Ontario Court of Justice
Date: 2023 05 04 Court File No.: Brampton 20-8100
Between:
HIS MAJESTY THE KING
— AND —
BRIAN TCHEONG
Before: Justice Paul F. Monahan
Reasons for Judgment released on May 4, 2023
Counsel: J. Ostapiw, for the Crown D. Pledge, for the accused Brian Tcheong
MONAHAN J.:
Introduction
[1] In February 2022, Brian Tcheong pled guilty before me to one count of possession of child pornography contrary to section 163.1(4)(a) of the Criminal Code. Sentencing has been delayed due to, among other things, a change of defence counsel after the plea and a defence request for a second psychiatric medical report while sentencing submissions were already underway.
Circumstances of the Offence
[2] After the execution of a search warrant in September 2020, the police found a total of 350 images and 14 videos of child pornography on two of Mr. Tcheong’s computer devices. The videos have a total running time of two hours and 36 minutes. Mr. Tcheong acknowledged by his plea of guilt that he was in possession of the child pornography found on these two devices.
[3] The content of the child pornography material depicts children from about age 5 up to age 12 to 13 years old, mostly females. They are engaged in sexual acts with other child victims and adults. These sexual acts include oral sex, as well as vaginal and anal intercourse. There were many other images and videos which were “age difficult” meaning they could not be said to be child pornography but nonetheless demonstrate the defendant’s interest in young females.
[4] I have not reviewed the child pornography myself. I have read a detailed description of a sampling of the child pornography and I am satisfied that I am in a position to properly pass sentence in this case without having viewed the child pornography myself. Neither counsel has suggested otherwise or requested that I review the actual child pornography.
Evidence
[5] In addition to the facts admitted at the time of the plea, the following documents were marked as exhibits on the sentencing:
(a) A community impact statement from a group of survivors of child abuse; (b) A report from statistics Canada dated May 12, 2022 into online child sexual exploitation; (c) a report on the images and videos found on Mr. Tcheong’s computer devices; (d) a report dated June 22, 2022 from Dr. Laeticia Eid, a psychiatrist at the Centre for Addiction and Mental Health in Toronto; (e) a report of Ming Che Yeh, a psychologist, dated November 30, 2022; (f) a letter from St. Joseph’s Healthcare in Hamilton dated December 15, 2022 confirming the completion of counselling in 2021; (g) a report from psychiatrist Dr. Julian Goger dated March 13, 2023; and (h) a report of Caroline Kerjikian, a social worker, dated March 13, 2023.
Position of the Parties
[6] The main question on this sentencing is whether institutional jail is required, as the Crown submits, or whether the defendant should be permitted to serve his sentence in the community pursuant to a conditional sentence order (“CSO”), as the defence submits.
[7] The Crown seeks 15 months institutional custody, 3 years probation, a DNA order, a SOIRA order, a s. 161 order and a forfeiture order.
[8] The defence seeks a two-year less a day CSO and takes no issue with the other ancillary orders sought by the Crown although I am not aware if the content of the ancillary orders has been agreed to.
Victim Impact
[9] I agree with the Crown that the crime committed by Mr. Tcheong was not a victimless crime. While the specific victims in the child pornography possessed by Mr. Tcheong cannot be identified, the demand for child pornography by people like Mr. Tcheong causes child pornography to be made. As the Ontario Court of Appeal said in R. v. Inksetter 2018 ONCA 161 the possession of child pornography is a form of child abuse and is a pervasive social problem. Parliament’s initiatives to increase sentences in child pornography cases, even if unconstitutional, demonstrate a genuine concern by Parliament on behalf of Canadians that the possession of child pornography is an evil crime that must be addressed in the strongest possible terms by the courts.
Circumstances of the offender
[10] Mr. Tcheong was born in January 1986. He came to Canada in 1998 having lived in the Philippines all his life. He is currently 37 years old. He lives with his parents. He has never had a romantic relationship.
[11] Dr. Eid reviewed a psychoeducational report from June 2000 (23 years ago) when Mr. Tcheong was 14 years old and in grade 8. The evidence disclosed that Mr. Tcheong had struggled academically although he was described as a conscientious worker with a positive attitude. He was described by a psychologist in the Philippines at around this time (2000) as being cognitively delayed by about three years. His intellectual “disability” (sic) was said to be below average.
