WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:

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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2023 04 20 Court File Nos.: Pembroke 20-0948

BETWEEN:

HIS MAJESTY THE KING

— AND —

Before Justice J.R. RICHARDSON

Heard on August 22, 2022 Crown submissions filed February 15, 2023 Defence submissions filed February 17, 2023 Crown reply submissions filed March 15, 2023 Reasons for Judgment released on April 20, 2023

Counsel: Caitlin Downing, counsel for the Crown Adrian Cleaver, counsel for the accused

RICHARDSON J.:

Introduction

[1] What is the appropriate sentence for a 38 year old member of the Canadian military who was found in possession of a small amount of Child Pornography who admits to possessing and accessing pornography out of boredom? That is the question I must decide in this case.

Facts

[2] On the 10th August, 2022, AM entered a plea to one count of Possession of Child Pornography contrary to section 163.1 of the Criminal Code.

[3] At the time of his plea, he was self-represented. Subsequent to his plea, he retained Defence Counsel.

[4] The date of the offences was between the 12th of May and the 31st of July 2020.

[5] In May 2000, Detective Pinkerton was on-line using a child protection program when he observed an IP address accessing Child Pornography through a program called Limewire.

[6] He verified that the images being accessed by the user of that IP address was child pornography. He noted a video some 47 minutes and six seconds long which depicted vaginal and anal penetration of a girl.

[7] Detective Pinkerton found the IP address was again accessing Child Pornography in June 2020. This time the video being downloaded was a 35 second video showing a girl having vaginal intercourse with an adult male. The title of the video was “Dad fuck chubby girl 9 a nos”. A nos is Spanish for “years old”.

[8] The officer also noted that the IP address had downloaded another video two minutes and 26 seconds long. This video depicted a man removing the shirt and fondling the breasts and vagina and spreading the “butt cheeks” of a girl between eight and ten years old.

[9] The officer sought a production order for the IP Address and learned that the IP Address serviced a residence in Petawawa, Ontario.

[10] On July 31, 2020, Police executed a search warrant at AM’s residence. He was there with his wife and two year old daughter. He was not arrested or detained. When he found out why Police were there, he did not react. He advised that he had Limewire. He was cautioned and he understood the caution. He asked what would happen if a person was ultimately charged. He said that there might be two or three videos on his computer. At this point he was arrested and cautioned. After being arrested and cautioned, he stated, “Curiosity killed the cat”.

[11] Police seized an Asus laptop and an iPhone. On the laptop they found 18 unique images and five unique videos which meet the definition of Child Pornography. They did not find any Child Pornography on the iPhone. The images and videos were of a similar ilk to what Detective Pinkerton observed by monitoring Limewire prior to the execution of the warrant.

[12] AM was in the habit of regularly erasing material he downloaded. Although there were 18 unique images and five unique videos found on the computer, it is clear that he was downloading much more and, instead of keeping it saved in a collection on his computer, erasing it as he went.

[13] After hearing his plea, I ordered a Pre-Sentence Report and a Sexual Behaviours Assessment.

The Pre Sentence Report

[14] AM has one prior conviction from 2008 in Belleville Ontario for Assault. He is not Indigenous.

[15] His parents separated when he was three years old. After they separated, his mother started a relationship with a new partner who became AM’s stepfather. AM told the Probation Officer that he was became the “black sheep of the family” and was often the target of corporal punishment inflicted by his step-father. He was hit with a wooden spoon or a flyswatter. He was grabbed by the throat and held up against the wall. He was made to sleep on the floor. Although he and his siblings always had a roof over their head, money was tight. His mother was a stay-at-home mother; his step-father was supported by social assistance.

[16] According to his mother, during AM’s childhood, he was something of a loner. He developed behavioural issues when he was six or seven and went for counselling. His behavioural problems were chalked up to the fact that he did not have a relationship with his father.

[17] When AM was 19 he left home and moved in with a friend. His first girlfriend got pregnant and they had a child. His relationship with her was “on and off”. He last saw his son six years ago.

[18] In 2008, AM moved to Kingston and commenced another serious relationship. This is when he was convicted of Assault. He told the author of the Pre-Sentence Report that although he pleaded guilty, he did not commit the offence and he blamed his lawyer for not adequately representing him. He moved back to Belleville and completed his probation without incident.

[19] As I noted above, when the warrant was executed AM was living with his wife and child. He is no longer with his wife and he has not seen the child. He has since taken up with his new partner, who is supporting him through these proceedings.

