devices. The majority of the videos in the images depicted sexual activity with adults. Children as young as two years old were seen. There is bondage; a child was hogtied; another bound with duct tape and rope; group sex; urination; sexual acts with animals; and attempted penetration of a two-year-old: R. v. Schock, supra, at paras 5-6.

[78] The accused was 24 years old at the date of sentencing, with no prior record, and employed. He had a history of being sexually assaulted, and being bullied. A sexual behaviours assessment was conducted, in which response to paedophilic stimuli was observed. The assessment concluded that he had paraphilic sexual interests: R. v. Schock, supra, at paras. 14-19.

[79] In R. v. Schock, upon a plea of guilty Mr. Schock was sentenced to 1 year on the making available charge, and 2 years consecutive on the possession charge, for a total custodial sentence of 3 years.

[80] In many instances, sentences for making child pornography available have been imposed involving substantial penitentiary terms.

[81] In R. v. Carlos, 2015 ONSC 6070 and 2015 ONSC 8085, affirmed on appeal, 2016 ONCA 920 the accused was found guilty of possession and making available child pornography. He was found to have made available 12 complete videos and 38 incomplete videos through a filesharing program. The videos included intercourse between adults and children. The accused was 38 years old, found to have a very low risk of reoffending and no criminal record. He was likely to face deportation after serving his sentence. At the time, the mandatory minimum sentence for making child pornography available was one year and the maximum sentence was 10 years. He was sentenced to three years for each offence to be served concurrently. The Court of Appeal upheld the sentence imposed at trial as within the range for these offences: R. v. Carlos, supra, at para. 9.

[82] In R. v. Tweedle, 2016 ONCA 983, the accused was found guilty after trial in 2014 of possession of child pornography and making available child pornography. In 2014, the maximum sentence for making child pornography available was 10 years when prosecuted by indictment. His collection consisted of 479 images and six videos, which was described by the Court of Appeal at para. 21 as “substantial and contained horrific images of abuse of children of all ages”. The accused was 52 years of age, with no criminal record. He had shared the child pornography on multiple occasions to multiple users. Although he was found to be remorseful, he was found not to understand the seriousness of the “making available:” charge. His sentence of 20 months was upheld by the Court of Appeal: R. v. Tweedle, supra, at para. 22.

[83] There are also a number of decisions in which sentences in the mid-reformatory range have been imposed for the offence of making child pornography available.

[84] In R. v. Kingdon, [2020] O.J. No.1004, the accused was sentenced to a 15 month period of incarceration for distributing child pornography with the recommendation that the sentence be served at the Ontario Correctional Institute to provide treatment. The offence was committed in 2018. There were 121 unique images and 61 videos involving serious sexual abuse of children including children engaged in sexually explicit interaction with adult males. Several images involve children in the 2 to 4-year-old range. The court found Mr. Kingdon to be remorseful, “beginning to understand the implications of his conduct on other people”, and to be a “strong candidate for a successful rehabilitation”: R. v. Kingdon, supra, at paras. 15 and 18.

[85] In R. v. Bartley 2021 ONCJ 360, the accused plead guilty to making child pornography available and possession of child pornography in relation to conduct in September 2017. On September 23, 2017 the accused uploaded an image of child pornography to the Internet, resulting in the execution of a search warrant at his residence. With respect to the charge of making child pornography available there is one image. On the count relating to possession of child pornography there were 39 images and 55 videos. The child pornography, described at paragraph 16 of the decision, indicates that the extremity of the child pornography was significant, including a child involved in bestiality, a sex act with a dog, acts of anal and vaginal intercourse, and 20 videos involving child pornography of children under the age of two years. There was expert evidence that the accused had a low risk of re-offence: R. v. Bartley, supra, at para. 42.

[86] In R. v. Bartley, there was a challenge to the mandatory minimum sentence of 12 months for the charge of making child pornography available. The court concluded that, as the lower level of the sentencing range for the accused was in excess of 12 months, the court found that the mandatory minimum punishment does not materially exceed the bottom of the sentencing range applicable to the accused, the court declined to consider the constitutionality of the 12 month incarceration as a mandatory minimum punishment, pursuant to the decision of the Supreme Court of Canada in R. v. Lloyd: R. v. Bartley, supra, at para.104.; R. v. Lloyd 2016 SCC 13, at para.18.

[87] In R. v. Bartley, the court imposed a custodial sentence of 14 months concurrent on the “making available” and possession of child pornography counts, plus ancillary orders under s.161 and s. 490.011(1) of the Criminal Code.

The Appropriate Sentence in This Case

[88] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[89] In my view, giving full effect to all of the mitigating circumstances in this case, and acknowledging that Mr. Tang appears to be essentially rehabilitated in relation to this offence, the offence of making child pornography available, in the context of the aggravating circumstance of his possession of a substantial amount of child pornography of significant seriousness, makes the imposition of a custodial term essential in this case.

[90] I have carefully considered whether the application of the applicable sentencing principles could be achieved by a period of incarceration served in the community, as is currently available as a result of the Court of Appeal’s decision in R. v Sharma, supra. In my opinion, in order to give appropriate effect to the objectives of denunciation and general deterrence, required by section 718.01, when balanced against the important principle of the rehabilitation of Mr. Tang, it is nevertheless appropriate that a period of actual incarceration be imposed in this case.

[91] Parliament has clearly communicated in the increased sanctions for child pornography offences, which by their very nature involve the degradation and victimization of vulnerable children, that significant periods of incarceration are generally appropriate for these offences. This has been reiterated and reflected in the decision of the Supreme Court of Canada in R. v. Friesen, supra, and the numerous authorities previously referred to in which significant periods of actual incarceration, have been imposed for the offence of making child pornography available.

[92] However, there are numerous mitigating circumstances in this case. Applying the list of mitigating and aggravating circumstances in R. v. Kwok, supra, at para.7, it is noteworthy that Mr. Tang has no prior criminal record, there was a single instance of making the child pornography available, his risk of re-offence is extremely low, and he has not been diagnosed as a danger to children. He did not purchase the child pornography, having accessed it on the public internet. He is youthful, having been 22 years of age at the time of the offence, is of otherwise good character and has been successful in his university studies and current work as a law clerk. He has shown genuine remorse, and has undertaken extensive counselling to reduce further the low risk of re-offence. His experienced forensic psychologist, Dr. Cheston, has expressed the opinion that actual incarceration will be detrimental to his rehabilitation and the protection of the public.

[93] The Court of Appeal has stated that, where principles of sentencing require that incarceration be served by a youthful first offender, the period of incarceration should be as short as possible . In R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, Gillese J.A. stated for the Court at paras 32-34:

“[32] The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at p. 545 O.R. [page 651]

[33] Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas, 2006 2610 (ON CA), [2006] O.J. No. 364, 207 O.A.C. 226 (C.A.), at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

[34] In serious cases and cases involving violence, rehabilitation alone is not the determinative factor -- general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, 2005 5668 (C.A.), at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.”

[94] In my opinion, giving paramount consideration to the principles of general deterrence and denunciation, but also considering the rehabilitation of Mr. Tang, who is a youthful first offender, a proportionate and fit sentence in this case is a period of actual incarceration of 10 months. The rehabilitation of Mr. Tang will be assisted, in my opinion, if it is served at the Ontario Correctional Institute in Brampton.

[95] Accordingly, I sentence Mr. Tang to a period of incarceration of 10 months, to be served if possible, at the Ontario Correctional Institute in Brampton. Placement in this custodial facility will best ensure that Mr. Tang is in a position, during his period of incarceration, to continue to receive appropriate counselling to continue the rehabilitative work which he has pursued to date with Dr. Cheston.

[96] I am placing Mr. Tang on a period of probation for a period of 18 months, commencing upon the end of his period of incarceration, on the terms proposed by Crown counsel and not opposed by counsel for Mr. Tang. The terms are as follows:

• Report within 48 hours of release and thereafter at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision.

• Promptly notify your probation officer of any change in your address, occupation or employment.

• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer.

• Sign any releases necessary for your probation officer to monitor your participation in assessment, counselling and rehabilitation programs.

[97] There will be a s.161 order for a period of 5 years on the following terms proposed by the Crown, and agreed to by the defence. Mr. Tang is prohibited from the following for a period of 5 years, commencing on the date of his release from his period of incarceration imposed today:

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

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

(c) having any contact - including communicating by any means – with a person who is under the age of 16 years, unless he does so under the supervision of his mother Ms. Alice (Hemei) Quan; or

(d) using the Internet or other digital network,

EXCEPT:

i. On your own personal telecommunications device for which you have provided Detective Constable Brendan Alexa #9163 or his designate in writing: the make, model, serial number and service provider as well as any telephone number connected with the device.

a. This device must not…

…Have scrubbing software installed

…Save files in an encrypted fashion

…Have any program or service designed to allow anonymous use of the internet

…Have peer-to-peer file sharing software installed

…Be used to access any illegal content

…Be used to access chat websites or message boards

…Be used to communicate with anyone under the age of 16 years

ii. Where you are not self-employed, on your employer’s telecommunications device for the purposes of employment and only while actively engaged in employment related activities.

iii. On any other telecommunications device under the direct and constant supervision of your mother Ms. Alice (Hemei) Quan.

[97] There will also be a SOIRA order for 20 years pursuant to s.490.012 and 490.013 (2)(b) of the Criminal Code, a forfeiture order on consent under s.164.2(1) of the Criminal Code, and an order to provide a DNA sample under s. 487.051(1) as a result of Mr. Tang’s conviction for a primary designated offence. There will be a victim fine surcharge in the amount of $200.

Dated: May 30, 2022 __________________________________

Justice David Porter