[12] Dr. Eid diagnosed Mr. Tcheong as follows: other-specified obsessive-compulsive and related disorder (“OCD”); mild intellectual disability; and pedophilic disorder. Dr. Eid also noted the record from St. Joseph’s Hospital in Hamilton where Mr. Tcheong attended after he was arrested provided that Mr. Tcheong had self reported that he had an issue with “hoarding”.
[13] Dr. Eid oversaw phallometric testing which was inconclusive.
[14] Dr. Eid noted that Mr. Tcheong describes spending no more than one hour per day on his obsessions and compulsions (and suggested it could be only 20 to 25 minutes per day). He did not describe spending more than 1 hour per day on obsessions and compulsions nor did he describe experiencing substantial functional impairment which are two requirements for a formal diagnosis of OCD. He did describe significant OCD related symptoms. This led Dr. Eid to diagnose him with other-specified obsessive-compulsive and related disorder.
[15] Notwithstanding Mr. Tcheong’s limitations he went on to graduate from high school although he was delayed by one year and then he completed a two-year diploma program at a community college. He has been gainfully employed for the past 19 years. At the time of the plea in February 2022, he was working as an assistant manager at a location of a major pharmacy chain. He was supervising six or seven people. He is described by his family as hard-working and well-liked as an employee. He now works as the head cashier at a nursery.
[16] Mr. Tcheong claimed to Dr. Eid that his OCD and related disorder caused him to collect child pornography. He denied having a sexual interest in children. He gave a range of explanations to Dr. Eid for why he had child pornography on his devices ranging from suggesting he was “hacked”; to denying an interest in child pornography and then later ultimately admitting that he had some erotic interest in children.
[17] Dr. Eid did not say anywhere in her report that the OCD related disorder led to Mr. Tcheong possessing the child pornography notwithstanding Mr. Tcheong’s claim in this regard. The Crown spoke to Dr. Eid and, on consent, advised the court (in the absence of cross-examination) that Dr. Eid had said to the Crown that it was possible the child pornography possession could be in part related to the OCD but it did not explain it. It was more important that he had an interest in the child pornography.
[18] Dr. Eid said that Mr. Tcheong’s risk of offending was low when compared to other sexual offenders. He said that the risk of direct hands-on abuse of a child, like others who possess child pornography, was low. She said that the fact that he has a pedophilic disorder is a risk factor for re-offence.
[19] Dr. Gojer adopted some of Dr. Eid’s conclusions but not all of them. He said that Mr. Tcheong had an intellectual ability ranging from average to below average. He said that his style of communicating was “concrete” and he needed clarifications and explanations. He said there was no thought disorder, delusions or bizarre thoughts.
[20] Dr. Gojer was of the view that Mr. Tcheong clearly suffered from obsessive-compulsive disorder and a hoarding disorder. He said that his “collection of items and pornography was impacted on by this tendency to hoard. Mr. Tcheong’s hoarding and use of pornography was also impacted on by his relative isolation and boredom during the pandemic.” Dr. Gojer also expressed the view that Mr. Tcheong suffered from “features of an autism spectrum disorder”. He said that there is “overlap here with his mild intellectual delay. On the other hand, he is able to have developed a sufficient intellectual capacity to understand the moral wrongfulness of his actions and to express remorse”.
[21] Dr. Gojer seems to suggest that perhaps Mr. Tcheong is not a pedophile and said this is a matter of “academic debate.” Dr. Gojer does acknowledge that Mr. Tcheong has an erotic interest in children. Dr. Gojer says that Mr. Tcheong “needs counselling for a variety of disorders which have contributed to and culminated in him accessing and retaining child pornography. This behaviour has to be contextualized and understood in light of his overprotective parents, his intellectual limitations, his limited ability to interact socially and his autism spectrum disorder.”