[20] The author of the Pre-Sentence Report indicates that AM ultimately had six relationships and he has four children all of whom are mothered by different women. No details with respect to some of these relationships were given in the report.

[21] AM completed highschool. He joined the army in 2015, when he was 31 or 32 years of age. Prior to that he worked. He told the author of the report that he had no difficulty obtaining employment and had a good work record. The report does not disclose what places he worked prior to joining the forces.

[22] He is still in the military but believes he will be dishonourably discharged as a result of this offence. [1] He is hoping to set up a lawn care business.

[23] He does not report any difficulty with drugs or alcohol. His new partner confirms this.

[24] He told the author of the report that he was willing to undergo any treatment that the court will deem necessary. He is hoping to avoid incarceration.

[25] He describes himself as a passive person. With respect to his assault conviction, he indicated that he has also been the victim of domestic violence at the hands of his partners but did not elaborate.

[26] He wishes to live a quiet life. He wants to start a homestead, raise farm animals and grow his own food. He is anxious.

[27] The author of the report indicated that he successfully completed probation in 2008/2009. He is a suitable candidate for community supervision.

The Sexual Behaviours Assessment

[28] Dr. Jonathan Gray of the Royal Ottawa Hospital prepared a Sexual Behaviours Assessment of AM.

[29] AM told Dr. Gray that he started using Limewire in order to get access to legal commercial pornography, which he had used a few times a week since his 20s. He stated that in 2018, he clicked on a link and found a video of children engaging in sexual acts. Although this originally shocked him, AM began clicking on other such links and he described himself as “going down a rabbit hole”. He denied being sexually aroused by Child Pornography. AM told Dr. Gray that he would look at Child Pornography about once a week. He stated that he did so out of “boredom” or “curiosity”. He told Dr. Gray “I know curiosity is not a good defence.” He stated that his regular practice was to watch only part of the video and then delete it. His practice was to erase the files from his computer on a daily basis. He did not maintain a collection.

[30] AM denied having a sexual interest in children or attempting to develop a sexual relationship with children. He reported a regular sex life with his partner. He reports feeling awkward around children and stated that he relates better to adults. He denied using alcohol or drugs when he was accessing Child Pornography.

[31] He denied symptoms that would confirm depression or the manic phase of bipolar disorder. He endorses symptoms of generalized anxiety disorder. He does not endorse obsessive or compulsive behaviour.

[32] He denied being subjected to traumatic experiences in the military. Despite a difficult childhood he does not endorse symptoms of trauma. He did not realise that his upbringing was not normal until recently. There is no evidence of psychosis.

[33] There is no known family history of mental health or substance abuse issues.

[34] Other than the counsellor he was referred to as a child, and the Partner Assault Response Program he completed in 2008, he has never participated in any counselling.

[35] His medical history is largely unremarkable. He was asthmatic as a child but appears to have grown out of it. He does have some permanent lung damage as a result of his asthma. He believes he suffered a concussion while playing flag football several years ago. Although he lost consciousness, he did not attend hospital and he does not believe has any long-term symptoms as a result of it.

[36] He repeated largely the same history with respect to his upbringing as was set out in the PSR. He added that he was required to sleep outside once and he had to eat soap. He also complained that he was grounded. Consequently he had little interaction with friends.

[37] AM’s new partner told Dr. Gray that she did not know what AM was charged with until he was arrested (for other offences which were ultimately withdrawn) in her presence. Despite his arrest, she continues to support him. She described him as a person who thinks before he speaks, a good budgeter, methodical in decision-making, a good communicator (with her), a pessimist and a person who has difficulty trusting people.

[38] With respect to his sexual history, AM reported approximately 100 different female partners. He described his six relationships to Dr. Gray. He has attended strip clubs twice but denies enjoying the experience. He has used an escort once but it was not a positive experience and he told Dr. Gray it was a waste of money. He does not buy pornographic media. His source is the internet. He denies erectile dysfunction but noted that it can take between one and two hours for him to ejaculate.

[39] When his hormone levels were tested they were within the normal range.

[40] With respect to the various psychometric instruments, AM was average with respect to aggression, anger and hostility. The only area where he scored high was in verbal anger. The instrument measuring use of alcohol or drugs confirmed his self-report. He had elevated scores on the instrument measuring impulsivity. He did not endorse any of the 38 questions that are statements typically quoted by child molesters in order to rationalize their behaviour. His score on the instrument measuring deception was average, indicating that his self-reports are likely to be accurate.

