Non-Publication and Non-Broadcast Order Warning
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(1) 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(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
ONTARIO COURT OF JUSTICE DATE: 2024-05-21 Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
L.M.
Before: Justice J. Bliss Heard on: May 7, 2024 Ruling on Reconsideration of L.M.’s Offences as SPIOs released on: May 21, 2024
Counsel: J. Stanton........................................................................................ counsel for the Applicant V. Rishea........................................................................... counsel for the Respondent L.M.
Ruling on Reconsideration of L.M.’s Offences as SPIOs
BLISS J.:
[1] On June 1, 2022, L.M. pled guilty to possessing, accessing, and distributing child pornography contrary to ss. 163.1(4), 163.1(4.1), and 163.1(3) of the Criminal Code. L.M. was on probation at the time and also pled guilty to breaching that order between May 30, 2021 and September 21, 2021 when he was prohibited from possessing any computer, cell phone, or other device that had internet access except for employment purposes or for education and with the prior written permission of his probation officer. L.M. was also subject to a condition not to possess, access or make available any child pornography or erotica or any image of children depicted or appearing to be under the age of 18, naked or clothed, portrayed in a sexual manner.
[2] Following L.M.’s guilty pleas, the Crown gave notice of her intention to apply for an assessment pursuant to s.752.1 of the Criminal Code to determine whether L.M. might be found to be a dangerous offender as defined in s.753 of the Code or a long-term offender as defined in s.753.1. Under s.753, for an offender to be designated a dangerous offender, the predicate offence must be a “serious personal injury offence” (SPIO). Whether any of L.M.’s offences constituted a serious personal injury offence was the subject of a hearing on July 25, 2022. On August 17, 2022, I ruled that they were not. (R. v. L.M. 2022 ONCJ 389). The Crown now seeks to have me reconsider that determination in light of the Court of Appeal’s decision in R. v. Snowden [2023] O.J. No. 5271.
[3] What constitutes an SPIO is defined in s. 752 of the Criminal Code.
[4] “Serious personal injury offence” is defined in s.752 as: (a) an indictable offence…involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
[5] The Crown sought to have L.M. assessed to consider whether he might be found to be a dangerous or long term offender. The defence opposed any assessment being ordered and argued that none of the offences that L.M. committed met the definition of a “serious personal injury offence” and so he could not be found to be a dangerous offender, nor could he be found to be a long-term offender.
[6] The hearing on whether any of the offences L.M. was found guilty of amounted to a “serious personal injury offence” or could lead to L.M. being found to be a long term offender, was held on July 25, 2022. There were, as the Court of Appeal later observed, very few cases that had addressed the issue of whether offences of possessing, accessing or making available child pornography could constitute SPIOs. One of those cases was R. v. Snowden [2021] ONCJ 597 (C.J.). At the time of L.M.’s SPIO hearing, Snowden was under appeal. That appeal was heard on April 12, 2023.
[7] On August 17, 2022, I released my ruling on the SPIO issue which, after considering the circumstances and context of L.M.’s offences, concluded that they did not meet the definition of a “serious personal injury offence” (R. v. L.M. 2022 ONCJ 389). What that meant was that without a finding that any of the predicate offences were SPIOs, L.M. could not be declared a dangerous offender regardless of what the assessment report said. I did find that L.M. might be found to be a long term offender as defined in s. 753.1 and so ordered the assessment to assist in determining whether he might meet that designation.
[8] When L.M. decided if he was going to participate in the assessment, he did so understanding that the effect of my ruling was that his downside was capped at a Long Term Offender designation which meant a fixed sentence and potential 10 year long term supervision order and not the potential imposition of an indeterminate sentence that a dangerous offender designation could bring. The assessment report was provided on February 12, 2023, and the matter was then adjourned for the Attorney-General’s consent as required by s.754 of the Criminal Code.
