Court and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 01 11 Toronto

BETWEEN: HIS MAJESTY THE KING — AND — JACK HIMEL

Before: Justice Newton-Smith

Heard on: November 22, 2023 Reasons for Sentence released on: January 11, 2024

Counsel: M. Cole, counsel for the Crown D. Humphrey, counsel for the defendant J. Himel

Newton-Smith J.:

[1] Mr. Himel plead guilty before me to one count of possession of child pornography contrary to section 163.1(4) of the Criminal Code and one count of make child pornography contrary to section 163.1(2) of the Criminal Code.

The Facts

[2] On May 14, 2021 Snapchat reported to the National Centre for Missing and Exploited Children that 22 videos consistent with the definition of child pornography were uploaded to Mr. Himel’s account. On September 8, 2021 police obtained a search warrant for Mr. Himel’s home. A phone and a computer were seized on which were found 13 images of child pornography and the 22 videos. The content and severity of the material varies.

[3] A sampling of the videos depicts prepubescent girls and adult men in which the children perform acts of fellatio and are anally penetrated.

[4] These are the facts with respect to the count of possession of child pornography.

[5] The police also found Kik chats from September 6, 2021 in which photographs of girls who looked young were exchanged with other individuals.

[6] A series of Snapchat screen grabs from February 23, 2021 depict communications between Mr. Himel and a woman named Rachel. They show Rachel touching a young girl over her clothing. In those communications Mr. Himel appears to direct Rachel to “pull her closer” and encourages Rachel to touch the child’s buttocks over her clothes.

[7] The video of this incident shows an adult woman rubbing her hand over the clothed buttocks and genital area of a prepubescent girl who is lying on her stomach. It is clear that the touching is intended for the sexual gratification of the viewer.

[8] These are the facts with respect to the count of make child pornography.

The Position of the Parties

[9] The Crown seeks a sentence of 18 months custody followed by 2 years of probation and various ancillary orders. The Crown describes this case as the juxtaposition of the terrible crime that is child pornography as against an offender with extremely mitigating circumstances. It is the mitigating circumstances of the offender that leads the Crown to seek what the crown submits is a lenient sentence of 18 months custody. Otherwise, the Crown submits that a penitentiary sentence would be warranted.

[10] It is the position of the defence that this case, and in particular Mr. Himel’s circumstances, are exceptional such that a conditional sentence of imprisonment is appropriate. The defence submits that a conditional sentence of 18 months to 2 years less a day with strict terms including house arrest would satisfy the purpose and principles of sentencing in this case. Alternatively, it is the position of the defence that if this court finds that only incarceration will adequately address those principles, a sentence of 12-15 months incarceration would suffice. The defence agrees that a period of probation and ancillary orders are appropriate.

Circumstances of the Offender

[11] Mr. Himel is 24 years old. At the time of these offences he was in his very early 20s.

[12] In his last year of high school Mr. Himel began to suffer from anxiety and experienced low mood. He withdrew socially, stopped organised sports and began to do poorly in school. Mr. Himel managed to get into the University of Guelph but struggled academically and dropped out after 2 years. He withdrew further and began using marijuana daily and watching pornography for hours at a time. Mr. Himel spiralled downwards to the point where he got into child pornography.

[13] Since his arrest on September 8, 2021 Mr. Himel has been living with his parents.

[14] From the outset Mr. Himel evidenced his intention to plead guilty. Resolution discussions began at the earliest opportunity and trial dates were never set.

[15] Since his arrest Mr. Himel has expressed remorse through his words and actions. He has taken any and all steps that he could take to minimise and mitigate the harm that he has caused.

[16] Mr. Himel has also taken any and all steps that he could take to examine, assess and tackle the issues which lead him to commit these offences.

[17] Mr. Himel underwent a comprehensive risk assessment. He was identified as being at a low risk for general recidivism and above-average level of risk for sexual reoffence. The assessment was generally positive and noted that Mr. Himel did not have a long standing pedophilic or hebephilic interest, but rather appeared to have a healthy attraction to adults.

[18] Since undergoing the initial risk assessment he has completed 46 counselling sessions with his psychologist. The positive progress report from his psychologist reports that Mr. Himel is committed to developing positive coping strategies as was recommended in the risk assessment.

[19] He has found gainful and meaningful employment working retail at Canadian Tire. He is now taking courses with the goal of attaining his real estate licence and working with his father in the family business.

[20] Mr. Himel is currently, and has been for some time now, involved in a healthy long term committed adult relationship and has the support of family and friends.

