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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2022-08-17

Toronto Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

L.M.

Before Justice J. Bliss

Heard on July 25, 2022

Ruling on application for an assessment pursuant to s.752.1 released on August 17, 2022

J. Stanton............................................................................................. counsel for the Crown A. Newman....................................................................... counsel for the respondent L.M.

BLISS J.:

[1] On June 1, 2022, L.M. pled guilty to possessing, accessing, and distributing child pornography contrary to ss. 163.1(4), 163.1(4.1), and 163.1(3) of the Criminal Code. He also entered a guilty plea to breaching a condition of his probation order between May 30, 2021 and September 21, 2021 not to possess any computer, cell phone, or other device that has internet access except for employment purposes or for education and with the prior written permission of his probation officer. He was also subject to a term not to possess, access or make available any child pornography or erotica or any image of children depicted or appearing to be under the age of 18, naked or clothed, portrayed in a sexual manner.

[2] Following L.M.’s guilty pleas, the Crown gave notice of her intention to apply for an assessment pursuant to s.752.1 of the Criminal Code to determine whether L.M. might be found to be a dangerous offender under s.753 or a long-term offender under s.753.1. For an assessment to be ordered for use in evidence at a dangerous offender proceeding (which also considers whether the offender might be a long term offender), the offender must be convicted of an offence that meets the definition of “serious personal injury offence” (SPIO) under s.752 of the Code.

[3] Ms. Stanton, on behalf of the Crown/applicant, submits that considering the circumstances and context of the child sexual abuse material that L.M., a now three-time recidivist, has admitted possessing, accessing, and distributing, that the low threshold to find an offence to be an SPIO has been met. Mr. Newman, on behalf of L.M., counters that notwithstanding how abhorrent child pornography is, and how repugnant L.M.’s conduct may be, that his actions in viewing, accessing or even distributing child pornography is too remote to link his conduct to the physical or psychological damage caused to the victims depicted in his collection, and that without that link L.M.’s offences do not amount to serious personal injury offences.

The Relevant Legislation

[4] Section 752.1 (1) reads:

On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1

[5] “Serious personal injury offence” is defined in s.752 as:

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more…

[6] The sole issue in this case is whether any of the offences for which L.M. was convicted involved the “use or attempted use of violence” or “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person.” If an offence does that, it is, by definition, an SPIO. The use of the term “serious personal injury offence” was intended by Parliament to cover a “very expansive range of dangerous behaviour.” (R. v. Lebar 2010 ONCA 220, [2010] O.J. No. 1133 (C.A.) at para 49).

[7] The test for whether an offence is an SPIO is whether a justice is satisfied that the offence constitutes an SPIO. (R. v. Steele 2014 SCC 61, [2014] S.C.J. No. 61 at para 33). While the burden still remains on the Crown, the threshold, at this gateway stage, is very low. (R. v. Wong, [2002] O.J. No. 3330 (S.C.J.) at para 13; R. v. Torres, [2007] O.J. No. 1402 (S.C.J.) at para 25; R. v. Ward, [2003] O.J. No. 2582 (S.C.J.) at para 20; R. v. Naess, [2005] O.J. No. 936 (S.C.J.) at para 76; R. v. Henneberry, [2011] O.J. No. 1839 (C.J.) at para 9; R. v. Whitmore, [2011] O.J. No. 5307 (S.C.J.) at para 14)

[8] Determining whether the test is met requires a justice to review the elements of the offence, and if that is insufficient, the factual circumstances in which the offence was committed (Steele, para 22) to put the totality of the circumstances into context. (R. v. Goulet 2011 ABCA 230, [2011] A.J. No. 840 (C.A.) at para 13) As Greene J. put it in R. v. Burton 2016 ONCJ 153, [2016] O.J. No. 929 (C.J.) “[i]t then falls on the trial judge to apply the law to the proven facts and make a legal determination that those actions meet the definition of an SPIO.” Whether or not an offence meets the definition of an SPIO is not an additional evidentiary burden, but a legal question. (Burton, para 45)

Overview of the Applicant’s and Respondent’s Positions

[9] The applicant’s primary submission is that the child sexual abuse material (CSAM) offences for which L.M. has pleaded guilty to are inherently “serious personal injury offences”. She refers to legislative amendments and judicial pronouncements that recognize the harm caused to victims of child pornography to support her position. In particular, Ms. Stanton points to legislative measures to increase the maximum sentence for child pornography to 10 years, adding child pornography to the list of designated offences in s.753.1 for which an offender may be subject to an application for an assessment and potentially an application to have him or her declared a dangerous or long term offender, and judicial pronouncements from all levels of court that recognize the abhorrence of these offences and the harm caused to the children who are sexual abused and exploited and whose abuse is documented in perpetuity on the internet for those such as L.M. to view for their aberrant sexual pleasure. Even if the court finds that all child pornography offences are not by definition “serious personal injury offences”, the applicant submits that the circumstances and context of L.M.’s offending satisfies the low threshold to find them to be SPIOs.

