COURT FILE No.: 23-6100545 DATE: August 13, 2024

ONTARIO COURT OF JUSTICE Central West Region At Orangeville

BETWEEN:

HIS MAJESTY THE KING

— AND —

matthew galbraith

Heard Before Mr. Justice Richard H.K. Schwarzl on July 4, 2024 Reasons released on August 13, 2024

Ms. Danielle Garbagy............................................................................................ for the Crown Mr. Michael Coristine...................................................................................... for the Defendant

SCHWARZL, J.:

REASONS FOR SENTENCE

1.0: INTRODUCTION

[1] The offender, Matthew Galbraith, entered a plea of guilty to one count of possession of child pornography contrary to section 163.1(4) of the Criminal Code.

[2] The prosecution seeks a jail sentence of two years; the defence advocates for a conditional sentence of 15 – 24 months. The parties agree on ancillary consequences including SOIRA, DNA, and s. 161 Criminal Code orders.

[3] What follows are my reasons for sentence.

2.0: CIRCUMSTANCES OF THE OFFENCE

[4] A detailed description of this crime is set out in the Agreement Statement of Facts, filed. A relevant summary is as follows.

[5] For nearly a year between February, 2022 and March, 2023 the offender collected many pornographic images. Of these, the police located 123 images (89 pictures; 32 videos) on his home computing devices that meet the definition of child pornography. Of these, all but one depict males. There appear to be a number of different children, ranging in age from newborn to 14 years. All of the videos show pre- and pubescent children wearing diapers or having them changed. Some images show exposed genitalia. No images show sexual activity. Due to the offender’s diaper fetish, his sexual purpose in possessing them rendered the images child pornography.

[6] Over that same time, the offender engaged in online chat rooms to write and share explicit and vile tales of masturbation, oral sex, and fetishism involving children. Over two thousand pages of such material was confiscated from the offender. There is no evidence that the offender acted out in furtherance of these stories, which appear to be restricted to shared fantasies.

[7] At the time of the offence, the offender lived with his spouse and three children although he committed this crime only when he was home alone. There is no evidence that his own children were either the subject of, or exposed to, any of the images or stories.

3.0: CIRCUMSTANCES OF THE OFFENDER

[8] The offender is 42-year-old first offender.

[9] Upon his arrest, he was held overnight before being released on bail.

[10] Bail conditions were unsurprisingly strict. Until it was varied three months later, his bail prevented him from being at home with any person under 18 years of age, which meant all three of his children. This was changed after the Children’s Aid Society completed their investigation. He has also been subject to constant supervision by sureties and was prohibited from using cell phones and computers unless in the presence of certain named persons.

[11] The offender grew up in a household characterized by physical and mental abuse as well as intolerance to his homosexuality. He described his upbringing as “kind of rough.” His mother has passed away and he is estranged from his father. He has been diagnosed by Social Anxiety Disorder.

[12] The offender holds a bachelor's degree in web development.

[13] He is married and is a stable, long-term, and committed relationship. He and his husband have three children: two ten-year old daughters and a six-year-old son.

[14] The offender has the support of his brother as well as other adult members of his husband’s family.

[15] The offender is a stay-at-home parent and primary care giver to the children. However, given their ages, the offender is now able to seek employment outside the home.

[16] Due to this case, the Children’s Aid Society has been involved with the offender and his family. The offender has been cooperative and compliant with the Society’s directions and recommendations. It is likely that the Children’s Aid authorities will continue investigating regardless of the outcome of this case.

[17] In the Pre-Sentence Report, the offender described boredom as his motivation to commit this offence. He reported that he is introverted and that he became addicted to saving and sharing pictures and fantasy stories with others in chatrooms. Since being charged, the offender has been in counselling with Ms. Jennifer Holt, a counsellor specialising in these kinds of offences and commensurate treatment.

[18] The offender has no issues regarding substance abuse and is, in fact, abstemious.

[19] The offender has expressed shame about his conduct which was out of character for him. Nevertheless, he has had a diaper fetish since adolescence but had not hitherto manifested it illegally before. He accepts full moral and legal responsibility for his conduct and understands the harm he has caused by his actions.