[41] With respect to phallometric testing, AM’s scores were low. Dr. Gray opined that there is evidence of a sexual preference towards adult females and “no strong evidence” of any sexual interest in pre-pubescent males or females.

[42] With respect to an instrument used to assess risk in Child Pornography Offenders, AM scored two out of seven which is common with about 23% of offenders. 31% of offenders score higher; 46% of offenders score lower.

[43] Although AM does not qualify for use of the STABLE risk assessment tool which measures risk in sex offenders, Dr. Gray noted that five of the 13 STABLE risk items are relevant: impulsivity, cognitive problem-solving, negative emotionality, deviant sexual interests (which Dr. Gray warned must be tempered by the low scores in phallometric testing) and failure to cooperate with supervision terms (which is something AM admits but he has not been convicted of). Dr. Gray also noted that although AM admitted that “he had never turned his mind to the trauma experienced by the child subjects in the illegal material he was viewing”, this is not sufficient lack of remorse or insight to trigger this as a specific dynamic risk factor.

[44] Dr. Gray concluded that AM met the criteria for Generalized Anxiety Disorder as it is defined in the Diagnostic and Statistical Manual, Fifth Edition (hereinafter the “DSM-5”). Despite this, the doctor was not comfortable making that diagnosis because AM did not demonstrate impairment in overall functioning.

[45] Dr. Gray also concluded that a diagnosis of paedophilic disorder is, “despite the nature of his index offences, unclear”. The doctor noted that, on a strict view of the criteria for such a diagnosis in the DSM-5, AM qualifies. Dr. Gray, was hesitant, however, to diagnose based on the lack of any objective evidence that AM was accessing pornography for his sexual gratification or for a “purely sexual motive.” Although phallometric testing is generally accurate, Dr. Gray could not rule out a false negative.

[46] With respect to general risk to recidivate, Dr. Gray opined that AM was likely to violate terms of release. He noted however, that it was likely that such a violation would involve use of the internet for a non-sexual purpose. Dr. Gray opined that AM is less likely to have a release violation that would result in a sexual offence, and in general “very unlikely to commit a contact offence against a child”.

[47] In conclusion, Dr. Gray recommended that AM’s use of the internet be supervised. He also recommended that AM would benefit from “regular sessions with a counsellor to develop better coping mechanisms to deal with anxiety or boredom.” He did not, however, recommend AM for Sexual Behaviours Counselling, given that the literature is clear that low risk offenders do not benefit from such counselling and may instead increase their risk “through exposure to more anti-social peers.”

The Letters of Reference

[48] AM’s mother wrote a letter indicating that AM has always been “a thoughtful, caring well mannered person”. She indicates that since he was charged, AM has opened up more to her. She stated that he has shown remorse and taken responsibility for his actions.

[49] AM’s current partner, SA wrote a letter indicating that AM “has expressed grave regrets about accessing child pornography.” He wishes to continue to seek counselling. She also said that he was thoughtful, caring and well mannered. She is his surety and she reports that since he was released to her, he has abided by his release conditions. She corroborated his plan to start a lawn care business. She also noted that he has started raising laying hens and plans to grow a garden. He hopes to sell his vegetables in a local farmer’s market. They both hope to start a “sustainable homestead”. She told me that if I send him to jail he will be forced to leave the Canadian Forces, which will affect his ability to support his children and her.

The Personal Evaluation Reports

[50] Defence counsel filed AM’s Personnel Evaluation Reports from the Canadian Armed Forces for the period between the 1st of April 2018 and the 30th of August 2022. These reports indicate that apart from these offences, AM is good soldier, who before these offences took place, was identified as someone with leadership potential. He currently holds the rank of Corporal. The most recent reports show that AM has skill in teaching. The reports indicate that his career is essentially “in limbo” because of these charges.

The Counselling Records

[51] Defence counsel also filed a list of counselling appointments that AM has attended since these charges arose. Unfortunately, as is often the case with members of the Canadian Forces, there is no report from a counsellor with respect to AM’s progress in counselling.

The Crown’s Position

[52] The Crown seeks 15 months custody, three years probation, an order for the taking of AM’s DNA, an Order requiring him to register for the Sexual Offender Information Registration Act for twenty years and a section 161 order for ten years. The Crown states that denunciation and deterrence are the primary objectives in sentencing offenders such as AM. Crown counsel submits that elevation of other sentencing principles to stand on equal footing or to give them priority over denunciation and deterrence, is an error.

[53] The Crown argued that the size of AM’s collection must be tempered by the fact that he was in the regular habit of deleting material which is indicative of use of a higher volume of child pornography than what the numbers might suggest.