[9] On May 11, 2023, the Crown filed the Notice of the Attorney-General’s consent. Notwithstanding my ruling that the offences for which L.M. was found guilty did not constitute a SPIO and therefore did not provide a route for him to be declared a dangerous offender, the Crown sought, and obtained, the consent of the Attorney-General to seek to have L.M. designated a dangerous offender and sentenced to an indeterminate period of imprisonment. The Attorney-General’s consent to initiate proceedings to have L.M. declared to be a dangerous offender within the meaning of s.753(1) of the Criminal Code was predicated on his having been found “guilty of the serious personal injury offences of possession of child pornography, contrary to s. 163.1(4), accessing child pornography, contrary to s. 163.1(4.1) and making available child pornography, contrary to s. 163.1(3)…”. Except that while found guilty of those offences, I had not found the circumstances of those offences to amount to SPIOs and so, consent notwithstanding, L.M. could only be designated a Long Term Offender.
[10] On November 17, 2023, the Court of Appeal released its decision in R. v. Snowden [2023] O.J. No. 5271. In light of the Court of Appeal’s decision, the Crown seeks to have me reconsider my ruling on the SPIO issue in L.M.’s case. L.M. concedes that I can reconsider my ruling, but submits that there is nothing in my ruling nor my approach to the issue inconsistent with the Court of Appeal’s decision. The Crown and defence have different views on the significance of Snowden. The Crown submits that this is a landmark decision that changes the landscape, while the defence submits that it did not change the “consideration of the circumstances” approach but simply corrected errors made by the sentencing judge in that case. Unless otherwise noted, where I refer to Snowden, it is to the Court of Appeal’s decision.
[11] Like in L.M.’s case, the sentencing judge in Snowden did not find the child pornography offences that Snowden was convicted of to amount to SPIOs. In Snowden, that conclusion turned on the sentencing judge’s “unduly restrictive interpretation” of the definition of what constitutes an SPIO which led her to interpret the definition of a SPIO in a manner that precluded consideration of some relevant facts. (Snowden, para 89) The sentencing judge noted in particular:
141 The difficulty here is not only that it is difficult to parcel out the role that Mr. Snowden's actions may have played in the terrible harms suffered, the root cause of which are unquestionably not the actions of Mr. Snowden, but moreover that the harm exists irrespective of the actions of Mr. Snowden.
142 I find that extending the definition of harm required for a SPIO to harm that is suffered irrespective of the actions of the offender is overly broad. Without a direct causal connection between Mr. Snowden's actions and the harm suffered proportionality is jeopardised.
143 Mr. Snowden's actions may be a contributing factor to the perpetuation of the harm suffered by these victims of child pornography, but I cannot say that Mr. Snowden is a cause of the severe psychological damage that they suffer.
[12] The Appeal Court found that the sentencing judge erred in finding that the child pornography offences were not capable of satisfying the definition of an SPIO because Snowden was not the “direct cause” of the harm to the victimized children (Snowden, para 4). The error was that the sentencing judge's approach to causation was unduly narrow in requiring that the respondent be the "root cause", or their actions to have a "direct causal connection" with the severe psychological damage experienced by the victims and failed to consider not only whether the respondent's conduct did "inflict severe psychological damage", but also whether it was "likely to inflict severe psychological damage". (Snowden, para 90)
[13] As the Court of Appeal wrote: “At the heart of this appeal is the foundational concept of Part XXIV of the Criminal Code: the concept of the SPIO. The resolution of this appeal requires clarification of the approach to be taken to determine when possessing, accessing, and making available child pornography will be SPIOs. Following the approach in R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, a case-by-case consideration of the factual circumstances of the offences is required to determine whether they meet the criteria for an SPIO. However,…the sentencing judge interpreted the definition of an SPIO in a manner that precluded the consideration of some relevant facts.” (Snowden, para 45)
[14] As the Court recognized, there are two parts to the definition of an SPIO; one under s.752 (b), categorical, where certain enumerated offences are, by definition SPIOs, and the second, under s.752 (a), interpretive, where the Crown must establish that the offence in question either involves (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person. The appeal in Snowden turned on the application of subpara. (a)(ii) to the child pornography offences just as it does in L.M.’s case (Snowden, para 50).