LAW
Mandatory Minimum Sentence - Constitutionality
[22] Prior to July 2015 the mandatory minimum for possession of child pornography when the Crown proceeded by indictment was six months in jail. In The Queen v. John 2018 ONCA 702 the Ontario Court of Appeal held that that mandatory minimum was unconstitutional as contrary to section 12 of the Charter. Effective July 2015 this same mandatory minimum was increased to one year. At least one Superior Court judge has, relying upon John, ruled that the one year mandatory minimum is also unconstitutional (see The Queen v. Walker 2021 ONSC 867 (per Justice Fowler Byrne).
[23] I agree with and adopt as correct the decision of Justice Fowler Byrne in Walker that the one year mandatory minimum for a violation of section 163.1 (4) is unconstitutional as contrary to section 12 of the Charter. I understood this point to be one where the Crown and defence agreed.
Sentencing in Child Pornography Cases
[24] Denunciation and deterrence are of the primary principles of sentencing in child abuse cases including child pornography cases: see Inksetter at para 16.
[25] Similarly, the Supreme Court of Canada has made it clear in R. v. Friesen 2020 SCC 9, that sentences in child abuse cases have been too low for too long and must increase. It is a clear that this includes possession of child pornography cases.
[26] Justice Molloy in R. v. Kwok at para 7 summarized the aggravating and mitigating factors in child pornography cases as follows:
(i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet. Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).
[27] Generally speaking, the range of sentence in possession of child pornography is 90 days of the low-end with 3.5 years at the upper end: see R. v. Branco 2019 ONSC 3591 at para 101 (per Justice Stribopoulos).
[28] I will review some of the child pornography sentencing cases. It must be kept in mind that some of the cases I have considered are pre-Friesen which was released on April 2, 2020.
Ontario Court of Appeal Child Pornography Cases
[29] I begin my review of the law by looking at Ontario Court of Appeal cases. One of the key cases for the issue I have to decide in the case before me namely institutional custody versus a CSO is addressed in R. v. M.M. 2022 ONCA 441. In that case, the Court of Appeal heard an appeal involving a defendant who had received sexual images of a 12-year-old girl who was the vulnerable foster child of the aunt of the defendant. After a trial, the trial judge imposed a 15 month conditional sentence for possession of child pornography. The Court of Appeal stated that conditional sentences for sexual offences against children will only be appropriate in exceptional cases. The Court stated that a conditional sentence should not have been imposed and that a 15 month jail sentence would have been the appropriate sentence. The court did not actually impose that sentence because the 12 month conditional sentence had already been served.
[30] In Inksetter, the Court of Appeal dealt with a case involving possession of child pornography and making child pornography available. The 51-year-old first-time offender had one of the largest and most serious collections of child pornography. The trial court placed the collection at the “extreme end of the spectrum”. There were some 28,000 unique images and another 1144 unique videos. When the police halted their investigation there was another 1.2 million images and 40,000 videos left to review and categorize. The child pornography was made available to others through a shared folder on the defendant’s computer. The trial judge had imposed a sentence of two years less a day. The Court of Appeal increased the sentence to three years for possession of the child pornography and 3.5 years for making available child pornography with the sentences being concurrent to one another.
[31] In R. v. Brown, 2022 ONCA 516, the defendant was found guilty, after a trial, of possessing, accessing and making available child pornography. There were some 500 files including both images and videos. The trial judge imposed a three year sentence but mistakenly thought there were 2500 files. The Court of Appeal upheld the three year sentence stating that even though the collection was 500 files this was still a “very large” collection, and the nature of the collection was described as “severe”.
[32] In R. v. Pahle 2020 ONCA 725, the Court of Appeal upheld the sentence of 15 months in jail imposed by a trial judge after trial. There were close to 10,000 images and videos of child pornography. The defendant was 35 years old, had no criminal record and had a diagnosis of multiple sclerosis. He sought a conditional sentence. The conditional sentence was rejected by the trial judge and the Court of Appeal.
[33] In R. v. John 2017 ONSC 810, the defendant was in possession of 89 videos and 50 images of child pornography. The trial judge imposed a 10 month jail sentence and 2 years probation. As discussed above, the Ontario Court of Appeal ruled in this case that the mandatory minimum of six months in jail was unconstitutional (see R. v. John 2018 ONCA 702). The Ontario Court of Appeal also dismissed the appeal from sentence but did say that “but for the appellant’s very considerable efforts at rehabilitation, the sentence imposed could have been much higher”.