The Defence Position

[54] Defence counsel submits that a conditional sentence of two years less one day, to be followed by two to three years of probation is appropriate. Defence asks me not to impose the full panoply of section 161 terms because AM did not commit a “hands on” offence. Defence counsel states that the Crown has failed to take into account the following mitigating factors:

a) plea of guilty, b) absence of a prior related record, c) efforts at rehabilitation, d) expression of remorse and shame, e) assessment as a low risk to re-offend, f) prior success while on community supervision, and g) the presence of a positive PSR that indicates that the Offender is a good candidate for community supervision;

[55] Defence counsel argues that the prior record is now some 15 years old and is hardly an aggravating factor. Defence maintains that although the breaches are aggravating, they do not involve a breach for the purpose of accessing child pornography.

Analysis

What is the Appropriate Range of Sentence and the Impact of the Supreme Court of Canada’s Decision in Friesen?

[56] The sentencing range applicable in this case is between six and eighteen months in custody [2]. In my view, the decision of the Supreme Court of Canada in R. v. Friesen, works to confirm this range.

[57] In R. v. Lacasse, the Supreme Court of Canada allowed for some elasticity in the outer limits of sentencing ranges in order to meet the individualized nature of the sentencing exercise. This elasticity is appropriate so long as the sentence remains in tune with the cardinal principal in sentencing: proportionality. A sentence must reflect the gravity of the offence and the degree of moral responsibility of the accused. [3] Thus where appellate courts have established the appropriate range or starting point for a sentence, a trial court may go above that range where proportionality warrants it; conversely, a trial court may also go below that range if there are exceptional circumstances that make such a sentence proportional notwithstanding that it is below the range.

[58] This principle of sentencing law survives intact, despite the Supreme Court of Canada’s later call for higher sentences in cases of sexual offences against children in R. v. Friesen [4]. Among other things, Friesen stands for the proposition that, generally speaking, the sentences imposed for offences involving the sexual exploitation of children did not adequately address the significant harm that is caused by these offences and thus are obsolete in that they are out of touch with the principle of proportionality. In Friesen, the Supreme Court of Canada also declined the invitation to set new sentencing ranges or starting points, preferring to leave that task to provincial appellate courts.

[59] Friesen makes it clear that the court is not free to ignore repeated calls from Parliament for tougher sentencing in cases of sexual exploitation of children, nor is it free to ignore Section 718.01 of the Criminal Code which requires the court to give primary consideration to general and specific deterrence in cases involving the abuse of a person under 18 years of age. Finally, Friesen dictates that these principles apply in all cases involving sexual exploitation of children, including luring offences where there is no actual harm caused to a child because the offender is chatting on-line with a police officer who is posing as a child, and child pornography cases. [5] The decision in Friesen was ground-breaking.

[60] As evidenced by the decision in R. v. Inksetter [6], however, the Court of Appeal for Ontario was already in line with much of this thinking in the area of child pornography offences before Friesen was decided. In Inksetter the accused pleaded guilty to possession and making available. He was in possession of over 28,000 images and over 1100 videos. 95% of the collection involved the penetration of children or some other form of sexual violation of children. Some images involved bondage and beastiality. He had no record and was found to be at a low risk of reoffence. He was remorseful and said to show insight. The trial judge imposed two years less a day custody and three years probation. The Court of Appeal increased the sentence to three years on the possession charge and three and a half years concurrent on the make available charge.

[61] R. v. John is another case where, before Friesen, the Court of Appeal demonstrated a denunciatory approach that must be taken to Child Pornography cases. In John, the Court of Appeal struck down the mandatory minimum sentence (of six months) for possession of child pornography on the basis that there were cases for which such a sentence would be grossly disproportionate. Despite this finding, the Court upheld the trial judge’s decision to sentence the offender to ten months in custody even though he was a 31 year old first time offender who suffered from serious mental health problems, remorseful and a low risk to reoffend. [7]

[62] Sentencing cases in the two to three year range involve offenders vast collections of pornography, such as Inksetter, or cases where the offenders are repeat offenders. For example, in R. v. McCaw [8], the Court of Appeal for Ontario substituted a three year penitentiary sentence for the two year conditional sentence imposed by the trial judge in the case of a three time child pornography offender, even though his collection involved only seven images.

Is a Conditional Sentence Appropriate for AM?