Circumstances of the Offence

[21] The collection of child pornography in Mr. Himel’s possession includes depictions of extremely serious acts of sexual abuse of children. That there may be worse images circulating in the world, does not lessen the severity of the images and videos which Mr. Himel possessed.

[22] The number of images and videos is, relatively speaking, small. While not a mitigating factor it is certainly less aggravating than cases where the accused has hundreds or even thousands of images.

[23] The evidence of the make child pornography charge is extremely disturbing. It is the most serious of the charges and takes this case out of the realm of simple possession. The facts, however, are not on the most egregious end of the spectrum. The child is fully clothed and the touching is brief and minimal. While it is clear that the touching is for the sexual gratification of the viewer, it is impossible to say from viewing the image how aware the child was of the sexual nature of the touching.

Sentencing for Sexual Offences Against Children

[24] Over 3 years ago in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court of Canada addressed sentencing for sexual offences against children. The Court made clear that denunciation and deterrence are the paramount sentencing principles, and that significant custodial sentences must be the norm. The Chief Justice wrote at paras 1, 74 and 76:

Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year.

It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the "life-altering consequences" that can and often do flow from the sexual violence.

Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities.

[25] Even more recently the Ontario Court of Appeal in M.M., 2022 ONCA 441, [2022] O.J. No. 2527 gave the following directive at paras 15-16:

The Supreme Court's instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.

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.

Analysis

[26] The Crown here does not seek a penitentiary sentence. Given the circumstances of the offence and the offender, I agree that a penitentiary sentence is not called for. Where a sentence of less than 2 years is to be imposed a conditional sentence may be considered. There is no statutory bar to the imposition of a conditional sentence in this case.

[27] In such circumstances section 742.1(a) of the Criminal Code allows for the imposition of a conditional sentence where the court is satisfied firstly that it would not endanger the safety of the community, and secondly that it would be consistent with the fundamental purposes and principles of sentencing. Both criteria must be satisfied before a conditional sentence can be imposed.

[28] The work that Mr. Himel has done since his arrest is commendable. He has unquestionably committed himself to his rehabilitation. Having gone through this experience I consider it unlikely that he will ever re-offend. He is youthful and has no criminal record. There is not much more, if anything, a court could ask of an offender upon sentencing.

[29] I am satisfied that the imposition of a conditional sentence in this case would not endanger the community.

[30] However, the Supreme Court of Canada has made it clear that sexual offences against children generally require significant custodial sentences. While conditional sentences are available they are exceptional. A review of the few cases post Friesen in which conditional sentences have been imposed for possession of child pornography shows that conditional sentences are very rare. In general they have only been imposed for offenders with serious physical and mental health challenges that could not be appropriately accommodated in a custodial setting.

[31] Recently in R. v. Rule, [2023] O.J. No. 168, the Court of Appeal upheld a 22 month jail sentence for a 70 year old offender convicted of possession of child pornography. Mr. Rule suffered from rectal cancer, had an ostomy bag and other serious health issues. The Court found at para 8 that, “it was appropriate for the sentencing judge to rule out a conditional sentence which would have been inconsistent with the fundamental purposes and principles of sentencing, despite the appellant’s health problems.”

[32] The Court went on to find, at para 9, that:

The sentencing judge was correct to conclude that denunciation and deterrence were of primary importance. There were real victims here; these were not imaginary representations such as cartoons, or paintings. As this court observed in R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 22, those who view and amass large amounts of child pornography participate in the abuse of the children portrayed.

[33] While Mr. Himel was not in possession of a collection of child pornography as large as that of Mr. Rule, he has plead guilty to a charge of making child pornography. I have not been pointed to, nor have I found, one case in which a conditional sentence has been imposed for a charge of making child pornography.

[34] Despite all that Mr. Himel has done, and the low risk that he currently poses to the safety of the community, there is no exceptional circumstance here as contemplated by the Court of Appeal in M.M. that would render incarceration inappropriate. A conditional sentence in the circumstances of this case, and in particular where the convictions involve not simply possessing but also making child pornography, would be inconsistent with the fundamental purposes and principles of sentencing.

[35] Given all of the mitigating circumstances and Mr. Himel’s low risk to re-offend I find that a sentence of 12 months custody is appropriate to meet the demands of denunciation and deterrence. The custodial sentence will be followed by a 12 month term of probation and various ancillary orders which I will now address.

Released: January 11, 2024 Signed: Justice Newton-Smith