[34] In R. v. Rule 2023 ONCJ 264 the Court of Appeal upheld a sentence of 22 months with three years probation. In that case, the defendant pled guilty to accessing and three counts of possession of child pornography. The defendant was 60 years old with no record. The child pornography collection had some 22,000 images and 204 videos. There were another 92,000 images which the police did not categorize because of limited resources. The trial judge imposed a sentence of 22 months with three years probation. The defendant had cancer and COPD and had to use an ostomy bag due to cancer surgery (see R. v. Rule 2021 ONCA 499 granting leave to appeal the sentence). Some health issues had resolved by the time of the appeal although it is not clear which ones. The Court of Appeal specifically upheld the rejection of a conditional sentence in that case.
[35] In R. v. McCaw 2023 ONCA 8, the Court of Appeal dealt with a defendant who had been convicted of possession of child pornography for the third time. The trial judge had imposed a conditional sentence in part due to the defendant’s mental health challenges which included Asperger’s syndrome, obsessive-compulsive disorder, depression and agoraphobia. The Court of Appeal reversed the conditional sentence imposed by the trial judge and imposed a three year penitentiary term less presentence custody, less time spent serving the conditional sentence and less six months for the 3.5 years spent on a strict bail.
Trial Level Decisions
[36] I turn now to some of the trial level decisions.
[37] In Kwok, supra, a 2012 case, the court imposed a 12 month sentence and three years probation for a case involving 2000 still images and 60 videos.
[38] In R. v. Snead 2021 ONSC 7017, the defendant pled guilty to one count of child pornography. He entered a zoom room on the Internet where child pornography was being streamed. He joined more than 50 other men who were already watching. Many of the men were masturbating as they watched the child pornography. Five videos and still images were streamed into the room. The trial judge in the case imposed an eight month conditional sentence with 12 months probation. On appeal, Justice B.P. O’Marra of the Superior Court imposed a 12 month jail sentence but gave credit for the eight months conditional sentence served. The defendant was required to serve the remaining four months in an institutional jail.
[39] In Branco, supra, a 2019 case decided after a trial, the defendant was found guilty of possessing and accessing child pornography. He was found not guilty on a charge of making such materials available. He was found to be in possession of 302 images and four videos involving child pornography. The trial judge, apparently largely driven by an immigration issue, imposed a sentence of six months less a day and two years probation.
[40] In R. v. Messier, 2021 ONSC 884 the court dealt with the case of a defendant who possessed 10 videos comprised of 100 minutes of child pornography. The defendant was a 39-year-old first offender. After a trial the court stated that a 12 month sentence would have been appropriate but the court reduced it to 11 months because of the impact of the sentence on the spouse and child of the defendant.
[41] In R. v. Clement, 2021 ONSC 1829, the defendant pled guilty to child luring with respect to a 7 year girl. He also pled guilty to possession of child pornography. The Court imposed a sentence of 30 months on the child luring. The Court sated that on the child pornography the Crown’s request for an 18 month sentence was “well within the range” but reduced it to 12 months on the basis of totality.
[42] In R. v. Bekmambetov 2021 ONSC 6219, the 54 year old defendant pled guilty to possession of child pornography. He had 9500 images and 283 videos gathered over a five-year period of time. He had no criminal record. He was sentenced to two years imprisonment.
[43] In R. v. Elkaderi 2022 ONCJ 114, a 24 year old first offender pled guilty to possession of child pornography as well as the distribution of child pornography. He was in possession of 486 unique images and 50 videos. He had been involved over a three-year period in viewing child pornography and frequently exchanging child pornography with others. He was sentenced to 20 months imprisonment and two years probation.
[44] In R. v. Kaardal 2022 ONCJ 441, the court considered a case involving 276 images of child pornography. The defendant was 70 years old and had been married for 50 years and had no criminal record. It would appear that the defendant pled guilty in this case. The court imposed a sentence of 400 days and 24 months probation.