[63] Thus, in the case before me, AM might be eligible for a conditional sentence because the sentence under consideration involves a sentence of less than two years. There is no statutory bar to a conditional sentence in this case: see section 742.1(b) through (f) of the Criminal Code. However, I must be satisfied that such a sentence could not endanger the safety of the community and would not be inconsistent with the fundamental purpose and principles of sentencing in section 718 to 718.2 of the Criminal Code.

[64] Recent decisions demonstrate that the Court of Appeal for Ontario continues to consistently hold that denunciation and deterrence are the primary sentencing principles in cases involving child pornography [9]. A Conditional Sentence can only be imposed if there are some exceptional circumstances such that render a carceral sentence inappropriate. [10]

[65] In R. v. Rule, the 70 year old offender’s health problems did not constitute exceptional circumstances because there was no evidence that these problems could not be treated in a custodial institution. In this case, the offender had a sizeable collection of Child Pornography – over 22,000 images and over 200 videos – which the trial judge described as “disgusting and heartbreaking”. The Court of Appeal upheld a 22 month sentence.

[66] In R. v. McCaw, the offender had serious mental health problems including Asperger’s Syndrome, Agoraphobia, Obsessive-Compulsive Disorder and Depression. He had two previous convictions for which he received a conditional sentence and a two-year penitentiary sentence. On his third conviction, he was in possession of seven images and three videos which showed children engaging in sexual acts with adults. He used child pornography to cope with loneliness. The trial judge imposed a two-year conditional sentence. On appeal, the Court of Appeal found that the sentence imposed by the trial judge was “manifestly unfit” and substituted a three-year penitentiary sentence.

[67] In R. v. MM, the trial judge sentenced the accused to fifteen months conditional. The accused was 31. The complainant was 15. She sent him images of her breasts which he admitted to possessing. He sent her images of his penis. They agreed that when she turned 16, they would meet and have sex. She was the foster daughter of his aunt. The Court of Appeal found that the trial judge was in error and a 15 month carceral sentence would have been appropriate. The Court reasoned:

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.

The sentencing judge failed to give effect to several aggravating factors, and in particular to the appellant’s breach of trust. As the Supreme Court explained in R. v. Friesen, a breach of trust is likely to increase the harm to the victim and the gravity of the offence: at paras. 125-26. It is a significant aggravating factor, but the sentencing judge mentioned it only in passing. At the same time, some of the sentencing judge’s remarks suggest that he minimized the nature of the appellant’s offending. For example, he stated that the photos and videos of the complainant “couldn’t be less sinister, and still be child pornography”.

Of course, as with any offence, there is a spectrum of offences involving child pornography. But it is not a mitigating circumstance that the photos and video sent to the appellant did not depict acts perpetrated against infants and very young children, nor is it a mitigating circumstance that the appellant was not trolling the internet in search of child pornography. Although the child pornography was sent to the appellant unsolicited, it was plain that the appellant had been grooming the complainant – a child in foster care who was especially vulnerable as a result. [11]

[68] In R. v. Walker, the trial judge sentenced the accused to three years for Making Pornography Available and two years for Possession. The trial judge found that the accused lacked insight into his offending behaviour which ran counter to the evidence that he was at a low risk to re-offend. The trial judge also focused on the nature of the child pornography which included digital and penile penetration, penetration with objects, fellatio and aggression perpetrated against pre-pubescent children and toddlers. In upholding the trial judge’s decision, the Court of Appeal stated:

Further, the appellant’s submissions on the size of the collection of materials in his possession as compared to the materials held by other defendants in past cases is unpersuasive. Sentencing for child pornography offences is not done by means of a strict mathematical formula tied solely to the quantity of pornographic materials without regard to other factors. Such an approach overlooks the importance of the content of the materials and other relevant considerations. The trial judge focused on the egregiousness of the materials in the appellant’s possession, and this was a significant factor in her sentencing decision. We see no error in that analysis. [12]

[69] In R. v. Crump [13] Justice De Filippis recently sentenced an accused to six months in jail where he was in possession of 147 accessible images and 57 inaccessible images of child pornography. There was one image of a child with her chin resting on an adult male’s penis. There are some images of girls kissing or masturbating. The rest of the images were girls in provocative poses. The accused was 31 years of age and had no prior record. There was a Charter breach that resulted in the accused’s statements to police being excluded but it did not result in the exclusion of other evidence. The accused lived with his parents and had strong family support. Four years had elapsed between arrest and sentencing. He had been on very strict bail throughout that time. He completed approximately thirty sessions of counselling.

