ONTARIO COURT OF JUSTICE DATE: 2022 09 29 Central East Region: Oshawa Courthouse
BETWEEN:
HIS MAJESTY THE KING
— AND —
JARYD RAYMOND JOSEPH BELLAS-MENZIE
Before: Justice Peter C. West
Guilty Pleas Entered: July 5, 2022 Sentencing Submissions Heard on: August 24, 2022 Reasons for Sentence dated: September 29, 2022
Counsel: Ms. K.A. Kennedy.......................................................... counsel for the Crown Ms. K. Matthews..................... counsel for the defendant Jaryd Bellas-Menzie
WEST J.
[1] Jaryd Bellas-Menzie pleaded guilty to one charge of possession of child pornography with an offence date of August 26, 2020 to April 8, 2021. A pre-sentence report was ordered and sentence was adjourned. An Agreed Statement of Facts was marked as Exhibit 1 and Mr. Bellas-Menzie’s criminal record was marked as Exhibit 2. A Psychological Risk Assessment by Dr. Giorgio E. Ilacqua, C. Psych. was marked as Exhibit 3 and a Presentence Report by Darlene Poulias was marked as Exhibit 4.
Factual Background
[2] On January 13, 2021, D.C. Christianson reviewed a report received from the National Child Exploitation Crime Centre (NCECC) of the RCMP, which included a report originating from Google. Google was reporting a user for uploading 12 media files consisting of child pornography. The account user name was identified as jaryd bellas, with associated email addresses “valdragun1@gmail.com and jozzy69rae@gmail.com.” All 12 images showed pre-pubescent females involved in explicit sexual activity including intercourse, fellatio, cunnilingus and vaginal penetration. IP address information identified the internet service provider as Rogers. Police obtained a production order for subscriber information, which returned to accused’s sister. Police obtained a search warrant for the residence.
[3] On April 8, 2021, the search warrant was executed at 7:12 a.m. The door was answered by the accused, who advised he was a tenant. Jaryd Bellas-Menzie was advised he was a person of interest, his right to counsel was explained and he was advised he could speak to a lawyer at any point if he wished. Mr. Bellas-Menzie confirmed the “ valdragun1@gmail.com ” was his email. He advised his phone was in his hoodie pocket in the living room and laptops were in a corner cabinet. Mr. Bellas-Menzie’s position about child pornography content shifted several times, from his initial position that no child porn on his phone, to having short (seconds) video that someone recently sent him on Instagram to having numerous child porn files that he saved to try to figure out who was sending it to him. Police seized 5 devices. Two of those devices were subsequently found to contain child pornography, specifically his Samsung cell phone and Dell laptop.
[4] On Jaryd Bellas-Menzie’s cell phone there were 248 unique accessible images and 32 unique accessible videos. The images are mostly of pre-pubescent females, sexually exploitive poses, self-exposure, fellatio (to child and adult males), insertion of objects and vaginal intercourse with adult males. The images did not include the images uploaded to Google and identified in the NCECC report. The access dates were from August 26, 2020 to April 8, 2021. The videos were mostly prepubescent females, sexually exploitive poses, self-exposure, masturbation, fellatio and intercourse; there is a video of a female performing fellatio on a pre-pubescent male as well. The file paths indicate that the majority were stored on a micro SD card on the phone and captured dates range from November 7, 2020 to April 4, 2021. The Dell laptop had 2 unique accessible images depicting pre-pubescent girls performing fellatio.
[5] Jaryd Bellas-Menzie was arrested on April 23, 2021, and interviewed by police after he spoke with counsel. He initially denied uploading any child pornography images to Google and suggested others had access to his devices and his girlfriend used to keep her porn on it, though he ultimately did indicate that it was “possibly” him that had downloaded and/or looked at child pornography content. He said he never masturbated to child pornography. He advised he did not think he needed help in dealing with looking at child pornography. When he was asked if he would describe himself as more of an observer than a collector or someone who shared, he replied, “if there was, then yes.” As part of the Agreed Statement of Facts the typewritten report of D.C. Sabo was included. Ultimately it was Mr. Bellas-Menzie’s position that many of the images were sent to him and he saved them to his phone.