[10] The respondent does not take issue with any of the judicial comments about the depravity of child pornography or the harm caused to children victimized by its creation. He takes issue with the assertion that all CSAM offences are by definition SPIOs. He submits that while there is no issue that the children who are abused have been the victims of violence and psychological damage, there has to be a causal connection or link between the injury, realized or not, and the offence, and L.M.’s connection to their injury by downloading, viewing, and even sending child pornography to another person, is too remote to amount to a link.

A History of L.M.’s Offending

[11] L.M. is 44 years old. His criminal history includes two prior sets of offences involving children. The first in 2013 involved “hands-on” sexual offending that led to convictions for two counts of luring a child under the age of 16 years, invitation to sexual touching, extortion and indecent exposure. He received a global sentence of 4 years imprisonment in addition to 15 days of presentence custody. The convictions in 2018 were for importing, distributing, selling or possessing child pornography for the purse of distribution and possession of child pornography. He received a 19 month sentence of imprisonment with credit for 158 days of pre-sentence custody following which he was placed on probation for 3 years and subject to a section 161(1) order for ten years.

[12] In 2011, L.M. portrayed himself as Justin Bieber to communicate with a 10 year old girl over Facebook. Over time he confessed that he was not Justin Bieber but assumed another false identity. He moved the communication to another platform that would enable him to see the girl using a webcam. He ultimately convinced her to show him her breasts. He then claimed to have recorded her and used this to extort her to comply with his sexual demands under the threat of sending the video to her family and friends if she did not comply. He then coerced the child to engage in even more intrusive sexual acts for his sexual pleasure with a variety of promises and threats. When the girl, who had turned 12 years old eventually told her parents and police became involved, police conducted an undercover operation. The undercover officer posed as a 14 year old girl and L.M. told her how he wanted to be with her and sent pictures of his penis to her. They arranged to meet and when he showed up he was arrested.

[13] Examination of L.M.’s devices located numerous images of Justin Bieber consistent with his online persona that he utilized on social media platforms to communicate with young girls. He had created twenty-three profiles and was communicating with twenty-two young girls. Forensic examination of his electronic devices located 93 images of child pornography. 58 were unique and 35 duplicated along with 32 images of child nudity of which 21 were unique and 11 duplicates. The vast majority of those images focused on the child’s genital area. A smaller proportion involved images of children engaged in anal or vaginal intercourse with adults or other children or involving digital penetration. Other images were of children masturbating or engaged in oral sex. L.M.’s collection appeared to show him having a sexual preference for girls between the age of 12 and 16 years old. He received a 4 year sentence in addition to 15 days of presentence custody. His warrant of expiry was October 14, 2017.

[14] L.M. was released on parole on June 15, 2016 and subject to conditions that included prohibitions on him consuming alcohol or non-medically prescribed drugs, or owning or possessing a computer with access to the internet, being around children under the age of 16 years, and being anywhere where any child would be likely to congregate. On May 31, 2017, following a search warrant executed at his home, he was arrested on new charges after child pornography was found on electronic devices in his bedroom.

[15] On January 26, 2018, he was convicted of one count of importing, distributing, selling or possessing child pornography for the purse of distribution and one count of possession of child pornography. He received a 19 month sentence of imprisonment with credit for 158 days of pre-sentence custody and placed on probation for 3 years and subject to a section 161(1) order for ten years.

Circumstances of the current offences

[16] By way of an Agreed Statement of Fact, L.M. admitted that on May 31, 2021, he uploaded an image of child pornography of a young girl between the age of 2 and 4 years old. The image focussed on the child’s vaginal/anal region upward to her forehead. The child was lying on her back with her eyes closed. The child’s top was pulled up exposing her stomach area. The child’s naked vaginal and anal regions were visible with male ejaculate on the child’s vaginal and stomach regions.

[17] A search warrant was executed at L.M.’s residence on September 21, 2021. Police seized a number of devices in his bedroom including a cell phone which appeared to be hidden within a bookshelf. While at the residence, police previewed the phone and located several child pornography image and video files.

[18] Further analysis of the devices seized from L.M.’s residence revealed 65 videos/images meeting the Criminal Code definition of child pornography contained on the cellular phone consisting of 62 unique images and 3 videos. All of the children are females between the age of 6 and 10 years old. One image involves a baby. Approximately half of the contents were of pre-pubescent children without clothing and where the dominant characteristic of the image or video is the sexual organ and/or anal region of the child. The remaining half of the content depict children being vaginally penetrated by adult males or with objects. L.M. also used his Instagram account to send two images to another Instagram user on August 31, 2021. One of those images met the definition of “child pornography”.

[19] Two children contained in L.M.’s collection are “identified” children. The files relating to these children were sent from a gmail address to an email address used by L.M. During her submissions, Ms. Stanton advised that victim impact statements were in the process of being obtained. No victim impact statement or community impact statement was filed in support of this application.

[20] While the respondent argues that there needs to be some evidence of the harm caused by L.M.’s conduct such as through a victim or community impact statement as has been submitted in other cases, I am not persuaded that the fact that a child is not identified, or that a victim or community impact statement is not tendered to give a first or second-hand account of the impact of the offending where children are sexually abused, means that with no victim to establish a link between the conduct and the harm done, that the offence cannot be an SPIO. A victim impact statement or community impact statement, or lack thereof, is just one of the factors that a justice must consider in determining whether a link has been established to define the offence as an SPIO.

[21] Child pornography is a visual record of the sexual abuse of a child that the internet enables to exist in perpetuity. The fact these images remain somewhere on the internet is part of the understood trauma to these victims and does not need evidence from the community or identified victim to substantiate. Even if no child is able to be identified, the harm to them from being exploited and sexually abused, is apparent.

[22] As the Supreme Court of Canada wrote in R. v. Friesen 2020 SCC 9, [2019] S.C.J. No. 100 at para 86

[86] Where direct evidence of the actual harm to the child is unavailable, courts should use the harm to the child as a lens through which to analyze the significance of many particular aggravating factors. Courts may be able to find actual harm based on the numerous factual circumstances that can cause additional harm and constitute aggravating factors for sexual violence against children, such as a breach of trust or grooming, multiple instances of sexual violence, and the young age of the child. We stress that direct evidence from children or their caregivers is not required for the court to find that children have suffered actual harm as a result of sexual violence. Of course, we do not suggest that harm to the child is the exclusive lens through which to view aggravating factors.

[23] While everyone who possesses, makes available, and distributes an image of child pornography may be morally responsible for perpetuating the trauma caused to the child, that does not mean, however, that every person who commits a child sexual abuse material is necessarily legally responsible for the harm or trauma caused.

The Purpose of the Legislation

[24] The primary purpose of the dangerous and long term offender provisions of the Criminal Code is public protection. The “serious personal injury offence” requirement plays a crucial role in the operation of the dangerous offender and long-term supervision order scheme. In Steele, the Court wrote how “the function of such requirement is twofold: first, it serves as a "gatekeeper" for entry into the dangerous offender or long-term offender system, pursuant to s.752.1; second, where the Crown applies for a finding that the offender is a dangerous offender, it serves as a requirement for the making of such a finding under s.753(1)” (Steele, para. 35).

[25] The requirement that the offence be an SPIO must be met both at the stage of the application for an assessment (s. 752.1(1)) and, the application for a finding that the offender is a dangerous offender (s. 753(1)) (Steele, para 8). The court must be satisfied that the offence is an SPIO before making such a finding. (Steele, para 33). An offender convicted of an offence not found to be an SPIO, but convicted of an offence enumerated in s. 753.1(2)(a) provides the Crown with an independent pathway to seek an assessment to determine whether the offender might be found to be a long-term offender. (see R. v. Millie [2021] S.J. No. 469 (Q.B.) para 30)

Child Pornography as an Inherently Serious Personal Injury Offence

[26] Ms. Stanton argues that any offence involving child sexual abuse material (CSAM) is, by definition, a “serious personal injury offence”. In 2002, the offences of possession and accessing child pornography were added as enumerated offences to s.753.1(2)(a), the long term offender section. When Parliament amended the Criminal Code on June 18, 2015 with the “Tougher Penalties for Child Predators Act”, the maximum sentence for child pornography was raised to 10 years and child pornography was added to the “designated offence” definition in s.752. The applicant submits that these changes were made, in part, so that convictions for these offences would provide a gateway for an assessment under s.752.1 for use in determining whether the offender might be a dangerous offender.

[27] The applicant submits that L.M.’s possession, access, and distribution of child pornography amounted to “conduct endangering the life or safety of another person or conduct likely to inflict severe psychological damage upon another person” and therefore an SPIO. The applicant points to numerous pronouncements from all levels of court of the immense harm of child pornography and the role that those who possess such material play by creating the demand for such material which then fuels the further abuse of children and their revictimization by its continued existence and viewing over the internet.

[28] The caselaw is rife with comments about the harm caused by child pornography:

[29] In R. v. Bock, 2010 ONSC 3117, [2010] O.J. No. 2277 (S.C.J.) at para 31-32

…Those who wish to possess child pornography encourage the sexual abuse of children and encourage the recording of this abuse by providing an audience or a market for those who produce child pornography. Therefore, simple possession of child pornography must also be treated as a very serious offence. If the court can deter or reduce the market for child pornography, the court may in turn effectively reduce the sexual abuse of children.

…Each possession, viewing, sharing, downloading, or uploading can be seen as a repetition of the initial hands-on abuse. The more pornographic images that are in circulation and the greater the distribution, the more significant the abuse of the child becomes.

[30] R. v. Ashkewe [2010] O.J. No. 5372 (S.C.J.):

20 The possession of child pornography is tantamount to violence against children. Victims are vulnerable and defenseless and this exploitation is at the very least notionally violent behaviour by all engaged in the practice.

21 The incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators. R. v. D.G.F., 2010 ONCA 27

22 Child pornography is repugnant. Other courts have articulated the evil it represents and I will not add to the commentary. The victimization never ends. It is bad enough that children are sexually abused in the most degrading fashion. Distribution over the internet seals lifelong damage. Those who possess this product are an essential cog. If no one watched production and distribution would significantly decline. The audience needs to know that their responsibility for these offences against children is substantial and will bring significant sanction…

[31] In R. v. Stroempl, [1995] O.J. No. 2772 (C.A.) at para 6-8:

The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors such as the appellant instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place.

[32] In R. v. Sharpe 2001 SCC 2, [2001] S.C.J. No. 3 para 28, 92

28 …no one denies that child pornography involves the exploitation of children. The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences.

92 The fifth and final harm -- the abuse of children in the production of pornography -- is equally conclusive. Children are used and abused in the making of much of the child pornography caught by the law. Production of child pornography is fueled by the market for it, and the market in turn is fueled by those who seek to possess it. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone.

[33] And in R. v. Garcia [2009] B.C.J. No. 581 (B.C.S.C):

14 In terms of the impact on victims, users of child porn may like to think of it as harmless because the user is not actually touching a child but simply looking at an image. This thinking is the worst kind of self-serving rationalization. Child pornography victimizes the children who are photographed or filmed. The children are at a minimum sexually exploited and very often are sexually abused as part of the image-taking. The child is re-victimized every time someone looks at the images as they are widely circulated through the Internet. Further, it is believed that circulation of these images can create a kind of paedophile-peer-group mentality where social inhibitions against sexualization of children are lowered, potentially encouraging child sexual abuse.

[34] Ms. Stanton also points to the significant psychological effect child pornography has on its victims and referred to Molloy J.’s decision in R. v. Kwok, [2007] O.J. No. 457 (S.C.J.) at para 51 in which the court was provided with a victim impact statement from one of the children whose image was part of the offender’s collection. Molloy J. described the statement as “a poignant description of the particularly heinous victimization of children that occurs when their degradation is photographed and placed on the Internet.”

The absolute worse (sic) thing about everything that happened to me was that Matthew [her abuser] put my pictures on the internet. He traded them with other people like baseball cards. What kind of people want to see pictures of a little girl being abused in this way? ... I know that these pictures will never end and that my "virtual abuse" will go on forever.

Usually when someone is raped and abused, the abuse ends. But since Matthew put those pictures on the Internet, my abuse is still going on. Anyone can see them. People ask for them and are downloading them. Day after day. People want to see me abused.

I want every single person who downloads my picture to go to jail and be really punished as much as possible. They are as evil as Matthew. They want to see me suffer. They want to see me starved and hurt and sad and abused. Child pornography is not a victimless crime. I am a victim and I still suffer everyday and every time someone sees me being abused.

It is hard to argue with Molloy J.’s “[confidence] that these feelings would be shared by any child, or indeed adult, who was treated in this way.”

[35] Most recently in Friesen, the Supreme Court of Canada spoke of how online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child's life at any time (Friesen, para 48).

[36] The respondent takes no issue with these observations. In fact, he acknowledges that “[t]he harm done by the creation of child pornography is horrid and not at issue in this case. The Applicant has submitted many cases on the horrible effects of child pornography, the issue before this court is different, the court is assessing the causal connection between L.M.’s actions and those effects. Specifically, whether L.M. caused psychological or physical harm.” (Respondent’s factum, para 11)

[37] The applicant’s argument is that following Steele, all child pornography is an SPIO: Her argument goes as follows: In Steele, the offender had robbed a drugstore, telling the cashiers that he had a gun. There was no evidence that he actually had a gun or that physical force was used. Mr. Steele was convicted of robbery on the basis he had used threats of violence to a person. The Crown’s position was that the offence amounted to an SPIO and sought to have Mr. Steele remanded for an assessment pursuant to s. 752.1(1).

[38] Wagner J. wrote, that “all threats of violence are themselves violent, even though the seriousness of the violence may be quite limited. In seeking to distinguish violent from non-violent threats, courts are in effect reading in an objective minimum level of violence. This is inconsistent with the clear language of subpara. (a)(i) of the definition, which requires violence, not serious violence, and it risks undermining the overall purpose of Part XXIV by precluding courts from remanding potentially dangerous offenders for assessment. (Steele, para 70). In short, any act or threat of violence satisfies the criteria to meet the definition of an SPIO.

[39] The applicant submits that “[i]n cases involving child pornography every image represents violence towards children. Necessarily, this means that the ratio of Steele applies with full force to child pornography making all child pornography offences (with an indictable election) an SPIO.” (Applicant’s Factum, para 83).

[40] While there is some attraction to the reasoning that since all child pornography is violent, and all offences of violence are serious personal injury offences, that all child pornography is therefore a serious personal injury offence, I am not persuaded that an offence involving child sexual abuse material is, by default regardless of context, an SPIO. I have not been provided with any case that stands for that proposition. I have been provided with three cases in which this argument has been made and rejected. (See: R. v. Snowden [2021] O.J. No. 6626 (C.J.); R. v. Patterson, [2018] O.J. No. 5257 (S.C.J.); R. v. Ewing, [2021] O.J. No. 2582 (C.J.)) Instead, courts have adopted a contextual approach that considers the entire circumstances of the offence. The authorities provided support this approach and that is the approach I too will follow.

[41] As the Alberta Court of Appeal observed in R. v. Goulet 2011 ABCA 230, [2011] A.J. No. 840 (C.A.): The definition of serious personal injury offence, and criminal liability in general, focus on the conduct of individuals. But conduct, including criminal conduct, does not happen in a vacuum. Particularly in the case of offences that relate to the creation of risk, the context in which the criminal act takes place will be relevant. (Goulet, para 12) In assessing the existence of endangerment arising from the conduct of the accused, it is relevant to look at the context in which the conduct occurred. (Goulet, para 13). The sentencing judge was entitled to consider the whole context in deciding the issue, and was not limited to examining the respondent's conduct. (Goulet, para 19)

[42] No-one takes issue with the evils of child pornography. The question, however, is whether there is a link or connection between L.M.’s offending and the known and unknown damage caused to victims, identified or not.

[43] In Patterson (supra), Bawden J. rejected the Crown’s argument that every image represents violence towards children and that everyone who possesses or accesses “child pornography” is necessarily a party to the making of that content. (Patterson, para 17). Like the case before me, the authorities provided by the Crown in Patterson suggested that possessors encourage the ongoing abuse of children and that possession is tantamount to violence. Bawden J. found, however, no authority for the proposition that the possessor aids or abets the producer within the meaning of s.21 of the Code. (Patterson, para 14) He also dismissed the Crown's argument that possession and access to child pornography are, by definition, SPIO offences. (Patterson, para 22)

[44] Bawden J. wrote that “[t]he SPIO requirement for dangerous offender proceedings establishes an essential link between the predicate offence and the sentence of the court. It is the gateway to dangerous offender proceedings. I accept that the Ontario Court of Appeal in Lebar recommended an expansive approach to the word "safety" in interpreting the SPIO definition and that the Supreme Court of Canada in Steele concluded that no objective level of violence is necessary to designate an offence as an SPIO. Those authorities are highly pertinent to determining whether the particular offences committed by Mr. Patterson meet the SPIO definition. But the Crown seeks a much wider ruling than that. The Crown asks this Court to find that every possession of child pornography will, by definition, amount to a SPIO based on unrealistically expanded definitions of violence, safety and severe psychological damage. To adopt the definitions proposed by the Crown would greatly expand the range of offences which would be eligible for dangerous offender proceedings.” (Patterson, para 12)

[45] To illustrate his point, Bawden J. posed the case of “the hypothetical offender who collected family photographs of unidentifiable naked children and assembled them into a pornographic album. [In that case], there would be no violence committed to the children or any basis to fear for their safety or psychological well-being. Possession of child pornography in that instance would not be a SPIO offence.” (Patterson, para 20)

[46] He also provided a second hypothetical offender “at the other end of the spectrum, an offender might subscribe to a website which propagated images of expressly violent child pornography for a regular fee. If the website promised fresh images on a regular basis and invited suggestions for additional content from the subscribers, the connection between the making of the pornography and the actions of the possessor would be tangible. In those circumstances, a court might well find that the possessor had committed an SPIO offence based on any of the criteria set out in the definition. In this hypothetical, the Crown's submission that the court must not import a qualitative minimum level of violence into the SPIO definition would be well placed.” (Patterson, para 21)

[47] Bawden J. concluded that “possession and access to child pornography are offences which may, or may not, be found to constitute serious personal injury offences depending on the manner in which they are committed” (Patterson, para 19) not that they are, by definition, SPIO offences. (Patterson, para 22)

[48] In Patterson, the Crown argued that in committing these offences, Mr. Patterson used violence against the children who appeared in these images. The Crown also alleged that Mr. Patterson's conduct endangered their safety and was likely to inflict severe psychological damage upon them. The court was provided with a victim impact statement from the mother of a boy whose image was found in Mr. Patterson's possession. The statement outlined the tragic effects on the child's life as a result of being exploited by child pornographers and established a foundation for a finding that the maker of the images inflicted severe psychological damage on him. (Patterson, para 30)

[49] Bawden J. ultimately declined to find that the offences committed by Mr. Patterson were “serious personal injury offences” and declined the Crown's request for an assessment order under s. 753(1). In making that determination, the Court recognized that:

The Crown does not bear any particular burden to establish that an offence meets the SPIO criteria. The Crown must prove the essential elements of the index offences beyond a reasonable doubt whereupon the court will make a legal determination as to whether the offence constitutes an SPIO. The offence need not be a hands-on offence to be an SPIO and there is no minimum qualitative level of violence or endangerment of safety which must be met before the designation can be made. Notwithstanding the Crown's very able and determined efforts, I am not satisfied that the criteria in this case have been met. (Patterson, para 31)

[50] In coming to that conclusion, Bawden J. found that:

• Mr. Patterson was a low end consumer of child pornography.
• There is no evidence that he did anything to encourage the creation of child pornography apart from committing the essential elements of his own offences.
• The two images that he possessed did not depict a sexual assault on either of the subjects.
• One of the images that he accessed (the boy with ejaculate on his tongue) did depict evidence of a sexual assault but on the scale of such images, this was on the less serious end.
• The videos showing sexual activity between prepubescent boys are clearly the most disturbing images but they were few in number and of limited visual quality.
• There is no evidence that Mr. Patterson ever attempted to take possession of them.

(Patterson, para 32) Bawden J. then went on to consider whether the long-term offender (“LTO”) criterion were met, and finding that they did, ordered an assessment pursuant to s.752.1(1).

[51] Whether a link or connection between the conduct and the harm, or endangerment, caused depends on the context of the offending and the circumstances of the case.

[52] In Snowden (supra), the Crown sought an assessment pursuant to section 752.1. Newton-Smith J. rejected the proposition that child pornography is inherently an SPIO, but held that possession or distribution of child pornography could, but not automatically, constitute a serious personal injury offence depending on the factual circumstances of each case. In Snowden the court found that the facts of the case did not amount to an SPIO.

[53] For Newton-Smith J., the question was whether the manner in which Mr. Snowden committed the predicate child pornography offences amount to the commission of a SPIO. She wrote that “[t]he focus of the inquiry is on the totality of his conduct surrounding the predicate offences and what Mr. Snowden actually did: R. v. Burton, 2013 ONSC 3021, [2013] O.J. No. 2423 (S.C.). Did Mr. Snowden's actions endanger life or safety or cause severe psychological damage? Were his actions likely to do so?” (Snowden, para 131)

[54] The court had “no trouble finding that, as a general proposition, children who are the knowing victims of child pornography are likely to suffer severe psychological damage. There is an unfortunate wealth of case law detailing the harms suffered by children who have been so victimised and sexually assaulted.” (Snowden, para 133)

[55] Newton-Smith J. went further:

[134] Whether the production and dissemination of child pornography generally is harmful to society at large is not the issue before me. Clearly it is: R. v. Sharpe, 2001 SCC 2. The question to be determined here is a specific and factual one. What was the impact of Mr. Snowden's conduct? Did Mr. Snowden's conduct cause harm that rises to the level required for a SPIO? A SPIO designation is a question of the specific facts of the case and the law. It must be based on the impact of Mr. Snowden's actions.

[137] In the context of this case, similarly to Burton, while it is clear that harm has been suffered the question arises as to whether the harm is a direct result of Mr. Snowden's actions, or if the harm has multiple causes and if so, if Mr. Snowden's contribution to the harm is enough to bring his conduct into the SPIO sphere.

[141] The difficulty here is not only that it is difficult to parcel out the role that Mr. Snowden's actions may have played in the terrible harms suffered, the root cause of which are unquestionably not the actions of Mr. Snowden, but moreover that the harm exists irrespective of the actions of Mr. Snowden.

[142] I find that extending the definition of harm required for a SPIO to harm that is suffered irrespective of the actions of the offender is overly broad. Without a direct causal connection between Mr. Snowden's actions and the harm suffered, proportionality is jeopardised.

[143] Mr. Snowden's actions may be a contributing factor to the perpetuation of the harm suffered by these victims of child pornography, but I cannot say that Mr. Snowden is a cause of the severe psychological damage that they suffer.

[56] Another case provided to me was that of Ewing (supra). Following guilty pleas to possessing and accessing child pornography, the Crown applied for an assessment pursuant to s.752.1. Mr. Ewing had a history of sexual offending involving children and possession of child pornography. In that case, Libman J. found the offences were “serious personal injury offences”. Mr. Ewing had a collection of 1,286 images and 42 videos of child pornography, the majority of which consisted of females from infancy to approximately 12 years of age partially clothed and not, some engaged in sexually explicit activity with one another or an adult, and also animated drawings depicting children engaged in sexually explicit activity, including with babies and toddlers. (Ewing, para 9) Videos depicted female children ranging in age from less than one year to approximately 11 years old engaged in sexually explicit activities with adult males including fellatio, and vaginal and anal penetration. Other videos were self-exploitative. The collection also included animated depictions of men performing sexual acts with babies. (Ewing, para 11) In addition, the accused engaged in online chats with unknown individuals about child pornography and sexually abusing siblings, animal characters with human characteristics (furries) and cartoon-like images which depict pre-pubescent children or infants engaged in explicit sexual activity (anime). (Ewing, para 14)

[57] One of the children who had been identified as being part of Mr. Ewing’s collection provided a victim impact statement which detailed the impact of the abuse on her life. (Ewing, para 22-24). Community impact statements were also filed in relation to Mr. Ewing’s collection detailing the permanence and persistence of child sexual abuse material and expressed how online exploitation existed in perpetuity causing victims to continue to be re-victimized every single time someone looks at the images and videos of their online sexual abuse and reported the very real trauma they experience as survivors of online child sexual abuse (Ewing, para 26-27)

[58] As one statement before Libman J. set out: It is "‘infuriating, as victims of this type of victimization’ to be repeatedly made aware that there are people who will find and keep photos and videos of children they do not know and have never met, ‘in the most horrible of circumstances’, and not understand that that they have no right to see or have such material. If there were not people wanting to look at and possess this kind of imagery, it is stated, ‘our abuse may not have ever been recorded, and it certainly would not be out there now for people to see.’" (Ewing, para 32)

[59] Libman J. distinguished Mr. Ewing’s conduct from that of Mr. Patterson who was before Bawden J. He found that while Patterson was found to be a "low end consumer" of child pornography, the same could not be said of Mr. Ewing who used multiple search engines and chat rooms and was a repeat offender, or a "regular consumer" to use the language of Bawden J., who has accessed such images multiple times in the past.” (Ewing, para 80)

[60] Commenting on the hypothetical put forth by Bawden J. in Patterson, Libman J. held that Mr. Ewing did not bear any resemblance to the hypothetical offender in Justice Bawden's scenario who collects pictures of unidentifiable, naked child subjects, taken by their families, but are never made aware that their images are being used for an illicit purpose. Libman J. found to the contrary, that Cara (who provided the victim impact statement in Ewing’s case) is an identifiable victim, acutely aware the accused and others have accessed her images for such purposes. (Ewing, para 81).

[61] Libman J. held that “[a] significant distinguishing factor, then, from the Patterson case is the victim impact evidence that is before the court. In particular, he wrote how “in Friesen, which post-dates Patterson, and therefore was not available to Bawden J., the Supreme Court of Canada explained that in addition to the inherent wrongfulness of physical interference and exploitation, courts have recognized that sexual violence against children inherently has the potential to cause several recognized forms of harm. It stated that courts should be particularly mindful to two categories of harm: harm that manifests itself during childhood, and long-term harm that only becomes evident during adulthood. Victim impact statements can speak to the presence of such harm in a particularly poignant way.” (Ewing, para 82).

[62] Libman J. was also provided with a community impact statement. In the case before me, I was provided with neither a victim impact statement nor any community impact statement.

[63] Libman J. concluded:

[90] Mr. Ewing, to be clear, is no Mr. Patterson. He was not merely in possession or accessing a handful of images or poor quality videos, and taking part in an isolated fantasy chat. The quantity and quality of his offences was significantly greater. Both offenders may well be "free riders" or parasites who commit "hands-off" offences. But even parasites can cause serious harm. Whether they are parasites who are paying purveyors of images of child pornography or not. The potential for harm, long lasting and life altering harm, which inflicts or is likely to inflict severe psychological damage on another person, is manifestly present in this case. The victim impact statement of Cara and the other survivors admits of no other reasonable or possible conclusion.

[91] I have therefore respectfully found that the circumstances of this case mandate a finding that the possession and access offences committed by the defendant satisfy the definition of serious personal injury offence for the purposes of s.752 of the Criminal Code.

[64] I was also provided with R. v. Millie (supra), which was another case in which the Crown requested an assessment order for use in an application to have Mr. Millie declared a dangerous or long term offender. Mr. Millie had been convicted of possessing, making available, and accessing child pornography and at issue was whether those offences were “serious personal injury offences”.

[65] The court wrote:

[92] The question is whether any of the offences in question "inflict[ed] or [is] likely to inflict severe psychological damage on another person" (Criminal Code, s 752). To answer this question in the affirmative, it is once again suggested that the court must be satisfied that the offender's conduct contributed some non-zero measure of severe psychological damage to a victim of the child pornography in question. In other words, the connection or link between the offender's conduct and a victim's identifiable severe psychological damage must be established.

[93] Considering the decision in Ewing and in Brouillard, it can be seen that both decisions held that the requisite connection or link was satisfied where the offender accesses (or possessed) (in the case of Ewing at paras 81-82) or made available child pornographic images or videos that expose the identity of the child (in the case of Brouillard at paras 32-33).

[66] The court held that “[i]t appears, therefore, that there must be some identifiable connection between the offender's conduct and the effect contained in the descriptive elements of subparagraph (a)(ii). (Millie, para 75)

[67] The court then considered the link:

[97] The authorities discussed appear to provide courts with the authority to presume the likelihood of psychological harm where proof of actual harm is not a requisite element of the offence. In the present case, it is sufficient for the court to make such a presumption if it is satisfied that the offender's actions are "likely to inflict severe psychological damage" on another person. However, courts are required to identify a connection between the offender's conduct and the likelihood that the offence will inflict severe psychological damage beyond a speculative or abstracted rational connection. The authorities suggest that this connection can be established where: (i) the victims of the pornographic images or videos either have their identity exposed in the offender's collection (Brouillard) or have the knowledge that their violence may be viewed by offenders online in perpetuity (Ewing); or (ii) where the offender has contributed to the expansion of child sexual violence victimization (Patterson at paras 21 and 32). These sorts of connections pose several issues on the evidence.

[98] With regard to the first connection, it is unclear to what extent the following factors must be made out on the evidence:

• the pornographic images or videos expose the face of the victim. (This was the determining factor in Brouillard at paras 32-33, with factor (ii) below being presumed);
• the victim is aware that they have been victimized in this way;
• the victim becomes aware that they have been revictimized by the ongoing access, possession, or distribution of the images or videos (This was seemingly a determining factor in Ewing at para 88); and
• that the victim becomes aware that the particular offender in the instant case has revictimized the victim in this way. (The courts in neither Brouillard nor Ewing contemplated or grappled with this factor.)

[99] If all of these factors must be satisfied, it cannot be found on the evidence that any of the victims in Mr. Millie's collection have the knowledge that they were revictimized by Mr. Millie's actions. However, if not all are necessary, it does appear that each of factors (i) to (ii) would be satisfied on the evidence.

[109] At the end of the analysis, it suggests that for "severe psychological damage" to be demonstrated, there must be a connection between the offender's actions and actual severe psychological damage or the likelihood of severe psychological damage. In other words, is severe psychological damage to another person (at least) a likely consequence of Mr. Millie's actions? If this question is answered in the affirmative, it appears that this Court would be justified in ordering a s. 752.1 assessment for the purposes of later use in a s. 753 and s.753.1 application.

[68] In Mr. Millie’s case, Dawson J. found that “all three victims identify significant, prolonged and continuing severe psychological damage from the knowledge that individuals download and possess the child pornographic images of them. Even though the victims did not relate their psychological damage to Mr. Millie specifically, or individually, the justice was satisfied that the Victim Impact Statements established a clear link between the knowledge of the victims that persons possess and view their images and each of their psychological damage.” (Millie, para 114)

[69] The court found that Mr. Millie's possession of the pornography, which contained the victims' images, had the effect of inflicting severe psychological harm as the victims were aware that they had been victimized in this way and revictimized by the ongoing process of access and/or possession of the images. The evidence satisfied the justice that Mr. Millie's possession of the said pornography inflicted or was likely to inflict severe psychological damage on another person and that the circumstances of the case mandate a finding that the possession of child pornography contrary to s. 163.1(4), committed in the factual circumstances of that case, satisfies the definition of an SPIO for the purposes of s. 752 of the Criminal Code. (Millie, para 115-117)

Is there a connection between L.M.’s offence(s) and the harm?

[70] The applicant submits that the link between L.M.’s offending and the likely infliction of severe psychological damage on those children, identified and not, in his collection satisfies the low SPIO hurdle particularly because: The collection is significant, he is not a “low consumer”, the contents depict sexually explicit acts of an invasive nature including forced fellatio and vaginal and anal intercourse inflicted on children by adults.

[71] In determining whether an offence is a SPIO, as part of the totality of the circumstances before a court in any given case, “courts are required to identify a connection between the offender's conduct and the likelihood that the offence will inflict severe psychological damage beyond a speculative or abstracted rational connection.” (Millie, para 97). A connection does not need to be strong, it just needs to exist. In determining whether there is a connection in L.M.’s case, I have considered the factors that other courts have found to be relevant on the facts of their respective cases as well as the evidence in the case before me:

[72] L.M. had a collection of 63 images and 3 videos of child pornography depicting females between the age of 6 and 10 years old. One image involved a baby. Half of the contents were pre-pubescent children focusing on their anal or vaginal area. The remainder of the collection showed children being vaginally penetrated by adult males or objects. Two of the children were identified. The distribution offence involved L.M. using his Instagram account to send one image of child pornography to another Instagram user.

[73] In addition, I take into account the following:

• The children depicted in L.M.’s collection, whether identified or not, were the victims of violence and suffered trauma as a result of the sexual abuse;
• Some of the victims depicted in the pornographic images or videos in L.M.’s collection had their faces exposed;
• L.M. was a low end consumer of child pornography.
• L.M. is a repeat offender or “regular consumer” although his current collection is relatively small
• There is no evidence of L.M. using multiple search engines or chat rooms
• The distribution was of a single image through gmail
• There is no evidence of L.M. trading, encouraging, selling or buying any child pornography
• Two of the victims in the collection have been identified;
• No victim impact statement was provided from any victim to provide a measure of the impact of L.M.’s offending and the harm done;
• No community impact statement was provided:
• While information was provided that police were in the process of obtaining a victim impact statement from at least one identified victim, no evidence was tendered that any victim is aware of their revictimization in this case by the ongoing access, possession, or distribution of the images or videos
• There is no evidence that any victim is aware that in the instant case L.M. has revictimized any victim by his possession, access or distribution of child pornography.
• While clear that there has been harm suffered by the children who were sexually abused, there is no clear evidence how L.M.’s actions contributed or contributed to the harm
• There is no evidence that L.M. encouraged the creation of child pornography apart from committing the essential elements of his own offences.

Considering all of the foregoing, I am not satisfied that a link or connection has been established between L.M.’s offending and the harm done. Such a connection is essential to define any of offence as a “serious personal injury offence”; accordingly, the Crown’s application to have L.M. assessed to determine whether he might be a dangerous offender pursuant to s.753(1) is dismissed.

Assessment to determine if L.M. might be a Long-Term Offender

[74] The Applicant’s alternative position is that if the offences that L.M. has been convicted of are not found to be SPIOs and so do not enable an assessment to determine whether L.M. might be a dangerous offender, there are reasonable grounds to believe L.M. might be found to be a long term offender pursuant to s.753.1 and that an assessment should be ordered under s.752.1(a) on that basis.

[75] For a court to make that order, it must be satisfied that:

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

[76] In L.M.’s case, a sentence of two years or more would be appropriate. The convictions for possession, access, and distribution of child pornography are all offences referred to in s.753.1(2)(a) and his criminal history includes hands-on sexual offending against children and breaches of statutory release conditions, probationary terms, and a s.161 order. At this stage, considering s.753.1(2)(b), his persistent use of the internet to access, possess, and distribute child pornography might be found to show a pattern, including the offences for which he has been convicted, of repetitive behaviour and a likelihood of causing injury or severe psychological damage on others, or by conduct in any sexual matter that has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences; accordingly, an assessment shall be ordered pursuant to s.752.1 to determine whether L.M. might be found to be a long-term offender pursuant to s.753.1 of the Criminal Code.

Released: August 17, 2022 Justice J. Bliss