[45] While each case will turn on its own facts it is clear from the above review that in cases involving both possessing and making available child pornography the sentences will typically be greater. See for example Inksetter (3.5 years) and Brown (3 years). Distributing child pornography is also an aggravating feature which will increase the sentence (see Elkaderi (20 months) for example).
[46] In other cases where child pornography is not made available or distributed to others but there is a significant collection, the sentences will usually range from 10 to 24 months: John (10 months), Kwok (12 months), Kaardal (13 months), Snead (12 months), Clement (18 months reduced for totality to 12 months), Rule (22 months), and Bekmambetov (2 years)). Sentences of under 10 months imprisonment for possession of child pornography have been ordered in some cases including where there are collateral consequences (see Branco (6 months less a day) where the emphasis appears to have been on the immigration consequences). It should be noted that some of the cases discussed were pre-Friesen where the Supreme Court of Canada made it clear that the sentences for child abuse have historically been too low and must increase.
[47] Some of the post-Friesen cases show an increase in the sentences for possession of child pornography: M.M. (15 months), Rule (22 months), and Bekmambetov (2 years)).
Conditional Sentences and the role a defendant’s mental health in sentencing in child pornography cases
[48] The defence’s submission in this case is that a conditional sentence should be ordered largely due to Mr. Tcheong’s mental health issues and deficits.
[49] A defendant’s mental illness or health may be a mitigating factor in any criminal sentencing where it is a significant contributing cause to the offence or where jail would have a “disproportionate and potentially crushing effect on a mentally ill person”; see R. v. Rytel 2019 ONSC 4856 at paras 35 to 38 and 55 (per Justice Harris of the Ont. Sup. Ct.).
[50] It is not uncommon in child pornography cases for the defendant to have mental health issues. Those circumstances will not necessarily lead to a conditional sentence. For example, in R. v. John 2018 ONCA 702, the Ontario Court of Appeal noted that the defendant suffered from severe mental health problems for which he was inadequately treated and this was viewed by the Court of Appeal as a mitigating factor on sentencing (see paragraph 44). A 10 month jail sentence was upheld on appeal. To be clear, the prospect of a conditional sentence was not discussed in that case. The defence was suggesting a sentence of 90 days incarceration.
[51] See also the case of R. v. McCaw, supra, where the third time child pornography offender suffered from Asperger’s syndrome and OCD, among other mental health issues. The court rejected a conditional sentence in that case on the basis that the appropriate sentence for this third time offender was not two years less a day and the fact that the court considered that a conditional sentence would pose a danger to the community and that a conditional sentence would not properly give primacy to the principles of denunciation and deterrence (see para 34).
[52] In R. v. Graham 2022 ONCJ 275, the defendant was convicted of possession of child pornography after a plea. The defendant had major depressive disorder, anxiety disorder, panic disorder and post traumatic stress disorder. The court found these factors reduced his personal responsibility. However, the court referred to M.M. and rejected the request for a conditional sentence. The court expressed the view that a conditional sentence would not adequately address the harm of the defendant’s conduct. A 10 month jail sentence was imposed.
[53] The defence acknowledges that conditional sentences can only be handed out in child pornography cases in exceptional circumstances as directed by Ontario Court of Appeal’s decision in M.M. The defence cites a number of pre-M.M. cases in which conditional sentences were handed out in child pornography cases largely due to mental health issues and/or the previous sexual abuse of the defendant: Rytel, supra; R. v. Jongsma 2021 ONSC 808 (Sup. Ct.); R. v. Swaby, 2018 BCCA 416; and R. v. Nepon 2020 MBPC 48.
[54] In Rytel, supra, the defendant was found to be profoundly impaired both cognitively and socially. He was described by a psychiatrist as suffering from schizophrenia and other major deficits. At one point his family was concerned that he had not left his room in seven years and was unkempt, urinating and defecating in his room. A conditional sentence was ordered.
[55] In Jongsma, supra, the court found it to be mitigating that the defendant had been sexually abused himself as a child and that he had overcome his addiction to crystal meth. A conditional sentence was ordered.