Positions of the Parties
[6] The Crown is seeking a custodial sentence of 9-12 months, followed by 2 years of probation with conditions involving reporting, counselling and other conditions. The ancillary orders sought are a SOIRA Order for 10 years; a s. 161 (d) Order for 10 years and a D.N.A. Order.
[7] The defence is seeking a conditional sentence of 12 to 18 months or in the alternative a 6 to 9 month custodial sentence, followed by probation. The ancillary orders are not contested. The defence argues that exceptional circumstances exist, which justifies a conditional sentence.
Offender’s Background
[8] Mr. Bellas-Menzie is 33 years of age, is single and has no dependants. He has earned his Grade 12 Ontario High School Equivalency Certificate. He had a difficult upbringing with many moves. His father left his mother prior to his birth and he first met him at age six but had sporadic contact after that. His father is deceased. He has a half-sister he consider his “sister”. His mother remarried and Mr. Bellas-Menzie described his step-father as disrespectful, abusive and a drug abuser. His mother and sister and he often moved to get away from his step-father. His mother was a heroin and drug addict. A protective child agency was involved with the family and he and his sister were removed from the home on a couple of occasions. His sister was mostly raised by her paternal grandparents and as a result she was exposed to a more positive upbringing. He spent time with two foster families, his mother and his maternal grandparents. He was transient over the years and has lived “homeless a lot” living three years in a tent in the woods. His mother is also deceased having struggled with addictions and significant health issues.
[9] His sister described being able to get away from this upbringing when her grandparents were awarded full custody of her but her brother was “stuck in it,” an abusive, dysfunctional, traumatic, unstable and neglectful environment. Following their mother’s death, Mr. Bellas-Menzie’s and his sister rekindled their relationship and they have been close over the past five years. Pursuant to his recognizance he has been residing with his sister, brother-in-law, their two biological children (son, age 8 and daughter, age 4) as well as the brother-in-law’s two children (son, age 16 and daughter, age 13) from a previous relationship. Mr. Bellas-Menzie for the most part has been residing with his sister and her family for the past five years. His sister does not consider him to be a threat or risk to the children.
[10] Mr. Bellas-Menzie described being bullied in school and being suspended a lot for fighting with peers and has been expelled. This was confirmed by his sister. Mr. Bellas-Menzie is currently being supported through social assistance, his sister and brother-in-law and his employment. He works periodically with his brother-in-law’s moving company. He also does roofing work. His G1 driving permit is currently suspended due to outstanding HTA fine. His vocational interest is pursuing a career in heating, ventilation and air conditioning (HVAC). He has worked in many different jobs.
[11] He has had problems in the past with his alcohol consumption. Currently his consumption is occasional and manageable. He has used “weed” since he was seven-eight years of age and by 12-13 he was using that substance and other illicit drugs, cocaine and ecstasy routinely. He admitted to smoking crystal methamphetamine and addicted to heroin for nine years. He stopped using when he was 27 years of age. He has been involved with a methadone treatment program, which he discontinued at 27/28 years of age. He has been abstinent from all illicit drugs for the past five or six years. He continues to use marijuana as he believes it helps relieve and manage stress, anxiety and pain.
[12] His sister considers her brother may be harbouring some emotional and trauma issues, characterized by symptoms of anxiety and depression, that likely stem from his upbringing. There is no reported or record of any prior sexual inappropriate or sex-offending pattern of behaviour. Mr. Bellas-Menzie advised he had been prescribed medication previously for mental health issues but discontinued it when it exacerbated his symptoms.
[13] Mr. Bellas-Menzie pleaded guilty to possessing child pornography and accepts responsibility for his conduct. His sister and her husband advised when they found out about the charges it came as a “huge surprise” and they were shocked.
[14] Mr. Bellas-Menzie has a fairly extensive criminal record but it is unrelated to the charge to which he pleaded guilty. His previous offences, which commence in 2007 and end in 2018, include property offences, assaultive conduct, breach of court orders, and drug offences. His longest sentence previously was 40 days (14 days plus 26 days credit for pre-sentence custody).
[15] Finally, Mr. Bellas-Menzie took part in a psychological risk assessment with Dr. Giorgio Ilacqua, C. Psych. A report dated April 5, 2022, was filed by counsel as Exhibit 3. Dr. Ilacqua identified he believed Mr. Bellas-Menzie was “likely dealing with unaddressed trauma stemming back to his childhood, adolescence and social-relationship history.” I do not intend to detail each of the results for the psychological tests performed by Dr. Ilacqua.
[16] The Personality Assessment Inventory (PAI) is an objective test of personality designed to assess critical client variables in professional settings. Mr. Bellas-Menzie presents with periods of depression and anxiety. There were recurrent thoughts of suicide, although he denied any intents or plans of self-harm. It was felt these issues should be addressed psychotherapeutically. He presents with some episodes of mania whereby he is likely more impulsive or feeling grandiose. Other features can include periods of disorganization, overcommitted in activities or a markedly inflated self-esteem. He presents with some anti-social features which may have manifested from a conduct disorder during his adolescence. These features include past illegal activities and physical aggression towards others. He is motivated to attend psychotherapy.
[17] On the Adverse Childhood Experience (ACE_) Questionnaire Mr. Bellas-Menzie’s score was in the high range which places him in a high risk of health and social problems including substance abuse, mental illness and criminal behaviours.
[18] The Patient Depression Questionnaire (PHO-9) produced scores for Mr. Bellas-Menzie, which represent moderate depression. There was some indication of suicide ideation, however this was ruled out for any imminent risk during the clinical interview. It should be noted that the Trauma Symptom Inventory (TSI-2) test scored Mr. Bellas-Menzie in the clinically elevated range for Intrusive Experiences, Suicidal Ideation and Relational Avoidance. During the clinical interview, he denied any active thoughts, intent or plans of self-harm or suicide.
[19] On the Generalized Anxiety Disorder (GAD-7), Mr. Bellas-Menzie’s score falls within the moderate range of generalized anxiety.
[20] In the Substance Abuse Subtle Screening Inventory -4 (SASSI-4) his scores are suggestive of a low probability of having a substance use disorder and low probability of risk with respect to prescription drug abuse. These results are consistent with his self-report during the clinical interview as well as results from other psychometric measures.
[21] On the Multiphase Sex Inventory II (MSI-II) and contrary to his self-report during the clinical interview, he made references to being severely physically abused, molested and raped, which should be addressed therapeutically. Results from this measure do not present a sexual deviance; rather, there appears to be emotionally-related sequelae that best explains Mr. Bellas-Menzie’s involvement in the current legal odyssey including depressive disorder, emotional neediness and immaturity, and a social anxiety.
[22] On the Hare Psychopathy Checklist-Revised: 2nd Edition (PCL-R), Mr. Bellas-Menzie did not meet the criteria for psychopathy; his score is in the moderate range, which is the parameter the average non-sociopathic criminal.
[23] On the Historical Clinical Risk Management -2- Version 3 questionnaire, he scored in the following factors of concern that will require professional intervention. In other words, he does present with some areas of concern generally associated with people who are likely to return to the justice system. He does present with a motivation or eagerness to address some of these concerns in psychological treatment. On this instrument his areas of need were confirmed: violence (historical), relationship issues, traumatic experiences and limited ability to cope with stress. This is addressed in the recommendations of Dr. Ilacqua.
[24] On the Sexual Violence Risk-20 (SVR-20) his score suggests that he presents with the following areas of need of professional intervention: historical substance use problems, mental health disorder, relationship problems, employment problems, nonsexual offending.
[25] On the Level of Service Inventory-Revised (LSI-R) he scored in the moderate range for future generic involvement in the legal system.
[26] Dr. Ilacqua concluded that “Mr. Bellas-Menzie’s personal and family history has contributed to sources of trauma that remain unaddressed and untreated. His mother struggled with mental health concerns and substance use. He has also grieved the loss of his parents and experienced rejection, betrayal and abandonment by some family members and friends in his past. He developed an insecure attachment style (avoidant, anxious and disorganized). He has been involved in multiple relationships that were considered volatile and unhealthy. Despite experiencing recurring emotional distress, he was not equipped with adaptive coping strategies and did not have an opportunity to address these issues with a mental health professional.”
[27] Dr. Ilacqua concluded that based on his evaluation of Mr. Bellas-Menzie “it is not felt that Mr. Bellas-Menzie presents with psychological characteristics generally associated with the deliberate intention to do harm on others in a sexual manner.” He was of the opinion that “the clinical findings based on the current assessment have a direct bearing on Mr. Bellas-Menzie’s current legal involvement and that community and professional help are now essential for Mr. Bellas-Menzie’s well-being and for the safety of society at large.”
[28] Dr. Ilacqua in his report under Psychological Profile indicated:
In my opinion, Mr. Bellas-Menzie’s current legal ordeal can be confidently explained by significant underlying emotional dysregulation and disordered personality traits. It would be my opinion that the patient presents with features of an anti-social personality disorder. In my opinion Mr. Bellas-Menzie meets the criteria for Depression, Post-traumatic stress disorder and Substance Use Disorder (in remission, in the community). Although he does not meet full diagnostic criteria for this disorder, it is likely a manifestation of an unaddressed conduct disorder from his childhood and adolescence. Mr. Bellas-Menzie likely presents with periodic depression and post-traumatic stress reactions. Issues with substance use have seemingly resolved.
In my opinion, a diagnosis of sexual deviance does not appear appropriate for Mr. Bellas-Menzie at this time. The patient is willing to accept professional help thus far, the current allegations can be ascribed to poor insight and understanding of his personality features, emotional trauma and distress as well as poor coping strategies. These issues have to be addressed therapeutically.
[29] Dr. Ilacqua in addressing Mr. Bellas-Menzie’s probability of future involvement in justice system made the following conclusions:
The final formulation here below reflects the five tier system of LSI-R: Low, Low/Moderate, Moderate, Moderate/High and High.
Mr. Bellas-Menzie’s level of risk for future general involvement in the legal system is as follows
- LSI-R = Moderate
Mr. Bellas-Menzie’s level of risk for future sexual offences is as follows:
- SVR = Low
Based on the file review, clinical review, observations and psychometric testing, including risk assessment measures, it is my opinion that Mr. Bellas-Menzie presents with a moderate risk for a generic future involvement in the justice system and with low risk for being sexual re-offender.
[30] Dr. Ilacqua continued: “Although I appreciate the seriousness of the allegations Mr. Bellas-Menzie is facing, based on the results of this assessment, as a Psychologist I am of the opinion that he could receive the help he needs in the areas identified in the current assessment under supervision in the community.”
[31] Finally, Dr. Ilacqua made the following recommendations under the heading “Motivation for Intervention and Recommendation for Mr. Bella-Menzie’s Rehabilitation Path:”
The following recommendations are provided to assist Mr. Bellas-Menzie to remain safely in the community, under a prolonged period of supervision addressing the clinical and practical issues identified in the current assessment:
- Mr. Bellas-Menzie is willing to participate in individual treatment for the purposes of gaining insight and self-awareness into his actions in relation to the current charges. Psychotherapy should also focus on developing Mr. Bellas-Menzie’s insight and sense of accountability and monitor his mood. Cognitive and behaviour training and techniques should be used to develop appropriate planning. The counselling should also foster the building of social skills and behavioural activation in a pro-social manner.
- Mr. Bellas-Menzie can likely benefit in a group setting for therapy geared towards the psychoeducation of consent and sexual boundaries.
- Mr. Bellas-Menzie should make better use of his spare time. He would benefit from participation in highly social and prosocial activities with an association, team or volunteering.
- Mr. Bellas-Menzie should seek gainful employment or upgrade his current academic level.
- Although currently drugs and alcohol do not appear to be a pressing issue for Mr. Bellas-Menzie this should be monitored.
When providing rehabilitative and psychological services to Mr. Bellas-Menzie the findings of the current assessment should be kept in mind.
[32] The psychological risk assessment report by Dr. Ilacqua was very helpful and provided significant insight into what steps Mr. Bellas-Menzie needs to take for his future rehabilitation and for the protection of the community.
Sentencing Principles Applied
[33] The purpose of sentencing is set out in sections 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases.
[34] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:
(a) Denounce the unlawful conduct; (b) Deter the offender, and others, from committing such an offence; (c) Separate the offender from society, where necessary; (d) Assist in the rehabilitation of the offender; (e) Provide reparation for harm done to “victims”, or the community; and (f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.
[35] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 42, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:
[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary
[36] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)). A number of aggravating circumstances are set out in this section, which are applicable to the factual circumstances of the charge Mr. Bellas-Menzie pleaded guilty to.
[37] According to s. 718.2 (a)(ii.1), evidence that the offender, in committing the offence, “abused a person under 18 years of age,” is statutorily deemed to be an aggravating circumstance of the offence. Therefore, the paramount principles of sentencing in cases involving sexual abuse of young children are denunciation and deterrence. Prior to the enactment of s. 718.01 referred to above, the Ontario Court of Appeal in R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.), Moldaver J.A., (as he then was) confirmed:
…when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.
[38] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, at para 12, explained:
…The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.
Range of Sentence for Possessing Child Pornography
[39] Pursuant to s. 718.01, when a court imposes a sentence for an offence that involves the abuse of a person under 18 years of age, it “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” The reason for this is because conviction for an offence of child pornography is a serious matter and Mr. Bellas-Menzie’s offence involved his accessing images of pre-pubescent females engaged in or depicted as engaged in explicit sexual activity. Courts have very few options other than imprisonment to achieve the objectives of denunciation and deterrence in this context – R. v. Inksetter, 2018 ONCA 474, at para 17.
[40] The Court of Appeal has repeatedly recognized that the objectives of denunciation and deterrence are of paramount importance when sentencing offenders for child pornography offences. It has done so both before and after the enactment of s. 718.01 of the Criminal Code: R. v. John, 2018 ONCA 702, [2018] O.J. No. 4495 (C.A.), at para. 41; R. v. Inksetter, 2018 ONCA 474, supra, at para. 16; R. v. Nisbet, 2011 ONCA 10, [2011] O.J. No. 11 (C.A.), at para. 1; and R. v. O.E., 2003 ONCA 2017, [2003] O.J. No. 563 (C.A.), at para. 7. (See also R. v. Branco, 2019 ONSC 3170, [2019] O.J. No. 3170 (SCJ, Stribopoulos), at para. 43.) In R. v. D.D., 2002 ONCA 44915, [2002] O.J. No. 1061 (C.A.). Justice Moldaver, as he then was, held “absent exceptional circumstances, the objectives of sentencing proclaimed in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.” Justice Moldaver was referring to sexual offences involving children. According to s. 718.2 (a)(ii.1), evidence that the offender, in committing the offence, “abused a person under 18 years of age,” is statutorily deemed to be an aggravating circumstance of the offence. Therefore, the paramount principles of sentencing in cases involving sexual abuse of young children are denunciation and deterrence.
[41] Courts have very few options other than imprisonment to achieve the objectives of denunciation and deterrence in this context – R. v. Inksetter, 2018 ONCA 474, supra, at para. 17, citing R. v. Lacasse, 2015 SCC 64, supra.
[42] The Supreme Court of Canada recently in R. v. Friesen, 2020 SCC 9, [2020] S.C.J. No. 100, recognized Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirmed the need for courts to impose more severe sanctions for sexual offences against children. The words “primary consideration” in s. 718.01 prescribes a relative ordering of the sentencing objectives set out in s. 718 (a) through (f) (see Friesen, at para. 102). However, the section should not be interpreted as limiting other sentencing objectives, such as separation from society, which reinforces and gives practical effect to denunciation and deterrence (see Friesen, at para. 103 and Woodward, supra, at para. 76). The Supreme Court indicated that “where Parliament has indicated which sentencing objectives are to receive priority in certain cases, a sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority” (see Friesen, at para. 104). A sentencing judge retains discretion to accord significant weight to other facts (including rehabilitation and Gladue factors) in arriving at a fit sentence, in accordance with the fundamental principle of proportionality. The Supreme Court concluded, “Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause” (Friesen, at para. 105).
[43] Justice Stribopoulos in R. v. Branco, 2019 ONSC 3170 has provided a comprehensive review of numerous Ontario court sentencing decisions respecting possession and accessing child pornography and provided the following range of sentence at para. 101:
This review of the case law demonstrates that the range of sentences varies widely, from intermittent sentences at the low end, to penitentiary sentences as long as 3 1/2 years at the upper end. Ultimately, with the exception of some outliers, where a particular case falls within the overall range of sentences is a function of its specific aggravating and mitigating factors.
[44] In R. v. Kwok, 2007 ONSC 2942, [2007] O.J. No. 457 (SCJ), at para. 7, Justice Molloy provided a helpful summary of aggravating and mitigating factors to consider in cases involving child pornography:
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).
[45] It is my view a conditional sentence under s. 742.1 of the Criminal Code would not be an appropriate or a proportionate sentence given the facts and circumstances of this case and that a custodial sentence in “real jail” is necessary to properly address the seriousness of the offence and the degree of moral culpability of Mr. Bellas-Menzie. A conditional sentence, where no exceptional circumstances arise would not be in accordance with the fundamental purpose and sentencing principles of sentencing set out in sections 718 to 718.2 given the comments by the Ontario Court of Appeal recently in R. v. M.M., 2022 ONCA 441, [2022] O.J. No. 2527 (C.A.):
15 The Supreme Court's instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.
16 Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate - for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.
[46] The defence argued the case of M.M. could be distinguished because it involved a breach of trust; however, the comments of the Court of Appeal in respect of the appropriateness of the imposition of a conditional sentence respecting a case involving the possession of child pornography in my view have a much wider application. The court cites Friesen (SCC) and Inksetter (OCA), which clearly endorse the imposition of custodial sentences for sexual offences against children to recognize the primary importance of denunciation and deterrence. As the court held: “Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.”
Aggravating and Mitigating Factors
[47] The nature of the images and videos, which depict pre-pubescent females (By definition females between the ages of 10 and 14) in all manner of sexually exploitive poses, self-exposure and sexual activity with adult males, is a serious aggravating factor. The number of images and videos in my view indicates that Mr. Bellas-Menzie was at the early stage of beginning to collect child pornography images, which is a distinguishing feature from many of the cases I am aware of which involve thousands of images and videos. A further distinguishing circumstance is there was no evidence Mr. Bellas-Menzie was producing or sharing or distributing these images or videos.
[48] Mr. Bellas-Menzie has a criminal record, although non-cognate, he is not someone who is a first offender. This is an aggravating circumstance.
[49] Mr. Bellas-Menzie has accepted responsibility for his criminal conduct and demonstrated this by his plea of guilty to possession of child pornography. In my view this reflects his remorse for his actions. He also expressed to me during the sentencing hearing his remorse and regret for his conduct, indicating he would do anything to make things right and promised the court he would ensure this never happens again. In my view his remorse is genuine and this is supported by his sister and by the probation officer in the presentence report. This is a significant mitigating circumstance. In three of the four cases provided by the Crown, the accused were convicted of possessing child pornography after a trial. Mr. Bellas-Menzie pleaded guilty knowing a custodial sentence was a likely consequence of his criminal conduct, which in my view also supports the sincerity of his remorse.
[50] Although Mr. Bellas-Menzie has a criminal record there is a gap with his last conviction being in August 2018. This coincides with the death of his mother and his resuming contact and what is referred to as a close relationship with his sister and her family. The support he now has from his sister and his brother-in-law has created stability in Mr. Bellas-Menzie’s life, which provides a positive contribution to his future rehabilitation. The probation officer indicated it is to his credit that he completed his secondary school education and is employment oriented. His brother-in-law has involved him in working for his moving company. This is a mitigating circumstance.
[51] Further, the fact Mr. Bellas-Menzie engaged in a risk assessment with Dr. Ilacqua and was found to be a moderate risk for a generic future involvement in the justice system and a low risk of being a sexual re-offender is a mitigating circumstance. Dr. Ilacqua’s opinion that a “diagnosis of sexual deviance does not appear appropriate for Mr. Bellas-Menzie at this time” is significant. Mr. Bellas-Menzie’s willingness to participate in therapeutic psychotherapy and accept professional assistance for the purposes of gaining insight and self-awareness into his actions is also a very positive development towards Mr. Bellas-Menzie’s successful rehabilitation. It was Dr. Ilacqua’s opinion that his dysfunctional and abusive childhood upbringing contributed to his poor insight and understanding of his personality features, emotional trauma and distress. The probation officer through her involvement with Mr. Bellas-Menzie recognized his being prepared to acknowledge his mental health issues and concerns as well as his willingness to pursue counselling. This is a mitigating circumstance to be considered in determining a proportionate sentence.
Sentence Imposed
[52] I have already indicated it is my view a conditional sentence is not an appropriate sentence in the circumstances of this case. Mr. Bellas-Menzie’s circumstances, while certainly tragic and difficult when he was young, has greatly improved as a result of the re-connection between he and his sister and her family. The sentence I impose must deter other like minded individuals from accessing and possessing child pornography. Section 718 (f) requires that the sentence I impose acknowledge the harm done to victims and the community. As observed by Justice Pringle in R. v. Woolfe, 2019 ONCJ 2864, [2019] O.J. No. 2864 (OCJ), obviously there is nothing that I can do to rectify the damage done to the children in the photographs Mr. Bellas-Menzie possessed, but the sentence I impose should reflect the seriousness of that damage and I agree only a jail sentence can properly acknowledge the harm done to these children.
[53] As Molloy J. said in R. v. Kwok, 2007 ONSC 2942, supra, at para. 52, "It is crucial to deter people at the entry level from ever possessing child pornography. Perhaps by killing, or at least diminishing, the market for child pornography, the production side can also be curbed."
[54] It is my view that a 9 month or 12 month sentence custodial sentence would not given proper effect to the mitigating circumstances that exist in this case. Considering the aggravating and mitigating circumstances and balancing the principles of sentencing I have referred to I am imposing a six (6) month custodial sentence to be followed by two (2) years of probation, with conditions I will address with counsel.
[55] Further, the ancillary orders relating to Mr. Bellas-Menzie providing a sample of his DNA and a S.O.I.R.A. order for 10 years sought by the Crown will be ordered. I want to address the terms of the s. 161 order that I believe are appropriate given the factual circumstances of this case.
[56] In R. v. Shultz, 2018 ONCA 598, [2018] O.J. No. 3526 (C.A.), at para. 41, the Court of Appeal reviewed the jurisprudence on s. 161 orders and held that:
The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender's specific circumstances: K.R.J., at paras. 48-49.
[57] Similarly, in R. v. Brar, 2016 ONCA 724, the Ontario Court of Appeal carefully reviewed the Supreme Court of Canada's decision on section 161 orders and explained at paragraphs 17 and 18 that:
In J. (K.R.), the majority of the Supreme Court confirmed that orders made under s. 161 have a predominantly protective purpose, that is, to shield children from sexual violence (at para. 44). [ full paragraph not reproduced ]...
The Supreme Court emphasized that these orders are discretionary and flexible, as s. 161 "was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community" (at para. 47). Because these orders can have a significant impact on the liberty and security of offenders and can attract a considerable degree of stigma, they will be justified where the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk the offender poses to children (J. (K.R.), at paras. 48, 54). The terms of such orders must, therefore, "carefully respond to an offender's specific circumstances" (at para. 48).
[58] I find that there is, in the circumstances of this case, evidence that Mr. Bellas-Menzie poses some risk to children based on the number and nature of the images of child pornography and the videos of child pornography on his cell phone. Based on the facts relating to Mr. Bellas-Menzie’s criminal behaviour, I am exercising my discretion and not making orders respecting s. 161(1)(a) to (c). However, I am making an order pursuant to s. 161(1)(d) for ten (10) years as follows:
Your use of the internet shall be in accordance with the following conditions:
- You may possess an internet capable device and use it to access the internet in accordance with the conditions below; however, you must do so on a device for which you are the sole owner and user. Further, the internet service must be in your own name or else provided through your employer or the education institution you are attending, if applicable.
- You may not access the internet using public wi-fi services, internet cafes, or via shared public computers (e.g. computers at a public library).
- You shall not use any encryption software or security program designed to prevent access to the contents of your internet capable devices or take independent action to encrypt any digital storage devices in your possession. You shall not install or permit to be installed on your internet capable device any software or service designed to defeat forensic analysis of the internet capable device.
- You shall not use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet (e.g. TOR browser).
- You shall not use or permit to be installed on any device in your possession any scrubbing software or software that saves files in an encrypted fashion.
- You are not to directly or indirectly access any Peer-to-peer file sharing networks (including but not limited to “kik,” “discord,” Pinterest,” “Skype,” “motherless,” “LimeWire,” “gnutella,” or “bearshare.”)
- You are not to use any telecommunication device to access the Internet or other digital network in order to possess or access content that violates the law.
Released: September 29, 2022 Signed: Justice Peter C. West