[15] The approach in Steele, endorsed in Snowden, requires an examination of the manner and circumstances in which the offence was committed in determining whether the offence constitutes a SPIO; a case-by-case consideration of the factual circumstances of the offence(s). That was the same approach I undertook.
[16] The Court wrote how this interpretive exercise must be undertaken in a manner consistent with the purposes of Part XXIV of the Criminal Code. (Snowden, para 53). Referring again to Steele, the Court noted that while the primary rationale is the protection of the public “These sentences are also punitive, however, and in this regard, the function of the SPIO requirement is twofold: first it serves as a “gatekeeper” for entry into the dangerous or long term offender system; second if the Crown applies for a finding that the offender is a dangerous offender it serves as a requirement for the making of such a finding…As Lamer C.J. put it in Currie, “[t]he [SPIO] requirement acts as a gatekeeper to ensure that the sentence is not disproportionate to the offence” (Snowden, para 53 referring to Steele at para 31).
[17] As I did in my decision, the Appellate Court in Snowden reaffirmed how courts have considered the harms caused by child pornography offences, and the psychological impact of such conduct on its victims. There was, and is, no dispute about the harms caused by child pornography offences. L.M. may have contributed or exacerbated the harm, but the question was whether his connection to the harm, in conjunction with the other circumstances of his offending, made any of his offending conduct a SPIO. As McLachlin C.J. wrote in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at para. 28:
…The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences. (Snowden, para 59)
[18] All recognized that the harm does not end when the photograph has been taken or the recording stops. The harm is ongoing because of the nature of the internet; whatever is posted remains there forever, accessible for anyone who might seek out such material, and so the question was, and remains, the connection between L.M.’s offending and that harm because, in simple terms, "the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone" (Snowden, para 60 referring to Sharpe, para 92)
[19] The Court in Snowden repeated the comments from every level of court about how the harm caused to children by these offences extends beyond the creation of the child pornography. Referring to the case of R. v. S.(J.) 2018 ONCA 675, the Court noted how “the appellant’s violation of his victims is repeated every time the images are viewed on the Internet, where they cannot be erased and will likely reside in perpetuity. And, as the sentencing judge observed, the victims, particularly S, whose face is shown, may be further traumatized by the knowledge that these images and films could surface in their personal lives at any time. (Snowden, para 65).
[20] The observations about the impact of child pornography on the victims and the harm caused was not new. The connection between L.M.’s conduct and the harm caused by his possession and distribution of child sexual abuse material was something I considered during the original hearing and consider again now.
[21] In my ruling at paragraph 73, I concluded that I was not satisfied that a link or connection had been established between L.M.’s offending and the harm done. The Crown has asked me to reconsider that, and so I shall both reconsider and take the opportunity to explain and clarify the comments I made in my ruling. Having reconsidered the matter as invited to, what I should have written was that considering the offences, the link or connection between L.M.’s offending and the harm done, and considering all of the circumstances of the offending, I was not satisfied that the offences amounted to SPIOs. To be clear, there does not need to be a direct link or direct causal connection between the offences and the harm caused, but there does, as I wrote, need to be a connection. The nature of that connection, whether direct, indirect, strong or remote, is something I was required to consider which I did then and do so now.
[22] Because of the link, no matter how thin or remote, between those who possess and access and make child sexual abuse material available to others, the Crown submitted during L.M.’s original SPIO hearing that offences of possessing, accessing, and making available child pornography were categorically SPIOs. That argument had been made before and, as I noted in my ruling, universally rejected. As the Court of Appeal noted in Snowden, the Crown did not repeat that submission on appeal. (Snowden, para 69), Significantly, as I did, the Court held that while offences of possessing, accessing and making available child pornography are not categorically SPIOs, depending on the circumstances, they are capable of being SPIOs. (Snowden, para 68)
[23] The Court recognized that very few cases had dealt with the SPIO issue in the context of child sexual abuse material. As I did, the Court of Appeal referred and considered the cases of R. v. Patterson 2018 ONSC 5395, R. v. Ewing 2021 ONCJ 273, 281, R. v. Brouillard 2020 QCCS 604 and R. v. Millie 2021 SKQB 428. The Court observed how in Justice Bawden’s decision in Patterson, he considered the circumstances of Mr. Patterson’s offences, but did not find them to be SPIOs. (Snowden, para 69) In contrast, in Ewing, Libman J. followed Justice Bawden’s circumstance-specific approach but, in the circumstances of the case before him, found that Mr. Ewing’s offences did constitute SPIOs. (Snowden, para 72)
[24] When referring to Brouillard, the Court in Snowden noted the sentencing judge’s conclusion that "at a minimum", making available child pornography is conduct that is likely to inflict severe psychological damage on another person: at para. 31. A key factor in that case was that the faces of the victims were visible, such that "they can recognize themselves, be recognized, and know that they will be recognized, for all time, as long as these images are circulating on the Internet": at para. 31-32. (Snowden, para 76)
[25] When referring to the decision in Millie, the Court in Snowden observed how Dawson J. applied Steele and, referencing Sharpe, accepted the rational connection between accessing, possessing, and making available child pornography and the sexual exploitation of children, but held that "the SPIO definition requires something more than mere speculation or an abstracted rational connection" (Snowden, para. 78-80).
[26] At paragraph 80 of the Snowden decision, the Court wrote: After reproducing the passages from Friesen and S.(J.) quoted above, Dawson J. held that "the court must be satisfied that the offender's conduct contributed in some non-zero measure to the severe psychological damage to a victim of the child pornography in question. In other words, the connection or link between the offender's conduct and a victim's identifiable severe psychological damage must be established": para. 92….Although the identifiable victims in Mr. Millie's collection did not directly attribute the harms they suffered to Mr. Millie's conduct, this did not bar a finding that he caused their severe psychological damage. The perpetual and acute emotional distress the victims described in their victim impact statements was not specific to Mr. Millie because the statements were prepared before the date of his offences. However, Dawson J. concluded:
[114] All three victims identify significant, prolonged and continuing severe psychological damage from the knowledge that individuals download and possess the child pornographic images of them. Even though the victims did not relate their psychological damage to Mr. Millie specifically, or individually, I am satisfied that there is established from the Victim Impact Statements ... a clear link between the knowledge of the victims that persons possess and view their images and each of their psychological damage.
[115] Here, Mr. Millie's possession of the pornography, which contains the victims' images, has the effect of inflicting severe psychological harm, as the victims are aware that they have been victimized in this way and revictimized by the ongoing process of access and/or possession of the images.
[116] I am satisfied on the evidence, that Mr. Millie's possession of the said pornography is inflicting or likely to inflict severe psychological damage on another person.
[117] I find that the circumstances of this case mandate a finding that the possession of child pornography contrary to s. 163.1(4), committed by James Millie in the factual circumstances, of this case satisfies the definition of an SPIO for the purposes of s. 752 of the Criminal Code.