[56] In R. v. Swaby, supra, the medical evidence from two doctors was that the defendant had a significant level of cognitive impairment. The sentencing judge said it was necessary to speak to the defendant as if he were a child. Although he had been able to work for a period of time after high school, he began to spend much of his time alone in his room playing video games. He began accumulating food and bottles of urine in his room. His mother often heard him speaking to himself and crying. It was thought that he had a probable psychotic disorder. The British Columbia Court of Appeal held that conditional sentences for child pornography offences should only be handed out in exceptional cases but ultimately considered that Swaby was an exceptional case and upheld a conditional sentence in that case.
[57] In R. v. Nepon 2020 MBPC 48, the defendant was found guilty of possession of child pornography. He had been diagnosed with autism spectrum disorder and major depressive disorder. He was legally blind with only 10% vision in one eye. He utilized the camera function on his phone to zoom in on things such as street signs. He had a bail condition not to use his phone which was critical to his life as a blind person. The child pornography at issue in this case did not involve images of sexual activity between children or with adults. They all involved erotic posing with no sexual activities which is categorized as “level I” on the child pornography scale. A conditional sentence was ordered in the Nepon case. I note that in the case at bar for Mr. Tcheong the child pornography is at “level 4” as it involves penetrative activity between children and adults.
The Appropriate Sentence in This Case
[58] There are a number of aggravating factors in this case. The first is the size and nature of the child pornography collection which Mr. Tcheong possessed. The size was 350 images and 14 videos totaling two hours and 36 minutes. This is a sizable collection but is nowhere near the size of collections seen in many other cases. I do note that in a recent Ontario Court of Appeal case, that court called a collection of 500 images and videos “very large” but it is not clear from the reported decision the composition of the collection (i.e. how many videos were there and how long they were and how many images were involved: see R. v. Brown, supra).
[59] In this case the nature of the collection is very serious as it involves children engaged in a full range of sexual acts with adults and other children and this is aggravating. I have already said above that this is in the so-called category of level 4 which is the second highest level in terms of depravity. It is also aggravating that Mr. Tcheong has been engaged in accessing child pornography for almost 5 years at the time of his arrest.
[60] The community impact statements demonstrate the devastating consequences of child pornography.
[61] My own view is that there remains some risk of reoffending with respect to the possession of child pornography. Dr. Eid says the risk of re-offending was low but she was talking about hands-on sexual offending with which Mr. Tcheong has never been implicated. Dr. Gojer says the risk of re-offence in respect of the possession of child pornography is low. This may be because Dr. Gojer rejects the diagnosis of pedophilia and calls it an academic question. It seems to me that Mr. Tcheong’s erotic interest in children or pedophilia does pose a risk of re-offence as concerns the possession of child pornography. However, I recognize that this factor is somewhat uncertain and I give it little weight in the sentencing context.
[62] There are a number of mitigating factors. The first is that Mr. Tcheong has pled guilty and this will save court resources.
[63] Further, it is mitigating that Mr. Tcheong has no criminal record. Further, he has been a contributing member of society all of his life. He has been continuously employed the last 19 years.
[64] Notwithstanding the criticisms of Mr. Tcheong’s family in terms of their over protectiveness, he has significant family support and that is a positive factor in my view. He does not need to face his problems alone.
[65] There is further mitigation in the fact that Mr. Tcheong now appears to have some insight into his crimes and why they happened. He has done substantial upfront counselling and he has indicated a willingness to do more. Thus far he has done 26 counselling sessions as follows: 10 sessions with St. Joseph’s Healthcare for OCD; 6 sessions with Ming Che Yeh involving cognitive behavioural therapy with a focus on legal boundaries and self-control, and 10 sessions with Carole Kerjikian involving cognitive behavioural therapy with an emphasis on relapse prevention, cognitive distortion/thinking errors and related areas. Dr. Gojer says that he has expressed remorse for his actions.