[20] A Sex Offence Specific Risk Assessment was prepared by Ms. Holt in February, 2024 a copy of which was made an exhibit on sentence. The purpose of the assessment was strictly to evaluate the offender’s risk of recidivism and to prepare a treatment plan. A few relevant highlights of the report are as follows:

(a) The offender reported to Ms. Holt that he was chatting online about masturbating boys for “probably one or two years”; (b) His diaper fetish focusses mainly, but not exclusively, on boys between 4 and 12 years of age; (c) He was motivated by boredom; (d) All his online chats were fantasy, with no intention of acting on them; (e) He would go online for 1 – 2 hours daily when home alone; (f) He appeared unaware that it was against the law to write and share such stories; (g) He hid his activity from his spouse because he was worried his husband would not approve; (h) The relationship between the offender and his spouse is presently under strain caused by this situation; (i) The offender appeared candid and responsive to Ms. Holt’s assessment process; (j) The offender does not present as antisocial or criminally-minded nor does he suffer from substance abuse; (k) The offender had a childhood “fraught with abuse and neglect”; (l) The offender presents pedophilic interests towards male children and he also suffers from intimacy deficits; (m) The offending behaviour did not include luring or efforts to contact those identified in his group of interest; (n) The offender possesses significant assets that reduce his risk of reoffending; (o) The offender has liabilities that militate in favour of near and intermediate term treatment to manage his risk of recidivism, including not only individual therapy, but also couples counselling; (p) The offender has been undergoing treatment since July, 2023 and intends to continue with Ms. Holt; and (q) Absent treatment, the offender appears to be at a moderate risk of reoffending.

4.0: MITIGATING, AGGRAVATING, AND OTHER RELEVANT FACTORS

4.1: Mitigating Factors

[21] I note the following mitigating factors in this case:

(a) He is a mature, first-time offender; (b) He had a troubled and abused childhood; (c) The images seized are not, in and of themselves, pornographic outside the context of the offender’s prurient interests; (d) Unlike his deviant stories, the collection of images and videos is not especially large; (e) He did not produce any of the images; (f) He did not monetize any the images or his stories; (g) He did not lure or contact any children in this crime; (h) He did not encourage anyone who read his stories to act on them; (i) The offender has pled guilty and always intended to do so; (j) The offender not only accepts responsibility but has, and remains, actively engaged in rehabilitation shortly after being exposed; (k) The offender is extremely remorseful for his conduct; (l) The offender has acknowledged the profound harm done to society and children by his heinous crime; (m) The offender enjoys strong, albeit strained, support from his spouse and his adult relatives; and (n) His motive in committing the offence was boredom, not malice or greed;

4.2: Aggravating Factors

[22] Aggravating circumstances are present including the following:

(a) The nature of the offence is grave; (b) The moral responsibility of the offender is high, but not as high as it could be if the images were prima facie pornographic; (c) The offender displays a moderate risk of reoffending, although this can be ameliorated with ongoing personal and couples counselling and treatment; (d) The collection of child pornography while not especially large, is troubling for several reasons: i. It is not small; ii. It involves numerous children; and iii. It involves a wide range of ages of children. (e) The collection of stories provide detailed depictions of horrific abuse including masturbation and oral sex of very young as well as older children; and (f) The story collection is capable of encouraging readers to commit crimes against children by demeaning and objectifying them.

4.3: Other Relevant Factors on Sentence

[23] The terms of his bail were strict and, for the first three months, prevented him from seeing his children, although the intervention of the Children’s Aid Society superseded the impact of this term because their investigation required family separation until such time as they deemed reintegration safe. Other terms have included unabated supervision by sureties, and restricted use of internet capable devices, which in this modern world often amounts to much more than inconvenience.

[24] The offender has complied with not only all terms of bail but has been thoroughly cooperative with the child protection authorities. The effects of bail are a relevant consideration in determining the appropriate length of sentence.

[25] His (a) compliance with bail, (b) cooperation with the Children’s Aid Society, and (c) acceptance and participation in rehabilitation raise confidence that the offender will comply with any orders made by this court.

5.0: APPLICABLE LEGAL PRINCIPLES

[26] When counsel made their submissions, they provided numerous cases setting out the principles in dealing with crimes against children. Between their submissions and today the Ontario Court of Appeal released its judgment in R. v. Pike, 2024 ONCA 608. Between paragraphs 143 and 182, the Court’s judgment provides a comprehensive, extensive, and clear discussion of relevant sentencing principles for cases of possession of child pornography.

[27] I provide a summary of the principles set out in Pike as they apply to the case at bar:

(a) The harms and wrongs caused by possessing child pornography include:

• Child pornography is a global cancer perpetuated by easy access and distribution caused by the internet;
• Increased access to child pornography incentivizes victimization of children;
• People who possess child pornography violate the dignity and autonomy of its victims;
• People who possess child pornography directly invade the privacy of children;
• People who possess child pornography inflict severe emotional harm to children including but not limited to powerlessness, humiliation, and long term psychological harm;
• People who possess child pornography instigate and, overtly or otherwise, encourage the production and distribution of child pornography meaning that people who possess this material share responsibility for the abuse and exploitation of victims;
• Possession of child pornography incites either the offender or others to commit or facilitate other sexual crimes against children; and
• People who possess child pornography perpetuate pernicious messages, ideas, and images that attack the essential humanity and equality of children.