[27] The takeaway from Snowden is that the determination of whether offences of possessing, accessing and making available child pornography will be SPIOs is on a case by case-by-case basis that considers the circumstances in which the offences were committed in light of s.752 (a)(ii). (Snowden, para 81)
[28] The error that the sentence judge made in Snowden was that her approach to causation was unduly narrow. It required that the offender be the "root cause" of, or his actions have a "direct causal connection" with the severe psychological damage experienced by the victims, and failed to consider not only whether the respondent's conduct did "inflict severe psychological damage", but also whether it was "likely to inflict severe psychological damage". (Snowden, para 90). A SPIO offence does not require a minimum level of violence (Snowden, para 54). As the court noted, “Canadian criminal law has long recognized the different ways in which a person may cause harm to another. An individual may be the sole cause of another person’s harm, a co-perpetrator of that harm, or they may contribute to, or exacerbate, an existing harm. (Snowden, para 91)
[29] The Court went on: Applied to the context of child pornography, the initial harm lies in the sexual assault of the infant or child. Added to this is the related harm of recording this abuse. This harm is different in kind, but still an extension of the sexual abuse. Similarly, the sharing of recordings with others furthers or perpetuates the harm caused by the initial recording and underlying abuse. Accessing and possessing child pornography fulfills the objective of the person who shares it or makes it available. Indeed, this market for child pornography, whether for purchase, trade or otherwise, may motivate those who make it available, and in turn, those who create it. Accessing and possessing child pornography may further harm the children depicted in the child pornography where they become aware that their image has been accessed or possessed. Thus, cognizable harm has the potential to extend beyond the initial abuse involved in creating child pornography. It may not be the same type of harm at each stage, but it need not be to remain within the ambit of conduct that inflicts or is likely to inflict severe psychological damage. (Snowden, para 93)
[30] The Court then set out a number of factors a court may consider when determining whether a child pornography offence meets the requirements of an SPIO. As the Court wrote: “These factors, individually or in combination, may be helpful in discerning whether severe psychological damage has been or is likely to be inflicted by the commission of the offences under consideration. However, I would not endorse these factors as a formal checklist in assessing whether an offender's conduct constitutes an SPIO. Nor is this list meant to be exhaustive. Rather, the proposed factors may guide a contextual inquiry.” (Snowden, para 97)
[31] The factors the Court set out are as follows: Does the child pornography depict a real child? Is a real child identifiable in the material? Does the child know they are being recorded? What is depicted in the child pornography? How many unique images and victims are depicted? Did the offender encourage further sexual violence against children or other forms of further victimization? Other considerations include whether the offender did not just possess or access child pornography but also made it available to others? Is the victim aware that the offender has accessed or is in possession of that image? And did the offender pay for access to child pornography which may incentivize the creation or distribution of more child pornography. (Snowden, para 98-106)
[32] The Crown submits that I committed the same error that the judge did in Snowden: namely, that I employed a “restrictive approach to causation which prevented a full consideration of the likelihood that severe psychological damage would be inflicted by [L.M.’s] offending conduct.” (see Snowden, para 107) In L.M.’s case, the Crown submits that I committed the same error in requiring the Crown to show L.M. to be the "root cause" or have a "direct causal connection" to the severe psychological damage experienced by the victims and submits that paragraph 73 of my ruling demonstrates that error when I included, amongst other considerations:
- There is no evidence that any victim is aware that in the instant case [L.M.] has revictimized any victim by his possession, access or distribution of child pornography.
- While clear that there has been harm suffered by the children who were sexually abused, there is no clear evidence how [L.M.]’s actions contributed or contributed to the harm
[33] The factors set out in paragraph 73 was an attempt to set out all of the factors that the Courts in Millie, Brouillard, Patterson and Ewing had considered, and that I too had considered on the SPIO issue. At the time of the hearing, the Crown had not filed any victim or community impact statements. Even so, I wrote:
[20] While the respondent argues that there needs to be some evidence of the harm caused by [L.M.]’s conduct such as through a victim or community impact statement as has been submitted in other cases, I am not persuaded that the fact that a child is not identified, or that a victim or community impact statement is not tendered to give a first or second-hand account of the impact of the offending where children are sexually abused, means that with no victim to establish a link between the conduct and the harm done, that the offence cannot be an SPIO. A victim impact statement or community impact statement, or lack thereof, is just one of the factors that a justice must consider in determining whether a link has been established to define the offence as an SPIO.
[21] Child pornography is a visual record of the sexual abuse of a child that the internet enables to exist in perpetuity. The fact these images remain somewhere on the internet is part of the understood trauma to these victims and does not need evidence from the community or identified victim to substantiate. Even if no child is able to be identified, the harm to them from being exploited and sexually abused, is apparent.
[34] As I have noted previously, this reconsideration application provides me with an opportunity to clarify my comments: First, after my ruling, the Crown tendered Community and Victim Impact Statements which they rely upon and ask me to consider as part of the reconsideration of whether any of L.M.’s offences amounted to SPIOs. The defence did not object. The Community Impact Statements contained statements from the Canadian Centre for Child Protection and the “Phoenix 11”, a community of 11 survivors of child sexual abuse. While I have considered this additional material, I make the observation, as I did during the hearing, that Ms. Stanton was Crown counsel in Snowden and Ewing in 2021 in which it appears that the same material was filed. While the statements were not before me at L.M.’s original SPIO hearing, the statements were referenced in both those cases, and so I accepted that there were real victims who have been harmed and continue to suffer harm from knowledge that there is a record of their abuse somewhere on the internet that might be being viewed or distributed to others at any time. And so whether any victim was identifiable or not, it did not matter because these were real children who were victims even if they could not be identified. My comments should not be taken as devaluing what any victim has to say, simply that I accepted the harm caused to the victims of these offences without them having to say it.
[35] With respect to the nature of the child pornography, at the time of the s.752.1 hearing in July, 25, 2022, the only description of the child pornography in question was a written description in general terms. Candidly, the written word does not convey how abhorrent this material is, but notwithstanding that, I accepted that the children sexually abused in the images and videos in L.M.’s collection, whether identified or not, were at minimum likely to have suffered severe psychological damage from their recorded abuse. It was not until September 21, 2023, after my ruling was released, that a representative sample of images and videos from L.M.’s collection of child pornography was played for the court. The three videos in L.M.’s collection were shown along with 20 jpg images. At the reconsideration hearing, the Crown provided their notes to the Court describing the images and videos to assist in addressing some of the factors the Court in Snowden felt might guide the contextual inquiry. No issue was taken with those descriptions. Of the 20 images, almost all have the child’s face visible and in all three videos the child’s face is visible. The children in the videos also appear to be aware they are being recorded as are most of the children in the still images. One image and one video has a child who has been identified.
[36] The SPIO determination must consider the likelihood that severe psychological damage would be inflicted by L.M.’s offending conduct. (Snowden, para 107). L.M.’s offending conduct is his possession of three videos and 62 images, and on two occasions sending a single image by Instagram and Gmail to another individual.
[37] In my ruling, in addition to the impugned passage from paragraph 73 in which I wrote: “While clear that there has been harm suffered by the children who were sexually abused, there is no clear evidence how L.M.’s actions contributed or contributed to the harm”, I also wrote at paragraph 71: In determining whether an offence is a SPIO, as part of the totality of the circumstances before a court in any given case, “courts are required to identify a connection between the offender's conduct and the likelihood that the offence will inflict severe psychological damage beyond a speculative or abstracted rational connection.” (Millie, para 97). A connection does not need to be strong, it just needs to exist. In determining whether there is a connection in L.M.’s case, I have considered the factors that other courts have found to be relevant on the facts of their respective cases as well as the evidence in the case before me:
[38] The factors set out in my ruling were an amalgam of all of the factors other courts had considered on this issue. With some added commentary to reflect additional evidence, and factors raised in Snowden, they continue to attempt to demonstrate the circumstances of L.M.’s offences that were considered in determining whether any offence amounted to a SPIO including:
- On May 30, 2021, L.M. uploaded one file meeting the Criminal Code definition of child pornography using his Instagram account and sent it to another user via Instagram user (this image was not included in my ruling in error).
- On August 31, 2021, L.M. sent another image of child pornography to an email address using Gmail.
- L.M. had 62 images and 3 videos of child pornography of females between the age of 6 and 10 years old.
- Two of the children in L.M.’s collection are “identified children”.
- The children depicted in L.M.’s collection, whether identified or not, were the victims of violence and suffered trauma as a result of the sexual abuse.
- Some of the victims depicted in the pornographic images or videos in L.M.’s collection had their faces visible.
- L.M. was a low end consumer of child pornography.
- L.M. was a repeat offender or “regular consumer” although his current collection was relatively small.
- There was no evidence of L.M. using search engines or chat rooms or file-sharing software.
- There was no evidence of L.M. trading, encouraging, selling or buying any child pornography.
- At the time of the original hearing, I noted how no victim impact statement was provided from any victim to provide a measure of the impact of L.M.’s offending and the harm done. While information was provided that police were in the process of obtaining a victim impact statement from at least one identified victim, no evidence was tendered that any victim was aware of their revictimization in this case by the ongoing access, possession, or distribution of the images or videos by L.M. I accepted, and continue to accept, however, that victims of child pornography are harmed and revictimized by the knowledge that the record of their harm exists in perpetuity and can be seen at any time. The Victim and Community Impact Statements provided a powerful personal account of the impact of these kinds of offences, but the fact that such statements were not available at the time, did not change my approach and recognition that the trauma to these victims is ongoing and exacerbated by the knowledge that the record of their abuse can be viewed at any time.
- There was no evidence that any victim was aware that in the instant case L.M. revictimized any victim by his possession, access or distribution of child pornography.
- There is no evidence that L.M. encouraged the creation of child pornography apart from committing the essential elements of his own offences.
[39] What that leaves is addressing the causation issue between L.M.’s offending and the likelihood of the victim’s suffering severe psychological damage. At paragraph 23 of my ruling I had written how: “While everyone who possesses, makes available, and distributes an image of child pornography may be morally responsible for perpetuating the trauma caused to the child, that does not mean, however, that every person who commits a child sexual abuse material [offence] is necessarily legally responsible for the harm or trauma caused.” What I was trying to express, albeit on reflection, poorly, was that everyone who commits these offences bears a responsibility for the harm caused to these children even they were not the ones who committed the abuse.
[40] The Crown’s position, as I understand it, is that any connection, no matter how remote or how thin between the offence and the harm makes out an SPIO and any consideration of the link is to fall into the same error as in Snowden of requiring the offending to be a direct or root cause of the harm. I disagree. The error in Snowden was that the sentencing judge required the offender to have a direct causal connection or be the root cause of the harms suffered, for the offence to be a SPIO. I did not then, nor do I now on reconsidering the issue post-Snowden.
[41] The consideration of how indirect or thin or remote the link between an offence and the harm caused is not requiring a direct causal connection or requiring the offender to be the, or even a, root cause of any victim’s existing or likely severe psychological harm. It is simply one of a number of factors that must be considered in assessing all of the circumstances of the offence and the harm. To state the obvious, that L.M. is not a “direct” or “root cause” of the harm suffered does not preclude a finding that the offences are SPIOs. There must still be a consideration of all circumstances of the offence to determine whether an offence is a SPIO.
[42] I concluded from considering the circumstances of L.M.’s offending that the connection does not need to be strong, but does need to exist. I considered all of the factors then, and considered all of the other factors that the Court of Appeal wrote of to assist me in guiding the contextual analysis: L.M. possessed 62 images of child pornography, and 3 videos. The children in the material were aware they were being photographed and recorded and the Victim and Community Impact Statements gave a voice to repeated judicial pronouncements of the harm done, whether identified or not. These victims would have suffered severe psychological damage from their abuse and L.M.’s actions as someone who viewed their abuse and distributed two images, contributed to the ongoing harm they suffer. L.M. is not a direct or root cause of their harm, but that does not preclude a finding that his offending amounts to a SPIO. While I do find that the thread connecting L.M.’s offending to the harm to be indirect, thin, and even remote, it is still a connection that is capable of constituting a SPIO.
[43] Considering all of the circumstances, and engaging in the qualitative analysis of the manner and circumstances in which the predicate offences were committed (Snowden, para 123), I remain of the view that L.M.’s offences do not amount to a “serious personal injury offence” and do not provide a route for him to be designated a dangerous offender. Given my conclusion on the SPIO issue, I will not address the trial fairness issue of L.M. having participated in the assessment based on his understanding that, at worst, he could be declared a long-term offender.
Released: May 21, 2024 Justice J. Bliss