Court and Parties

DATE: March 6, 2023 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— and —

JAMES TRELOAR

Before: Justice John North

Reasons for sentence, released March 6, 2023 [1]

Counsel: Pamela Santora.......................................................................................... counsel for the Crown Jody Berkes.............................................................................................. counsel for the Defence

NORTH J.:

Introduction

[1] Following a trial, I found James Treloar guilty of accessing child pornography contrary to s. 163.1(4.1) of the Criminal Code.

Positions of the Parties

[2] Given that the Crown elected to proceed summarily, the maximum custodial sentence under s. 163.1(4.1)(b) of the Criminal Code is two years’ imprisonment, less a day. The Crown takes the position that the Court should impose the maximum sentence.

[3] I note that the mandatory minimum sentence of six months’ imprisonment under s. 163.1(4.1)(b) has been found to infringe s. 12 of the Charter: R. v. Doucette, 2021 ONSC 371, at para. 38. In Doucette, Justice Schreck found the mandatory minimum sentence to be of no force or effect. See also: R. v. John, 2018 ONCA 702.

[4] The Crown argues that following the term of imprisonment, Mr. Treloar should be subject to probation for three years.

[5] Accessing child pornography is a primary designated offence. The Crown takes the position that the Court should require Mr. Treloar to provide a DNA sample.

[6] The Crown also requests an order requiring Mr. Treloar to comply with the Sexual Offender Information Registration Act for 10 years, a s. 161 order for five years and a forfeiture order.

[7] The defence takes the position that the Court should impose a conditional discharge, with a lengthy period of probation. In the alternative, the defence argues that the Court should impose a conditional sentence. Finally, the defence argues that if the Court concludes that a custodial sentence is required, the Court should impose an intermittent sentence.

The Offence

[8] Many of the essential facts of the offence are set out in my reasons on the trial proper: R. v. Treloar, [2022] O.J. 4272. In my view, it is not necessary to conduct a detailed review of all the facts that are set out in those reasons.

[9] Instead, I will briefly summarize some of the relevant facts.

[10] On July 15, 2020, officers with the Toronto Police Service executed a search warrant on Mr. Treloar’s residence. During the execution of the search warrant, police officers seized a laptop computer. The laptop computer was later the subject of forensic examinations.

[11] Police found over 2500 unique child pornography images in the unallocated sectors of the seized computer. The police found no illegal images on any other seized device.

[12] A forensic search of the seized computer revealed that web searches had been conducted using terms associated with child pornography, including searches that were conducted during a one hour and forty-minute session on May 26, 2020.

[13] One of the arguments advanced by the defence at trial was that, as the Crown elected to proceed summarily, the Crown was required to establish that the charges were “instituted” not more than 12 months after the time when the subject matter of the proceedings arose. See: s. 786(2) of the Criminal Code. The information was sworn on November 6, 2020. Crown counsel agreed that for Mr. Treloar to be found guilty, the Court must be satisfied beyond a reasonable doubt that Mr. Treloar accessed child pornography on at least one occasion in the 12-month period immediately prior to November 6, 2020. While I accepted that some of the child pornography images on the seized computer could have been accessed prior to November 6, 2019, based on all of the evidence, I was satisfied beyond a reasonable doubt that Mr. Treloar accessed child pornography between November 6, 2019 and July 15, 2020 (which was the date the police seized the laptop computer).

[14] Mr. Treloar must be sentenced for the offence for which he was found guilty (accessing child pornography between November 6, 2019 and November 6, 2020). While I am satisfied beyond a reasonable doubt that Mr. Treloar accessed child pornography between those dates, it is not possible to say exactly how many of the approximately 2500 images of child pornography found in the unallocated sectors of the seized computer were accessed by Mr. Treloar during that period. In my view, it is reasonable to conclude at least some of the approximately 2500 unique images found in the unallocated sectors of the computer were accessed by Mr. Treloar before November 6, 2019. Having said that, in determining the appropriate sentence, evidence that Mr. Treloar had been accessing child pornography before November 6, 2019 is not irrelevant. In my view, at the very least, this evidence is relevant to Mr. Treloar’s rehabilitative prospects.

[15] On the sentencing hearing, Crown counsel filed a USB as an exhibit. The USB contained child pornography images that were found on the seized computer. Some of the images show children with their genitals exposed. Some of the images show sexual activity between children and children masturbating. Some of the images show young children engaged in sexual activity with adults, including sexual intercourse. Some of the images show children (or illustrated images of children) engaged in bondage and bestiality.

The Offender

[16] Dr. John Bradford is a forensic psychiatrist. After meeting with Mr. Treloar and reviewing a number of documents (including a phallometric evaluation that was completed by Alan Kaine Clinic Services on December 4, 2020), Dr. Bradford prepared a psychiatric report on December 3, 2022. It is not clear from Dr. Bradford’s report whether he was aware of the degrading nature of some of the child pornography accessed by Mr. Treloar. Dr. Bradford’s report was filed as an exhibit. Some of the information in this section of my reasons was obtained from Dr. Bradford’s report.

[17] Mr. Treloar is 60 years old. He has prior no criminal record. He and his former wife separated in 2018. He is currently single. He has three daughters, who are 26, 29 and 32 years old. Mr. Treloar reports that he has a good relationship with his daughters.

[18] Mr. Treloar is employed by Toronto Fire Services as an Acting District Chief. He has been with Toronto Fire Services for 32 years. Counsel for Mr. Treloar advises that Mr. Treloar hopes to be employed by Toronto Fire Services for another decade.

[19] Mr. Treloar reports that as a child he was very shy. Mr. Treloar described his home atmosphere when he was growing up as very positive. He had a good relationship with his parents. He was not subject to any physical, sexual or verbal abuse.

[20] Mr. Treloar was an average to above average student in school. He remains one credit short of graduating from grade 13.

[21] He completed a three-year diploma in engineering, and then went on to obtain a degree in industrial engineering at Ryerson University.

[22] Mr. Treloar reports that his marriage was very good in the beginning. However, according to Mr. Treloar, his ex-wife had a number of physical and mental health issues, which affected their relationship.

[23] Mr. Treloar has seen a counsellor for anxiety. He has been prescribed medication for anxiety and depression. He told Dr. Bradford that he has never attempted suicide, but he had thought about suicide as a result of these charges.

[24] Mr. Treloar does not drink alcohol or take recreational drugs.

[25] Dr. Bradford completed the Autism Quotient Test on Mr. Treloar. Mr. Treloar scored 33. 80% of people who score 32 or above are diagnosed on the autism spectrum. It was Dr. Bradford’s conclusion that Mr. Treloar was on the autism spectrum, “although at a mild level”.

[26] Dr. Bradford concluded that Mr. Treloar has average or above-average intelligence.

[27] The phallometric testing revealed that Mr. Treloar has a sexual preference for adult males and females. There was no indication of any pedophilic interest.

[28] Dr. Bradford reports that substance abuse and problems with aggression can be enhanced risk factors with any kind of sexual deviation. There is no evidence to support the conclusion that Mr. Treloar has a drug or alcohol addiction. In testing, Mr. Treloar scored low on physical aggression, verbal aggression and anger. He scored in the average range for hostility.

[29] Impulsivity can an issue with any kind of sexual deviation as it relates to the ability to control behaviour. Mr. Treloar scored very low in impulsivity tests.

[30] Dr. Bradford states that people who have problems with pedophilia and sexual violence against adult females can have cognitive distortions that can rationalize deviant sexual behaviour. Dr. Bradford said that in testing for cognitive distortions, Mr. Treloar had a low score. Dr. Bradford expressed the view that the cognitive distortions that Mr. Treloar did have could be “dealt with through one debriefing/treatment session.”

[31] Dr. Bradford states that sexual fantasies are important because they are “the basic driver for both normal and deviant sexuality”. On the Bradford Sexual Fantasy Checklist, 97.7% of Mr. Treloar’s sexual fantasies were in the “non-offence category.” 2.3% of his sexual fantasises were in the “offence category”. According to Dr. Bradford, “overall his sexual fantasy profile is normal”. Mr. Treloar’s sexual drive is “below normal”.

[32] Based on an inventory test that Mr. Treloar took, he does not “endorse any sexual behaviour related to females 12 years of age or less or females between 13 and 15 years of age”.

[33] Dr. Bradford states that the risk of recidivism can be broken down into sexual recidivism or child pornography recidivism. Dr. Bradford set out his conclusions regarding the risk that Mr. Treloar would commit any sex offences in the future, including offences involving child pornography. Mr. Treloar’s score on the Child Pornography Offender Risk Tool was “0/7”. According to Dr. Bradford, Mr. Treloar’s risk of any child pornography recidivism is 4.9%, which Dr. Bradford characterized as a “low risk.” Dr. Bradford concluded that Mr. Treloar had a 0% risk of contact sexual offences.

[34] Dr. Bradford concludes his report as follows:

“The most important issue relating to sentencing is that he is at a very low risk of any type of child pornography recidivism and a 0% chance of recidivism of any contact sexual offences against a child.”

[35] Mr. Kaine, who conducted the phallometric test, concluded that the findings of the test were “not indicative of pedophilia and corroborated [Mr. Treloar’s] sexual preference exclusively to adult male and adult female stimuli.”

[36] A supervisor of Mr. Treloar from the Toronto Fire Services wrote a letter to the Court regarding Mr. Treloar. He has known Mr. Treloar for years. He described Mr. Treloar as a good father who cares very much for his family. Mr. Treloar’s supervisor said that, as a result of private conversations with Mr. Treloar, he knows that Mr. Treloar “feels very remorseful”.

The Principles of Sentencing and Their Application in This Case

[37] A sentencing judge must impose a sentence that reflects both the fundamental purpose of sentencing and the relevant sentencing objectives and principles.

Fundamental Principle of Sentencing – Proportionality

[38] The fundamental principle of sentencing is proportionality. Section 718.1 of the Criminal Code provides that:

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

[39] Courts have repeatedly recognized that child pornography offences are “extremely serious offences”: R. v. McCaw, 2023 ONCA 8, at para. 19; R. v. Sharpe, 2001 SCC 2, at para. 158.

[40] Child pornography offences cause profound harm to vulnerable children, their families and the community.

[41] Indeed, as the Supreme Court of Canada recognized in Sharpe, at para. 158, the very existence of child pornography is inherently harmful because degrading, dehumanizing and objectifying depictions of children violate the dignity and equity rights of children and other members of society.

[42] In R. v. Andrukonis, 2012 ABCA 148, at para. 29, Chief Justice Fraser stated that “child pornography constitutes a clear and present danger to children around the world.” Chief Justice Fraser recognized, at para. 29, that “children captured for life in the child pornography have been abused somewhere.” Chief Justice Fraser also stated as follows at para. 29:

“…the fact that child pornography allows perpetrators to take in the sexual abuse of children virtually through the Internet does not change its essential character. The unvarnished truth is this: possession of child pornography is itself child sexual abuse. To fail to recognize that this is so improperly diminishes the gravity of the offence.”

[43] In R. v. Inksetter, 2018 ONCA 474, the Ontario Court of Appeal made a number of important observations that must be considered whenever sentencing an offender for a child pornography offence. They were summarized by Justice Stribopoulos in R. v. Branco, 2019 ONSC 3591, at para. 45, and include the following:

• Child pornography represents a pervasive social problem: Inksetter, at para. 22.
• Possession of such material harms children and represents a form of child sexual abuse: Inksetter, at para. 22.
• The children depicted in child pornography are re-victimized with every viewing of this material: Inksetter, at para. 22.
• The legislative changes introduced by Parliament over the last decade, irrespective of whether they survive constitutional scrutiny, demonstrate rising concern amongst Canadians about the increasing incidence of child pornography: Inksetter, at paras. 22-24.

[44] In R. v. Friesen, 2020 SCC 9, at para. 95, the Supreme Court stated that Parliament has recognized:

“…the profound harm that sexual offences against children cause and has determined that sentences for such offences should increase to match Parliament’s view of their gravity.”

[45] Given the profound harm caused by child pornography offences, the gravity of these offences is very high.

[46] The nature of some of the images that Mr. Treloar accessed increases the gravity of the offence. A number of the images that Mr. Treloar accessed involved graphic depictions of young children being sexually assaulted.

[47] Mr. Treloar’s degree of responsibility for the commission of this offence is significant. He made a deliberate decision to access these images.

[48] The Supreme Court of Canada in Friesen, at paras. 96-97, observed that maximum sentences help determine the gravity of an offence – and a decision by Parliament to increase maximum sentences for certain offences shows that Parliament, “wanted such offences to be punished more harshly”.

[49] Over the years, Parliament has increased maximum sentences for sexual offences against children. In 2015, Parliament increased the maximum sentence for both possession and accessing child pornography, where the Crown proceeds by summary conviction, from 18 months’ imprisonment to two years less a day imprisonment.

[50] In Friesen, at para. 100, the Court stated that to respect Parliament’s decision to increase maximum sentences, courts should:

“…generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences.”

[51] In considering what would be the appropriate sentence in this case, I have taken into account Parliament’s legislative initiatives in this area which “signal Canadians’ concerns regarding the increasing incidence of child pornography”: Inksetter, at para. 24.

Section 718 – The Fundamental Purpose of Sentencing

[52] 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 “just sanctions” that have one or more of the following objectives:

• to denounce unlawful conduct;
• to deter the offender and other persons from committing offences;
• to separate offenders from society, where necessary;
• to assist in rehabilitating offenders;
• to provide reparations for harm done to victims or to the community; and
• to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[53] The relevance and weight to be given to these objectives will vary depending on the nature of the crime and the circumstances of the offender.

[54] The objectives of denunciation and deterrence will usually dominate the other objectives when an offence is particularly serious: R. v. Hamilton and Mason, (2004) 2004 5549 (ON CA), 72 OR (3d) 1 (C.A.), at para. 103.

[55] Courts in Ontario have repeatedly stated that the paramount sentencing objectives in child pornography cases are deterrence and denunciation: McCaw, at para. 29; John, at para. 41; Inksetter, at para. 16; R. v. Elkaderi, 2022 ONCJ 114, at para. 25.

[56] Section 718.01 of the Criminal Code provides as follows:

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

[57] In Inksetter, at para. 17, the Court recognized that “courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence.”

[58] In Doucette, at para. 39, Justice Schreck concluded that, given the importance of deterrence and denunciation, “non-custodial sentences for child pornography offences are rare, even in cases involving first offenders and relatively small volumes of child pornography”.

[59] A determination of what constitutes a fit sentence requires a court to consider the life experiences of the person standing before them. However, factors that mitigate an offender’s personal responsibility “cannot justify a disposition that unduly minimizes the seriousness of the crime committed”: Hamilton and Mason, at para. 93.

[60] In considering the appropriate sentence, I have taken into account Dr. Bradford’s opinion that Mr. Treloar will not re-offend.

718.2 – Other Sentencing Principles

[61] While proportionality is the fundamental principle of sentencing, other principles found in s. 718.2 must also be considered when determining the appropriate sentence, including:

• a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
• a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
• an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
• all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders.

Aggravating and Mitigating Factors

[62] It is not aggravating that Mr. Treloar did not plead guilty. However, he does not have the mitigating effect of a guilty plea.

[63] Mr. Treloar is a first offender. That is a mitigating factor.

[64] Mr. Treloar has led a productive life, and by all accounts has been a supportive father. That supports the conclusion that he was of prior good character. The evidence that Mr. Treloar accessed child pornography, some likely before November 6, 2019, is a factor to consider when assessing his prior good character. In R. v. Jonat, 2019 ONSC 1633, at para. 63, Justice Dunphy observed that many offenders who have accessed or possess child pornography have no criminal record, and prior to being arrested for a child pornography offence were viewed as being of good character.

[65] The nature of some of the images that were accessed by Mr. Treloar is an aggravating factor. A number of the images depict young children being sexually assaulted.

[66] There was no evidence of production or distribution, which are aggravating factors found in some other cases.

Restraint

[67] Mr. Treloar has no prior criminal record. In my view, the principle of restraint is a consideration in this case: R. v. Priest, (1996) 1996 1381 (ON CA), 30 O.R. (3d) 538 (ON CA).

Collateral Consequences

[68] Any consequence, including employment and immigration consequences, which may have an impact on an offender as a result of a criminal sentence must be taken into account when determining the appropriate sentence: R. v. W.(M.), 2019 ONSC 4801, at para. 39.

[69] Collateral consequences are not, strictly speaking, aggravating or mitigating factors. They are taken into account in sentencing as personal circumstances of an offender: R. v. Pham, 2013 SCC 15, at para. 18. Their relevance “flows from the application of the principles of individualization and parity” and rehabilitation: Pham, at para. 11.

[70] Based on the evidence before the Court, I am satisfied that if Mr. Treloar receives a custodial sentence (unless, potentially, it is an intermittent sentence) he will likely be dismissed by his employer. If he were to lose his job, it would have an impact on a number of people. This loss of income will have a significant impact on Mr. Treloar’s ex-wife, to whom Mr. Treloar provides monthly support payments. I have been advised that Mr. Treloar’s ex-wife is disabled and is unable to work. I have also been told that Mr. Treloar has been providing financial assistance to his adult daughters. His youngest daughter suffers from schizophrenia.

[71] I appreciate that at his age, with a criminal record, it may be difficult for Mr. Treloar to secure employment, if he were dismissed from his current position. While I have considered this when determining the appropriate sentence, this collateral consequence cannot be given undue weight, such that it results in a disproportionate sentence: Pham, at para. 18.

[72] The defence filed a letter from an immigration lawyer, who concluded that “a judgment of guilt for accessing child pornography will render Mr. Treloar permanently inadmissible to the United States. For this particular offence, there is no opportunity for a waiver under any circumstance.”

[73] Some of the collateral consequences that will likely occur if Mr. Treloar receives a custodial sentence are significant, and I have taken them into account when determining the appropriate sentence. Having said that, Mr. Treloar is the author of these consequences by committing this serious criminal offence.

Range of Sentence

[74] I will now briefly review the conclusions of several judges from this province regarding the range of sentence for the offence of possession of child pornography. In my view, this guidance also applies to the offence of accessing child pornography.

[75] Before I review that guidance, it is important to remember that sentencing ranges are not meant to handcuff the court. As the determination of a just and appropriate sentence is a highly individualized exercise, there will “always be situations that call for a sentence outside a particular range”: R. v. Lacasse, 2015 SCC 64, at para. 58. Sentencing judges retain the flexibility and discretion that is needed to do justice in individual cases.

[76] In R. v. Kwok, 2007 2942 (ON SC), [2007] O.J. No. 457, at para. 5, Justice Molloy stated that the range of sentence for possession of child pornography was six to eighteen months’ imprisonment. It should be noted that Kwok was released eight years before Parliament increased the maximum sentences in 2015. See also: R. v. Snead, 2021 ONSC 7017, at para. 23.

[77] In R. v. Beierle, 2017 ONSC 5377, at para. 38, Justice Campbell agreed with Justice Woollcombe’s conclusion in R. v. John, 2017 ONSC 810, at para. 33, that the appropriate range of sentence for possession of child pornography was “around six or eight-months at the bottom end of the range upwards to about three years.”

[78] In Branco, Justice Stribopoulos, after conducting an extensive review of sentencing authorities released between 2010 to 2019, concluded at para. 101 that the range of sentence for possession of child pornography “varies widely” from “intermittent sentences at the low end, to penitentiary sentences, as long as 3 ½ years at the upper end.”

[79] In Branco, Justice Stribopoulos imposed a sentence of six months less a day on an offender after finding him guilty of possessing 302 unique images of child pornography and four videos. The accused was 53 years old. He had a dated criminal record. Collateral immigration consequences provided support for a sentence that was somewhat lower than would have ordinarily been imposed: Branco, at paras. 112 to 114.

Probation and Deterrence

[80] In this case, defence counsel argued that probation orders (imposed pursuant to a conditional discharge or a suspended sentence) can have a “significant deterrent effect because, if breached, the original sentence can be revoked and the offender re-sentenced for the original offence, including being sent to jail.”

[81] In support of that proposition, defence counsel relies on R. v. Voong, 2015 BCCA 285. In Voong, at paras. 39 and 42, the Court notes that some courts have confirmed the deterrent effect of a suspended sentence and a probation order “in some circumstances”.

[82] In considering the potential use of probation to advance the objective of deterrence, it is helpful to consider the guidance provided by the Court of Appeal in Inksetter. In Inksetter, the 51-year-old first offender pleaded guilty at the first reasonable opportunity to possession of child pornography and making child pornography available. The offender amassed one of the largest and worst collections of child pornography that the Ottawa Police had ever uncovered. Psychiatric evidence indicated that the offender had a very low risk for future child pornography offences, and he was unlikely to be a pedophile. The trial judge imposed a sentence of two years less a day imprisonment, to be followed by three years’ probation. The trial judge concluded that a term of imprisonment of more than two years would not be appropriate because the offender could not then be subject to a period of probation.

[83] The Court of Appeal allowed the Crown appeal against sentence, and imposed a sentence of three years’ imprisonment on the count of possession of child pornography and three and one-half years’ imprisonment on the count of make child pornography available (to be served concurrently).

[84] The Court of Appeal agreed, at para. 21, with the trial judge that the objectives of specific deterrence and rehabilitation “were largely met before sentencing”.

[85] The Court of Appeal noted, at para. 16, that by enacting s. 718.01 of the Criminal Code, “Parliament made it clear that denunciation and general deterrence must be primary considerations for any offence involving the abuse of a child.” Associate Chief Justice Hoy went on to say, at paras. 16-17, that the Court of Appeal has “repeatedly stated that denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography”, and that courts have “very few options other than imprisonment to achieve the objectives of denunciation and general deterrence.”

[86] At para. 15, the Court of Appeal found that in his focus on probation, the trial judge erred by giving “primary effect to the objective of rehabilitation rather than the objectives of denunciation and general deterrence.”

[87] At paras. 19-20, the Court of Appeal rejected the argument that, with the inclusion of certain terms, probation in that case could assist in “filling the need for denunciation and general deterrence”.

[88] At paragraph 18, Associate Chief Justice Hoy noted that “probation has traditionally been viewed as a rehabilitative sentence tool. It does not seek to serve the need for denunciation or general deterrence.”

Conditional Discharge

[89] In support of the position that a conditional discharge should be imposed, defence counsel relies on Justice Kerr’s decision in R. v. Geller, 2003 31190 (ON SC). In Geller, the offender pleaded guilty to possession of child pornography and mischief to data. The Crown proceeded by summary conviction. The offender was a university student. He did not have a criminal record. The offender possessed 101 images of child pornography. There was evidence that he had chat room discussions with girls as young as 13 to 14 years old, and had indicated an interest in establishing a relationship with them. The trial judge granted an absolute discharge. The Crown appealed. Justice Kerr dismissed the Crown appeal, after concluding that the sentence imposed was not contrary to the public interest and was not a marked departure from sentences normally imposed for offences of a similar nature.

[90] In Branco, at para. 46, Justice Stribopoulos noted that courts have “been on a learning curve over the years to understand how pervasive child pornography has become in the era of the Internet and to fully appreciate the pernicious effect it has on its victims”. See also: R. v. D.G.F., 2010 ONCA 27, at para. 21; Inksetter, at para. 25. Given this “learning curve”, as Justice Stribopoulos also noted in Branco at para. 47, the Court of Appeal has “cautioned that early sentencing decisions for child pornography offences ‘must be viewed with some caution’ Inksetter, at para 24.” In my view, the decision in Geller falls into that category.

[91] While I accept that in some cases, the objectives of deterrence and denunciation might be advanced to some extent by a probation order, I am of the view that general deterrence and denunciation (which are the primary sentencing objectives in this case) would not be properly served by a conditional discharge in this case. Having regard to the gravity of the offence and the importance of deterrence and denunciation, the imposition of a conditional discharge would be contrary to the public interest.

Conditional Sentence

[92] I will now turn to the question of whether a conditional sentence would be an appropriate sentence.

[93] As the Supreme Court noted in R. v. Sharma, 2022 SCC 39, at para. 13, under s. 742.1 of the Criminal Code, the following three prerequisites must be met before a conditional sentence can be imposed:

1. the offender was not convicted of one of the offences listed at paras. 742.1(b) through (f) (“exclusionary provisions”);
2. a court would otherwise impose a sentence of less than two years;
3. the safety of the community would not be endangered by the offender serving the sentence in the community.

[94] In this case, I have concluded that the three prerequisites mentioned by the Supreme Court in Sharma at para. 13 have been satisfied.

[95] Before imposing a conditional sentence, a court must also be satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to s. 718.2 of the Criminal Code: See s. 742.1(a) of the Criminal Code; and Sharma, at para. 14.

[96] I will now review some cases which have considered whether or not to impose a conditional sentence for a child pornography offence.

[97] As previously noted, in Doucette, Justice Schreck stated at para. 53:

“Given that denunciation and deterrence are the primary sentencing objectives in child pornography cases, conditional sentences are rare. However, they are not unheard of in exceptional cases.”

[98] In Doucette, Justice Schreck concluded that a conditional sentence was appropriate in that case given the accused’s poor health, the COVID-19 pandemic and the offender’s rehabilitative steps.

[99] In R. v. Rytel, 2019 ONSC 5541, Justice Harris imposed a conditional sentence. In that case, police found 4000 movies and almost 10,000 images of child pornography on the offender’s computer. The Crown sought a jail term of 18 months’ imprisonment. The offender was “profoundly impaired both cognitively and socially.” He had a long psychiatric history. He was diagnosed with schizophrenia. For a seven-year period as an adult, he did not leave his room. Justice Harris found that the offender’s mental illness was a “substantial cause” of his offences. As a result, Justice Harris concluded that the offender’s moral blameworthiness was substantially diminished. Justice Harris also concluded, at para. 57, that, given the offender’s mental health issues, a jail sentence would have “deeply destructive effects” on the offender, “drastically out of proportion to his moral blameworthiness”. Justice Harris noted, at para. 78, that while jail sentences for child pornography will almost always be in the “Inksetter type of range, but there must be exceptions, rare as they may be.” Justice Harris sentenced the offender to a 15-month conditional sentence, followed by probation.

[100] In R. v. Swaby, 2018 BCCA 416, the offender pleaded guilty to possession of child pornography. A conditional sentence was imposed. The offender had 400 videos and 480 images of child pornography, which fell into the category of serious in nature. He had no criminal record. The offender had significant cognitive impairment and was “child-like” in terms of his intellect, causing his moral culpability for the offence to be reduced. He was schizophrenic. He had been diagnosed with major depressive disorder, and had expressed suicidal ideations. There was also psychological opinion evidence that the offender would suffer significant harm from incarceration.

[101] In McCaw, the Ontario Court of Appeal found that the trial judge erred in imposing a conditional sentence. In McCaw, the offender pleaded guilty to one count of child pornography. The offender possessed seven unique child pornography images and three unique videos. He was 46 years old. He had a number of mental health challenges, including obsessive-compulsive disorder and depression. He was socially isolated. He had a related criminal record. He was first convicted of possession of child pornography in 2002 and received a one-year conditional sentence. In 2011, he was convicted of possession and distributing child pornography and received a sentence of two years less a day imprisonment, and three years’ probation. The trial judge imposed a conditional sentence for two years, largely as a result of the offender’s personal challenges, his guilty plea and the gap in his criminal record. The Court of Appeal concluded that in imposing a conditional sentence the trial judge made a number of errors. One of the errors was the trial judge’s failure to properly consider, as required by s 742.1 of the Criminal Code, whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. The Court of Appeal concluded that a conditional sentence in the circumstances of this case was not consistent with the purpose and principles of sentencing, and the trial judge failed to give the appropriate weight to the primary sentencing objectives in a case of this nature – denunciation and general deterrence. The Court of Appeal allowed the Crown appeal and substituted a sentence of three years’ imprisonment.

[102] In Snead, Justice O’Marra concluded that the trial judge erred in imposing a conditional sentence. In that case, the offender pleaded guilty to one count of child pornography. Police found six images of child pornography on the offender’s cell phone. The offender had no prior criminal record. There was evidence that the offender had insight into his actions, was fully engaged in therapy and was very remorseful. He was assessed as having a low risk to re-offend. The trial judge in the Ontario Court of Justice imposed an eight-month conditional sentence, plus 12 months-probation, a SOIRA order and a seven-year order under s. 161. The Crown appealed the sentence. Justice O’Marra concluded that the sentencing judge made a number of errors in law and the sentence that was imposed was demonstrably unfit “as it failed to reflect the well-established need for general deterrence and denunciation for such offences.” Justice O’Marra concluded that there were no circumstances present in that case which justified a conditional sentence. Justice O’Marra allowed the sentence appeal and concluded that the appropriate sentence was 12 months’ imprisonment, but gave the offender credit for serving most of the conditional sentence, and imposed a further four months in jail.

[103] In R. v. Schacter, 2019 ONCJ 154, Justice Chapman rejected a conditional sentence as not “adequately reflecting the principle of denunciation”. In that case, the offender had 148 images, which were at the lower end of the child pornography spectrum. None of the images involved outright nudity. The offender was found guilty after trial, and had shown no remorse. Justice Chapman imposed six months jail plus probation.

[104] In R. v. Dawkins, 2019 ONCJ 820, the offender pleaded guilty to possession of child pornography. The police found evidence of deleted child pornography files on the offender’s work computer. Police also found three images of child pornography on a computer and one child pornography video on a USB located in the offender’s possession. The video showed sexual activity between a young child and an adult. There were file names on the offender’s computer that were indicative of child pornography. Police also found keyword searches indicative of child pornography. The offender was 62 years old. He did not have a criminal record. He expressed remorse for his behaviour and demonstrated some insight. A psychologist concluded that the offender had a low risk of transitioning to contact offences or returning to accessing child pornography. The Crown took the position that the appropriate sentence was 21 months’ imprisonment, and two years’ probation. The defence argued that the appropriate sentence was a conditional sentence, or in the alternative, a 90-day intermittent sentence. Justice Harris concluded that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing. Justice Harris also concluded that an intermittent sentence would not be a fit sentence. In the end, Justice Harris imposed a sentence of nine months’ imprisonment to be followed by probation for three years.

[105] In R. v. Woolf, 2019 ONCJ 376, Justice Pringle rejected a conditional sentence for an offender who pleaded guilty to possession of child pornography. The Crown proceeded summarily. Mr. Woolf was a first offender. His marriage dissolved after he was charged. The offender completed both residential treatment and an additional 59 therapy sessions. The offender expressed remorse. The offender’s psychiatrist concluded that his risk of recidivism was “very low, given his acceptance of responsibility for his actions without attempting to externalize blame onto any other individuals, his active and forthright participation in treatment his lack of antisociality or other personality disturbance, and his impressive community support network.” Justice Pringle concluded that a conditional sentence was not a fit sentence, given the nature of the offence – which involved possession 65 images of child pornography. Justice Pringle imposed a 90 day intermittent sentence. While Justice Pringle found, at para. 30, that the Crown’s position of six months’ imprisonment “easily falls within an appropriate range”, Her Honour concluded that such a sentence “would not give proper effect to mitigating factors which were re-soundly proven”. Justice Pringle summarized the mitigating factors as follows at para. 30:

“In particular, Mr. Woolf’s recognition of the need for outside help, his remarkable progress in therapy, and his guilty plea mandate an exercise of restraint here.”

[106] In R. v. Morrison, 2019 ONCJ 262, Justice Silverstein found that a conditional sentence would not be a fit sentence for a 59-year-old first offender who had 11 unique child pornography images. The offender shared three of the images using Facebook. The offender pleaded guilty and had no criminal record. He was an alcoholic. Justice Silverstein imposed a sentence of 100 days’ jail.

[107] In R. v. Rule, 2023 ONCA 31, the trial judge imposed a sentence of 22 months’ imprisonment for accessing and possessing a “vast collection of child pornography”. The offender appealed the sentence, and argued that the trial judge erred by ruling out a conditional sentence and failing to give appropriate weight to the offender’s health problems. The offender was 70 years old. He had a number of health challenges, some of which had been resolved by the time the appeal was heard. The Court of Appeal concluded that the sentence imposed by the trial judge was fit and saw no basis to alter it.

[108] In R. v. Bellas-Menzie, 2022 ONCJ 444, Justice West concluded that a conditional sentence would not be a proportionate sentence for an offender who pleaded guilty to possession of child pornography. The offender was found to possess 248 unique accessible images and 32 unique accessible child pornography videos. The offender was 33 years old. He had an extensive but unrelated criminal record. He had a “tragic” childhood. At para. 45, Justice West stated that “a conditional sentence, where no exceptional circumstances arise would not be in accordance with the fundamental purpose and principles of sentencing…”. Justice West imposed a six-month custodial sentence to be followed by two years of probation.

[109] In this case, I have concluded that having regard to the gravity of the offence committed by Mr. Treloar and the importance of the objectives of deterrence and denunciation, a conditional sentence would be inconsistent with the fundamental purpose and principles of sentencing.

[110] The circumstances in the case at bar are very different from the cases which I referred to in which conditional sentences were imposed. I see no circumstances in this case which would support the imposition of a conditional sentence.

Intermittent Sentence

[111] Section 732 of the Criminal Code provides that where a court imposes a sentence of imprisonment of 90 days or less on an offender, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order that the sentence be served intermittently at such times as are specified in the order.

[112] In this case, following the sentencing submissions, Crown counsel made inquiries into the availability of appropriate accommodation to ensure compliance with an intermittent sentence.

[113] On December 16, 2022, Crown counsel sent the Court and defence counsel an email which stated, in part, as follows:

“I can confirm that the intermittent centers at TSDC and Maplehurst closed permanently in April 2022 and no new facility will be opening to take on this role. That means that there is no ability to effect any intermittent sentences moving forward. There will only be straight jail time and conditional sentences. Anyone sentenced to an intermittent sentence will be provided with an electronic monitoring bracelet – effectively turning it into a conditional sentence.”

[114] In R. v. Mortensen, 2022 ONCJ 91, Justice Wendl concluded that the inclusion of the phrase “availability of appropriate accommodation” in s. 732 of the Criminal Code was meant to instruct courts not to impose intermittent sentences when they could not be carried out. See also: R. v. Moldovan, 2017 ONCJ 625, at paras. 47-49; and R. v. Gouin, an unreported decision delivered on February 2, 2021, by Justice Maxwell, as she then was, of the Ontario Court of Justice.

[115] I agree with the reasoning in Mortensen, Moldovan and Gouin on this issue. Given the information before the court, there is no basis to conclude that there is appropriate accommodation available to comply with the imposition of an intermittent sentence.

[116] In any event, even if I had been satisfied that there was appropriate accommodation to ensure compliance with an intermittent sentence, I would not have imposed an intermittent sentence. It is my view that, having regard to the gravity of the offence, a sentence of 90 days’ imprisonment or less would not be a proportionate sentence. It is necessary to impose a sentence greater than 90 days’ imprisonment to satisfy the objectives of denunciation and deterrence.

Length of the Term of Imprisonment

[117] As previously stated, the Crown takes the position that the Court should impose the maximum sentence available for a summary conviction matter.

[118] In general, the fact that the Crown elected to proceed by summary conviction may indicate the Crown’s view of the seriousness of the offence and can have an impact on an assessment of the appropriate sentence. See: R. v. Arruda, 2018 ONCJ 680, at para. 38.

[119] In my view, the Crown’s decision to proceed by summary conviction in this case is a relevant consideration in deciding the appropriate sentence and range of sentence.

[120] While maximum sentences are not reserved only for the worst offences committed by the worst offenders, as the Court recognized in R. v. Cheddesingh, 2004 SCC 16, [2004] 1 SCR 433, at para. 1, “a maximum penalty of any kind will by its very nature be imposed only rarely”.

[121] In R. v. Lis, 2020 ONCA 551, at para. 84, the Court concluded that a maximum sentence is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness.

[122] In this case, the offence is clearly serious. I have concluded that Mr. Treloar’s moral blameworthiness in committing this offence is significant. However, I do not see that the gravity of the offence and Mr. Treloar’s moral blameworthiness require the imposition of the maximum available sentence. The fact that Mr. Treloar had no prior criminal record is a relevant factor when deciding whether the Court should impose the maximum sentence.

[123] In determining the appropriate sentence in this case, I have also considered the Court of Appeal’s decision in John. In John, the appellant was found guilty of possession of child pornography. The appellant suffered from serious mental health problems for which he did not receive adequate treatment. He later pursued a course of psychotherapy with a view to dealing with his problems. He was employed and continued his counselling. The appellant was remorseful, and no risk factors were identified that would require additional treatment. The trial judge imposed a sentence of 10 months’ imprisonment. While the Court of Appeal concluded that the mandatory minimum sentence of six months’ imprisonment violated s. 12 of the Charter, the Court dismissed the sentence appeal. The Court concluded that 10 months’ imprisonment was not an unfit sentence.

[124] In John, the Court characterized the size of the appellant’s collection of child pornography (50 unique images and 89 unique videos stored on the appellant’s computer) and nature of the child pornography as “a seriously aggravating factor”: John, at para. 45. Some of the images included children as young as four years old (perhaps younger) subjected to anal and vaginal penetration. The Court described these images, at para. 45, as “terrible abuse of young children”.

[125] At paras. 46-47 of John, the Court concluded that “but for the appellant’s very considerable efforts at rehabilitation, the sentence imposed could have been much higher”.

[126] Finally, the Court in John concluded, at para. 41, that the six-month mandatory minimum was “entirely unnecessary”, and noted that the Court has emphasized the “importance of denunciation and deterrence for any offence involving abuse of a child, and those principles are the primary principles of sentencing applicable for such offences involving child pornography.”

Conclusion

[127] After considering all of the circumstances – including the disturbing nature of some of the images accessed by Mr. Treloar, the uncertainty as to exactly how many images of child pornography Mr. Treloar accessed from November 6, 2019 to November 6, 2020, the significant potential collateral consequences of a custodial sentence to Mr. Treloar and the fact that Mr. Treloar has no prior criminal record – and applying the relevant sentencing principles and objectives, I have concluded that the appropriate sentence is six months’ imprisonment, to be followed by a period of probation of three years.

[128] During the course of the sentencing submissions, I asked counsel whether a court could impose a term – as part of a probation order and/or a s. 161 order – that would authorize a probation officer to inspect an offender’s electronic devices for the purpose of determining whether the offender had complied with terms that limit the offender’s access to the Internet. Counsel followed up with written submissions. Copies of these materials were marked as exhibits on the sentencing hearing. Crown counsel took the position that it would be an error for a court to impose an enforcement condition similar to the one imposed in R. v. Schulz 2018 ONCA 598, as a search that was based on that term would violate an offender’s s. 8 rights. In support of her position, Crown counsel provided the Court with the decisions in R v Yau, 2011 ONSC 720, at paras. 43-45 and R v Smith, 2008 OJ No 4558, at paras. 43-44. I note that in R. v. Dawkins, 2019 ONCJ 820, at para. 135 and R. v. Beierle, 2017 ONSC 5377, at para. 64, courts imposed terms which allowed a probation officer to access the offender’s computer to ensure compliance with other conditions in the order. In this case, Crown counsel also argued that imposing such a condition, “which cannot legally be enforced, gives the Court a false sense of security in permitting the offender to access devices and the Internet under the expectation that their activities will be monitored after the fact”.

[129] The defence took the position that Schultz is authority for the proposition that where (as in this case) the offender consents as part of the sentencing process to allow a search of his devices, the Court may impose the condition as part of probation. In the alternative, defence counsel argued that if a blanket consent to search is incapable of passing constitutional scrutiny, then a narrower consent to allow a review of the devices should be imposed. Finally, the defence argued that if the Court concluded that neither form of authorization to search electronic devices is permitted, then no conditions on the offender’s devices should be imposed, as the conditions are onerous, and it would be impossible to monitor compliance. In support of this position, the defence relied on Yau, at paras. 41-42, in which Justice MacDonnell declined to impose an extensive set of restrictions on the offender accessing the Internet. Justice MacDonnell found that the terms sought by the Crown were excessive. These terms were similar to the terms proposed by the Crown in this case. I note that one of the reasons cited by Justice MacDonnell for refusing to impose the conditions sought by the Crown was that there was no evidence that the Internet played any role in the offender’s acquisition of any of the child pornography. In the case at bar, Mr. Treloar made use of the Internet to access child pornography.

[130] In my view, there is a reasonable argument that a search which relied on the term in question would not be found to violate s. 8 of the Charter. However, having regard to the views expressed by the judges in Yau and Smith, I am not sufficiently convinced that such a term would be found to provide a lawful basis for a search by a probation officer such that I am prepared to include this term in the probation order. Therefore, I will not impose that term.

[131] Given the nature of the offence, the number of times that child pornography was accessed over the Internet and the nature of some of the images, I have concluded that it is appropriate to impose the terms proposed by the Crown which restrict Mr. Treloar’s access to the Internet as part of a probation order and a s. 161 order.

[132] The terms of the probation order are as follows:

• Keep the peace and be of good behaviour;
• Appear before the Court when required to do so by the Court;
• Notify the Court or your probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation;
• Report to a probation officer within two working days following your release, and thereafter when required to do so by your probation officer;
• Live at an address approved of by your probation officer, and not change that address unless you receive the permission of your probation officer in advance;
• Attend, actively participate in, and complete to the satisfaction of your probation officer all assessment, counselling or rehabilitative programs as directed by your probation officer including programs on the topics of child exploitation and child pornography;
• Sign any releases that will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs;
• Not access the Internet except in accordance with the exceptions as set out in the draft order prepared by Crown counsel.
• When accessing the Internet pursuant to the above-mentioned exceptions, you must not: a) save files in an encrypted fashion; b) have TOR, peer to peer, torrent, social media, scrubbing software, Usenet, Freenet or cloud-storage applications installed; c) use any encryption software or security software 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; have any software or service designed to defeat forensic analysis of the internet capable device; have any program or service designed to allow anonymous use of the Internet (e.g. TOR browser); or have any scrubbing software or software that saves files in an encrypted fashion;
• When accessing the Internet pursuant to the above exceptions you must not: a) directly or indirectly access any Peer-to-peer file sharing networks (including but not limited to Shareaza); b) access the Internet using public wi-fi services, internet cafes, or via shared public computers (e.g. computers at a public library); or c) access, view or engage in any online message boards.

[133] Mr. Treloar, you will receive a copy of the probation order and it will be explained to you. You will have to sign it. By signing it, you are acknowledging your understanding of the terms. If you fail or refuse to comply with the terms of the order, you can be arrested, prosecuted, and imprisoned for up to two years.

[134] I also make the following ancillary orders:

• Mr. Treloar must provide a suitable sample of his blood for inclusion in the DNA data base, pursuant to s 487.051(1) of the Criminal Code.
• Mr. Treloar must forfeit all electronic devices seized by the police during this investigation pursuant to s 164.2(1) of the Criminal Code.
• Pursuant to sections 490.012 and 490.013 of the Criminal Code, there will be an order (Form 52) requiring that Mr. Treloar comply with the Sex Offender Information Registry Act for 10 years.

Section 161 Order

[135] I have considered the Crown’s position that an order under s. 161 for 5 years should be imposed.

[136] The conditions proposed by the Crown would, pursuant to s 161(b)(c) and (d), prohibit Mr. Treloar from working or volunteering in a capacity that would involve him being in a position of trust with persons under 16 years of age; would prohibit him from having any contact with a person under 16 years of age (unless he does so under the supervision of a person whom the Court considers appropriate) and would prohibit him from accessing the Internet unless he satisfies the conditions set out in the draft order.

[137] In Schulz, at para. 41, the Court stated that, “the overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence”.

[138] A prohibition order under s. 161 falls within the definition of “sentence” in s. 673 of the Criminal Code. See: R. v. J.B., 2022 ONCA 214, at para. 55.

[139] The statutory regime for imposing s. 161 orders is “highly tailored and discretionary”: R. v. J.D., 2021 ONCA 376, at para. 85; R. v. K.R.J., 2016 SCC 31.

[140] In Schulz, at para. 41, the Court stated as follows:

“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.”

[141] In J.B., at para. 56, the Court stated as follows:

“Related convictions are not prerequisites to an order under s. 161(1). Nor must the offender have committed the offence in the circumstances contemplated by the order. A finding of pedophilia is not necessary either. A sentencing judge need only have an evidentiary basis upon which to conclude that the particular offender poses a serious risk to young children and be satisfied that the terms of the order are reasonable attempt to minimize it…”

[142] In Schulz, the offender was convicted of one count of possession of child pornography. The offender was found in possession of 45 unique images of child pornography and 111 unique videos, which the Court of Appeal described as “a significant amount of child pornography”.

[143] The sentence imposed by the trial judge in Schulz included three years’ probation and a s. 161 order for 10 years. The probation order and the s 161 order included a term limiting the offender’s use of devices to access the Internet or e-mail, which he challenged on appeal. The trial judge declined to impose certain other terms as requested by the Crown (which would have limited where the offender could go, whom he may contact and the type of employment he could undertake).

[144] In deciding not to impose the terms under s. 161(1)(a) to (c), the trial judge in Schulz considered evidence from a psychiatrist that the offender was a low risk for sexual recidivism and the absence of evidence that the offender had contacted or attempted to contact children. The Court of Appeal, at para. 56, concluded that the specific conditions the sentencing judge imposed in the s. 161(1)(d) order were, while strict, “nonetheless carefully responded to the offender’s specific circumstances.” The sentence appeal was dismissed.

[145] In this case, the evidence before the Court supports the conclusion that Mr. Treloar has a low risk of re-offending. There is no evidence that Mr. Treloar contacted or attempted to contact children.

[146] Given the number of child pornography images in Mr. Treloar’s computer, and the disturbing nature of some of those images, it is my view that a s. 161 order for five years is required.

[147] The terms of the order limiting Mr. Treloar’s access to the Internet are set out in the draft order prepared by the Crown.

[148] However, in light of Dr. Bradford’s opinion that Mr. Treloar is at a low risk of reoffending and the absence of evidence that Mr. Treloar has ever attempted to contact children, I am of the view that the conditions suggested by the Crown under s. 161(1)(b) and (c) do not constitute a careful response to Mr. Treloar’s specific circumstances. I will not impose the conditions proposed by the Crown under s. 161(1)(b) or (c). See: Dawkins, at paras. 132 to 140.

NORTH J.

[1] Mr. Treloar was sentenced on March 1, 2023, after I delivered my oral reasons. I should note that I began to deliver my oral reasons for sentence on February 24, 2023. On that day, when it became apparent that I was going to impose a custodial sentence, counsel for Mr. Treloar asked that I not sentence his client that day, so that Mr. Treloar could get his affairs in order. I was advised that one of the things that Mr. Treloar intended to do before he was sentenced was to retire or resign from his job. Mr. Treloar returned to court on March 1, 2023, and I delivered the rest of my oral reasons. I was not advised whether Mr. Treloar retired or resigned from his job.