[70] Justice North recently conducted an exhaustive review of the Ontario sentencing jurisprudence in R. v. Treloar [14]. In this case, the Crown proceeded summarily. Police located 2500 images on the accused’s computer. The images included children engaged in sexual activity with each other, with adults, bondage and bestiality. Justice North was not able to find exactly how many of the 2500 images were accessed during the period framed by the offence dates. The accused was a 60 year old Toronto Deputy Fire Chief. He had no record. Dr. Bradford assessed him as mildly autistic. He found that the accused had a very low risk of reoffence for accessing child pornography and virtually no risk for a contact offence against a child. It was also clear that if a custodial sentence were imposed, the accused would lose his job which would have far-reaching consequences, not only on him but on those who rely on him for support.

[71] Justice North concluded that the loss of employment was a collateral factor in sentencing. It must be taken into account but it cannot be given undue weight. Justice North ultimately imposed a sentence of six months custody and three years probation.

[72] In R. v. Shokouh [15], Justice Monahan of the Superior Court of Justice sentenced the accused to twelve months custody and three years probation on charges of Accessing, Possessing and Making Available Child Pornography. The pornography found in his possession included seven images and three videos of nude young girls in sexual poses with their vaginas exposed, performing fellatio or being penetrated by an adult penis. There was also an image of two naked young girls in a shower with an adult female. One of the girls was bound and gagged. The accused also participated in chats in which he uploaded nine images of pornography. The accused was 19 years of age. He was a University of Toronto student in computer science. He had no record. The PSR was positive. He was assessed as having a low risk of reoffence.

[73] Defence counsel provided me with a wonderfully succinct summary of cases decided after Friesen and Inksetter in which sentencing judges have given Conditional Sentences for offences similar to AM’s. The Defence catalog includes R. v. Jongsma [16], R. v. Cusick [17], R. v. SB [18], R. v. Prendivoj [19], R. v. Ereault [20], and R. v. Dutchession [21].

[74] In R. v. Jongsma [22], Justice Ducharme sentenced a 39 year old offender to a one year conditional sentence and three years probation for possession of 24 videos. The accused suffered from sexual abuse as a child which caused “far reaching and ongoing harm” to the accused including drug abuse, sexual promiscuity and significant mental health issues. Citing Friesen, Justice Ducharme indicated that despite the fact that “…more recently, the courts have expressed a greater reluctance to impose conditional sentences in child pornography cases… in rare cases this has been done… [where] the person being sentenced is suffering from a mental illness or intellectual deficit.”

[75] Justice Latimer sentenced an Indigenous man found in possession of over 40,000 images and 600 videos of child pornography to a two year less one day conditional sentence in the case of R. v. SB. Much of the case turned on the application of the principles in R. v. Gladue to the case. At paragraphs 25 and 26, Justice Latimer wrote:

I cannot ignore the reality that S.B.’s present circumstances are the product of a legacy of childhood sexual and physical abuse – both against him and against his father. Abuses committed by family members, family friends and – in the circumstances of the atrocities his father suffered at the provincially run school – by the state. S.B. has failed the exploited children whose images he possessed, but our society failed him first. Failed to protect him from intergenerational trauma. Failed to protect him from child sexual abuse.

This amalgam of failures demands a proportionate sentence. The offence itself requires jail. The offender’s reduced moral blameworthiness, and present circumstances, justify an adaptive approach to custody. Put plainly, I choose not to risk his present rehabilitative gains by placing him into a provincial reformatory. I am of the view that a conditional sentence of maximum length, coupled with restrictive terms and culturally appropriate rehabilitative options, presents the best path forward for S.B. and for our community. I am satisfied that a conditional sentence is both statutorily available and would not imperil public safety. While this sentence falls outside the typical current range for this offence, S.B. is not the typical offender. I believe the present facts fall within the narrow range of “exceptional circumstances” identified by the Court of Appeal in R. v. MM.

[76] In R. v. Prendivoj [23], Justice K. Mcleod sentenced a 45 year old paranoid schizophrenic found in possession of 20 videos and four images to a six month conditional sentence. Justice McLeod found that the accused had resorted to child pornography during a relapse in taking his medication for his schizophrenia. His schizophrenia was described as being of “moderate severity and not fully controlled” [24] She found that there was a causal link between his mental illness and the commission of the offence which worked to mitigate his sentence. She wrote:

The principles and objectives of sentencing allow for flexibility dependent on the circumstances, that flexibility must allow for a “just” sentence for each offender. The principles of sentencing including, those of restraint do not dictate that a sentence of real jail is the only appropriate sentence for this offence and a man such as Mr. Prendivoj who is seriously mentally ill, whose illness was obviously particularly florid upon his admission to jail - an indication that his medication was either non-existent or no longer effective - who is a first offender who has pleaded guilty.

This man is not a complicated man: he leads a simple life supported by a small group of family and community, he is stable but not in remission and not able to function like a normal person - he has no job, no social life, he cannot keep his home clean, he does not cook and is reliant on an elderly father and his brother for much.

Proportionality requires that his man be allowed to remain in the community, with stipulations of state monitoring and assistance. [24] [Emphasis K. McLeod, J.’s]

[77] While AM suffered from physical abuse as a child, he is not an offender on the same plane as Mr. Jongsma or S.B. He does not suffer from serious mental illness that has a causal connection to his offending like Mr. Prendivoj.

[78] Justice P. O’Marra sentenced a 59 year old offender who suffered from grief, depression, suicidal ideation, and serious health issues including Type 2 Diabetes and Hypertension to a six month conditional sentence in R. v. Cusick [25]. As a result of the commission of the offence, the accused lost his job with the Commissionaires. There was a ten month delay in sentencing. The accused entered an early guilty plea. There were also Charter breaches which Justice O’Marra indicated assisted him “in deciding to impose a conditional sentence” [26]. Although Justice O’Marra had the benefit of R. v. MM, he determined that a six month conditional sentence was warranted “[i]n the unique circumstances of this case”.

[79] In contrast, in AM’s case, AM does not have serious physical health issues, nor are there any Charter breaches that work to mitigate the sentence. Although AM is likely to lose his job, this is not an unusual or unique, let alone an exceptional circumstance. It must be taken into a consideration as a collateral factor, but like other collateral factors, it cannot work to make a fit sentence unfit.

[80] In R. v. Ereault and R. v. Dutchession, Justice A. McLeod dealt with two offenders who, like AM, were both members of the Canadian Military and were found in possession of Child Pornography. In Mr. Ereault’s case, he possessed 152 images of child pornography. Mr. Dutchession had a much more significant collection: 7537 images.

[81] Mr. Ereault was 34 years of age. He had been in the military since he was 17. He participated in tours of duty in Latvia and in combat in Afghanistan. He was terminated from the military as a result of being convicted. He was the victim of childhood sexual abuse. He pleaded guilty. Justice McLeod noted that he “struggles with the after-effects of having served in a combat zone, having been exposed to the horrors of war.” [27] Justice McLeod sentenced him to 270 days conditional and two years probation. She noted that he presented “unique circumstances” which “lead to a finding that this is an extremely rare case and that a conditional sentence is appropriate and can meet the sentencing principles.” [28]

[82] Mr. Dutchession was 51 years of age. He had been in the military since he was sixteen years old. He served in combat zones in Bosnia twice and Afghanistan once. He was also terminated from the military as a result of being convicted. He suffered from major depression and post-traumatic stress as a result of his service. He became addicted to alcohol. In making findings largely identical to her decision in Ereault, Justice McLeod sentenced the accused to two years less a day and 24 months probation.

[83] In contrast to both these cases, although AM has served in the military, and showed significant promise in that career, there is no evidence that he was exposed to combat or suffered any trauma as a result of his service. In my view, this distinguishes his case from both Ereault and Dutchession.

Summary of Aggravating, Mitigating and Collateral Factors

[84] AM has entered a plea of guilt. The plea was entered on the first day set for trial. Given that AM was not represented, I do not hold the late nature of plea against him. This is a mitigating factor.

[85] AM will lose his job in the Canadian Military if he is incarcerated. This is a collateral factor that must be taken into consideration. That said, AM’s history of employment is such that he does not seem to have difficulty finding employment.

[86] AM suffers from Generalized Anxiety Disorder. I find that this is a probably as a result of the predicament he finds himself in. There is no evidence of any causal connection between his military service and his mental health issues. This is likely a collateral factor.

[87] AM is at a low risk to reoffend by accessing Child Pornography. There is virtually no risk that he will engage in a contact offence against a child. These are mitigating factors.

[88] On the other hand, AM has admitted to breaching the terms of his release by using a computer, albeit not for a nefarious purpose. Dr. Gray believes that he is likely to violate a conditional sentence, probation or a 161 order through use of a computer. This is an aggravating factor that works against the imposition of a conditional sentence.

[89] AM has a prior record with a conviction for a domestic assault. This conviction is so dated that it is more of a neutral factor. This neutrality is aggravated somewhat, however, by AM’s suggestion to the author of the pre-sentence report that he pleaded guilty even though he did not commit the offence and he blames his lawyer for not adequately representing him.

[90] AM suffered physical abuse as a child. However, there appears to be no evidence of a causal connection between these experiences and his criminality. Given what we know about Adverse Childhood Experiences and their effects on mental and physical health in adulthood [29], I would be surprised if there was not some connection, however, remote it may be. This is a mitigating factor.

[91] I have difficulty with the issue of insight. AM told Dr. Gray that he never considered the impact of what he was watching on the children who were victimized. Dr. Gray would not go so far as to say that this represents a deficit with insight. However, it does not demonstrate that AM has insight. This leads me to question whether AM continues to pose a danger to the community even though he is at a low risk to reoffend.

[92] Likewise, I have difficulty with the seemingly incomprehensible admission that he was watching deprave Child Pornography out of boredom and curiosity. Although there was a mild stimulus to children in the phallometric testing, Dr. Gray was not prepared to diagnose pedophilia. This also leads me to question whether AM continues to pose a danger to the community even though he is at a low risk to reoffend.

[93] AM does not have any difficulties with substance abuse. This is a neutral factor.

[94] AM has strong family support from his partner and his mother. This is a mitigating factor.

[95] AM is in good physical health despite a history of asthma and possible lung damage, and the probability that he suffered a concussion earlier in life. This is a neutral factor.

[96] AM’s collection of Child Pornography was quite small. This is somewhat aggravated by the fact that he was in the practice of watching and erasing the Child Pornography which he accessed which is indicative of a much larger problem than the actual count of videos and images would otherwise indicate.

[97] Although his collection is small, AM accessed and possessed child pornography of such a nature that is shocking, deprave and disgusting. As Justice O’Donnell wrote in R. v. Cayabyab [30]:

Child pornography is an unspeakable crime of sexual violence against children, clearly among society's most vulnerable members and among those most in need of protection. It is an affront to the most fundamental ideas of human decency. It is evil and odious and repugnant. It does real and profound and enduring harm to countless victims and, in the internet age, leaves each victim to deal with the near certainty that, even if they are freed from physical danger by the authorities, their suffering will be broadcast on the internet in perpetuity. Every user is responsible for the victimization of defenceless children.

Conclusion

[98] In the final analysis, I find nothing in AM’s case that takes it into that unique, rare or exceptional category of cases for which a sentence outside of the normal custodial range can be imposed. In my view, having regard to the principles of denunciation and general deterrence, which are of primary importance in cases of this nature, a Conditional Sentence is not appropriate in AM’s case.

[99] I therefore impose a sentence of nine months in the reformatory.

[100] I impose an eighteen month Probation Order. The purpose of the Probation Order will be to ensure that AM has the counselling resources of the state available to him to assist in his transition from custody and to assist him with his transition out of the military and into civilian life as it is anticipated that he will be discharged from the military. The Probation Order will also contain terms designed to ensure that his use of the internet is supervised.

[101] There will be the Order for the taking of his DNA.

[102] There will be a section 161 Order to ensure that he is supervised with respect to his use of the internet and contact with persons under the age of 16 years, other than incidental contact. Given that he is at an extremely low risk of a contact offence with respect to a child, I decline to make an Order prohibiting him from attending at parks and playgrounds.

[103] There will also be an Order requiring him to register for the Sexual Offence Information Registration Act for a period of twenty years.

[104] There will also be an Order of forfeiture with respect to the items seized which contained child pornography.

Released: April 20, 2023 Signed: Justice J.R. RICHARDSON

[1] After this judgment was rendered Defence counsel advised that AM had been dishonourably discharged.

[2] R. v Kwok 2007 ONSCJ 2942; R. v. Snead 2021 ONSC 7017 at paragraph 50

[3] R. v. Lacasse 2015 SCC 54. See in particular, paragraph 58. See also R. v. Pham, 2013 SCC 15, [2013] 1 SCR 739 at paragraph 9.

[4] R. v. Friesen 2020 SCC 9. See in particular, paragraphs 38 and 91-92.

[5] R. v. Friesen, supra, footnote 2.

[6] R. v. Inksetter 2018 ONCA 474. See, in particular, paragraphs 21 to 27.

[7] R. v. John 2018 ONCA 702.

[8] R. v. McCaw 2023 ONCA 8

[9] R. v. Rule 2023 ONCA 31; R. v. McCaw 2023 ONCA 8.