[66] I fail to see how Mr. Tcheong’s diagnosis of OCD would contribute to a desire to access to child pornography and to view children being sexually abused in the most vile ways. Dr. Eid did not make this connection in her report although Dr. Gojer did but without any explanation as to why OCD would cause a person to view children being sexually abused. It is my view that Mr. Tcheong’s mild intellectual disability (including being on the autism spectrum), his tendency to hoard and his pedophilia diagnosis have all contributed to his accessing and collecting child pornography. I don’t see his pedophilia as mitigating in light of the Ontario Court of Appeal’s decision in R. v. Stuckless (1998) O.R. (3d) 103 at para 54 where the majority of the court said in a sentencing case involving child molestation over many years with multiple victims that “pedophilia is an explanation not a defence”. The court emphasized the importance of general deterrence in that case.
[67] However, I do accept that Mr. Tcheong’s mild intellectual disability, his autism and his tendency to hoard were likely significant contributing causes to his accessing and keeping child pornography and I consider that they are mitigating to some degree. I also consider that his mild intellectual disability and autism likely contributed to his failure to fully appreciate the wrongfulness of his actions. That is not to say that he had no appreciation for the wrongfulness of his actions because I do believe he knew it was wrongful. His initial denials to Dr. Eid of his sexual interest in children demonstrate that he understood it was wrongful. However, I accept that he may not have fully appreciated the full vile nature and consequences of his crimes as much as a person who did not have the same cognitive limitations as he does. I do note that Dr. Gojer said that Mr. Tcheong has the sufficient intellectual capacity to understand the moral wrongfulness of his actions and to express remorse.
[68] I am of the view that a conditional sentence would not be appropriate in this case. I don’t reject it on the basis that Mr. Tcheong would endanger the safety of the community if he served his sentence in the community. I reject it on the basis that it would not be consistent with the fundamental purpose and principles of sentencing as it would fail to properly emphasize deterrence and denunciation. Further, in my view, this is not the kind of exceptional case the Court of Appeal contemplated in M.M. There will no doubt be cases like Rytel for example where the mental health issues make it clear that a conditional sentence is the appropriate disposition. I don’t say that the mental health issues would have to rise to the level they did in Rytel to justify a conditional sentence. Here, notwithstanding Mr. Tcheong’s mental health issues, he is a high functioning individual having worked continuously for the last 19 years after completing high school and community college. He worked for a lengthy period of time as an assistant manager at a pharmacy where he supervised others and he is currently a head cashier at a nursery. He told Dr. Eid that is OCD only occupied somewhere between 20 to 25 minutes and up to 60 minutes a day and Mr. Tcheong did not describe experiencing a substantial functional impairment. Dr. Eid interviewed him and found his speech to be normal in rate, rhythm and volume. He used simple language to express himself. Dr. Eid said his thought process was logical and coherent. Both Dr. Eid and Dr. Gojer described his intellectual disability as “mild”. Dr. Gojer said his features of autism spectrum disorder overlap with his “mild intellectual delay”. Dr. Gojer expressed the view that he was anywhere from below average to average in terms of his intellectual functioning. Dr. Gojer also said that Tcheong had no thought disorder, delusions or hallucinations. Dr. Gojer said that Mr. Tcheong has the sufficient intellectual capacity to understand the moral wrongfulness of his actions and to express remorse.
[69] I reject Dr. Gojer’s comments that Mr. Tcheong is a poor candidate for incarceration as he is a highly vulnerable individual and is likely to be taken advantage of. I have no doubt that the provincial jail system is not a particularly pleasant place to be However, the provincial authorities have a responsibility to protect Mr. Tcheong and I expect that they will do so.
[70] In my view the appropriate sentence in this case is eight months institutional custody followed by three years probation with counselling plus a section 161 order, a DNA order and a SOIRA and forfeiture order. A eight month sentence is significantly shorter than many of the other sentences handed out in other cases. This is due to the mitigating factors in this case including Mr. Tcheong’s plea of guilt, his lack of a record, his considerable upfront counselling (26 sessions to date) and representations to the court that he will continue to undertake that work, and his mental health issues and, in particular, his hoarding tendencies, his mild intellectual deficit and features of autism diagnosis. This sentence also takes into account the circumstances of the offence that the collection of child pornography here was considerable in size and vile in nature but not as large as in some other cases.
[71] The terms of the s. 161 order will be determined once these reasons for sentence are delivered.
[72] Those are my reasons. Thank-you to both counsel for their helpful submissions.