(b) Possession of child pornography is a grave offence for all the reasons just explained. This requires prioritizing deterrence and denunciation when sentencing such offenders. (c) The degree of responsibility of those who possess child pornography is very high because they intentionally exploit vulnerable persons or recklessly place children at real risk of irreparable harm. Perpetrators demonstrate disturbing lack of empathy and compassion by collecting, viewing, and often sharing images and stories without considering the impact on, or the plight of, the victims they depict. Furthermore, such a crime is always deliberate, never accidental or passive, and almost always involves repeated or continuing behaviour, often over protracted periods of time. (d) Factors to consider in determining the appropriate sentence include:

• whether the offender has a criminal record.
• whether production or distribution is involved.
• the nature of the collection including its size, age of victims, depictions of violence and degree of depravity.
• the risk to children created by the offender.
• whether financial considerations are present.
• The number of different children depicted is more aggravating that the collection size.
• Level of organization of child pornography is also aggravating.
• Videos are more aggravating than still images.
• The nature of the activity and physical intrusion can cause additional aggravation on sentence.
• Use of fictional or imagined images are less aggravating that exploitation of real people.
• Duration of the offence and collaboration with others are also aggravating factors.
• Even where there is no exchange of money, possessors encourage producers to create and distribute child pornography.
• Good character, employment, or stigma are less significant mitigating factors in child pornography than other crimes.

(e) The upper range for possession of child pornography is now 5 years. (f) Conditional sentences are available for offences of possession of child pornography. Assuming the correct sentence is under two years and the offender does not pose a risk if serving a sentence in the community, the court must consider whether a conditional sentence is proportionate to the particular offence and the particular offender. Compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors can justify a conditional sentence. Multiple seemingly unexceptional circumstances may, when taken together, render a conditional sentence appropriate.

6.0: ANALYSIS

[28] Bearing in mind the applicable legal principles set out in Pike, above, and in consideration of all the circumstances of this offender and this offence I make the following findings. First, the appropriate sentence is under two years. I conclude this primarily on the mitigating and other relevant factors present. Second, I am satisfied that this offender would not be a danger to the public if subject to a conditional sentence.

[29] The more difficult question is whether a conditional sentence in this case is a sentence proportionate in the circumstances. For reasons I will explain, I believe it is.

[30] All of the harms and wrongs described by the court in Pike are present. The offence is a very, very serious crime. The offender’s moral responsibility is high but attenuated by several important considerations. First, the images are not inherently pornographic or violent: they show children either in diapers or having them changed, albeit some of the children are far too old to be wearing them in the first place. Those pictures of older children in diapers are good illustrations of exploitation and humiliation in such matters. Second, there is no evidence that identifying features are present for any of the children. Third, there is no evidence the offender bought, sold, or distributed the images. Fourth, he is the product of childhood trauma which appears to have been a contributing factor. Fifth, there is no evidence of motivation for profit. However, it must be emphasized that his level of culpability remains huge, aggravated by his long-term collection of images and the creation and sharing of harmful fantasies.

[31] The collection is troubling due not only to the actual depictions therein, but by its size (which is not small), the number of children involved, and the wide range in ages of those children. He was not involved in the creation or distribution of materials nor was any of it monetized. His sexual intent for possessing them is what converted potentially benign pictures and videos into child pornography. The images are not inherently violent nor do they show sexual conduct. In the unique circumstances here, the collection per se is not as aggravating as it could be. However, its very existence and the time involved (nearly one year) are deeply concerning.

[32] The offender has no prior involvement in the criminal justice system. Once caught, he confessed immediately and was fully cooperative with law and child protection authorities. He pled guilty without the need for trial.

[33] With treatment and counselling, the rehabilitative prospects of this offender are reasonably good. He has insight into the harm he has caused and he expressed genuine remorse. He has strong family support and is involved with professional services to explain and treat his pedophilic interests. Despite the emphasis on denunciation and deterrence, rehabilitation cannot be ignored when considering the appropriate sentence – conditional or otherwise – for even as grave a crime as this.

[34] In my view, the matrix of multiple mitigating, aggravating, and other relevant factors present in this case collectively render a conditional sentence proportionate even though most of the mitigating and other factors are not especially compelling on their own.

[35] In the result, a conviction will register. The offender will be subject to a conditional sentence of twenty-two months. He will be subject to house arrest and electronic monitoring for the entirety of the sentence. I will hear from counsel as to exceptions, if any, to house arrest and what other, if any, terms should be included in the conditional sentence.

[36] There will be the following ancillary orders:

• a twenty-year SOIRA Order,
• a ten-year 161 Order including internet restrictions,
• a primary DNA order,
• a order of forfeiture, and
• a Victim Surcharge of $200 payable in 60 days.

[37] Should any of these ancillary orders require the input of counsel, I will hear their submissions.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice