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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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.

CITATION: R. v. J.V., 2022 ONCJ 312

DATE: July 6, 2022

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J.V.

Before Justice J. Strasberg

Heard on September 13, 2021 and May 5, 2022

Reasons for Judgment released on July 6, 2022

P. Rutherford....................................................................................... counsel for the Crown

H. Tse........................................................................................ counsel for the accused J.V.

STRASBERG, J.:

[1] On September 13, 2021, Mr. V entered guilty pleas to one count of making child pornography contrary to s. 163.1(2) of the Criminal Code, two counts of transmitting child pornography contrary to s. 163.1(3) of the Criminal Code and one count possession of child pornography contrary to s. 163.1(4) of the Criminal Code.

[2] On May 6, 2022, Mr. V entered a guilty plea to one additional count of making child pornography.

[3] He appears before me today to be sentenced. The agreed facts supporting his plea are as follows:

[4] Prior to his arrest on February 12, 2020, Mr. V worked as a teacher’s assistant. His job was to work one-on-one with children with special developmental and educational needs. One of the children he worked with was a 4-year-old boy named N.M.

[5] N.M. is autistic and predominately non-verbal. As part of his job, Mr. V. assisted N.M. with using the washroom. Between January 20,2020 and February 11, 2020, Mr. V. took a photograph of N.M. in the class washroom using his cell phone. N.M. is pictured urinating in the photograph. His face is not visible. N.M.’s buttocks is visible in the photograph.

[6] Between January 31, 2020, and February 10, 2020, Mr. V sent this photograph of N.M. to an adult male named C.J. Mr. V and C.J. met on the internet and conversed through messaging platforms about their mutual sexual interest in children. Mr. V told C.J. about his role as a teaching assistant and that the boy was a student in his class. The photograph of N.M. was located on Mr. V’s cell phone after a search warrant was executed at his home.

[7] A portion of the messages between C.J. and Mr. V were recovered by police. These messages were exchanged between January 31, 2020, and February 12, 2020.

[8] The conversation recovered by police includes a detailed discussion about Mr. V sexually assaulting a boy named “W” on a future date. W is Mr. V’s nephew and at the time of this conversation was 3 years old.

[9] Mr. V also had on-line conversations with an undercover police officer, Detective Mailer.

[10] On February 12, 2020, shortly after they began messaging, Mr. V sent one image of child pornography to Detective Mailer via a private message on a social media platform. The image was of an unknown child urinating. Immediately after sending the message, Mr. V wrote “I’d fuck him senseless”, referring to the child in the image.

[11] On February 12, 2020, police executed a search warrant at Mr. V’s residence. Several of Mr. V’s devices were seized. A significant collection of child pornography was found on Mr. V’s phone. Police categorized 42,355 of 177,908 images and found:

• Over 2000 images, the majority of which depict male children between 5 and 10 years old, either exposing their penis and/or anal regions to the camera’s view or engaging in sexual acts which includes intercourse and fellatio with adult males or other male children.

• 230 videos similar in content to the images were also found.

[12] During the review of the electronic devices seized from Mr. V ‘s home, Toronto Police also located several photographs of various grade school aged children. A number of those photographs were determined to have been taken of students of Mr. V while he was employed as a teaching assistant.

[13] A.H. was identified as one of the students that Mr. V had taken photographs of using his phone. A.H. was wearing blue jeans, shoes, and a blue and grey shirt in the photos.

[14] A total of 8 photographs of A.H. were recovered from the phone.

[15] The dominant characteristic of one of the photographs of A.H. was the view of A.H.'s buttocks (in his jeans) as he leaned forward while playing on his knees on the floor.

[16] The investigation revealed that these photos of A.H. were taken in the classroom on January 20, 2020. A.H. was 5 years old at the time. Also, found on Mr. V's phone, was a social media application chat on January 31, 2020, between Mr. V and another person known only as "R.J."

[17] During the chat Mr. V sent two photos to R.J. One was of an unknown boy and the other was a photo of A.H. in the classroom sitting facing the camera. In the chat Mr. V made comments about his desire to rape both boys. Mr. V also asked RJ. if he could send him photos of other “little ones” that he could rape.

[18] The chats with C.J. and Detective Mailer, the photograph of N.M., and a sample of images and videos from Mr. V’s examined devices were filed as exhibits on the plea.

Victim Impact Statements

[19] A.M. the mother of N.M. and E the mother of A.H. read their victim impact statements during sentencing submissions. A third statement, the victim impact statement of R.C. the mother of W, I was asked to read on my own. All three statements were made exhibits on sentencing.

[20] A.M. and her husband have suffered tremendously as a result of Mr. V’s actions. They trusted Mr. V with the care of their son. This trust was violated. N.M. was only 4 years old. He is autistic and non-verbal. She fears that they do not know everything that happened to their son. He cannot tell them. N.M. is sad since the offence, is distrusting of people and has had setbacks in this development. A.M. feels that she should have known what was happening. That she should have protected her son. Both she and her husband feel guilt for what happened. While that is a normal reaction to what happened none of this is their fault. Mr. V and only Mr. V is responsible for the harm caused.

[21] E the mother of A.H. says the day she found out about what Mr. V did changed her family’s life forever. They have become overprotective of all of their children and mistrusting. Her son was only 5 years old. She is heartbroken that her sweet innocent son was violated by a person that was hired to take care of young, impressionable, vulnerable children. They are doing all they can to heal and move on.

[22] R.C. speaks of the impact that the offence has had on her and her family. Mr. V is W’s uncle. Prior to the incident the family spent time together and was close. The offence has destroyed years of good memories for R.C. and her family and has caused stress, shame, and embarrassment. She feels anger and sense of hopelessness. She and her family wonder if they will ever heal from the trauma of Mr. V’s actions.

[23] It is clear from hearing and reading these statements that these three families have suffered greatly as a result of the actions of Mr. V. They trusted him with their most precious treasure, their child, and he breached that trust.

The Offender

[24] Mr. V is a 34-year-old first-time offender. He was born and raised in Oshawa, Ontario. He resides with his parents in the home he grew up in and has lived there his entire life. He is estranged from his older brother as a result of these charges. W is his brother’s son.

[25] Mr. V revealed to the PSR writer that he was sexually assaulted by a stranger when he was 12 years old. He never told anyone about this until after his arrest on these charges.

[26] Growing up Mr. V had a tough time at school. He was bullied extensively for being over-weight and having learning disabilities. He began his working career working for an environmental drilling company but did not enjoy the work and quit shortly after he started.

[27] After quitting his job, he enrolled in the Child and Youth Worker program, but only completed 2 of the 3 required years. In 2012, he began work as an educational assistant.

[28] He realizes that as a result of the charges that he will not be able to work in this field again. He intends to begin a property maintenance company in the future.

[29] Mr. V has the support of his parents as well as some close friends. Eight letters were filed on his behalf. Each of the writer’s express shock and devastation having heard about Mr. V’s charges. Mr. V is known to each of them to be an otherwise good, trustworthy, and caring person.

[30] Mr. V suffers from anxiety, depression, and ADHD. He has experienced situational depression and stress since his arrest. His arrest was acknowledged in the media, and he has been threatened and called names as a result. As a result of the pressure, he attempted suicide in March 2020 and was briefly hospitalized. He spent a further 14 days at CAMH in the spring of 2021 due to an intense period of suicidal ideation. He was also briefly hospitalized as a result of issues with his medication.

[31] Mr. V was assessed by Doctor Monica Kalia a forensic psychologist in April of 2021. Dr. Kalia is of the opinion that Mr. V accepts responsibility for his offending, knows it was wrong and is remorseful for the harm he has caused to the victims and their families.

[32] Mr. V voluntarily underwent Phallometric testing as part of the assessment process. Dr. Kalia found him to be forthcoming about his interest in male minors. It is her opinion that he has a problem with homosexual pedophilia. Dr. Kalia also indicated that he is a risk to re-offend and that pedophilia does not remit and is a lifelong problem, however, with further treatment he can manage this risk. Finally, she indicated that upon release he should not be in the presence of children unsupervised and should not attend at locations where children congregate.

[33] Mr. V has been attending counseling with Dr. Heasman every two weeks since August of 2020. To date he has completed 42 sessions. Dr. Heasman feels that Mr. V has gained insight into his sexual interest and that he would benefit from further treatment. Mr. V has expressed a willingness to take further treatment.

[34] Mr. V addressed the court. He is ashamed and remorseful for his behavior. He apologized for his lack of judgment and poor choices. He realizes his actions were unlawful and totally inappropriate. He understands that he must be punished and will serve his sentence as productively as possible. He wants to keep working to change.

Position of the Parties

[35] The Crown is seeking a global sentence in the range of 4-5 years. Counsel for Mr. V submits that a sentence in the range of 2-3 years is appropriate.

[36] Both agree that there be a DNA order for all offences and that Mr. V be subject to a lifetime SOIRA order and that there be an order under s. 161 of the Criminal Code.

Applicable Legal Principles

[37] For child pornography offences denunciation and general deterrence are the paramount sentencing considerations. (See: R. v. Nisbet, 2011 ONCA 26, R. v. Friesen, 2020 SCC 9) The reasons for this seem self-evident. Our society rightly views child pornography offences as reprehensible crimes. Courts must clearly and unequivocally communicate society's condemnation of such offences through the sentences that are imposed.

[38] The statutory framework governing the sentencing of offences which involve the abuse of a child is expressed in ss. 718.01 and 718.2 of the Criminal Code:

• 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.

• 718.2 A court that imposes a sentence shall also take into consideration the following principles:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[39] Protecting children from wrongful exploitation and harm is the overarching objective of these provisions. For decades, Canadian appellate courts have offered a clear and consistent warning to adult offenders who exploit the sexual dignity of innocent children: those who do so will pay a "heavy price.”

[40] Like other sexual offences involving children, child pornography offences are abhorrent offences of the upmost gravity. These offences do real and significant, long-term harm to children, families, and communities. This case is but another example of that harm and its fallout.

[41] Recently in R. v. Friesen, The Supreme Court of Canada examined sentencing in cases involving sexual victimization of children. The court stressed that sentencing judges have a duty to impose sentences that fully reflect the profound wrongfulness of this form of criminality, and the devastating impact it has on our children.

[42] The common law has long recognized that those who possess and distribute child pornography fuel its production.

[43] Technology has allowed for the online distribution of images and repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the images.

[44] The Court in Friesen stressed that “getting the wrongfulness and the harmfulness right is important.”

[45] The court also recognized that the harm flowing from the offence has a ripple effect that can make a child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence.

[46] To arrive at a just sentence in this case that appropriately reflects the governing sentencing principles, it is essential to consider the gravity of the offences and the level of moral blameworthiness of this offender. I do this by considering the aggravating and mitigating factors in this case.

[47] In this case (in addition to the statutory aggravating factors) the aggravating factors are as follows:

• Mr. V’s conduct in this case involved a breach of trust. The gravity of this breach could only be described as extreme.

• N.M. was 4 years old at the time of the offence. He is autistic and non-verbal. Mr. V would have known that he could not help himself or tell anyone about the abuse.

• Mr. V was an educational assistant in charge of the care of N.M. which included assisting him with using the washroom which is a highly personal and private task. He used this opportunity to photograph N.M. He shared this photo on-line. He made his sexual desires in relation to N.M. clear in the text of his conversation that accompanied the photo of N.M.

• The image of N.M. was sent electronically to C.J. There is the risk that this image could have been disseminated further.

• Mr. V discussed with C.J. in graphic detail raping and photographing his nephew W at a family cottage. They discussed the details of what Mr. V would do normalizing this behavior.

• Mr. V took photos of other children in his class. In particular he took photos of A.H. who was only 5 years old. One of the photos is focused on his buttock (while clothed) as he is leaning forward. He sent this photo of A.H. to an unknown male and used it to initiate a discussion about the sexual abuse of this boy.

• Mr. V had a significant collection of child pornography images and videos. These images and videos were predominately of 5–10-year-old boys and depict a range of sexual activity which includes intercourse and fellatio with adult males or other male children.

• Mr. V is diagnosed as having a problem with homosexual pedophilia. He was rated as currently having an above average risk to reoffend. With age and further treatment, he will transition down to an average risk range.

• Three families have been harmed as a result of Mr. V’s actions. Their lives have forever been changed.

The mitigating factors are as follows:

• Mr. V is 34 years old. He is still a youthful and a first-time offender.

• He is of otherwise of good character.

• He has the support of family and friends.

• He entered a guilty plea, which saved the court time, saved the crown from calling witnesses and putting the families of the victims through a trial.

• He has demonstrated genuine remorse both by his actions and his words to the court.

• Mr. V has already submitted to significant treatment and counseling including phallometric testing. He has insight and has shown a commitment to control his offending.

• Information about Mr. V’s offending was in the news, and he has lost many friends and been subject to threats and name calling as a result.

• Mr. V will have to find a new occupation as he will never again be able to work with children as an educational assistant.

• Mr. V provided input for the development of a Perpetration Prevention Program.

Analysis

[48] I was provided with case law by the Crown and defence counsel. While these cases are helpful in assisting with the principles I must consider and highlight the relevant aggravating and mitigating factors in cases such as this, there is no one case that address the unique circumstances of this case and the combination of offences involved.

[49] Mr. V took photographs of two young children in his care.

[50] Mr. V actions were hidden as is often the case with sexual violence against children.

[51] After photographing these children Mr. V shared the images electronically with others.

[52] Each family is shocked and horrified knowing that their child was photographed without their knowledge and/or discussed sexually with strangers.

[53] Children are recognized as one of the "most valued and most vulnerable assets."

[54] All this being said I accept defence counsel’s submissions regarding Mr. V’s prospects for rehabilitation.

[55] Mr. V you have accepted responsibility for your offences.

Downes Credit

[56] In arriving at what is a fair amount of credit for time spent under house arrest the court must arrive at a credit that is "fair and balanced".

[57] Stringent bail conditions, especially house arrest, represent an infringement on liberty.

[58] Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach.

[59] There is no mathematical formula for calculating the extent to which stringent bail conditions will mitigate a sentence.

[60] In this case Mr. V has been on a strict house arrest for almost 29 months.

[61] Based on all of these circumstances, including his 4 days of pretrial custody, Mr. V will be given Downes credit of 7 months.

Conclusion

[62] For the two counts of making child pornography, I sentence you to 4 years in jail concurrent on each count.

[63] For the two count of transmitting child pornography, I sentence you to 3 years concurrent on each count and concurrent to the making child pornography charge.

[64] For the count of possession of child pornography, I sentence you to 3 years concurrent.

[65] With the deduction for 7 months Downes credit the remaining sentence to be served is 3 years and 5 months in jail.

[66] There will be a DNA order on all counts.

[67] There will be a SOIRA Order for life.

[68] An order will be made under s. 161 of the Criminal Code. I will hear further submissions on the terms of the order.

Released: July 6, 2022

Signed: Justice J. Strasberg